Trustees of the Bricklayers & Allied Craftworkers Local 13 Defined Contribution Pension Trust for Southern Nevada et al v. GRANITE WORKS, INC. et al

Filing 42

ORDER Adopting 33 Report and Recommendation. Granting in part and Denying in part 34 Motion for Default Judgment. Default Judgment is entered in favor of plaintiffs and against Jon Canja in the amount of $72,066.67. Signed by Judge Howard D. McKibben on 7/26/2011. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TRUSTEES OF THE BRICKLAYERS &
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ALLIED CRAFTWORKERS LOCAL 13
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DEFINED CONTRIBUTION PENSION
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TRUST FOR SOUTHERN NEVADA,
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TRUSTEES OF THE BRICKLAYERS &
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ALLIED CRAFTWORKERS LOCAL 13
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HEALTH BENEFITS FUND, TRUSTEES OF )
THE BRICKLAYERS & ALLIED
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CRAFTWORKERS LOCAL 13 VACATION
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FUND, BRICKLAYERS & ALLIED
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CRAFTWORKERS LOCAL 13 NEVADA,
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TRUSTEES OF THE BRICKLAYERS &
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TROWEL TRADES INTERNATIONAL
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PENSION FUND, TRUSTEES OF THE
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BRICKLAYERS & TROWEL TRADES
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INTERNATIONAL HEALTH FUND, and
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TRUSTEES OF THE INTERNATIONAL
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MASONRY INSTITUTE,
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Plaintiffs,
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vs.
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GRANITE WORKS, INC., and JON
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CANJA,
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Defendants.
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_________________________________ )

2:10-cv-00767-HDM-PAL
ORDER

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Plaintiffs initiated this action against defendants Granite
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Works, Inc. and its president Jon Canja on May 24, 2010.

The

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complaint asserts four claims, including breach of fiduciary duty
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against Canja.

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22, 2010.

Defendants filed an answer to the complaint on July

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On October 21, 2010, defendants’ attorney moved to withdraw.

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The magistrate judge granted the motion and ordered defendants to

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obtain new counsel, or in the case of Canja to file a notice of

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intent to proceed pro se on or before November 23, 2010.

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defendant responded to the magistrate judge’s order.

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10, 2010, the magistrate judge issued an order to show cause why

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sanctions should not be imposed for the failure to respond.

Neither

On December

On

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December 21, 2010, new counsel appeared on the defendants’ behalf

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and responded to the order to show cause.

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concluded that the parties had not intentionally disregarded the

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court’s orders and that sanctions were not warranted.

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The magistrate judge

On February 7, 2011, defendants’ second counsel moved to

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withdraw.

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2011, ordering defendants to obtain new counsel, or in the case of

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Canja file a notice that he would be appearing pro se, on or before

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February 24, 2011.

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The magistrate judge granted that motion on February 11,

On February 18, 2011, the magistrate judge conducted a hearing

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on a motion to compel discovery filed by the plaintiffs.

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defendants nor counsel on their behalf appeared at the hearing.

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Neither

Defendants failed to advise the court that they had retained

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new counsel and did not file any other notice or request for

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extension of time.

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an order to show cause why sanctions should not be imposed for

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failure to comply with court orders.

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the defendants to respond on or before March 18, 2011.

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did not do so.

On March 9, 2011, the magistrate judge issued

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The magistrate judge ordered
Defendants

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On March 25, 2011, the magistrate judge recommended that this

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court issue sanctions for defendants’ failure to obtain counsel or

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otherwise comply with the court’s orders.

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recommended entry of default judgment against Granite Works if it

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did not retain counsel before April 8, 2011, and entry of default

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judgment against Canja if he did not either retain counsel or file

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a notice that he would be appearing pro se by that same date.

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objections to the report and recommendation were filed.

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The magistrate judge

No

On April 4, 2011, the plaintiffs filed a motion for default
judgment.
On May 12, 2011, the court conducted a telephonic hearing on

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the report and recommendation and the motion for default judgment.

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Canja appeared at the hearing.

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to appear through an attorney, the court adopted and accepted the

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magistrate judge’s report and recommendation and granted the

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plaintiffs’ motion for default judgment against Granite Works.

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to Canja, the court ordered plaintiffs to supplement their motion

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for default judgment and granted Canja until June 2, 2011, to file

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a response.

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Canja has not filed any response.

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As Granite Works had still failed

The plaintiffs filed their supplement on May 26, 2011.

Accordingly, now before the court are the magistrate judge’s

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report and recommendation (#33) and the plaintiffs’ motion for

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default judgment (#34, #37) as to defendant Canja.

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I. Report and Recommendation

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As

The report and recommendation recommends entry of default

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against Canja because his “willful failure to comply with the

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court’s Orders is an abusive litigation practice that has

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interfered with the court’s ability to hear this case, delayed
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litigation, disrupted the court’s timely management of its docket,

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wasted judicial resources, and threatened the integrity of the

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court’s orders and the orderly administration of justice.”

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& Recommendation 2).

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defendant fails “to comply with [the court’s] own unambiguous

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orders to obtain substitute counsel, file a pretrial memorandum,

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and respond to the plaintiffs’ discovery requests.”

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Blinder, Robinson & Co., 980 F.2d 912, 918 (9th Cir. 1992).

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has failed to defend this action, comply with plaintiff’s discovery

(Report

Default may be appropriate where the

Hoxworth v.
Canja

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requests, or respond to various orders of the court.

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the court hereby adopts and accepts the magistrate judge’s report

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and recommendation (#33) that default judgment be entered against

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defendant Canja.

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II. Motion for Default Judgment

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Accordingly,

At the May 12, 2011, hearing, plaintiffs confirmed that they

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seek relief against Canja on breach of fiduciary duty theory.1

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ERISA imposes a number of duties upon fiduciaries and authorizes

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civil actions where those duties have been breached.

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1105, § 1109, § 1132(a)(2) & (3).

See id. §

A “person is a fiduciary with

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1
Although plaintiffs obtained relief against Granite Works pursuant
to 29 U.S.C. § 1145, that section applies only to “employers.” See id. §
1145 (“Every employer who is obligated to make contributions to a
multiemployer plan under the terms of the plan or under the terms of the
collectively bargained agreement shall, to the extent not inconsistent with
law, make such contributions in accordance with the terms and conditions of
such plan or such agreement.”). Absent reasons for piercing the corporate
veil, individuals who are not themselves employers are not liable for
delinquent or unpaid contributions under § 1145.
See Operating Eng’rs
Pension Trust v. Reed, 726 F.2d 513, 515 (9th Cir. 1984); see also Trustees
of Screen Actors Guild-Producers Pension & Health Plans v. NYCA, Inc., 572
F.3d 771, 776 (9th Cir. 2009) (“Shareholders and officers of a corporation
may be liable for the company’s contribution obligations in situations in
which justice requires piercing the corporate veil.”). Plaintiffs have made
no allegation and have provided no evidence supporting a piercing of the
corporate veil and imposing individual liability in this case.

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respect to a plan to the extent . . . [he or she] exercises any

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authority or control respecting management or disposition of its

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assets.”

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liable under this theory, the delinquent or unpaid contributions

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must be considered plan assets, and Canja must have had control or

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authority over their disposition.

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Life Ins. Co., 107 F.3d 1415, 1421 (9th Cir. 1997).

29 U.S.C. § 1002(21)(A).

Thus, in order for Canja to be

See id.; IT Corp.

v. Gen. Am.

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A. Plan Assets

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The complaint alleges that Canja failed to remit contributions

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that Granite Works was required to pay as well as contributions

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that had been withheld from its employees’ paychecks. (Compl. ¶¶

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32-33).

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Employee contributions, i.e., amounts withheld from employee

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paychecks, are considered plan assets. 29 C.F.R. § 2510.3-102(a);

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Trustees of the S. Calif. Pipe Trades Health & Welfare Trust Fund

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v. Temecula Mech., Inc, 438 F. Supp. 2d 1156, 1161 n.1 (C.D. Cal.

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2006); see also In re M&S Grading, Inc., 541 F.3d 859, 864 (8th

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Cir. 2008).

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Employer contributions, on the other hand, generally do not

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become plan assets until the employer pays them over to the plan.

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Cline v. Indus. Maint. Eng’g & Contracting Co., 200 F.3d 1223, 1234

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(9th Cir. 2000).

