Trustees of the Bricklayers & Allied Craftworkers Local 13 Defined Contribution Pension Trust For Southern Nevada et al v. Commercial Union Tile & Stone, Inc. et al

Filing 96

ORDER that the clerk of court shall enter judgment in favor of defendant Jonathan William Canja and against plaintiffs Bricklayers & Allied Craftworkers Local 13 Defined Contribution Pension Trust for Southern Nevada; Bricklayers & Trowel Trades International Pension Fund; and Bricklayers & Trowel Trades International Health Fund.A proposed joint pretrial order regarding the remaining disputes between plaintiffs Bricklayers & Allied Craftworkers Local 13 Health Benefits Fund and the Inte rnational Masonry Institute and defendant Jonathan William Canjais is due 30 days from the date of this order.Plaintiff Bricklayers & Allied Craftworkers Local 13 Vacation Fund shall file a proposed form of judgment on attorneys fees and costs against defendant Jonathan William Canja by 9/29/2017. Signed by Judge Andrew P. Gordon on 9/20/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TRUSTEES OF THE BRICKLAYERS &
ALLIED CRAFTWORKERS LOCAL 13
DEFINED CONTRIBUTION PENSION
TRUST FOR SOUTHERN NEVADA, et
al.,

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ORDER

Plaintiffs,
v.
COMMERCIAL UNION TILE & STONE,
INC., et al.,
Defendants.

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Case No. 2:15-cv-02129-APG-NJK

The plaintiffs filed a motion for summary judgment against defendants Commercial Union

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Tile & Stone, Inc.; Vegas Affordable Stone and Tile, Inc.; and Jonathan William Canja. ECF No.

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54. With respect to defendant Canja, the plaintiffs argued that unpaid contributions are trust

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assets when the governing trust agreements identify them as such, and Canja is an ERISA

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fiduciary with respect to those assets because he controlled whether Commercial Union made the

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due and owing contributions. They asserted Canja breached his fiduciary duties by not making

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the required contributions and instead paying his own personal expenses out of Commercial

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Union accounts.

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I ruled that of the six plaintiff trust funds, only one’s declaration contains language similar

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to that which courts have found clearly and expressly identifies unpaid contributions as plan

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assets. Consequently, I ruled in favor of the Bricklayers & Allied Craftworkers Local 13

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Vacation Fund (Local 13 Vacation Fund) against Canja. However, as to the other funds, the

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plaintiffs either did not provide the trust declaration or the provided trust declarations’ language

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was “facially ambiguous and not anchored by the clear, shared intent of the parties.” ECF No. 84

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at 7 (quotation omitted). Consequently, I denied summary judgment against Canja with respect to

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the other plaintiff funds. I also ordered that the plaintiffs (other than the Local 13 Vacation Fund)

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show cause why judgment should not be entered in favor of Canja. Only two of the plans

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responded to argue that judgment should not be entered against them: the Bricklayers & Allied

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Craftworkers Local 13 Health Benefits Fund and the International Masonry Institute. These two

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funds argue that they previously had obtained a default judgment against Canja, so he knew the

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funds interpreted the plans to impose fiduciary obligations over unpaid contributions. They assert

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that Canja thereafter signed the collective bargaining agreement, which provided that Canja

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agreed to the trustees’ interpretations of the governing documents. The trusts thus argue Canja

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knowingly agreed to be a fiduciary over unpaid contributions with respect to these two plans.

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Additionally, the Local 13 Vacation Fund moves for attorney’s fees and costs against

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Canja under 29 U.S.C. § 1132(g)(1). The Bricklayers & Allied Craftworkers Local 13 Health

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Benefits Fund and the International Masonry Institute also seek fees and costs against Canja if I

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grant judgment in their favor.

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A. Trust Funds That Did Not Respond

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The following trust funds did not respond to my order to show cause: the Bricklayers &

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Allied Craftworkers Local 13 Defined Contribution Pension Trust for Southern Nevada; the

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Bricklayers & Trowel Trades International Pension Fund; and the Bricklayers & Trowel Trades

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International Health Fund. I therefore grant judgment in favor of Canja against these plaintiffs.

