Pension Trust Fund For Operating Engineers et al v. Chevreaux Aggregates, Inc. et al

Filing 26

ORDER CONTINUING CASE MANAGEMENT CONFERENCE AND DEADLINES: A Joint Updated Case Management Statement (with new information only) due by 5/17/2012. Case Management Conference set for 5/24/2012 at 10:30 AM in Courtroom C, 15th Floor, 450 Golden Gate Avenue, San Francisco. Signed by Magistrate Judge Laurel Beeler on 3/30/2012. (ls, COURT STAFF) (Filed on 3/30/2012)

1 RICHARD C. JOHNSON (SBN 40881)
SHAAMINI A. BABU (SBN 230704)
2 SALTZMAN & JOHNSON LAW CORPORATION
44 Montgomery Street, Suite 2110
3 San Francisco, CA 94104
[phone]
4 [phone] – Facsimile
[e-mail]
5 [e-mail]
6 Attorneys for Plaintiffs
7 DENNIS R. MURPHY, (SBN 051215)
MURPHY AUSTIN ADAMS SCHOENFELD LLP
8 304 “S” Street (95811-6906)
Post Office Box 1319
9 Sacramento, CA 95812-1319
[phone]
10 [phone] – Facsimile
[e-mail]
11
Attorneys for Defendants Chevreaux Family
12 Irrevocable Credit Trust of 1973 and Martha
E. Chevreaux Revocable Trust of 2004
13
UNITED STATES DISTRICT COURT
14
FOR THE NORTHERN DISTRICT OF CALIFORNIA
15
PENSION TRUST FUND FOR OPERATING
Case No.: CV 11-3285 LB
16 ENGINEERS; et al.,
JOINT CASE MANAGEMENT
17
Plaintiffs,
CONFERENCE STATEMENT; JOINT
REQUEST TO CONTINUE CASE
18 vs.
MANAGEMENT CONFERENCE; AND
[PROPOSED] ORDER
19 CHEVREAUX AGGREGATES, INC., et al.,
Complaint: July 5, 2011
20
Defendants.
April 5, 2012
Date:
21
Time:
10:30 a.m.
22
Ctrm:
4, 3rd Floor
23

Judge:

The Honorable Laurel Beeler

24
In accordance with Rule 16 and 26(f) of the Federal Rules of Civil Procedure, Northern
25
District Local Rule 16-9, and the Standing Order for All Judges of the Northern District of
26
California, the parties hereto submit this Joint Case Management Conference Statement.
27
///
28
1
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JOINT CMC STATEMENT
CASE NO. CV11-3285 LB

1 Introduction
2

This action arises under the Employee Retirement Income Security Act of 1974

3 (“ERISA”), as amended by the Multiemployer Pension Plan Amendments Act of 1980
4 (“MPPAA”) (29 U.S.C §§1001-1461 (1982)). Defendant Chevreaux Aggregates, Inc. (“CAI”)
5 was a participating employer in the Operating Engineers’ Pension Trust Fund (“Fund”). On or
6 about January 31, 2010, Defendant CAI withdrew from participation in the Fund which thereby
7 made it subject to withdrawal liability under ERISA §4203(a) (29 U.S.C. §1383(a)). Defendant
8 CAI was assessed withdrawal liability of $1,179,242.00 by the Trust on June 21, 2010, and was
9 notified of its increased withdrawal liability of $1,184,169 on January 6, 2011.
10

Plaintiff alleges that Defendants Chevreaux Concrete, Inc. (“CCI””), Chevreaux Family

11 Irrevocable Credit Trust of 1973 (“1973 Trust”), and Martha E. Chevreaux Revocable Trust of
12 2004 (“2004 Trust”) are members of the same control group as Defendant CAI and all such
13 entities are treated as a single employer (the “Control Group”). If they are engaged in a trade or
14 business and are members of the Control Group, they are jointly and severally liable for the
15 withdrawal liability under ERISA §4001(b)(1) (29 U.S.C. §1301(b)) and IRC §414(c). Defendant
16 1973 Trust and Defendant 2004 Trust deny they are members of the Control Group, and deny that
17 at any relevant time either engaged in a trade or business. Plaintiffs seek a money judgment
18 against Defendants for an award of the entire assessed withdrawal liability plus interest, liquidated
19 damages, attorneys’ fees and costs. Plaintiffs also seek injunctive relief against Defendants to
20 require them to provide adequate information to ascertain other members of Defendants’ Control
21 Group under ERISA §4001(b)(1) (29 U.S.C. §1301(b)).
22 Jurisdiction
23

Subject matter jurisdiction is proper under 28 U.S.C. § 1331 since this action involves

24 withdrawal liability owed under ERISA as amended by MPPAA.
25 Parties
26

A.