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employer contributions may be considered plan assets where the plan

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documents “specifically and clearly” identify them as such.

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Pension Fund v. Hall, 334 F.3d 1011, 1013 (11th Cir. 2003);

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Temecula Mech., Inc, 438 F. Supp. 2d at 1163; see also Trustees of

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the Elec. Workers Health & Welfare Trust v. Campbell, 2010 U.S.

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Dist. LEXIS 12213, at *6 (D. Nev. Feb. 11, 2010); Bd. of Trustees

However, some courts have held that unpaid

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ITPE

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of Laborers Health & Welfare Trust Fund for N. Calif. v. Atoll

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Topui Island, 2007 WL 174409, at *4-5 (N.D. Cal. 2007).

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agrees with the reasoning of these courts and will apply the

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exception here.

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The court

Where documents of a plan describe its assets as including

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contributions that are required to be paid, unpaid employer

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contributions are considered plan assets.

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sufficient has included: (1) sums “due and owing”; (2) sums that

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“shall be paid” or are “required to be made”; or (3) sums that

Language deemed

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“become Trust assets on the Due Date.”

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Dist. LEXIS 12213, at *8-9 (finding unpaid employer contributions

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were plan assets where plan documents stated that “all money owed

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to the Trusts . . . (whether paid, unpaid, segregated or otherwise

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traceable, or not) become[s] Trust assets on the Due Date,” and the

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employer is “immediately liable” for delinquent contributions);

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Atoll Topui, 2007 WL 174409, at *4-5 (finding unpaid employer

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contributions were plan assets where plan documents stated that the

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trust fund “shall consist of all Contributions required . . . to be

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made”); Trustees of Conn. Pipe Trades Local 777 Health Fund v.

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Nettleton Mechan. Contractors, 478 F. Supp. 2d 279, 283 (D. Conn.

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2007) (finding unpaid employer contributions were plan assets where

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plan documents stated that assets of the fund included “such sums

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of money as have been or shall be paid to the Pension Fund by the

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Employers” and “sums of money that have or will be paid or which

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are due and owing to the Fund by the Employers”); Temecula Mech.,

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438 F. Supp. 2d at 1165 (finding unpaid employer contributions were

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plan assets where plan documents stated that assets of the fund

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consisted of “the sums of money that . . . are due and owing to the
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See Campbell, 2010 U.S.

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Fund by the Employers . . . [and] all other Contributions and

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payments to or due and owing to the Trustees from any source to the

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extent permitted by law”); id. at 1166 (finding unpaid employer

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contributions were plan assets where plan documents stated that

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assets of the fund included “such sums of money as have been or

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shall be paid to the Pension Fund by the Employers”).

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Unpaid employer contributions have not been considered plan

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assets where plan documents describe assets as including simply

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“contributions,” without more.

See In re Halpin, 566 F.3d 286, 290

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(2d Cir. 2009) (holding that unpaid employer contributions were not

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plan assets where fund assets were described as “contributions made

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by Employers”); In re Brobeck, Phleger & Harrison, LLP, 414 B.R.

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627, 636 n.8 (Bankr. N.D. Cal. 2009) (holding that unpaid employer

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contributions were not plan assets where the plan contained the

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following language: “All contributions made to the Plan shall be

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paid over to the Trustee . . . Contributions so received . . .

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shall constitute the Trust”); Bonilla v. E.G. Constr., 2007 WL

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2317589, at *5 (N.D. Cal. 2007) (holding that unpaid employer

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contributions were not plan assets where the only relevant language

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defined contributions as “payment[s] made or to be made to the Fund

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by an Individual employer.”).

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Three of the trust agreements in this case specifically and

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clearly identify unpaid employer contributions as plan assets: (1)

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the Vacation Trust Agreement,2 (Ex. 1 Art. 1, § 11) (defining the

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fund’s assets as “consist[ing] of the sums of money that have been

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or will be paid or which are due and owing to the Fund by the

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2
The court adopts the shorthand references to the trust agreements
provided in plaintiffs’ supplement (#37).

