Nesse et al v. Lakewest Excavating LLC
ORDER granting 9 Motion for Entry of Judgment (Written Opinion). Signed by Judge Susan Richard Nelson on 03/31/17. (MJC)
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, Tammy Braastad
and Todd Pufahl as Trustees of the
Minnesota Laborers Vacation Fund, Todd
Pufahl and Fred Chase as Trustees of the
Training, and Apprenticeship Fund of
Minnesota and North Dakota, Mark Ryan
and Dave Borst as Trustees of the
Cooperation and Education Trust, the
Minnesota Laborers Health and Welfare
Fund, the Minnesota Laborers Pension
Fund, the Minnesota Laborers Vacation
Education, Training, and Apprenticeship
Fund of Minnesota and North Dakota, and
the Minnesota Laborers Employers
Cooperation and Education Trust,
Case No: 16-CV-3974 (SRN/FLN)
ENTRY OF JUDGMENT
Lakewest Excavating LLC,
This matter was heard before the undersigned on March 31, 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
The Complaint was filed with the Court on November 22, 2016.
Docket No. 1)
The Complaint was served on Defendant Lakewest Excavating LLC,
(“Lakewest”) on December 2, 2016. (Court Docket No. 4)
Lakewest 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 Lakewest
to answer the Complaint lapsed.
The Clerk entered Default on January 3, 2017. (Court Docket Nos. 5-8)
Lakewest was personally served with this Motion on January 25, 2017.
(Court Docket No. 15)
Plaintiffs are Trustees and fiduciaries of 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 (“the Funds”).
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).
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
The Funds are exempt from federal taxation pursuant to the Internal
Lakewest accepted and agreed to be bound to the terms of a collective
bargaining agreement negotiated between the Highway Railroad and Heavy
Construction Division of the Associated General Contractors of Minnesota and the
Laborers District Council of Minnesota and North Dakota on behalf of its affiliated local
Unions covering the period of May 5, 2014 through April 30, 2017 (“CBA”).
The CBA requires Lakewest 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.
The CBA requires Lakewest to set forth the amount due and owing for
contributions on a remittance report form to be submitted to the Funds with its monthly
The CBA requires Lakewest 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.
Lakewest breached the terms of the CBA by failing to timely submit the
remittance reports and contributions due and owing for the period of June 2016 through
November 2016 (“Delinquency Period”).
Following the filing of this lawsuit, Lakewest untimely submitted its
remittance reports for the Delinquency Period.
Pursuant to the reports untimely
submitted, $27,953.37 is due and owing for unpaid contributions.
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.
Liquidated damages in the amount of $2,795.34 are due and owing for
the Delinquency Period.
Prior to filing this motion, but after the filing of the lawsuit, Lakewest
submitted a partial payment in the amount of $10,592.80 for which it is entitled to a
Following the filing of this Motion, Lakewest submitted a partial payment
in the amount of $8,227.41 for which it is entitled to a credit.
Following application of the credits, $11,928.50 remains due and owing
for the Delinquency Period.
The CBA further provide that a delinquent employer shall be required to
pay all reasonable attorneys’ fees and court costs incurred by the Funds.
The Funds incurred attorneys’ fees and costs in pursuing this delinquency
in the amount of $1,757.64.
CONCLUSIONS OF LAW
Lakewest is in default and the Funds are entitled to entry of judgment.
Lakewest is liable to the Funds in the amount of $11,928.50 for unpaid
contributions and liquidated damages for the Delinquency Period.
Lakewest is liable to the Funds in the amount of $1,757.64 for attorneys’ fees
IT IS ORDERED:
That Plaintiffs’ Motion for Entry of Judgment is granted.
That judgment in the amount of $13,686.16 be entered against Lakewest
Excavating LLC and in favor of Plaintiffs.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 31, 2017
BY THE COURT:
s/Susan Richard Nelson
Susan Richard Nelson
United States District Court Judge
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