Crosthwaite et al v. Brisbin

Filing 11

ORDER GRANTING 10 ACKNOWLEDGMENT AND JUDGMENT PURSUANT TO STIPULATION. Signed by Judge Jeffrey S. White on 11/15/11. (jjoS, COURT STAFF) (Filed on 11/15/2011)

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1 Michele R. Stafford, Esq. (SBN 172509)
Blake E. Williams, Esq. (SBN 233158)
2 SALTZMAN & JOHNSON LAW CORPORATION
44 Montgomery Street, Suite 2110
3 San Francisco, CA 94104
[phone] - Telephone
4 [phone] – Facsimile
[e-mail]
5 [e-mail]
6 Attorneys for Plaintiffs
7
8
UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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11
12

F.G. CROSTHWAITE and RUSSELL E.
BURNS, in their respective capacities as Trustees
of the OPERATING ENGINEERS’ HEALTH
AND WELFARE TRUST FUND, et al.

NOTICE OF ACKNOWLEDGMENT
AND JUDGMENT PURSUANT TO
STIPULATION

Plaintiffs,

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14

Case No.: C11-4924 JSW

v.

15
16

JOHN CLARK BRISBIN, individually and dba
CONSTRUCTION DEVELOPMENT
SYSTEMS,

17
Defendant.
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19
IT IS HEREBY STIPULATED and AGREED (the “Stipulation”) by and between the
20
parties hereto, that Judgment shall be entered in the within action in favor of the Plaintiffs
21
OPERATING ENGINEERS’ HEALTH AND WELFARE TRUST FUND, et al. (collectively
22
“Plaintiffs” or “Trust Funds”) and against Defendant JOHN CLARK BRISBIN, individually and
23
dba CONSTRUCTION DEVELOPMENT SYSTEMS, and/or alter egos and/or successor entities
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(“Defendant”), as follows:
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1.

Defendant entered into a valid Collective Bargaining Agreement with the Operating

26
Engineers Local 3 Trust Funds (hereinafter "Bargaining Agreement").

This Bargaining

27
Agreement has continued in full force and effect to the present time.
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1

2.

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John Clark Brisbin, individually and dba Construction Development Systems,

2 hereby acknowledges that he is authorized to receive service and has received the following
3 documents in this action: Summons; Complaint; Dispute Resolution Procedures in the Northern
4 District of California; Order Setting Initial Case Management Conference and ADR Deadlines;
5 Case Management Standing Order – Magistrate Judge Maria-Elena James; Standing Order for All
6 Judges of the Northern District of California; Instructions for Completion of ADR Forms
7 Regarding Selection of an ADR Process; Stipulation and [Proposed Order] Selecting ADR
8 Process; Notice of Need for ADR Phone Conference; ADR Certification by Parties and Counsel;
9 ECF Registration Information Handout; Welcome to the U.S. District Court; Notice of
10 Assignment to a Magistrate Judge, Consent, Declination; Certification of Interested Entities or
11 Persons Pursuant to Civil Local Rule 3-16; Declination to Proceed Before a Magistrate Judge and
12 Request for Reassignment to a United States District Judge.
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14

3.
4/11

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Defendant has become indebted to the Trust Funds as follows:
Contribution balance
20% Liquidated damages
10% p/a Interest (5/26/11-10/3/11)

$4,570.24
$914.05
$164.03
$5,648.32

5/11

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18

Contribution balance
20% Liquidated damages
10% p/a Interest (6/26/11-10/3/11)

$14,832.86
$2,966.57
$406.38
$18,205.81

6/11

Contributions
20% Liquidated damages
10% p/a Interest (7/26/11-10/3/11)

$14,225.75
$2,845.15
$272.82

7/11

Contributions
20% Liquidated damages
10% p/a Interest (8/26/11-10/3/11)

$15,052.74
$3,010.55
$160.84

8/11

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20% Liquidated damages
10% p/a Interest 9/26/11-10/3/11)

$1,051.58
$11.42

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21

$17,343.72

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$18,224.13

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24
25
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$1,063.00
$9,659.07
$1,043.85
$574.00
$350.00
$72,111.90

Liquidated damages (6/10-3/11)
Interest (6/10-3/11)
Attorneys’ fees (9/14/11 -10/3/11)
Cost of filing suit
TOTAL
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1 4.