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Employers as required by the Collective Bargaining Agreements and

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any and all other Contributions and Payments to the extent

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permitted by law”) (emphasis added); (2) the Health Benefits Fund,

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(Ex. 3 § 1.08, § 1.09) (defining “contributions” as “contributions

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made or required to be made by Employers to the fund, and defining

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“fund” as “generally the monies or other things of value which

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comprise the corpus and additions to the Trust fund”); and (3) the

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Masonry Trust Agreement, (Ex. 4 Art. 2(d)) (defining trust assets

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as including “future contributions provided for under collective

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bargaining agreements,” where the collective bargaining agreement

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requires benefit contributions); (Mot. Default Judg. Shea Decl. Ex.

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1 (Master Labor Agreement Art. XII) (requiring employers to make

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benefit contributions)).

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The remainder of the trust agreements do not contain such
specific and clear language.
The Pension Trust defines the trust fund as including “[a]ll

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funds contributed to the Trust by Employers and all monies,

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properties and other things of value which may be contributed to or

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otherwise become part of the Trust.”

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While plaintiffs argue that this “agreement contemplates future,

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unpaid contributions,” (Pl. Supp. 4), the future contributions are

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described neither as due or owing nor as required to be made.

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Simply contemplating that future contributions may be made is

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insufficient.3

(Ex. 2 Am. No. 5 § 1.01).

In fact, the language of the Pension Trust is more

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To the extent plaintiffs rely on the language found sufficient by
the Temecula court, this court notes that although that language included
“sums of money that have or will be paid,” the Temecula court clearly
focused on the phrase “sums . . . due and owing” in deciding that the unpaid
contributions constituted plan assets. Temecula Mech., 438 F. Supp. 2d at
1165. Accordingly, this court does not consider sufficient the language in

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similar to the language at issue in In re Halpin and Bonilla, which

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the courts held did not specifically and clearly identify unpaid

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employer contributions as plan assets.

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liable under a breach of fiduciary duty theory for the fringe

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benefit payments that were owed to the Pension Trust because the

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amounts owed to the Pension Trust are not plan assets.

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Accordingly, Canja is not

Even less specifically, the International Pension Fund defines

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“trust fund,” “fund,” and “trust” to include contributions.

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Art. 1 § 1.7).

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insufficient.4

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(Ex. 5

As with the Pension Trust, this language is

Plaintiffs provide no documentation or argument for the

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International Health Fund.

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finding that unpaid contributions to the International Health Fund

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are plan assets.

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There is therefore no support for a

Thus, to the extent plaintiffs seek an award of unpaid

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employer contributions to the International Health Fund, the

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International Pension Fund, and the Pension Trust, the motion for

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default judgment is DENIED.

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agreements contain language sufficient to identify unpaid employer

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contributions as plan assets, the court is unable on this record to

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determine the amount of unpaid contributions associated with each

While the other three plaintiff trust

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the Pension Trust referring to contributions that “may” be made.
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Plaintiffs argue that the Pension Fund and Health Benefits Fund are
defined contribution plans, it appears suggesting that as such the unpaid
contributions should be considered plan assets. However, at least one court
has noted that the distinction between defined benefit and defined
contribution plans is irrelevant to the determination of whether unpaid
contributions are plan assets. In re Brobeck, 414 B.R. at 635-36.
Accordingly, the fact that the Pension Fund and the Health Benefits Fund are
defined contribution plans does not compel a conclusion that unpaid
contributions are plan assets.

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of those trusts.

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a second supplement identifying the unpaid employer contributions

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associated with the Vacation Trust, the Health Benefits Fund, and

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the Masonry Trust.

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before August 16, 2011.

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will deny the motion for default judgment for unpaid employer

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contributions as to those trusts, as well.

Accordingly, plaintiffs are granted leave to file

Plaintiffs shall file any such supplement on or
Should no supplement be filed, the court

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B. Fiduciary Role

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Determining that some of the unpaid contributions were plan

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assets, however, is only the first step.

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liable as a fiduciary, he must have had authority and control over

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those assets.

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In order for Canja to be

Canja’s status as sole corporate officer and controlling

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shareholder of Granite Works does not automatically render him a

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fiduciary.

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2009) (individual’s status as officer of corporation is

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insufficient to establish he is a fiduciary); see also Kayes v.

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Pac. Lumber Co., 51 F.3d 1449, 1459-61 (9th Cir. 1995) (rejecting

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the “contention that where a corporation is [a] named fiduciary,

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the [corporate officers] who act on behalf of the corporation do

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not become individual fiduciaries by virtue of those acts,” but not

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holding that corporate officers are automatically fiduciaries).

