Crosthwaite et al v. Aposhian Excavating Company, Inc.

Filing 40

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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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 F.G. CROSTHWAITE, et al., Plaintiffs, 5 6 7 8 v. APOSHIAN EXCAVATING COMPANY, INC., Case No. 13-cv-00363-TEH ORDER REQUIRING SUPPLEMENTAL DECLARATION Defendant. 9 10 Plaintiffs move this Court for a default judgment and attorneys’ fees. Plaintiffs United States District Court Northern District of California 11 operate the trust funds for the Operating Engineers Local Union No. 3 of the International 12 Union of Operating Engineers, AFL-CIO, which include the Operating Engineers Pension 13 Trust Fund, Operating Engineers and Participating Employers Pre-Apprentice, Apprentice, 14 and Journeyman Affirmative Action Training Fund for Utah, Operating Engineers’ Health 15 and Welfare Trust Fund for Utah, Operating Engineers’ Vacation and Holiday Pay Plan, 16 Pensioned Operating Engineers’ Health and Welfare Trust Fund (collectively, the 17 “Funds”). These funds are organized pursuant to the provisions of Section 302(c)(5), 18 302(c)(6), and 302(c)(9) of the Labor Management Relations Act of 1947. 29 U.S.C. § 19 186(c)(5), 186(c)(6), and 186(c)(9). 20 On January 25, 2013, Plaintiffs filed a complaint pursuant to the Employee 21 Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 502(g)(2)(A) and 22 1132(g)(2)(A), alleging that Defendant violated a collective bargaining agreement by 23 failing to make regular and timely contributions to the Funds. Plaintiffs were unable to 24 effect service of process on Defendant, and on September 6, 2013, the Court granted 25 Plaintiffs’ ex parte application for service by publication. At no time since the initiation of 26 the lawsuit or after service by publication has Defendant answered the complaint. 27 Plaintiffs now seek default judgment, including monetary damages and attorneys’ fees, 28 which Defendant has failed to oppose. 1 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 3 agreement. Hayner Decl. ¶¶ 9, 12 (documenting Defendant’s failure to pay into the 4 Funds), Ex. A (“Bargaining Agreement”), Ex. B (“Trust Agreement”). The Trust 5 Agreement provides that if contributions are delinquent, the Trust Agreement, incorporated 6 into the Bargaining Agreement, mandates that Defendant shall pay interest and liquidated 7 damages on the delinquent contributions. Id. ¶ 5. Pursuant to the terms of the Trust 8 Agreement, liquidated damages are calculated at ten percent (10%) of the assessed funds, 9 which are part of the delinquent contributions; however, after a lawsuit is filed, liquidated 10 damages are calculated at a straight twenty percent (20%) of the delinquent contributions. 11 United States District Court Northern District of California 2 Id. ¶ 6. Additionally, the Trust Agreement provides that interest accrues on the delinquent 12 contributions at ten percent (10%) per annum calculated from the day contributions are 13 considered delinquent. Id. ¶ 7. The Trust Agreement further provides that Defendant must 14 reimburse Plaintiffs for attorneys’ fees and audit fees. Id. ¶ 8. Plaintiffs seek the entry of 15 judgment with the following money damages. 16 23 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 24 Id. ¶ 11. 17 18 19 20 21 22 $23,299.02 $975.95 $368.48 $20,501.00 $1,596.40 $1,060.00 $47,800.85 25 The $23,299.02 subtotal for contributions paid late, with 20% liquidated damages 26 and 10% interest assessed, are identified in a chart located in paragraph 11 of the Hayner 27 Declaration, and are further broken out by running totals per month between April 2012 28 and November 2013. Id. 2 1 However, the Court is unable to verify that the figures described in paragraph 11 of 2 the Hayner Declaration are accurate and or that they accurately calculate liquidated 3 damages and interest pursuant to the terms of the collective bargaining agreement. For 4 example, the figure listed in the May 2012 row reflects 10% interest (through 12/25/13) of 5 $207.68, but it is unclear to what amount that interest refers. Similarly, it is unclear, for 6 example, what the relationship is between the $1,925.10 Total Contributions Reported 7 figure and the Contributions Balance figure of $1,613.25 in July 2012. 8 9 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 11 United States District Court Northern District of California 10 “Liquidated Damages,” “Interest” and “Contributions Balance” rows of the chart in 12 paragraph 11 of the Hayner Declaration; how these figures interact with each other, along 13 with examples; and identifying the starting contribution balance and any debits and credits 14 to the balance made over time such that the Court can conclude that the proffered 15 indebtedness has been accurately calculated. Alternatively, Plaintiffs may submit an 16 entirely new exhibit establishing damages, provided that Plaintiffs also include an 17 explanation of how those damages were calculated in accordance with the instructions 18 above. The Court must be able to verify that the amounts owed are accurate. 19 Plaintiffs’ unopposed motion for default judgment is currently set for hearing on 20 February 24, 2014. Plaintiffs have requested the Court vacate the hearing. The Court shall 21 reserve ruling on the motion to vacate pending Plaintiffs’ submission of the supplemental 22 declaration. Should the supplemental declaration adequately address the Court’s concerns, 23 the Court will vacate the hearing. Until that time, the hearing remains on calendar. 24 25 IT IS SO ORDERED. 26 27 28 Dated: 02/12/14 _____________________________________ THELTON E. HENDERSON United States District Judge 3

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