Alameda County Electrical Industry Service Corporation et al v. Northern States Electric, Inc. et al

Filing 12

ORDER RESETTING CASE MANAGEMENT CONFERENCE: A Joint Case Management Statement due by 11/14/2013. Case Management Conference set for 11/21/2013 at 11:00 AM in Courtroom C, 15th Floor, San Francisco. Signed by Magistrate Judge Laurel Beeler on 8/2/2013. (ls, COURT STAFF) (Filed on 8/2/2013)

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CHRISTINE S. HWANG (SBN 184549)
SARA B. TOSDAL (SBN 280322)
AMY ENDO (SBN 272998)
LEONARD CARDER, LLP
1188 Franklin Street, Suite 201
San Francisco, CA 94109
Tel: [phone]/Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT

LEONARD CARDER, LLP
ATTORNEYS
1188 Franklin Street, Suite 201
San Francisco, California 94109
TEL: [phone] FAX: [phone]

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ALAMEDA COUNTY ELECTRICAL
INDUSTRY SERVICE CORPORATION, et al.,

v.
NORTHERN STATES ELECTRIC, INC.;
MARSHA CARLSON; AND DOES ONE
through TEN, inclusive,

PLAINTIFFS’ SEPARATE FURTHER
CASE MANAGEMENT STATEMENT
AND REQUEST FOR CONTINUANCE
OF CASE MANAGEMENT
CONFERENCE
ORDER

Plaintiffs,

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Case No. 13-cv-00883-LB

Defendants.

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PLAINTIFFS’ SEPARATE FURTHER CASE MANAGEMENT STATEMENT AND
REQUEST FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE
CASE NO. 13-CV-00883-LB

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TO ALL PARTIES, THEIR ATTORNEYS OF RECORD, AND THE COURT:
Plaintiffs Alameda County Electrical Industry Service Corporation (“EISC”), IBEW

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Local 595 Health & Welfare Trust Fund; IBEW Local 595 Pension Trust Fund; IBEW Local 595

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Money Purchase Pension Trust Fund; IBEW Local 595 Vacation Fund; IBEW Local 595

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Apprentice & Training Fund; Electrical Contractors Trust; Contract Administration Fund; Labor

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Management Cooperation Fund (collectively “Trust Funds”); Boards of Trustees of IBEW Local

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595 Trust Funds (the “Trustees”); and Board of Directors of Alameda County Electrical Industry

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Service Corporation (the “Directors”), (collectively “Plaintiffs”), believe that Defendants

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Northern States Electric, Inc. and Marsha Carlson are unrepresented by counsel in this matter.

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LEONARD CARDER, LLP
ATTORNEYS
1188 Franklin Street, Suite 201
San Francisco, California 94109
TEL: [phone] FAX: [phone]

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Pursuant to Local Rule 16-9, Plaintiffs therefore hereby submit this separate initial Case

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Management Conference Statement. N.D. Cal. Local R. 16-9(a).

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Additionally, Plaintiffs still intend to file an amended complaint, but have not yet done so

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because Plaintiffs are attempting to resolve some of their claim against Defendant Northern

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States Electric, Inc. through a stop notice pursuant to California’s mechanics lien laws without

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undertaking additional litigation or expenses in this case. Plaintiffs hope to resolve the stop

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notice in the next three weeks or so, and request that the Case Management Conference,

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currently scheduled for August 8, 2013, be continued in order for Plaintiffs to resolve the stop

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notice and to file and serve the amended pleading.

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1.

Jurisdiction and Service:

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This is an action for delinquent employee benefit contributions pursuant to sections 502

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and 515 of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§

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1132, 1145, an action for breach of fiduciary duty under sections 409(a) and 515 of ERISA, id.

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§§ 1109(a), 1145, and an action asserting claims for breach of contract, violations of California’s

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Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq., violation of the right to

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privacy, and misappropriation of image and likeness under section 3344(a) of the California

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Civil Code. This Court has original jurisdiction over actions arising under ERISA. 29 U.S.C. §

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1132(e); see also 28 U.S.C. § 1331 (federal question jurisdiction). Additionally, this Court has

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PLAINTIFFS’ SEPARATE FURTHER CASE MANAGEMENT STATEMENT AND
REQUEST FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE
CASE NO. 13-CV-00883-LB

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supplemental jurisdiction over Plaintiffs’ state-law claims—to the extent that such claims are not

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preempted by ERISA—because they arise out of the same “nucleus of operative fact.” See

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United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1986) (“The state and federal claims

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must derive from a common nucleus of operative fact.”); see also 28 U.S.C. § 1367(a) (stating

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that a federal court may exercise jurisdiction over other claims that “form part of the same case

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or controversy” as a federal claim).

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2.

