SHORT et al v. HARTWIG & SPAGNA CONCRETE, INC.

Filing 12

CORRECTED DOCUMENT - Please disregard document re 10 Findings of Fact & Conclusions of Law and Preliminary Injunction which was Docketed in Error. Corrected document has been attached to this entry. (MAC)

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF INDIANA IN D IA N A P O L IS DIVISION M IC H A E L J. SHORT, TRUSTEE, et. al. P la in tif f s , v. H A R T W IG & SPAGNA CONCRETE, INC. D e f e n d a n t. ) ) ) ) ) CAUSE NO.: 1:09-cv-0618-SEB-DML ) ) ) )

F I N D IN G S OF FACT, CONCLUSIONS OF LAW, A N D PRELIMINARY INJUNCTION T h is matter is before the Court on the Motion of Plaintiffs for a Preliminary Injunction a g a in s t Defendant, which Motion is in the following words and phrases, to-wit: (H .I .) A n d the parties having reached an agreement, the Court makes the following: F in d in g s of Fact 1. Plaintiff Funds are multi-employer benefit plans, maintained by the

c o n trib u tio n s of a large number of different employers. Plaintiff Funds are employee benefit p la n s within the meaning of Sections 3(1)(3)(21) and 502 of the Employee Retirement In c o m e Security Act of 1974, 29 U.S.C. §1002(1)(3)(21) and 1132, and are multi-employer p la n s within the meaning of ERISA Section 3(37), 29 U.S.C. §1002(37) 2. Plaintiff Michael Short is a fiduciary within the meaning of Section 3(21) and

4 0 4 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. §1002(21) and 1 1 0 4 ).

3.

Plaintiffs have filed suit seeking to collect unpaid contributions owing from

D e f e n d a n t to and on behalf of Defendant's employees, and to require Defendant to fulfill its o b lig a tio n to make current contributions to Plaintiffs. 4. Defendant is bound by a collective bargaining agreement with the LIUNA,

In d ia n a District Council under which it is required to make contributions to the Plaintiff F u n d s for and on behalf of its employees covered by such agreement. 5. Defendant is engaged in an industry affecting commerce within the meaning

o f Sections 3(5)(11)(12) and (14) of ERISA, 29 U.S.C. §1002(5)(11)(12) and (14), and the L a b o r-M a n a g e m e n t Relations Act of 1947, 29 U.S.C. §151 et seq. 6. 7. Defendant has failed to make contributions when they fall due. Because delinquent contributions impair the ability of the Funds to make

a c c u ra te financial statements, the actuarial soundness of the Plaintiff Funds is being je o p a rd iz e d by Defendant's failure to make its required contributions to the Plaintiffs when th e y are due. Furthermore, administrative hardship is visited upon the Funds by these d e lin q u e n c ie s . 8. By virtue of the foregoing, the Plaintiff Funds lack an adequate remedy at law

a n d are likely to suffer irreparable injury. C o n c lu s io n s of Law 1. Jurisdiction exists under Section 502 fo the Employee Retirement Income

S e c u rity Act of 1974, 29 U.S.C. §1132, in that Plaintiffs allege violations of the terms of e m p lo ye e benefit plans.

2.

Defendant is bound to the terms of collective bargaining agreements and is

re q u ire d to make payments to the Plaintiff Funds in accordance with the terms of its a g re e m e n ts . 3. In Section 515 of the Employee Retirement Income Security Act of 1974,

a d d e d by the Multi-Employer Pension Plan Amendments Act of 1980, Congress has made th e contractual obligation to contribute to multi-employer fringe benefit funds one of the re q u ire m e n ts of Title I of ERISA. ERISA Section 502(a)(3) authorizes this Court to enjoin a n y act or practice which violates any provision of Title I of ERISA, including the obligation im p o s e d by Section 515. This Court therefore has jurisdiction to enjoin Defendant's c o n tin u in g violation of Section 515, upon the proper showing of the Plaintiffs' entitlement to such relief. Several Court decisions have established the entitlement of Plaintiffs to the in ju n c tiv e relief which it has requested of this Court. Laborer's Fringe Benefit Funds, D e tro it and Vicinity v. Northwest Concrete and Construction, Inc., 640 F.2d 1350 (6 th Cir. 1 9 8 1 ); Huge v. Long's Hauling Company, 590 F.2d 457 (3rd Cir. 1978; and Frank Gould, et. a l. v. Lambert Excavating, Inc., 870 F.2d 1214, (7 th Cir., 1989). 4. Because the Defendant is obligated by terms of a collective bargaining

a g re e m e n t to make contributions to the Funds, and because it has failed to do so, the Funds a re likely to succeed on the merits of their case. Furthermore, in light of the mandate of C o n g re s s that employee welfare benefit funds be accorded maximum protection and all a p p ro p ria te remedies, it is the Court's finding that the likelihood of injury to the Defendant is less than that which could accrue to the Plaintiffs if injunctive relief were denied.

5.

Because the actuarial soundness of the Plaintiff Funds is jeopardized by

D e f e n d a n t's continuing delinquencies, there is a likelihood of irreparable harm to the Funds (not to mention their participants) in the event that injunctive relief does not issue. Because th e Funds are employee benefit plans which provide benefits to employees of employers who w e re and are bound by the trust agreements establishing the Funds, and to their dependents, th e public interest is better served by the issuance of the injunction sought herein than by its d e n ia l. P re lim in a ry Injunction T H E R E F O R E , IT IS ORDERED, ADJUDGED AND DECREED that the Defendant s h o u ld be and hereby PRELIMINARY ENJOINED, as follows: D e f e n d a n t, its agents, servants, employees, and all persons in active counsel and in p a rtic ip a tio n with it, are preliminary enjoined from failing and/or refusing to make timely p a ym e n t of monies due Plaintiff Funds on behalf of all of Defendant's employees for whom c o n trib u tio n s are required under the aforementioned collective bargaining agreements, b e g in n in g with the contributions for work performed in the month of June, 2009. All future c o n trib u tio n s will be paid on or before their due date on the basis specified in any collective b a rg a in in g agreement between the LIUNA, Indiana District Council and the Defendant.

_________________________________ _______________________________ J u d g e , United States District Court 07/02/2009 D a te d : ______________________
p/167/md
SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana