Iron Workers Local 25 Pension Fund et al v. Municipal and Industrial Storage, Incorporated et al

Filing 39

ORDER granting 38 Motion to Amend/Correct Judgment. Signed by District Judge Paul D. Borman. (DGoo)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRUSTEES OF THE IRON WORKERS’
LOCAL NO. 25 PENSION FUND; IRON
WORKERS’ HEALTH FUND OF EASTERN
MICHIGAN; IRON WORKERS LOCAL NO.
25 VACATION PAY FUND; and IRON
WORKERS’ APPRENTICE FUND OF
EASTERN MICHIGAN, Trust Funds
Established and Administered Pursuant to
Federal Law,

Paul D. Borman
United States District Judge
Case Number: 2:10-cv-12502-PDB-MKM

Plaintiff,
v.
MUNICIPAL & INDUSTRIAL STORAGE,
INC., a Michigan Corporation, and AL
LETTINGA, Individually,
Defendants,
and
CHEMICAL BANK, A Michigan Banking
Corporation,
Intervenor
Defendants.
_____________________________________/
ORDER AMENDING JUDGMENT AGAINST DEFENDANTS
On March 24, 2011, this Court granted Plaintiffs’ motions for summary judgment against
Defendants Municipal & Industrial Storage, Inc. (“Municipal”) and its president Al Lettinga
(“Lettinga,” collectively “Defendants”) for unpaid fringe benefit contributions Defendants owed
Plaintiffs for work completed between the weeks ending March 7, 2010 through October 3, 2010.
(Dkt. Nos. 35 & 36.) The Court awarded Plaintiffs $96,275.17 in unpaid contributions and
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$1,316.15 pursuant to a liquidated damages provision agreed upon by the parties. (Dkt. No. 36 at
10.) As part of the Judgement, the Court ordered that “within 10 days of the date of entry of the
Judgment, the Plaintiffs shall move to amend this Judgment to include the mandates of 29 U.S.C.
§ 1132(g)(2) upon further submission to the Court.” (Id. at 11.)
On April 4, 2011, Plaintiffs moved to amend the Judgment and order Defendants to pay
$118,563.04. (Dkt. No. 38, Pls.’ Mot. to Amend J. ¶ 11.) That figure includes: (a) $96,275.17 in
unpaid contributions for the period of the weeks ending March 7, 2010 through October 3, 2010; (b)
$1,316.15 in liquidated damages; (c) $4,190.36 in interest on the unpaid contributions pursuant to
29 U.S.C. § 1132(g)(2)(B);1 (d) $4,190.36 in interest on the unpaid contributions pursuant to 29
U.S.C. § 1132(g)(2)(C)(i);2 and (e) $12,591.00 in attorney fees and costs from June 15, 2010 through
March 31, 2011.3 (Pls.’ Mot. ¶ 11(A)-(E).)
For the following reasons, the Court holds Plaintiffs are entitled to only $117,246.89.
Section 1132(g)(2) provides that in a successful action brought by a fiduciary on behalf of a plan
to enforce 29 U.S.C. § 1145 (governing delinquent contributions to benefit plans), the court shall
award the plan: “(A) the unpaid contributions, (B) interest on the unpaid contributions, (C) an
amount equal to the greater of – (i) interest on the unpaid contributions, or (ii) liquidated damages

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Attached to Plaintiffs’ motion a memo dated April 4, 2010 from CPA Kenneth L. Slate
of O’Brien, Rivamonte & Slate P.C., explaining how he calculated this interest amount. (Pls.’
Mot. Ex. B.)
2

Plaintiffs attribute this portion of their demand to 29 U.S.C. § 1132(g)(2)(ii) in their
brief, however, no such section exists. Furthermore, the Court assumes Plaintiffs meant to cite
section 1132(g)(2)(C)(i) as opposed to (ii) because the former awards the interest amount
whereas the latter awards whatever the parties agreed to as liquidated damages.
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Plaintiffs’ attorney, Matthew I. Henzi, submitted an affidavit testifying that Plaintiffs
incurred attorney’s fees of $11,970.00 and costs of $621.00. (Pls.’ Mot. Ex. A.)
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provided for under the plan . . . , (D) reasonable attorney’s fees and costs of the action . . . , and (D)
such other legal or equitable relief as the court deems appropriate.” § 1132(g)(2).
As § 1132(g)(2)(C) makes clear, Plaintiffs are not entitled to count the interest on the unpaid
contributions and the liquidated damages provision towards its award. The Court shall only award
the greater of those two numbers. Because the interest amount of $4,190.36 is greater than the
liquidated damages amount of $1,316.15, Plaintiffs are entitled to the former, but not the later, under
§ 1132(g)(2)(C). Accordingly, the Court holds that under section 1132(g)(2), Plaintiffs are entitled
to (A) $96,275.17, (B) $4,190.36, (C) $4,190.36, and (D) $12,591.00 for a total of $117,246.89.
IT IS HEREBY ORDERED that Judgment is entered against Defendants Municipal &
Industrial Storage Inc. and Al Lettinga in the amount of $117,246.89.

S/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: April 11, 2011
CERTIFICATE OF SERVICE
Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on
April 11, 2011.

S/Denise Goodine
Case Manager

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