Fund

27

The Fund is an “employee benefit plan” as defined in ERISA §3(3) (29 U.S.C. §1002(3)),

28 an “employee benefit pension plan” as defined in of ERISA §3(2) (29 U.S.C. §1002(2)); and a
2
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JOINT CMC STATEMENT
CASE NO. CV11-3285 LB

1 “multiemployer plan” as defined in ERISA §§3(37) and 4001(a)(3) (29 U.S.C. §§1002(37) and
2 1301(a)(3)). Plaintiffs F.G. Crosthwaite and Russell E. Burns are members of the Board of
3 Trustees (“Trustees”) of the Fund, which is the “plan sponsor” within the meaning of ERISA
4 §§3(16)(B)(iii) and 4001(a)(10)(A) (29 U.S.C. §§1002(16)(B)(iii) and 1301(a)(10)(A)).
5

B.

Defendant CAI

6

Defendant CAI is a California corporation with its businesses located at 890 Grass Valley

7 Highway, Auburn, CA, and 2701 Combie Road, Meadow Vista, CA at all relevant time periods.
8 Defendant CAI is an employer within the meaning of ERISA §3(5) of (29 U.S.C. §1002(5)) and
9 National Labor Relations Act (“NLRA”) §2(2) (29 U.S.C. §152(2)). Default was entered against
10 Defendant CAI on August 10, 2011. Docket No. 14.
11

C.

Defendant CCI

12

Defendant CCI is a California corporation with its principal place of business located at

13 890 Grass Valley Highway, Auburn, CA, at all relevant time periods. Defendants CAI and CCI
14 are members of the same controlled group and treated as a single employer pursuant to ERISA
15 §4001(b)(1) (29 U.S.C. §1301(b)) and thus, are jointly and severally liable for the withdrawal
16 liability. Default was entered against Defendant CAI on August 10, 2011. Docket No. 14.
D.

17

Defendant 1973 Trust

Defendant Martha Chevreaux is named in this action in her capacity as the trustee of

18

19 Defendant 1973 Trust.1 Defendant Martha Chevreaux is the income of Defendant 1973 Trust with
20 the power of appointment and said trust’s principal can be used for her benefit. Plaintiff alleges
21 that as a result of the attribution rules under IRC §414(c) Defendants 1973 Trust owns a
22 controlling interest and has effective control of CAI and therefore, Defendants 1973 Trust and
23 Defendant CAI are within the same Control Group. Plaintiffs are currently conducting discovery
24 to determine the scope of any trades or businesses operated by Defendant 1973 Trust. Defendant
25 alleges the 1973 Trust at no relevant time has been involved in a trade or business and has never
26
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1

Defendants recently provided the 1973 Trust Agreement and related documents indicating that Martha Chevreaux
resigned as Trustee and Judy Simpson, James Merrill and Dorothy Miller became Trustees effective February 26,
1999.

3
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JOINT CMC STATEMENT
CASE NO. CV11-3285 LB

1 held any interest in CAI and/or CCI. It denies it is a member of the Control Group.
2

E.

Defendant 2004 Trust

3

Defendant Martha Chevreaux is named in this action in her capacity as the trustee of