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Defendant shall conditionally pay the amount of $62,452.83, representing all above

2 amounts, less June 2010 through March 2011 liquidated damages in the amount of $9,659.07. This
conditional waiver is expressly conditioned upon Trustee approval upon timely compliance with
3
all of the terms of this Stipulation, as follows:
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(a)
On or before Friday, October 7, 2011, Defendant shall make a lump sum
5
payment in the amount of $5,257.89, representing August 2011 contributions.
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(b)
Thereafter, beginning on October 20, 2011, and on or before the 20th day of
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each month thereafter, for a period of twelve (12) months, through September 20, 2012, Defendant
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shall pay to Plaintiffs the amount of $5,600.00 per month.
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(c)
Payments may be made by joint check, to be endorsed to Plaintiffs prior to
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submission. Defendant shall have the right to increase the monthly payments at any time and there
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is no penalty for prepayment.
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(d)
Payments shall be applied first to unpaid interest and then to unpaid
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principal. The unpaid principal balance shall bear interest from October 4, 2011, at the rate of 10%
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per annum in accordance with the Collective Bargaining Agreement and Plaintiffs’ Trust
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Agreements.
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(e)
Checks shall be made payable to the Operating Engineers Local 3 Trust
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Funds, and delivered on or before each due date to Michele R. Stafford at Saltzman & Johnson
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Law Corporation, 44 Montgomery Street, Suite 2110, San Francisco, California 94104, or to such
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other address as may be specified by Plaintiffs.
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(f)
At the time that Defendant makes its 11th payment, Defendant may submit
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a written request for waiver of liquidated damages directed to the Board of Trustees, but sent to
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Saltzman and Johnson Law Corporation with the 11th payment. Defendant will be advised as to
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whether or not the waiver has been granted prior to the final payment hereunder. Such waiver will
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not be considered until and unless all other amounts are paid in full and Defendant’s account is
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current.
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(g)
Prior to the last payment pursuant to this Stipulation, Plaintiffs shall advise
27
Defendant, in writing, as to the final amount due, including interest and all additional attorneys’
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1 fees and costs incurred by Plaintiffs in connection with collection and allocation of the amounts
2 owed to Plaintiffs under this Stipulation. Defendant shall pay all additional attorneys’ fees and
3 costs regardless of whether or not Defendant defaults herein.

Any additional amounts due

4 pursuant to the provisions hereunder shall also be paid in full with the September 20, 2012
5 stipulated payment.
(h)

6

Failure to comply with any of the above terms shall constitute a default of

7 the obligations under this Agreement and the provisions of ¶11 shall apply.
8

5.

In the event that any check is not timely submitted or fails to clear the bank, or is

9 unable to be negotiated for any reason for which Defendant is responsible, Defendant shall be
10 considered to be in default of the Judgment entered. If this occurs, Plaintiffs shall make a written
11 demand to Defendant to cure said default within seven (7) days of the date of the notice from
12 Plaintiffs. If caused by a failed check, default will only be cured by the issuance of a replacement
13 cashier’s check, delivered to Saltzman and Johnson Law Corporation within the seven (7) day
14 cure period. If Defendant elects to cure said default, and Plaintiffs elect to accept future payments,
15 all such future payments shall be made by cashier’s check at Plaintiffs’ request. In the event
16 default is not cured, all amounts remaining due hereunder shall be due and payable on demand by
17 Plaintiffs.
18

6.

Beginning with contributions due for hours worked by Defendant’s employees

19 during the month of September 2011, due on October 15, 2011 and delinquent if not received by
20 the Trust Funds before the last business day of the month, and for every month thereafter until this
21 Judgment is satisfied, Defendant shall remain current in contributions due to Plaintiffs under
22 the current Collective Bargaining Agreement and under all subsequent Collective Bargaining
23 Agreements, if any, and the Declarations of Trust as amended. Defendant shall fax a copy of its
24 contribution report for each month, together with a copy of that payment check, to Michele R.
25 Stafford at 415-882 9287, prior to sending the payment to the Trust Fund office.
26

Failure to comply with these terms shall also constitute a default of the obligations under

27 this Agreement and the provisions of ¶ 11 shall apply.
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7.

