Nesse et al v. Macpherson - Towne Company

Filing 18

ORDER FOR JUDGMENT. IT IS ORDERED: 1. That Plaintiffs' Motion for Entry of Judgment 9 is granted. 2. That judgment in the amount of $4,691.38 be entered against Macpherson-Towne and in favor of Plaintiffs. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Michael J. Davis on 1/19/17. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

John Nesse and Tim Mackey as
Trustees of the Minnesota Laborers
Health and Welfare Fund, Tim Mackey
and John Nesse as Trustees of the
Minnesota Laborers Pension Fund,
James Brady and Tammy Braastad as
Trustees of the Minnesota Laborers
Vacation Fund, John Bartz and Todd
Pufahl as Trustees of the Construction
Laborers’ Education, Training, and
Apprenticeship Fund of Minnesota and
North Dakota, Mark Ryan and Todd
Pufahl as Trustees of the Minnesota
Laborers Employers Cooperation and
Education Trust, the Minnesota
Laborers Health and Welfare Fund, the
Minnesota Laborers Pension Fund, the
Minnesota Laborers Vacation Fund, the
Construction Laborers’ Education,
Training, and Apprenticeship Fund of
Minnesota and North Dakota, and the
Minnesota
Laborers
Employers
Cooperation and Education Trust,

Case No: 16-CV-3446 (MJD/BRT)

ORDER FOR
ENTRY OF JUDGMENT

Plaintiffs,
v.
Macpherson-Towne Company,
Defendant.
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This matter was heard before the undersigned on January 19, 2017.
Christy E. Lawrie 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.

The Complaint was filed with the Court on October 12, 2016. (Court

Docket No. 1).
2.

The Complaint was served on Defendant Macpherson-Towne

Company (“Macpherson-Towne”) on October 17, 2016. (Court Docket No. 4)
3.

Macpherson-Towne failed to file an Answer with the Clerk of Court

or serve an appropriate Answer upon the Funds’ counsel, and the time allowed
by law for Macpherson-Towne to answer the Complaint lapsed.
4.

The Clerk entered Default on November 9, 2016. (Court Docket No.

5.

Macpherson-Towne was personally served with the Plaintiffs’

8)

Motion for Entry of Judgment on November 29, 2016. (Court Docket No. 16).
6.

Plaintiffs are Trustees and fiduciaries of the Minnesota Laborers
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Health and Welfare Fund, the Minnesota Laborers Pension Fund, the Minnesota
Laborers Vacation Fund, the Construction Laborers Education, Training, and
Apprenticeship Fund of Minnesota and North Dakota, and the Minnesota
Laborers Employers Cooperation and Education Trust (“the Funds”).
7.

The Funds are multi-employer, jointly-trusteed fringe benefit plans

created and maintained pursuant to Section 302(c)(5) of the Labor Management
Relations Act of 1947 (“LMRA”), as amended 29 U.S.C. § 186(c)(5).
8.

The Funds are administered in accordance with the provisions of

the Employee Retirement Income Security Act of 1974, as amended 29 U.S.C. §
1001, et seq. (“ERISA”).
9.

The Funds are exempt from federal taxation pursuant to the Internal

Revenue Code.
10.

Macpherson-Towne accepted and agreed to be bound to the terms

of a collective bargaining agreement between the Metropolitan Builders Division
of the Associated General Contractors of Minnesota and the Concrete and
Masonry Contractors Association and the Laborers District Council of Minnesota
and North Dakota on behalf of its affiliated local Unions with a term of May 6,
2013 through April 30, 2016 (“CBA”).
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11.

The CBA requires Macpherson-Towne to submit contributions to

the Funds in an amount per hour specified in the CBA for each hour worked by
its employees covered by the CBA.
12.

The CBA requires Macpherson-Towne to set forth the amount due

and owing for contributions on a remittance report form to be submitted to the
Funds with its monthly payment.
13.