4 Defendant 2004 Trust.2 Defendant Martha Chevreaux is the income beneficiary of Defendant
5 2004 Trust with the power to revoke it and said trust’s principal can be used for her benefit.
6 Plaintiff alleges that as a result of the attribution rules under IRC §414(c), Defendants 2004 Trust
7 and 1973 Trust own a controlling interest and has effective control of CAI and therefore,
8 Defendants 2004 Trust and Defendant CAI are within the same Control Group. Plaintiff alleges
9 that the 2004 Trust owned multiple rental properties including, but not limited to, 890 Grass
10 Valley Highway, Auburn, CA, where Defendants CAI and CCI conducted business at all relevant
11 time periods. Plaintiff alleges that Defendant 2004 Trust entered into a lease with Defendant CCI
12 on July 1, 2005. Plaintiff alleges that Defendant 2004 Trust also owned real property identified as
13 APN 038-123-011, APN 038-123-004, APN 054-070-049, APN 054-102-041, and 44701
14 Woodstock Drive, Mendocino, CA, which it leased to CCI and other entities. Thus, Plaintiffs
15 contend that Defendant 2004 Trust is a trade or business since it leased real property to Defendant
16 CAI and CCI and other entities or persons.
Defendant 2004 Trust admits it owned property which it leased to CCI on July 1, 2005 and

17

18 alleges that lease was not in effect at the time of withdrawal. It denies it leased any other property
19 to anyone. It denies it was involved in a trade or business at the relevant times herein and denies it
20 was part of the Control Group.
21 Facts
22

Plaintiffs assert as follows:

23

(a)

Defendant CAI was a participating employer in the Fund pursuant to a collective

24 bargaining agreement (“Bargaining Agreement”) with the Operating Engineers Local Union No. 3
25 (“Union”).

Defendant CAI was obligated to and did make contributions to the Fund on behalf of

26 its employees that were covered under that Bargaining Agreement. Defendant CAI last reported
27

2

Defendants recently provided the 2004 Trust Agreement and related documents indicating that Martha Chevreaux

28 resigned as Trustee and Judy Simpson, James Merrill and Dorothy Miller became Trustees effective January 5, 2011.
4
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JOINT CMC STATEMENT
CASE NO. CV11-3285 LB

1 contributions to the Fund for covered work performed by its employees in January 2010. Thus, on
2 or about January 31, 2010, Defendant CAI made a complete withdrawal from the Fund under
3 ERISA §4203(a) (29 U.S.C. §1383(a)) which thereby made it subject to withdrawal liability.
4

(b)

By letter to CAI dated June 21, 2010, the Fund assessed withdrawal liability of

5 $1,179,242 against Defendant CAI payable monthly in the sum of $11,939.25 starting August 1,
6 2010. By letter dated September 21, 2010, Defendant CAI requested review of its withdrawal
7 liability on the basis that it was incorrectly calculated. On September 8, 2010, November 12,
8 2010, December 2, 2010, February 3, 2011, and April 26, 2011, the Fund produced various
9 documents in response to Defendant CAI’s request for review.
10

(c)

Defendants failed to make any withdrawal liability installment payments. As such,

11 the Fund notified Defendant CAI on November 12, 2010, that Defendant CAI would be in default
12
13

if it failed to cure its delinquent installment payments within sixty (60) day pursuant to ERISA
§4219(c)(5)(A) (29 U.S.C. §1399(c)(5)(A)).

14
15
16

(d)

On January 6, 2011, the Fund notified Defendants CAI and CCI that their

withdrawal liability had been recalculated for the sum of $1,184,169 based on additional

17 information made available to the actuary for the Fund. The Fund confirmed that the original
18 quarterly payment amount and payment schedule remained unchanged.
19
20

(e)

Defendant CAI initiated arbitration under ERISA §4221(a) (29 U.S.C. §1401(a)) on

January 11, 2011, with the American Arbitration Association (“AAA”). Thereafter, on May 20,

21
2011, counsel for Defendant CAI advised AAA and Plaintiffs’ counsel that it was withdrawing as
22
23

counsel for Defendant CAI.

As a result, the Fund accelerated the withdrawal liability of

24 $1,184,169 on the same day pursuant to ERISA §4219(c)(5) (29 U.S.C. §1399(c)(5)) and Section
25 XII of the Fund’s Withdrawal Liability Assessment Procedures since there was substantial
26 likelihood that Defendants would default.
27
28

(f)

On June 6, 2011, AAA closed its file based on a notice from Defendant CAI that it

withdrew its arbitration demand approximately one (1) year after it was assessed. By withdrawing
JOINT CMC STATEMENT
5
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CASE NO. CV11-3285 LB

1 their arbitration claim Defendants waived their affirmative defenses and therefore, the assessed
2 withdrawal liability is binding on Defendants under ERISA §4221(b)(1) (29 U.S.C. §1399(b)(1)).
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(g)

As of the filing of this Joint CMC Statement, the Defendants have not made any

withdrawal liability payments to the Fund and thus, are still in default under ERISA
§4219(c)(5)(B) (29 U.S.C. §1399(c)(5)(B)) and 29 CFR §4219.31.
Defendants assert as follows:
(a)

Defendant 1973 Trust was not a participating employer in the Fund.