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Defendant shall make full disclosure of all jobs on which it is working by providing

2 Plaintiffs with an ongoing and updated list of jobs including, but not limited to, the name and
3 address

of

the

job,

the

start

and

completion

dates,

the

identity

of

General

4 Contractor/Owner/Developer, and by providing certified payroll if it is a public works job. To the
5 extent that Defendant is working on a Public Works job, or any other job for which Certified
6 Payroll Reports are required, copies of said Reports will be faxed to Michele R. Stafford
7 concurrently with its submission to the General Contractor, Owner or other reporting agency.
8

These requirements are concurrent with, and in addition to, the requirements set forth

9 above. Defendant shall fax said updated list each month (or sooner if required elsewhere herein)
10 together with the contribution report (as required by ¶6 of this Stipulation) to Michele R. Stafford
11 at 415-882-9287, on before the 15th day of each month. Attached hereto as Exhibit A is a Job
12 Report Form which is to be completed each month.
13

8.

Failure to comply with any of the above terms shall constitute a default of the

14 obligations under this Agreement and the provisions of ¶11 shall apply. Any unpaid or late paid
15 contributions, together with 20% liquidated damages and 10% per annum interest accrued on the
16 contributions, pursuant to the Trust Agreements, shall be added to and become a part of this
17 Judgment and subject to the terms herein.

Plaintiffs reserve all rights available under the

18 applicable Bargaining Agreement and Declarations of Trust of the Trust Funds for collection of
19 current and future contributions, and for any additional past contributions not included herein as
20 may be determined by Plaintiffs, pursuant to employee timecards or paystubs, by audit, or other
21 means, and the provisions of this agreement are in addition thereto. Defendant specifically waives
22 the defense of the doctrine res judicata as to any such additional amounts determined as due.
23

9.

JOHN CLARK BRISIN acknowledges that he is the owner of, and doing business

24 as, Construction Development Systems. John Clark Brisbin specifically consents to the Court’s
25 jurisdiction as well as the use of a Magistrate Judge for all proceedings herein and further
26 acknowledges that any and all successors in interest to Construction Development Systems, as
27 well as any assigns, and/or affiliated entities and purchasers, shall be contractually bound by the
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1 terms of this Stipulation. This shall include any additional entities in which John Clark Brisbin is
2 an officer, owner or possesses any ownership interest. All such entities shall specifically consent
3 to the terms herein and to the Court’s jurisdiction, in writing at the time of any assignment,
4 affiliation or purchase.
5

10.

Prior to the last payment pursuant to this Judgment Pursuant to Stipulation,

6 Plaintiffs shall advise Defendant, in writing, as to the final lump sum amount due, including
7 interest and all additional attorneys’ fees and costs incurred by Plaintiffs in connection with
8 collection and allocation of the amounts owed to Plaintiffs under this Stipulation as set forth
9 above. Any additional amounts due pursuant to the provisions hereunder shall also be paid in full
10 with the September 20, 2012 stipulated payment.
11

11.

In the event that Defendant fails to make any payment required under ¶4 above, or

12 fails to remain current in any contributions under ¶6 above or fails to timely provide the monthly
13 documents required by ¶¶6 and 7 herein, and that such default is not timely cured, the following
14 will occur:
15

(a)

The entire balance of $72,111.90, as specified in ¶3, plus interest, but

16 reduced by principal payments received from Defendant, in addition to any unpaid contributions
17 then due plus 20% liquidated damages and 10% per annum interest on the unpaid or late paid
18 contributions, shall be immediately due and payable, together with any attorneys’ fees and costs
19 incurred during the term of this Stipulation;
20

(b)

A Writ of Execution may be obtained against Defendant without further

21 notice, in the amount of the unpaid balance, plus any additional amounts under the terms herein,
22 upon declaration by a duly authorized representative of the Plaintiffs setting forth any payment
23 theretofore made by or on behalf of Defendant and the balance due and owing as of the date of
24 default.
25

(c)

Defendant waives any notice of Entry of Judgment or of any Request for a

26 Writ of Execution upon default, and expressly waives all rights to stay of execution and appeal.
27 The declaration or affidavit of a duly authorized representative of Plaintiffs as to the balance due
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1 and owing as of the date of default shall be sufficient to secure the issuance of a Writ of
2 Execution, without notice to Defendant.
(d)

3

Defendant shall pay all additional attorneys’ fees and costs incurred by

4 Plaintiffs in connection with collection and allocation of the amounts owed by Defendant to
5 Plaintiffs under this Stipulation, whether or not a default occurs herein.
6

12.

Any failure on the part of the Plaintiffs to take any action against Defendant as

7 provided herein in the event of any breach of the provisions of this Stipulation shall not be deemed
8 a waiver of any subsequent breach by the Defendant of any provisions herein.
9

13.

In the event of the filing of a bankruptcy petition by the Defendant, the parties

10 agree that any payments made pursuant to the terms of this Judgment, shall be deemed to have
11 been made in the ordinary course of business as provided under 11 U.S.C. Section 547(c)(2) and
12 shall not be claimed by Defendant as a preference under 11 U.S.C. Section 547 or otherwise.
13 Defendant nevertheless represent that no bankruptcy filing is anticipated.
14

14.

Should any provision of this Stipulation be declared or determined by any court of

15 competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and
16 enforceability of the remaining parts, terms or provisions shall not be affected thereby and said
17 illegal, unenforceable or invalid part, term, or provision shall be deemed not to be part of this
18 Stipulation.
19

15.

This Stipulation is limited to the agreement between the parties with respect to the

20 delinquent contributions and related sums enumerated herein, owed by Defendant to the Plaintiffs.
21 This Stipulation does not in any manner relate to withdrawal liability claims, if any. Defendant
22 acknowledges that the Plaintiffs expressly reserve their right to pursue withdrawal liability claims,
23 if any, against Defendant and all of their control group members, as provided by the Plaintiffs’
24 Plan Documents, Trust Agreements incorporated into their Collective Bargaining Agreement, and
25 applicable laws and regulations.
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16.

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This Stipulation contains all of the terms agreed by the parties and no other

2 agreements have been made. Any changes to this Stipulation shall be effective only if made in
3 writing and signed by all parties hereto.
4

17.

This Stipulation may be executed in any number of counterparts and by facsimile,

5 each of which shall be deemed an original and all of which shall constitute the same instrument.
6

18.

Defendant represents and warrants that it has had the opportunity to be or have

7 been represented by counsel of their own choosing in connection with entering this Stipulation
8 under the terms and conditions set forth herein, that it has read this Agreement with care and is
9 fully aware of and represent that it enters into this Stipulation voluntarily and without duress.
10

19.

The parties agree that the Court shall retain jurisdiction of this matter until this

11 Judgment is satisfied.
12

Dated: October 19, 2011

13

JOHN CLARK BRISBIN, Individually and dba
CONSTRUCTION DEVELOPMENT
SYSTEMS

14
By: /S/John C. Brisbin
John Clark Brisbin

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16

Dated: October 20, 2011

OPERATING ENGINEERS’ HEALTH &
WELFARE TRUST FUND, et al.

17
18

By: /S/David E. Hayner
David E. Hayner
Collections Manager
Operating Engineers’ Health & Welfare
Trust Fund, et al.

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20
21
IT IS SO ORDERED.
22

IT IS FURTHER ORDERED that the calendar in this matter is vacated, and that the Court shall
23 retain jurisdiction over this matter.
November 15
24 Dated: _________________, 2011

_______________________________________
UNITED STATES DISTRICT COURT JUDGE

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1
EXHIBIT A

2

JUDGMENT PURSUANT TO STIPULATION

3

JOB REPORT FORM

4
5

*** Updated report must be faxed to Michele R. Stafford, Esq., at [phone]
th
on the 15 day of each month ***

6 Employer Name: CONSTRUCTION DEVELOPMENT SYSTEMS
7 Report for the month of _____________________ Submitted by: ________________________
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Project Name:
Project Address:
General Contractor:
General Contractor
Address/Tel. #:
Contract #:
Total Value of
Contract:
Work Start Date:

Project Name:
Project Address:
General Contractor:
General Contractor
Address/Tel. #:
Contract #:
Total Value of
Contract:
Work Start Date:

Project Name:
Project Address:
General Contractor:
General Contractor
Address/Tel. #:
Contract #:
Total Value of
Contract:
Work Start Date:

Date of Contract:

Work Completion Date:

Date of Contract:

Work Completion Date:

Date of Contract:

Work Completion Date:

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*** Attach additional sheets as necessary ***

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NOTICE OF ACKNOWLEDGMENT and JUDGMENT PURSUANT TO STIPULATION
CASE NO.: C11-4924 MEJ
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