Ruggieri et al v. M.I.W. Corp. et al

Filing 20

Judge Nathaniel M. Gorton:ORDER entered. MEMORANDUM AND ORDER; "In accordance with the foregoing, plaintiffs motion for prejudgment security and temporary restraining order (Docket No. 11 ) is, with respect to the motion for prejudgment security, ALLOWED; but is, with respect to the motion for temporary restraining order, DENIED."(Moore, Kellyann) Modified on 9/27/2011 (Moore, Kellyann).

United States District Court
District of Massachusetts
________________________________
)
MICHAEL J. RUGGIERI, as he is
)
ADMINISTRATOR IRONWORKERS
)
DISTRICT COUNCIL OF NEW ENGLAND )
FUNDS, IRONWORKERS DISTRICT
)
Civil Action No.
COUNCIL OF NEW ENGLAND HEALTH
)
11-cv-10444-NMG
AND WELFARE FUND, IRONWORKERS
)
DISTRICT COUNCIL OF NEW ENGLAND )
PENSION FUND, IRONWORKERS
)
DISTRICT COUNCIL OF NEW ENGLAND )
ANNUITY FUND, AND IRONWORKERS
)
DISTRICT COUNCIL OF NEW ENGLAND )
EDUCATION FUND,
)
Plaintiffs,
)
)
v.
)
)
M.I.W. CORP. D/B/A MALATOS IRON )
WORKS,
)
Defendant,
)
)
and
)
)
EASTERN BANK,
)
Trustee.
)
________________________________ )
MEMORANDUM & ORDER
GORTON, J.
This case arises from the refusal of defendant M.I.W. Corp.
(“MIW”) to comply with plaintiffs’ requests to audit its payroll
records.

Pending before the Court is plaintiffs’ motion for

prejudgment attachment and temporary restraining order.
I.

Background
Plaintiffs attempted to schedule an audit of MIW’s payroll

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records for January 14, 2010, in accordance with the Delinquency
Collection Procedure and Audit Procedure Agreement (“Delinquency
Procedure Agreement”) adopted as part of the collective
bargaining agreement (“CBA”) between the parties.

MIW refused to

permit the audit on that date or to reschedule it for a later
date.

On March 16, 2011, plaintiffs filed a Complaint in this

Court seeking 1) a court order mandating that MIW make available
its payroll records to allow plaintiffs to determine the amount
of unpaid contributions owed for the period at issue, 2) an
injunction to require MIW to permit plaintiffs to audit its
payroll records, and 3) money damages in an amount to be
determined after the audit.
On April 22, 2011, after plaintiffs filed the Complaint, MIW
permitted Carl J. Hansen, III (“Hansen”) to audit its payroll
records, pursuant to the Delinquency Procedure Agreement.

Hansen

uncovered as the result of his audit $67,856.41 in unpaid benefit
contributions.

He added to that amount $32,537.20 in interest

owed on the unpaid contributions and a $3,752.50 auditing fee, to
arrive at a total sum owed of $104,146.11.

Given that

plaintiffs were able to audit MIW’s payroll records shortly after
they filed the Complaint, the only remaining issue is whether
plaintiffs are entitled to an award of monetary damages for the
allegedly unpaid benefit contributions, as well as interest and
fees associated with those contributions.

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In the motion currently before the Court, plaintiffs seek
(A) a temporary restraining order enjoining MIW from conveying or
concealing its assets except in the ordinary course of business,
and (B) prejudgment attachment of MIW’s assets in the amount of
$104,146.11.
II.

Legal Analysis
A. Temporary Restraining Order
In deciding whether to grant a temporary restraining order,

a district court must weigh 4 factors: (1) the likelihood of the
movant’s success on the merits; (2) the potential for irreparable
harm to the movant if relief is not granted; (3) a balancing of
equities; and (4) whether granting such relief is in the public
interest. Largess v. Supreme Judicial Ct., 317 F. Supp. 2d 77, 80-81
(D. Mass. 2004).

To demonstrate irreparable harm warranting a

temporary restraining order, plaintiffs must show that they have
no adequate remedy at law, i.e. that money damages alone will not
adequately redress their injuries. Charlesbank Equity Fund II v.
Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004).
Putting aside the plaintiffs’ likelihood of success on the
merits, which will be addressed more fully in Section II.B,
infra, a temporary restraining order is not appropriate in this
instance because plaintiffs have failed to demonstrate
irreparable harm.

It is apparent that money damages will

adequately redress plaintiffs’ alleged injuries and there is no

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indication that MIW is near insolvency or likely to transfer its
assets to avoid payment.

On the contrary, MIW has already made a

good-faith payment of $10,000 in an attempt to resolve this
matter through settlement, and has agreed to meet with fund
administrators to set up a payment plan whereby MIW would
reimburse plaintiffs for the agreed-upon arrearage.

For those

reasons, this Court will not issue a temporary restraining order.
B. Prejudgment Attachment
In order to obtain an order of pretrial attachment under
Massachusetts law, plaintiff must demonstrate (1) reasonable
likelihood of success on merits, and (2) reasonable likelihood of
recovering judgment equal to or greater than amount of attachment
sought that is over and above any liability insurance shown by
defendant to be available to satisfy judgment. Latorraca v.
Centennial Technologies, Inc., 583 F. Supp. 2d 208, 211 (D. Mass.
2008).

In contrast to the foregoing TRO analysis, a plaintiff

need not demonstrate irreparable harm to be eligible for
prejudgment attachment and equitable considerations do not play a
role in the inquiry.
Plaintiffs have demonstrated that they are likely to succeed
on the merits of this case.

A clause appearing above the

signature block at the bottom of each MIW Employee Weekly Payroll
Report makes it clear that the signatory of the report accepts
and adopts the CBA and agrees to be bound by it and all

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agreements incorporated therein.

By signing these payroll

reports every week, George Malatos, the president of MIW,
acknowledged his company’s continuing obligations under the CBA
and the Delinquency Procedure Agreement.

Plaintiffs have

conducted an audit pursuant to that procedure, informed MIW of
the audit results and demanded payment of the outstanding sum.
MIW’s failure to pay the amount due is a breach of the CBA.
Furthermore, plaintiffs have shown that they are reasonably
likely to recover a judgment equal to or greater than the total
amount claimed, i.e. $104,146.11.

Hansen’s audit calculated that

amount and attached payroll data to support his calculations.
While MIW challenges the figure, alleging that employees included
in the audit worked substantially fewer hours than its own
payroll records indicate, MIW fails to support its claim with
data of any sort.

Given the actual evidence before it, this

Court finds that plaintiffs are reasonably likely to recover a
judgment equal to or greater than the amount claimed.
MIW submits that prejudgment attachment would create an
undue hardship by tying up funds necessary to pay suppliers and
meet its obligations under current contracts.

While the Court is

cognizant of these hardships, it is clear that plaintiffs have
met the criteria for prejudgment attachment and thus are entitled
to it under Massachusetts law.

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ORDER
In accordance with the foregoing, plaintiff’s motion for
prejudgment security and temporary restraining order (Docket No.
11) is, with respect to the motion for prejudgment security,
ALLOWED; but is, with respect to the motion for temporary
restraining order, DENIED.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated September 27, 2011

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