Crosthwaite et al v. Aposhian Excavating Company, Inc.
Filing
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ORDER Requiring Supplemental Declaration re 36 MOTION for Default Judgment. Signed by Judge Thelton E. Henderson on 02/12/14. (tehlc2, COURT STAFF) (Filed on 2/12/2014)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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F.G. CROSTHWAITE, et al.,
Plaintiffs,
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v.
APOSHIAN EXCAVATING
COMPANY, INC.,
Case No. 13-cv-00363-TEH
ORDER REQUIRING
SUPPLEMENTAL DECLARATION
Defendant.
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Plaintiffs move this Court for a default judgment and attorneys’ fees. Plaintiffs
United States District Court
Northern District of California
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operate the trust funds for the Operating Engineers Local Union No. 3 of the International
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Union of Operating Engineers, AFL-CIO, which include the Operating Engineers Pension
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Trust Fund, Operating Engineers and Participating Employers Pre-Apprentice, Apprentice,
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and Journeyman Affirmative Action Training Fund for Utah, Operating Engineers’ Health
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and Welfare Trust Fund for Utah, Operating Engineers’ Vacation and Holiday Pay Plan,
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Pensioned Operating Engineers’ Health and Welfare Trust Fund (collectively, the
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“Funds”). These funds are organized pursuant to the provisions of Section 302(c)(5),
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302(c)(6), and 302(c)(9) of the Labor Management Relations Act of 1947. 29 U.S.C. §
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186(c)(5), 186(c)(6), and 186(c)(9).
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On January 25, 2013, Plaintiffs filed a complaint pursuant to the Employee
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Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 502(g)(2)(A) and
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1132(g)(2)(A), alleging that Defendant violated a collective bargaining agreement by
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failing to make regular and timely contributions to the Funds. Plaintiffs were unable to
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effect service of process on Defendant, and on September 6, 2013, the Court granted
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Plaintiffs’ ex parte application for service by publication. At no time since the initiation of
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the lawsuit or after service by publication has Defendant answered the complaint.
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Plaintiffs now seek default judgment, including monetary damages and attorneys’ fees,
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which Defendant has failed to oppose.
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Plaintiffs have submitted the declaration of David E. Hayner as evidence of the
terms of the master collective bargaining agreement and Defendant’s breach of that
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agreement. Hayner Decl. ¶¶ 9, 12 (documenting Defendant’s failure to pay into the
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Funds), Ex. A (“Bargaining Agreement”), Ex. B (“Trust Agreement”). The Trust
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Agreement provides that if contributions are delinquent, the Trust Agreement, incorporated
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into the Bargaining Agreement, mandates that Defendant shall pay interest and liquidated
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damages on the delinquent contributions. Id. ¶ 5. Pursuant to the terms of the Trust
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Agreement, liquidated damages are calculated at ten percent (10%) of the assessed funds,
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which are part of the delinquent contributions; however, after a lawsuit is filed, liquidated
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damages are calculated at a straight twenty percent (20%) of the delinquent contributions.
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United States District Court
Northern District of California
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Id. ¶ 6. Additionally, the Trust Agreement provides that interest accrues on the delinquent
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contributions at ten percent (10%) per annum calculated from the day contributions are
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considered delinquent. Id. ¶ 7. The Trust Agreement further provides that Defendant must
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reimburse Plaintiffs for attorneys’ fees and audit fees. Id. ¶ 8. Plaintiffs seek the entry of
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judgment with the following money damages.
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Contributions Paid Late, with 20% Liquidated Damages on Total
Contributions Reported and 10% Interest
10% Liquidated Damages Assessed on Contributions Paid Late Prior to
Filing of Complaint
10% Interest Incurred on Contributions Paid Late Prior to Filing of
Complaint
Attorneys’ Fees (through 1/9/14)
Costs (through 1/9/14)
Additional attorneys’ fees estimated in connection with preparation and
filing of the instant motion
Total
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Id. ¶ 11.
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$23,299.02
$975.95
$368.48
$20,501.00
$1,596.40
$1,060.00
$47,800.85
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The $23,299.02 subtotal for contributions paid late, with 20% liquidated damages
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and 10% interest assessed, are identified in a chart located in paragraph 11 of the Hayner
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Declaration, and are further broken out by running totals per month between April 2012
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and November 2013. Id.
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However, the Court is unable to verify that the figures described in paragraph 11 of
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the Hayner Declaration are accurate and or that they accurately calculate liquidated
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damages and interest pursuant to the terms of the collective bargaining agreement. For
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example, the figure listed in the May 2012 row reflects 10% interest (through 12/25/13) of
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$207.68, but it is unclear to what amount that interest refers. Similarly, it is unclear, for
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example, what the relationship is between the $1,925.10 Total Contributions Reported
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figure and the Contributions Balance figure of $1,613.25 in July 2012.
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Accordingly, with good cause appearing, IT IS HEREBY ORDERED that Plaintiffs
shall, no later than February 19, 2014, file and serve a supplemental declaration:
explaining in detail, with illustrative examples how they calculated the figures in the
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United States District Court
Northern District of California
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“Liquidated Damages,” “Interest” and “Contributions Balance” rows of the chart in
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paragraph 11 of the Hayner Declaration; how these figures interact with each other, along
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with examples; and identifying the starting contribution balance and any debits and credits
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to the balance made over time such that the Court can conclude that the proffered
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indebtedness has been accurately calculated. Alternatively, Plaintiffs may submit an
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entirely new exhibit establishing damages, provided that Plaintiffs also include an
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explanation of how those damages were calculated in accordance with the instructions
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above. The Court must be able to verify that the amounts owed are accurate.
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Plaintiffs’ unopposed motion for default judgment is currently set for hearing on
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February 24, 2014. Plaintiffs have requested the Court vacate the hearing. The Court shall
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reserve ruling on the motion to vacate pending Plaintiffs’ submission of the supplemental
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declaration. Should the supplemental declaration adequately address the Court’s concerns,
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the Court will vacate the hearing. Until that time, the hearing remains on calendar.
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IT IS SO ORDERED.
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Dated: 02/12/14
_____________________________________
THELTON E. HENDERSON
United States District Judge
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