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B. Local 13 Health Benefits Fund and International Masonry Institute

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The Bricklayers & Allied Craftworkers Local 13 Health Benefits Fund and the

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International Masonry Institute have presented evidence raising an issue of fact that precludes the

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entry of judgment in Canja’s favor. These two funds have presented evidence that Canja agreed

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to subject himself to the possibility of fiduciary liability because he knew how the funds

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interpreted their plans, he knew a court had interpreted the plans to allow for fiduciary liability to

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be imposed, and he nevertheless agreed to the collective bargaining agreement, which bound him

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to the trustees’ interpretations of their plans. However, because the declarations are ambiguous,

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and because the prior court order resulted from a default judgment, there remain questions of fact

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about the parties’ intentions regarding Canja’s fiduciary status, particularly because ambiguous

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contracts are construed against the drafter. Anvui, LLC v. G.L. Dragon, LLC, 163 P.3d 405, 407

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(Nev. 2007) (stating contractual ambiguities are construed against the drafter and the “parties’

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intentions regarding a contractual provision present a question of fact”). Consequently, I will not

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grant judgment in Canja’s favor against these two funds, but I also will not grant judgment in

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these funds’ favor.

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C. Attorney’s Fees Against Canja for Local 13 Vacation Fund

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The Local 13 Vacation Fund prevailed against Canja on summary judgment. It now seeks

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attorney’s fees and costs under 29 U.S.C. § 1132(g)(1). There was no request for fees against

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Canja under § 1132(g)(1) in the original motion for summary judgment. Instead, the funds sought

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fees under § 1132(g)(2). See ECF No. 54.
Final judgment has not been entered in this case. Thus, the request for fees under
§1132(g)(1) is not untimely. See LR 54-14(a).
Section 1132(g)(1) provides that a court may, in its discretion, award reasonable

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attorney’s fees and costs. To be eligible for fees, the requesting party must have “achieved some

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degree of success on the merits.” Simonia v. Glendale Nissan/Infiniti Disability Plan, 608 F.3d

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1118, 1120 (9th Cir. 2010) (quotation omitted). If so, then I must consider the so-called

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“Hummell” factors in exercising my discretion under § 1132(g)(1). Id. at 1121. The Hummel

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factors include:

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(1) the degree of the opposing parties’ culpability or bad faith; (2) the ability of the
opposing parties to satisfy an award of fees; (3) whether an award of fees against
the opposing parties would deter others from acting under similar circumstances;
(4) whether the parties requesting fees sought to benefit all participants and
beneficiaries of an ERISA plan or to resolve a significant legal question regarding
ERISA; and (5) the relative merits of the parties’ positions.
Hummell v. S. E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980).
The Local 13 Vacation Fund prevailed on summary judgment. It thus achieved success

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and is eligible to obtain a fee award. The Hummel factors support a fee award. It is unclear

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whether Canja can satisfy a fee award, although the trust expresses the belief that he can do so.

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ECF No. 90 at 5. I view this factor as neutral, as I am without any information to evaluate his

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ability to pay.

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All of the other factors support a fee award. Canja is culpable because, as stated in my

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prior order, he paid personal expenses out of Commercial Union accounts but did not direct

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contributions to the fund even though he could have done so. ECF No. 84 at 8. A fee award may

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deter other fund fiduciaries from not making required contributions. The Local 13 Vacation Fund

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sought to benefit all plan participants whose contributions went unpaid. Finally, the fund

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obtained judgment in its favor and Canja did not oppose the summary judgment motion. Because

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all but one of the Hummel factors favor a fee award, I grant Local 13 Vacation Fund’s request for

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attorney’s fees and costs against Canja. Local 13 Vacation Fund has proposed a means of

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apportioning the fees and costs based on the percentage of contributions due to the fund vis-à-vis

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the other plaintiff funds. I find that allocation reasonable and I direct Local 13 Vacation Fund to

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prepare a proposed form of judgment.

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D. Conclusion

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IT IS THEREFORE ORDERED that the clerk of court shall enter judgment in favor of

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defendant Jonathan William Canja and against plaintiffs Bricklayers & Allied Craftworkers Local

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13 Defined Contribution Pension Trust for Southern Nevada; Bricklayers & Trowel Trades

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International Pension Fund; and Bricklayers & Trowel Trades International Health Fund.

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IT IS FURTHER ORDERED that issues of fact remain as between plaintiffs Bricklayers

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& Allied Craftworkers Local 13 Health Benefits Fund and the International Masonry Institute and

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defendant Jonathan William Canja. A proposed joint pretrial order regarding the remaining

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disputes is due 30 days from the date of this order.

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IT IS FURTHER ORDERED that on or before September 29, 2017, plaintiff Bricklayers

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& Allied Craftworkers Local 13 Vacation Fund shall file a proposed form of judgment on

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attorney’s fees and costs against defendant Jonathan William Canja.

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DATED this 20th day of September, 2017.
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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