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Canja may be considered a fiduciary only if he had functional

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control and authority over plan assets.

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Plaintiffs have not otherwise provided any evidence regarding

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Canja’s control or authority over payment of contributions to the

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trusts.

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takes the well-pleaded factual allegations in the complaint as

See also Finkel v. Romanowicz, 577 F.3d 79, 86 (2d Cir.

29 U.S.C. §1002(21)(A).

However, for purposes of default judgment, “th[e] court

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true.”

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2007) (internal quotation marks omitted).

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looks to the allegations of plaintiffs’ complaint.

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DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir.
Accordingly, the court

Although plaintiffs allege that Canja was a fiduciary, (Compl.

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¶ 30), this is a conclusion of law.

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admit facts that are not well-pleaded or to admit conclusions of

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law.”

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responsible for withholding monies from employee paychecks and for

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making decisions about transmitting those monies to the trust.

Id.

A “defendant is not held to

Factually, the complaint alleges that Canja was

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(Compl. ¶ 36).

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had authority and control over the disposition of employee

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deductions.

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The complaint thus sufficiently alleges that Canja

However, despite plaintiffs’ assertions in their supplement,

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the complaint does not allege that Canja was responsible for

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remitting or had authority to direct the payment of the employer

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contributions.

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Canja’s control was over monies withheld from employee paychecks.

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(See Compl. ¶¶ 36, 37, 47).

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Canja was responsible for the day-to-day operations of Granite

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Works and that he failed to submit timely reports, the court finds

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this assertion insufficient to allege that Canja had authority or

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control over Granite Works’ employer contributions.

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In fact, the complaint repeatedly asserts that

While the complaint does allege that

The complaint does not sufficiently plead that Canja had

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control over employer contributions.

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Canja acted as a fiduciary with respect to employer contributions,

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the court cannot grant the plaintiffs’ motion for default judgment

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as to those contributions.

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to provide evidence that Canja was a fiduciary with respect to the

Without further evidence that

Plaintiffs are therefore granted leave

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unpaid employer contributions.

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the three trust funds discussed above, plaintiffs shall file such

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supplement on or before August 16, 2011.

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supplement and provide evidence of Canja’s fiduciary function will

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result in a denial of the motion for default judgment as to all

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unpaid employer contributions.

As with the supplement regarding

The failure to file a

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Because the plaintiffs’ complaint establishes that Canja was a

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fiduciary with respect to employee contributions and such were plan

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assets, the court hereby grants the motion for default judgment as

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to the employee contributions and enters an award as follows.

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III. Award

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Plaintiffs seek a judgment against Canja that includes the

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unpaid employee contributions, interest, liquidated damages and

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attorney’s fees.

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U.S.C. § 1132(g)(2).

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“to enforce section 1145.”

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to employers.

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fiduciary duty claim against Canja and therefore does not dictate

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the relief to be granted in this case.

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Sons Contractors, Inc., 974 F.2d 270, 285 (2d Cir. 1992),

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abrogation on other grounds recognized by Gerosa v. Savasta & Co.,

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329 F.3d 317, 319, 322-23 (2d Cir. 2003); see also Trustees of the

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Road Carriers Local 707 Welfare Fund v. Goldberg, 2009 WL 3497493,

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at *6 (E.D.N.Y. 2009).

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Plaintiffs appear to base their request on 29
Section 1132(g)(2) applies to actions brought
As discussed above, § 1145 applies only

Thus, § 1132(g)(2) does not apply to the breach of

See Diduck v. Kaszycki &

Plaintiffs’ remedies are for a breach of fiduciary duties.

In

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general, a fiduciary that breaches his or her duties to a plan is

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“liable to make good to such plan any losses to the plan resulting

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from each such breach, and to restore to such plan any profits of
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1

such fiduciary which have been made through use of assets of the

2

plan by the fiduciary.”

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plaintiffs to be made whole, Canja must pay not only the unremitted

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employee contributions but also interest and liquidated damages on

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those contributions.

The court concludes that in order for

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A. Unpaid Contributions

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Granite Works was required to pay money withheld from employee

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paychecks to the Vacation Fund.