The CBA requires Macpherson-Towne to submit the remittance

report and payment to the Funds by the fifteenth day of the following month for
which the contributions are due. Any employer whose remittance reports and
contributions are not postmarked on or before the fifteenth is considered
delinquent.
14.

The CBA provides that the Funds’ Trustees, or their authorized

agent, have the right, at any reasonable time, to inspect a complete set of all
relevant payroll and employment records, including, but not limited to federal
forms W2s and W3s, Social Security, withholding, unemployment, and Workers’
Compensation payment records, 1099s, and 941s, and any other records deemed
necessary by the Funds.
15.

The Funds’ authorized agent requested that Macpherson-Towne
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produce a complete set of its payroll and employment records for the period of
September 1, 2015 through April 30, 2016 (“Audit Period”).
16.

Macpherson-Towne produced its payroll and employment records

for the Audit Period and the Funds’ authorized agent determined there were
hours worked by Macpherson-Towne’s employees covered by the CBA for
which Macpherson-Towne did not submit contributions to the Funds.
17.

The Funds’ authorized agent reviewed the payroll and employment

records prepared and produced by Macpherson-Towne and prepared an audit
invoice setting forth the amounts due to the Funds for unpaid contributions for
the Audit Period. The Funds’ authorized agent reviewed the payroll and
employment records prepared and produced by Macpherson-Towne and
prepared an audit invoice setting forth the amounts due to the Funds for unpaid
contributions for the Audit Period. Specifically, the Funds’ authorized agent
determined that $2,734.40 is due and owing to the Funds for the Audit Period.
18.

The CBA provides that if a payment for contributions is not

submitted to the Funds on or before the fifteenth day of the month following the
month for which the contributions are due, the employer is subject to a penalty
in the amount of ten percent of the contributions as liquidated damages.
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19.

Liquidated damages in the amount of $273.44 are due and owing to

the Funds for the Audit Period.
20.

The CBA further state that if Macpherson-Towne becomes

delinquent, Macpherson-Towne shall be required to pay interest on all
delinquent contributions at the rate prescribed by the Trustees of the Funds in
the Trust Agreements.
21.

The Funds’ Collection Policy provides for the collection of interest

at rate equal to the actuarial assumed rate of return for the Minnesota Laborers
Pension Fund plus .5 percent when an auditor determines a discrepancy of five
percent or greater than the total contributions remitted by the employer in a 12month period.
22.

The current actuarial assumed rate of return for the Minnesota

Laborers Pension Fund is 7.5 percent. As such, the Funds are entitled to interest
on the unpaid contributions at a rate of 8 percent.
23.

Interest charges in the amount of $163.70 are due and owing from

Macpherson-Towne for the Audit Period.
24.

The CBA further provides that a delinquent employer shall be

required to pay all reasonable attorneys’ fees and court costs incurred by the
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Funds.
25.

The Funds incurred attorneys’ fees and costs in pursuing this

delinquency in the amount of $1,519.84.
CONCLUSIONS OF LAW
1.

Macpherson-Towne is in default and the Funds are entitled to entry of

judgment.
2.

Macpherson-Towne is liable to the Funds in the amount of $2,734.40 for

unpaid contributions for the Audit Period.
3.

Macpherson-Towne is liable to the Funds in the amount of $273.44 for

liquidated damages for the Audit Period.
4.

Macpherson-Towne is liable to the Funds in the amount of $163.70 for

interest for the Audit Period.
5.

Macpherson-Towne is liable to the Funds in the amount of $1,519.84 for

attorneys’ fees and costs.
ORDER
IT IS ORDERED:
1.

That Plaintiffs’ Motion for Entry of Judgment is granted.

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2.

That judgment in the amount of $4,691.38 be entered against

Macpherson-Towne and in favor of Plaintiffs.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 19, 2017

BY THE COURT:
s/ Michael J. Davis
Michael J. Davis
United States District Court

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