Alongi v. R&M Excavation DB, Inc. et al

Filing 9

Judge Mark L. Wolf: ENDORSED ORDER entered granting 5 Motion for Preliminary Injunction. (Franklin, Yvonne)

Case 1:14-cv-12811-MLW Document 5 Filed 08/14/14 Page 1 of 3

FILED
IN CLERKS OFFICE
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSEffi}$ rlAR

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DISTRICT OF Vi\SS.
GINA M. ALONGI, as she is ADMINISTRATOR,
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 4 HEALTH AND WELFARE,
PENSION, ANNUITY AND SAVINGS FUNDS,
LABOR-MANAGEMENT COOPERATION TRUST, and
HOISTING AND PORTABLE ENGINEERS LOCAL 4
APPRENTICE AND TRAINING FUND,
Plaintiffs,

....
C.A. No. 14-12811 MLW

vs.
R&M EXCAVATION DB, INC. and
DAVID BERTRAND, Individually,
Defendants.

PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION TO OBTAIN AUDIT
Upon the Verified Complaint and the Memorandum in support of their Motion for
Preliminary Injunction, the Plaintiffs, pursuant to §502(a)(3) of the Employee Retirement
Income Security Act of 1974, 29 U.S.c. §1132(a)(3), and Rule 65(a), Federal Rules of Civil
Procedure, respectfully request this Court to enter a Preliminary Injunction enjoining Defendants
R&M Excavation DB, Inc. and David Bertrand from refusing to permit an audit of the books and
records ofR&M Excavation DB, Inc.
As grounds therefore, Plaintiffs states as follows:
1)

Based on the foregoing Complaint and Exhibits, Plaintiffs have exhibited a
likelihood of success on the merits.

2)

Unless enjoined by this Court, the Defendants will continue to ignore their

obligations under the terms of the Employee Retirement Income Security

Act of 1974, as amended ("ERISA"), and of the Restated Agreement and

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Case 1:14-cv-12811-MLW Document 5 Filed 08/14/14 Page 2 of 3

Declaration of Trust of the Health and Welfare Fund, to which they are
bound, to permit auditors to audit their books in order to verify whether
they made all required contributions to the appropriate funds.
3)

There is no adequate remedy at law.

4)

The Defendants' refusal to permit an audit will result in irreparable injury, loss,
and damage to the Plaintiffs.

5)

The issuance of a preliminary injunction herein will not cause undue
inconvenience or loss to the Defendants but will prevent irreparable injury to the
Plaintiffs, and would further the public interest.

WHEREFORE, Plaintiffs move this Court to grant a preliminary injunction compelling
the Defendants and their agents to permit an audit ofR&M Excavation DB, Inc.'s books and
records for the period May 1, 2012 to the present to determ ine the amount, if any, Defendants
owe the Plaintiffs. Plaintiffs further request that they be excused from posting a bond.
Respectfully submitted,
GINA M. ALONGI, as she is
ADMINISTRATOR, INTERNATIONAL
UNION OF OPERATING ENGINEERS
LOCAL 4 HEALTH AND WELFARE,
PENSION, AND ANNUITY AND
SAVINGS FUNDS, et aI.,
By their attorneys,
Is/Gregory A. Geiman
Gregory A. Geiman
BBO #655207
LU.O.E. Local 4 Trust Funds
16 Trotter Drive
Medway, MA 02053
[phone] x140
[e-mail]
Dated: August 14, 2014

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Case 1:14-cv-12811-MLW Document 5 Filed 08/14/14 Page 3 of 3

CERTIFICATE PURSUANT TO LOCAL RULE 7.l(A)(2)
I hereby certify that, upon information and belief, the Defendant in the above-captioned
matter is not presently represented by counsel.

lsi Gregory A. Geiman
Gregory A. Geiman

CERTIFICATE OF SERVICE
This is to certify that a copy ofthe above Motion for Preliminary Injunction to Obtain
Audit has been filed through the ECF system and will be sent electronically to the registered
participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent
by first class mail, postage prepaid, to those indicated as non-registered NEF participants on this
14th day of August, 2014.

lsi Gregory A. Geiman
Gregory A. Geiman, Esq.

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