Perez v. Mavis
ORDER AND CONSENT JUDGMENT granting 10 Plaintiffs Motion to Dismiss With Prejudice, by Judge Wiley Y. Daniel on 3/9/2015.(evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 14-cv-03483-WYD
THOMAS EDWARD PEREZ, SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR,
ALVIN MARTIN MAVIS,
ORDER AND CONSENT JUDGMENT
This action was brought by Plaintiff, Secretary of Labor, United States
Department of Labor, against Defendant, Alvin Martin Mavis, pursuant to Sections
502(a)(2) and 502(a)(5), 29 U.S.C. §§ 1132(a)(2) and 1132(a)(5), of the Employee
Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001-1461
(“ERISA”). On January 29, 2015, Plaintiff filed a Motion to Dismiss With Prejudice.
Also, on January 14, 2015, a Consent Judgment and Order was filed which was
mistakenly docketed as a Motion for Judgment (Consent).
Defendant, Alvin Martin Mavis, admits to the Court’s jurisdiction over him, over
the subject matter of this action, and to the allegations alleged in the Complaint, and
has further agreed to the entry of judgment without contest. The motion to dismiss
indicates that the parties wish the Court to enter the proposed consent judgment which
will resolve the matter, and to dismiss the case with prejudice.
It is therefore, upon motion and for good cause shown,
ORDERED that Plaintiff’s Motion to Dismiss With Prejudice (ECF No. 10) is
GRANTED. Further, it is
ORDERED, ADJUDGED, AND DECREED that:
1. Defendant, Alvin Martin Mavis, at all relevant times, was the de facto Plan
Administrator of the employee retirement benefit plan, which was offered by Welzig
Heating and Air, Inc., an employer engaged in commerce or in an industry or activity
affecting commerce, and which is subject to Title I including Title I, Part 4 of ERISA
pursuant to ERISA Sections 4(a)(1) and 401(a), 29 U.S.C. §§ 1003(a)(1) and 1101(a).
That employee retirement benefit plan was the Welzig Heating and Air, Inc. 401(k) Plan
2. Defendant, Alvin Martin Mavis, at all times herein mentioned, served as a
fiduciary to the Plan within the meaning of ERISA Section 3(21), 29 U.S.C. § 1002(21),
in that he had or exercised discretionary authority and responsibility with respect to Plan
administration and management and exercised actual control over Plan assets,
including the responsibility for forwarding all employee contributions to the Plan. ‘
3. The Plan is, and at all relevant times was, an employee benefit plan within the
meaning of ERISA Section 3(3), 29 U.S.C. § 1002(3). The Plan was established and
maintained by Welzig Heating and Air, Inc. for the benefit of its employees.
4. During the period of October 2005 through December 31, 2013, Defendant,
Alvin Martin Mavis: (a) failed to ensure that employee contributions and Plan assets
were remitted to the Plan; (b) permitted Welzig Heating and Air, Inc., a party in interest,
to use Plan assets for its own benefit; (c) failed to segregate Plan assets from non-Plan
assets; (d) failed to administer the Plan properly; (e) used his status as a fiduciary to the
Plan to obtain improper commissions for personal gain; and (f) did not execute his
fiduciary duties with reasonable prudence, care, and skill. This conduct violated ERISA
Sections 403(c)(1), 404(a)(1)(A) and (B), 406(a)(1)(D), and 406(b)(1) and (2).
5. Consequently, the Plan sustained losses for which Defendant, Alvin Martin
Mavis, was liable as a fiduciary and that permitted Defendant, Alvin Martin Mavis, to use
his fiduciary status for his own monetary gain.
6. The Plan’s sponsor, Welzig Heating & Air, Inc., has restored all of the financial
losses to the Plan and has terminated Mavis’ employment with respect to the Plan.
7. To redress the fiduciary breaches, it is further ORDERED, ADJUDGED, AND
A. Defendant, Alvin Martin Mavis, his agents, servants, employees, and all
persons in active concert or participation with him be and hereby are permanently
enjoined and restrained from violating Title I of ERISA; and
B. Defendant, Alvin Martin Mavis, his agents, servants, employees and all
persons in active concert or participation with them be and are hereby permanently
enjoined and restrained from acting as fiduciaries, trustees, agents or representatives in
any capacity to any other ERISA-covered employee benefit plan.
8. This Consent Judgment resolves all claims of Plaintiff’s Complaint with respect
to Defendant, Alvin Martin Mavis, with the following exceptions:
A. This Judgment does not affect or bind any governmental agency other
than the United States Department of Labor; and
B. This Court retains jurisdiction for purposes of enforcing compliance with
the terms of this Consent Judgment and Order.
9. Defendant, Alvin Martin Mavis has had an opportunity to be represented by
counsel with respect to this case, all matters relating to this case, and the entry of this
Consent Judgment and Order.
10. Each party shall bear its own costs and expenses, including attorneys’ fees,
arising in connection with any stage of the above-referenced proceeding including but
not limited to, attorney’s fees which may be available under the Equal Access to Justice
Act, as amended.
11. No Plan assets will be used to pay the attorneys’ fees, costs, and/or any
other litigation expenses that the Defendant incurred in this action.
Dated: March 9, 2015.
BY THE COURT:
/s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE
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