(b)

Defendant 1973 Trust denies it ever “withdrew” from the Fund.

(c)

Defendant 1973 Trust denies it was ever assessed with unfunded liability and

denies it was ever provided notice that withdrawal liability was assessed against it.
(d)

Defendant 1973 Trust denies it was ever provided a notice that withdrawal liability

was ever recalculated.
(e)

Defendant 1973 Trust denies it was ever a party to any arbitration or given notice

that there were arbitration proceedings being conducted and/or terminated.
(f)

Defendant 1973 Trust denies it ever engaged in leasing property to anyone and ever

engaged in a trade or business.
(g)

Defendant 1973 Trust denies it ever held any interest in CAI and/or CCI.

(h)

Defendant 1973 Trust denies it is a member of any Control Group.

(i)

Defendant 2004 Trust was not a participating employer in the Fund.

(j)

Defendant 2004 Trust denies it ever “withdrew” from the Fund.

(k)

Defendant 2004 Trust denies it was ever assessed with unfunded liability and

denies it was ever provided notice that withdrawal liability was assessed against it.
(l)

Defendant 2004 Trust denies it was ever provided a notice that withdrawal liability

was ever recalculated.
(m)

Defendant 2004 Trust denies it was ever a party to any arbitration or given notice

that there were arbitration proceedings being conducted and/or terminated.
(n)

Defendant 2004 Trust denies it was leasing property to CAI and/or CCI at the time

of withdrawal. It also denies leasing any other properties.
6
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JOINT CMC STATEMENT
CASE NO. CV11-3285 LB

1

(o)

Defendant 2004 Trust denies it was engaged in a trade or business at the time of

2 withdrawal.
3

(p)

Defendant 2004 Trust denies it was a member of a Control Group.

4 Legal Issues
5

Plaintiffs assert the following:

6

(a)

The cessation of Defendant CAI’S obligation to contribute to the Fund constituted

7 a complete withdrawal under ERISA § 4203(a) which thereby made Defendant CAI liable to the
8 Fund for withdrawal liability.
9

(b)

Notice to Defendant CAI for the withdrawal liability constitutes notice to all

10 members within its Control Group.
11
(c)

Defendants waived their right to contest the withdrawal liability and waived all

12
affirmative defenses by withdrawing their arbitration claim in accordance with ERISA §§
13
4219(b)(2) and 4221(b)(1) (29 U.S.C. §1399(b)(2) and 29 U.S.C. § 1401(b)(1)) and PBGC Reg.
14
§4221.3(d).
15
(d)

The Fund is entitled to the entire withdrawal liability in the sum of $1,184,169

16
pursuant to ERISA § 4219(c)(5) (29 U.S.C. §1399(c)(5)).
17
(e)

Defendants CCI and 2004 Trust are jointly and severally liable for the withdrawal

18
liability plus interest, liquidated damages, attorneys’ fees and costs on the basis that they are
19
members of the same Control Group as defined under ERISA § 4001(b) (29 U.S.C. § 1301(b)) and
20
IRC §414(c) and operated a trade or business. Similarly, Defendant 1973 Trust is jointly and
21
severally for the withdrawal liability if Plaintiffs discover that it operated a trade or business.
22
(f)

Plaintiffs are entitled to injunctive relief requiring Defendants to provide

23
documentation of all trades or businesses which are within their control group as defined under
24
ERISA § 4001(b) (29 U.S.C. § 1301(b)) and IRC §414(c).
25
Defendants assert the following:
26
(a)

Defendant 1973 Credit Trust is not engaged in a trade or business.

(b)

Defendant 2004 Trust was not engaged in a trade or business at the time CAI

27
28
withdrew from the Fund.
7
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JOINT CMC STATEMENT
CASE NO. CV11-3285 LB

1

(c)

Neither the 1973 Trust nor the 2004 Trust are members of a Control Group.