Facts:
a. The Parties:

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Plaintiff Trust Funds are express trust funds organized and existing under ERISA and

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LEONARD CARDER, LLP
ATTORNEYS
1188 Franklin Street, Suite 201
San Francisco, California 94109
TEL: [phone] FAX: [phone]

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other laws of the United States as employee benefit plans, as defined by ERISA, 29 U.S.C. §§

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1002(3), 1002(32)(a), 1003, and 1132(d)(1). Compl. ¶ 6. Plaintiff Trust Funds were created by

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written trust agreements under section 302 of the Labor-Management Relations Act, 29 U.S.C. §

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186. Id. Plaintiff Trust Funds exist for the purpose of providing health and welfare, pension, and

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other benefits to employees under the Alameda County Inside Construction Agreement Between

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Alameda County Branch, Northern California Chapter, National Electrical Contractors

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Association & Local Union 595, International Brotherhood of Electrical Workers (“CBA”), and

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their beneficiaries and dependents. Id. ¶ 15. Plaintiff Trust Funds are third-party beneficiaries to

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subcontracting agreements between Defendant Northern States Electric, Inc. (“NSE”) and its

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general contractors. See id. ¶¶ 17, 45, 46.

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Under the CBA, Plaintiff EISC serves as the custodian of all employer contributions. See

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id. ¶ 7. Plaintiff EISC is also the collection agent for Plaintiff Trust Funds. Id. Plaintiff Trustees

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are Plan Administrators and fiduciaries for Plaintiff Trust Funds, as defined by sections

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3(16)(A)(i) and (21)(A) of ERISA. Id. ¶ 8. Plaintiff Directors are the governing body of Plaintiff

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EISC. Id. ¶ 9.

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NSE is a corporation and licensed electrical contractor organized and operated under the

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laws of California. Id. ¶ 10. NSE is an employer within the meaning of ERISA section 3(5), 29

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U.S.C. § 1002(5). Id.¶ 10 (a). Furthermore, NSE employed electricians within Alameda County,

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PLAINTIFFS’ SEPARATE FURTHER CASE MANAGEMENT STATEMENT AND
REQUEST FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE
CASE NO. 13-CV-00883-LB

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and is, as a signatory to the CBA, is legally obligated to make employer contributions to Plaintiff

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Trust Funds. Id. ¶¶ 10(b)-(c), 15-16.

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Defendant Marsha Carlson (“Carlson”) is the Chief Executive Officer and President of

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NSE, and has been obligated to make employer contributions to Plaintiff Trust Funds. Id. ¶ 11.

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Carlson is an agent, partner, and/or employee of NSE and acted in the scope of such employment

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and agency. Id. ¶ 12.
b. Pertinent Facts:

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NSE must make monthly contributions to Plaintiff Trust Funds for all hours worked by

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its employees that are covered by the CBA, at rates established by the CBA, on or before the 20th

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LEONARD CARDER, LLP
ATTORNEYS
1188 Franklin Street, Suite 201
San Francisco, California 94109
TEL: [phone] FAX: [phone]

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of every calendar month following a month where covered work was performed. See id. ¶ 16.

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Under subcontracting agreements between NSE and its general contractors, the general

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contractors must make progress payments to NSE, provided that NSE proves that it does not owe

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Plaintiff Trust Funds any contributions for work covered by the CBA. Id. ¶ 17.

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Defendants hired union-represented employees to perform work covered by the CBA. See

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id. ¶¶ 12, 18. However, Defendants persistently failed to meet their employer contribution

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requirements to Plaintiff Trust Funds for work performed on Defendants’ projects. Id. ¶ 18.

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Nonetheless, Defendants created letters purporting to be from Plaintiff Trust Funds. Id. ¶ 19.

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These letters stated that NSE owed no contributions to Plaintiff Trust Funds, even though no

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payments had been made on NSE’s employer contribution obligations. Id. ¶¶ 18, 19, 21, 22, 24.

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Defendants gave these letters to Defendants’ general contractors. Id. ¶¶ 19-25, 27-28. On

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information and belief, Defendants’ general contractors made progress payments to NSE in

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reliance on these letters. Id. However, no payments were made to Plaintiffs. Id. ¶ 18. Instead,

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Defendants kept the progress payments for themselves. Id. ¶ 28.

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3.

Legal Issues:

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The legal issues in this case are: (1) whether NSE is liable to Plaintiffs for delinquent

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contributions under ERISA; (2) whether Carlson breached her fiduciary duty under ERISA to

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Plaintiffs by failing to pay employer contributions to Plaintiffs; (3) whether Defendants breached

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PLAINTIFFS’ SEPARATE FURTHER CASE MANAGEMENT STATEMENT AND
REQUEST FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE
CASE NO. 13-CV-00883-LB

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its contracts with its general contractors; (4) whether Defendants are liable for violations of

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California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.; (5) whether

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Defendants are liable for violating Plaintiffs’ right to privacy by using Plaintiff Trust Funds’s

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name, image, and likeness without permission or authorization; and (6) whether Defendants are

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liable to Plaintiffs for misappropriation of image within the meaning of section 3344(a) of the

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California Civil Code.

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4.

Motions:

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There are no motions before the Court at this time. Defendants have been served with the

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Complaint, but have not appeared in the action. Plaintiffs intend to seek default judgment against

LEONARD CARDER, LLP
ATTORNEYS
1188 Franklin Street, Suite 201
San Francisco, California 94109
TEL: [phone] FAX: [phone]

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NSE and Carlson after filing an amended complaint.

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5.

Plaintiffs anticipate filing an amended complaint within the next three weeks or so.

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Amendment of Pleadings:

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Evidence Preservation:

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Plaintiffs’ counsel instructed their clients to collect and retain all written documents,

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records and other things (including e-mails, voicemails, electronically-recorded material)

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supporting their claims and damages in this case. The Guidelines for the Discovery of

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Electronically Stored Information have been or are being reviewed. The parties have not met and

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conferred with respect to discovery and evidentiary issues because Defendant has not yet

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appeared. Plaintiffs believe Defendants are unrepresented in this matter.

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7.

Disclosures:
Initial disclosures have not yet been made. Defendants have not appeared in the action,

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and Plaintiffs intend to file an amended complaint.

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Discovery:
No discovery has taken place. Plaintiffs do not anticipate taking any discovery unless

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Defendants appear in this action.

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9.

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Class Actions:
This case is not appropriate for class treatment.

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PLAINTIFFS’ SEPARATE FURTHER CASE MANAGEMENT STATEMENT AND
REQUEST FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE
CASE NO. 13-CV-00883-LB

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10.

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Related Cases:
Plaintiffs are unaware of any related cases at this time.

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Relief:

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Plaintiffs seek monetary damages for delinquent contributions, approximately in excess

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of $100,000, as well restitution, disgorgement, and punitive damages. Plaintiffs also seek

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injunctive relief.

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LEONARD CARDER, LLP
ATTORNEYS
1188 Franklin Street, Suite 201
San Francisco, California 94109
TEL: [phone] FAX: [phone]

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Settlement discussions are unlikely to be productive. Plaintiffs have been unable to
review the ADR process with Defendants, as Defendants have not appeared in the action.
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Narrowing of Issues:
No further narrowing of issues is possible.

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Other References:
None.

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Consent to Magistrate Judge for All Purposes:
Plaintiffs consented to Magistrate Judge Beeler.

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Settlement and ADR:

Expedited Trial Procedure:
Not applicable.

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Scheduling:

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Plaintiffs propose continuing the Case Management Conference, currently set for August

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8, 2013, for a period of at least forty-five (45) days to allow Plaintiffs to resolve some of NSE’s

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debt under a stop notice and to file and serve an amended complaint. Because Plaintiffs intend to

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seek default judgment after filing and serving the amended complaint, Plaintiffs further propose

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that any additional scheduling be continued until either the next Case Management Conference

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or the initial Case Management Conference in the event that it is continued.

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Trial:
Plaintiffs do not anticipate a need for trial.

//

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PLAINTIFFS’ SEPARATE FURTHER CASE MANAGEMENT STATEMENT AND
REQUEST FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE
CASE NO. 13-CV-00883-LB

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19.

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Disclosure of Non-party Interested Entities or Persons:
Plaintiffs filed a certification of non-party interested entities or persons on May 30, 2013.

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Other Issues:

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Plaintiffs still intend to file an amended complaint, but hope to be able to resolve some of

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their claim against NSE through a stop notice remedy before doing so. Therefore, Plaintiffs

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respectfully request that the initial Case Management Conference be continued for at least 45

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days as a result. In light of Defendants’ failure to appear, Plaintiffs intend to take default in this

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case after an amended complaint is filed.

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Respectfully submitted,
Dated: August 1, 2013

LEONARD CARDER, LLP

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By:

/s/ Sara B. Tosdal
Christine S. Hwang (SBN 184549)
Sara B. Tosdal (SBN 280322)
Amy Endo (SBN 272998)
LEONARD CARDER, LLP
1188 Franklin Street, Suite 201
San Francisco, CA 94109
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

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VED
APPRO

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Judge L

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NO

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TC

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eeler

A

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aurel B

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Case Management Conference reset to November 21, 2013 at 11:00 a.m. A Joint Case
Management Conference Statement due November 14, 2013.
Date: August 2, 2013
ISTRIC
ES D

FO

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Attorneys for Plaintiffs

S

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UNIT
ED

LEONARD CARDER, LLP
ATTORNEYS
1188 Franklin Street, Suite 201
San Francisco, California 94109
TEL: [phone] FAX: [phone]

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N

F
D IS T IC T O
R

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PLAINTIFFS’ SEPARATE FURTHER CASE MANAGEMENT STATEMENT AND
REQUEST FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE
CASE NO. 13-CV-00883-LB

C