Patt et al v. Tull Crane & Rigging, LLC

Filing 18

ORDER granting 10 Plaintiffs' Motion for Entry of Judgment (Written Opinion). Signed by Judge Susan Richard Nelson on 10/4/2019. (MJC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Bill Patt and Jason George and their
successors as Trustees of the Operating
Engineers Local #49 Health and Welfare
Fund, Michael Crabtree and his successors
as a Fiduciary of the Central Pension Fund of
the International Union of Operating
Engineers and Participating Employers, Eric
Gulland and his successors as Trustee of the
Local #49 International Union of Operating
Engineers
and
Associated
General
Contractors of Minnesota Apprenticeship and
Training Program, the Operating Engineers
Local #49 Health and Welfare Fund, the
Central Pension Fund of the International
Union of Operating Engineers and
Participating Employers, and the Local #49
International Union of Operating Engineers
and Associated General Contractors of
Minnesota Apprenticeship and Training
Program,

Case No.: 19-CV-1548 (SRN/HB)

FINDINGS OF FACT,
CONCLUSIONS OF LAW,
AND ORDER FOR
ENTRY OF JUDGMENT

Plaintiffs,
vs.
Tull Crane & Rigging, LLC,

Defendant.

This matter came on for hearing before the undersigned on October 4, 2019 on
Plaintiffs’ Motion for Entry of Judgment. 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.

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FINDINGS OF FACT
1.

The Summons and Complaint were filed with the Court on June 12, 2019.

(Court Docket No. 1).
2.

The Summons and Complaint was served on Tull Crane & Rigging (“Tull

Crane”) on June 20, 2019. (Court Docket No. 5).
3.

Tull Crane failed to file and serve a response or Answer to the Summons

and Complaint. Accordingly, the Clerk entered default on July 17, 2019. (Court Docket
Nos. 6, 9).
4.

Tull Crane was served with this motion, memorandum in support of the

motion, supporting documents, and notice of hearing on August 8, 2019. (Court Docket
Nos. 15, 16).
5.

Plaintiffs are Trustees and Fiduciaries of the Operating Engineers

Local #49 Health and Welfare Fund, the Central Pension Fund of the International
Union of Operating Engineers and Participating Employers, and the Local #49
International Union of Operating Engineers and Associated General Contractors
of Minnesota Apprenticeship and Training Program (“Funds”).
6.

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

and maintained pursuant to provisions of the Employee Retirement Income Security Act
of 1974, as amended 29 U.S.C. § 1001, et seq. (“ERISA”).
7.

The Funds are exempt from federal taxation pursuant to the Internal

Revenue Code.
8.

Tull Crane is bound to two collective bargaining agreements (“CBAS”). The

first CBA was negotiated between the Builders Division of the Associated General

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Contractors of Minnesota and the International Union of Operating Engineers, Local 49,
covering the period of May 1, 2016 through April 30, 2019. The second CBA was
negotiated between the South Dakota East River Builders and the International Union of
Operating Engineers, Local 49, covering the period of September 3, 2015 through August
31, 2018.
9.

The CBAs incorporate by reference the terms of the Welfare Trust

Agreement and the Trust Agreement for the Central Pension Fund of the International
Union of Operating Engineers and Participating Employers.
10.

The CBAs and Trust Agreements require Tull Crane to make monthly

contributions to the Funds, not later than the fifteenth day of the following month, in an
amount set forth in the CBAs for each hour worked by its employees covered by the
CBAs.
11.

The CBAs and Trust Agreements further require Tull Crane to calculate the

contributions due and owing to the Funds in any given month on a report form which must
be submitted to the Funds with Tull Crane’s monthly contribution payment.
12.

The CBAs and Trust Agreements state that an employer shall be

considered delinquent for a particular month if the required remittance report and payment
are not postmarked on or before the fifteenth day of the following month.
13.

The CBAs and Trust Agreements permit the Funds or their authorized

agents to examine employer’s payroll and employment records whenever such
examination is deemed necessary by the Funds or their authorized agents in connection
with the proper administration of the Funds.
14.

And the CBAs and Trust Agreements require Tull Crane to promptly furnish

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to the Funds or their authorized agents, on demand, all necessary employment and
payroll records relating to their employees covered by the CBAs for examination
whenever such examination is deemed necessary by the Funds or their authorized
agents.
15.

Accordingly, the CBAs and Trust Agreements also require Tull Crane to

maintain adequate records to identify the type of work being performed by its employees
to allow the Funds to determine whether Tull Crane is accurately reporting hours to the
Funds including contemporaneously accurate documentation showing what employees
performed what CBA-covered work on what projects for what hours on what given date,
i.e., the information typically maintained on timecards.
16.

The Funds’ auditor requested that Tull Crane produce a complete set of its

payroll and employment records for the period of July 1, 2016 through September 30,
2018 (“Audit Period”).
17.

Tull Crane produced its payroll and employment records for the Audit Period

and the Funds’ auditor determined there were hours worked by Tull Crane’s employees
covered by the CBAs for which Tull Crane did not submit the required contributions to the
Funds. Specifically, the Funds’ auditor determined that $18,209.94 is due and owing for
delinquent contributions for the Audit Period.
18.

Tull Crane breached the terms of the CBAs and Trust Agreements by failing

to pay the total amount due for delinquent contributions for the Audit Period.
19.

The CBAs state that if an employer becomes delinquent, the employer shall

be required to pay as liquidated damages an amount equal to 15 percent of the payment
otherwise due.

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20.

Liquidated damages in the amount of $2,731.49 are due and owing for the

Audit Period.
21.

The CBAs state that delinquent employers shall be required to pay all costs

of collection actually incurred by the Funds, including all attorneys’ fees, service fees,
filing fees, court reporter fees, and all other fees, costs, disbursements incurred by or on
behalf of the Funds in collecting amounts due.
22.

The Funds incurred attorneys’ fees and costs in the amount of $1,462.15

pursuing this delinquency.
CONCLUSIONS OF LAW
1.

Defendant Tull Crane & Rigging, LLC is in default and the Funds are entitled

to entry of a default judgment.
2.

Defendant Tull Crane & Rigging, LLC. is liable to the Funds in the amount

of $20,941.43 for delinquent contributions and liquidated damages.
3.

Defendant Tull Crane & Rigging, LLC is liable to the Funds in the amount

of $1,462.15 for the Funds’ reasonable attorneys’ fees and costs.
ORDER
Based on the foregoing, and on all the files, records, and proceedings, herein IT
IS ORDERED THAT:
1.

Plaintiffs’ Motion for Entry of Judgment [Doc. No. 10] is GRANTED.

2.

That judgment in the amount of $22,403.58 be entered against Defendant

Tull Crane & Rigging, LLC and in favor of the Plaintiffs.

LET JUDGMENT BE ENTERED ACCORDINGLY

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Dated: October 4, 2019

s/Susan Richard Nelson
Susan Richard Nelson
United States District Judge

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