2

(d)

Neither the 1973 Trust nor the 2004 Trust received required notices.

3

(e)

Plaintiff is not entitled to any relief.

4 Motions
5

Plaintiffs anticipate filing a motion for summary judgment against the Defendants after

6 conducting a factual investigation and discovery if this matter is not resolved through document
7 exchange and negotiations. One or more discovery motions may be necessary, but that parties will
8 attempt to resolve such matters amicably and without need the Court’s intervention. Plaintiffs
9 expect to file, as necessary, motions in limine regarding evidentiary issues prior to trial. Plaintiffs
10 anticipate that all dispositive motions and all non-discovery motions will be heard by or before the
11 final pretrial conference.
12

Defendants anticipate filing a motion for Summary Judgment.

13 Amendment of Pleadings
14

Plaintiffs may request the Court for leave to amend the Complaint, if necessary, after

15 completing discovery to accurately name the personal trusts involved in this action and any
16 additional members of Defendants’ control group under ERISA § 4001(b) (29 U.S.C. § 1301(b))
17 and IRC §414(c).
18 Evidence Preservation
19

The parties are taking necessary steps to preserve evidence relevant to the issues

20 reasonably evident in this matter. These steps include the preservation of all known evidence, and
21 instructions to personnel of the parties to retain such evidence should it come to their attention.
22 Discovery
23

Plaintiffs propose the following discovery plan in accordance with Fed. R. Civ. P. 26(f):

24

(a)

Rule 26(f) Disclosures (Fed. R. Civ. P. 26(f)(2)(A)): Plaintiffs and Defendants

25 1973 Trust and 2004 Trust have exchanged Initial Disclosures under Fed. R. Civ. Proc. Rule 26.
26

(b)

Written Discovery: Defendants 1973 Trust and 2004 Trust have responded to

27 Plaintiffs’ Request for Production of Documents, Set One, and Special Interrogatories, Set One.
28 Plaintiffs will meet and confer with their counsel regarding the adequacy of those responses.
8
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JOINT CMC STATEMENT
CASE NO. CV11-3285 LB

1 Plaintiffs have responded to Defendants Request for Production of Documents, Set One, and
2 Special Interrogatories, Set One.
3

(c)

Subjects on Which Further Discovery May be Needed (Fed. R. Civ. P. 26(f)(2)(B)):

4 The parties anticipate discovery will be necessary regarding the following issues, including but not
5 limited to:
6

(1)

That Defendant CCI is within the same control group as Defendant CAI.

7

(2)

That Defendant 2004 Trust is within the same control group as Defendant

8 CAI and operated a trade or business.
9
(3)

If Defendant 1973 Trust operated a trade or business.

(4)

Whether the shareholders of Defendants CAI and Defendant CCI received

10
11

12 any distributions upon the sale and dissolution of said entities.
(5)

13
14

(d)

The assets of Defendants and its control group members.

Electronically Stored Information (Fed. R. Civ. P. 26(f)(2)(C)): The parties do not

15 foresee any issues related to the discovery of electronic information. To the extent any exists, the
16 parties believe it should be produced in electronic form.
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27
28

(e)

Claims of Privilege or of Protection (Fed. R. Civ. P. 26(f)(2)(D)): The parties do

not believe any special procedures are necessary to allow assertions of privilege after production.
The parties reserve the right to protect or compel relevant information and documents in
accordance with applicable law.
(f)

Changes to Limitations on Discovery (Fed. R. Civ. P. 26(f)(2)(E)): The parties

request no changes to be made to the limitations on discovery at this time.
(g)

Other Orders (Fed. R. Civ. P. 26(f)(2)(F)): The parties are currently unaware of the

need for any such orders.
(h)

The parties anticipate that discovery will be completed within the time specified

herein. The parties do not believe that discovery should be conducted in phases. At this time, the
parties do not currently anticipate the need for any orders under Rule 26 or 29-37 of the Federal
Rules of Civil Procedure.
9
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JOINT CMC STATEMENT
CASE NO. CV11-3285 LB

1 Class Actions
1.

2

Inapplicable.

