Operating Engineers Local #49 Health and Welfare Fund and Central Pension Fund of the International Union of Operating Engineers and Participating Employers et al v. A.B. Environmental Corporation

Filing 29

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT re: 22 Motion for Entry of Judgment. (Written Opinion). Signed by Judge Richard H. Kyle on 04/16/09. (rhks)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ________________________________________________________________________ Operating Engineers Local #49 Health and Case No. 07-cv-4820 (RHK/AJB) Welfare Fund, Central Pension Fund of the International Union of Operating Engineers and Participating Employers, Local #49 International Union Of Operating Engineers and Associated General Contractors of Minnesota Apprenticeship and Training Program and their Trustees, Plaintiffs, v. A.B. Environmental Corporation, Defendant. ________________________________________________________________________ This matter was heard before the undersigned on April 16, 2009. Amy L. Court of McGrann Shea Carnival Straughn & Lamb, Chartered, appeared for and on behalf of the Plaintiffs. There was no appearance on behalf of the Defendant. FINDINGS OF FACT 1. 2007. Plaintiffs filed a Summons and Complaint in this matter on December 13, FINDINGS OF FACT, CONCLUSION OF LAW AND ORDER FOR JUDGMENT

Defendant was served with the Summons and Complaint in this matter on

February 22, 2008. 2. Defendant failed to file and serve a response or Answer to the Summons

and Complaint.

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3.

Plaintiffs filed an Application for Entry of Default on June 26, 2008 and the

Clerk entered default on August 20, 2008. 4. Plaintiffs are trustees and fiduciaries of the above-referenced funds

(hereinafter "Funds"). The Funds are multi-employer plans as defined by 29 U.S.C. § 1002(37). They are established to provide, inter-alia, pension, health and welfare,

vacation, and training benefits to employees doing work in the construction trades, and are maintained for the benefit of workers pursuant to a Collective Bargaining Agreement. 5. At all times material herein, Defendant was bound by a Collective

Bargaining Agreement between the Highway, Railroad, and Heavy Construction Division of the Associated General Contractors of Minnesota and the International Union of Operating Engineers, Local No. 49. 6. The Collective Bargaining Agreement obligates Defendant, as an employer,

to compute the contributions due for each employee in a given month, to submit that information to the Funds' agent on a report form, and to pay those contributions to the Funds' Agent on or before the 15th day of the month following the month for which the contributions are being made. 7. Defendant breached the terms of the Collective Bargaining Agreement by

failing to timely remit the fringe benefit report forms and contributions due pursuant to those reports for the period of July, 2007 through December, 2008.

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8.

After the filing and service of the Complaint and after this Court issued an

Order to Show Cause, Defendant untimely submitted the fringe fund reports for the period of July, 2007 through December, 2008, but did not submit payment for the contributions due and owing for this period. 9. The amount due for fringe benefit contributions for the period of July, 2007

through December, 2008 is $19,154.42. 10. Pursuant to the Collective Bargaining Agreement, liquidated damages of

15% of the contributions are assessed on all delinquent fringe benefit contributions. 11. Liquidated damages of $2,873.16 are due and owing for the period July,

2007 through December, 2008. 12. The Collective Bargaining Agreement provides that Plaintiffs are entitled to

their reasonable attorney fees and costs of this action. 13. The Plaintiffs have incurred attorneys' fees and costs of $2,184.18 in

pursuing this delinquency. CONCLUSIONS OF LAW 1. Judgment. 2. Defendant owes Plaintiffs $19,154.42 for delinquent fringe benefit Defendant is in default, and Plaintiffs are entitled to Entry of a Money

contributions for the period July, 2007 through December, 2008. 3. Defendant owes Plaintiffs $2,873.16 for liquidated damages for the period

July, 2007 through December, 2008. 4. Defendant owes Plaintiffs $2,184.18 for attorneys' fees and costs.
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ORDER IT IS ORDERED: 1. 2. That Plaintiffs' Motion for Entry of a Money Judgment is GRANTED. That judgment in the amount of $24,211.76 shall be entered against

Defendant A.B. Environmental Corporation and in favor of the Plaintiffs.

LET JUDGMENT BE ENTERED ACCORDINGLY. Date: April 16, 2009 BY THE COURT: s/Richard H. Kyle RICHARD H. KYLE United States District Judge

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