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According to the audit, Canja failed to pay $21,679.61 to the

(Pl. Supp. Payson Decl. ¶¶ 5-6).

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Vacation Fund between 2008 and 2009.

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Decl. Ex. A).

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employees worked on the Imperial Palace project, Canja failed to

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pay $1,800.00 to the Vacation Fund between August 2010 and October

14

2010. (Id. Ivester Decl.; id. Goodnough Decl. Ex. A).

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finds that the plaintiffs have presented sufficient evidence

16

supporting their claim of unpaid employee contributions and will

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therefore award the plaintiffs these amounts.

(Mot. Default Judg. Goodnough

And based on the estimate of the time Granite Works

The court

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B. Interest

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Plaintiffs seek prejudgment interest in the amount of

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$4,937.34 through April 14, 2010, with $8.43 per diem thereafter

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until judgment is entered.

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request.

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through April 14, 2010, when in fact the audit calculated interest

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through April 30, 2010. (See Mot. Default Judg. Goodnough Decl.

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Ex. A).

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interest from May 1, 2010.

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diem interest due and owing from that date is $8.43.

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based on the court’s own calculations, an interest rate of 14%, as

The court notes two problems with this

First, plaintiffs assert that the interest is calculated

Accordingly, the court will calculate the additional
Second, plaintiffs assert that the per

13

However,

1

provided in the Collective Bargaining Agreement, (see Shea Decl.

2

Ex. 1 at 10)) on $21,679.61 would yield a rate of $8.31 per diem.

3

Accordingly, the court will award prejudgment interest at a rate of

4

$8.31 per diem.

5

Pursuant to the court’s calculations, then, an additional

6

amount of $3448.65 has accrued in interest from May 1, 2010, until

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June 20, 2011, the date of this order.

8

award prejudgment interest in the total amount of $8,385.99 through

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June 19, 2011.

The court will accordingly

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C. Liquidated Damages

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The Vacation Trust Agreement provides for liquidated damages

12

of 20 percent.

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will award $4,335.93 for the unpaid contributions from 2008-2009

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and $360.00 for the unpaid contributions from 2010.

(Pl. Supp. Ex. A § 6.02(d)).

The court therefore

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D. Attorney’s Fees

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Plaintiffs argue that an award of attorney’s fees is

17

mandatory, citing 29 U.S.C. § 1132(g)(2).

18

provision does not apply to plaintiffs’ breach of fiduciary duty

19

claim.

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fees against Canja.

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award plaintiffs the requested attorneys fees in the amount of

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$35,197.67.

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additional labor put into this case results from plaintiffs’

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failure to provide a basis for this court’s award against Canja in

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its original motion for default judgment.

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Conclusion

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As discussed, this

The court may in its discretion, however, award attorney’s
Id. § 1132(g)(1).

Accordingly, the court will

No further fees will be awarded, however, as the

In accordance with the foregoing, the court hereby ADOPTS AND
ACCEPTS the report and recommendation of the United States
14

1

Magistrate Judge (#33) and enters default judgment against

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defendant Jon Canja.

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(#34, #37) is GRANTED IN PART and DENIED IN PART, and the court

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RESERVES in part, as discussed above.

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their motion as to the employer contributions for the Vacation

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Trust (if any), the Health Benefits Fund, and the Masonry Trust,

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and Canja’s control and authority over those contributions.

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Plaintiffs shall file any such supplement on or before August 16,

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2011.

The plaintiffs’ motion for default judgment

Plaintiffs may supplement

Failure to file the required information will result in a

10

denial of the remainder of the motion for default judgment.

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the unpaid employee contributions, the court hereby enters the

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following judgment against defendant Jon Canja:

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1. Unpaid Employee Contributions

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A. 2008-09

$21,679.61

15

B. August-October 2010

$1,800.00

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2. Prejudgment Interest

17

A. 2008-09

$8,693.46

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B. August-October 2010

$0

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3. Liquidated Damages

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A. 2008-09

$4,335.93

21

B. August-October 2010

$360.00

22

4. Attorney’s Fees

$35,197.67

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Total:

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IT IS SO ORDERED.

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$72,066.67

DATED: This 26th day of July, 2011.

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____________________________
UNITED STATES DISTRICT JUDGE

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15

As to