3 Related Cases
2.

4

There are no pending related cases.

5 Relief
6

Plaintiffs seek the following damages, and provide the following description of the bases

7 on which damages are calculated: (1) Plaintiffs seek unpaid withdrawal liability of $1,184,169;
8 (2) plus interest; (3) plus liquidated damages equal to the greater of (a) the accrued interest on the
9 unpaid withdrawal liability, or (b) twenty percent (20%) of the unpaid withdrawal liability; and (4)
10 Plaintiffs’ attorneys’ fees and cost. Plaintiffs also seek injunctive relief in the form of a mandate
11 that Defendants provide documentation of all trades or businesses which are within Defendants’
12 control group as defined under ERISA § 4001(b) (29 U.S.C. § 1301(b)).
13 ADR Process
14

The parties participated in mediation on March 8, 2012, with mediator Phillip Kelly and

15 were unable to resolve this dispute at mediation. Docket No. 23.
16 Consent to Magistrate Judge for All Purposes
17

The parties have consented to Magistrate Judge Laurel Beeler for all purposes.

18 Other References
19

The parties do not believe that the case is suitable for reference to binding arbitration or

20 any other reference.
21 Narrowing of Issues
22

The parties may be able to narrow the issues by agreement, and may be able to expedite the

23 presentation of evidence at trial. The parties believe discussion of these issues at the present time
24 is premature.

The parties do not currently request that any issues, claims, or defenses be

25 bifurcated.
26 Expedited Schedule
27

The parties do not believe this is the type of case that can be handled on an expedited basis

28 with streamlined procedures.
10
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JOINT CMC STATEMENT
CASE NO. CV11-3285 LB

1 Scheduling
2

The parties believe the following general guidelines are appropriate:

3

(a)

Expert Witness Disclosure by Plaintiffs: 150 days prior to Pretrial Conference;

4

(b)

Expert Witness Disclosure by Defendants: 150 days prior to Pretrial Conference;

5

(c)

Discovery Cut Off: 90 days prior to Pretrial Conference;

6

(d)

Law and Motion Cut Off: 60 days prior to Pretrial Conference;

7

(e)

Settlement Conference: 45 days prior to Trial;

8

(f)

Final Pretrial Conference: 30 days prior to Trial;

9

(g)

Trial: TBD.

The parties respectfully reserve the right to seek modification of the above-proposed

10

11 schedule as this action develops.
12 Trial
The parties are willing to have a Court trial to expedite the adjudication of claims. The

13

14 expected length of trial is 2-5 court days.
15 Disclosure of Non-Party Interested Entities or Persons
Plaintiffs filed their Certification of Interested Entities or Persons on July 5, 2011. Docket

16

17 No. 2. Plaintiffs certified that, pursuant to Civil L.R. 3-16, other than the named parties, there is
18 no such interest to report.
19 CMC
Given that the parties recently participated in mediation and will continue conducting

20

21 discovery the parties respectfully request that the Case Management Conference calendared for
22 April 5, 2012, be continued to May 17, 2012. The continuance will allow the parties to focus on
23 ///
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JOINT CMC STATEMENT
CASE NO. CV11-3285 LB

1 further discovery thereby allowing for a more productive Case Management Conference after
2 more information is made available.
3 Dated: March 29, 2012

SALTZMAN & JOHNSON LAW CORPORATION

4
5

By: _____________/S/________________
Shaamini A. Babu
Attorney for Plaintiffs

6
7
8 Dated: March 29, 2012

MURPHY AUSTIN ADAMS & SCHOENFELD

9
10

By: _____________/S/________________
Dennis R. Murphy
Attorneys for Defendants

11
12
13

ORDER

BASED ON THE FOREGOING and GOOD CAUSE APPEARING, the Case
Management Conference currently set for April 5, 2012, is continued to May 17, 2012, at 10:30
15 a.m. All related deadlines are extended accordingly. An updated Joint Case Management Conference
14

Statement (with new information only) due by May 17, 2012.

16 IT IS SO ORDERED.

May 24

17
18
19 Date: March 30, 2012
20

________________________________________
THE HONORABLE LAUREL BEELER
UNITED STATES MAGISTRATE JUDGE

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JOINT CMC STATEMENT
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