Sheet Metal Workers National Health Fund v. DSM, Inc.

Filing 17

ORDER GRANTING PRELIMINARY INJUNCTION AND WAIVING BOND. Signed by District Judge Kevin H. Sharp on 2/13/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
SHEET METAL WORKERS NATIONAL
HEALTH FUND,

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Plaintiff,
v.
DSM, INC.,
Defendant.

Civil Action No. 3:12-1069
Judge Sharp
Magistrate Judge Bryant

ORDER GRANTING PRELIMINARY INJUNCTION AND WAIVING BOND
Pending before the Court is a motion by Plaintiff for a preliminary injunction and to waive
any requirement for security in connection with issuance of the preliminary injunction.
Defendant has not responded to the motion, and pursuant to Local Rule 7.01(b) the failure to file a
response indicates there is no opposition.

Despite the lack of opposition, the Court has

considered the motion and the entire record in this matter, and makes the following findings.
The motion is supported by the affidavit of Angela Rye who relates under penalty of
perjury as allowed by 28 U.S.C. § 1746 that factual statements in the affidavit are true. The
affidavit establishes the following: Plaintiff is an employee benefit plan as that term is defined in
ERISA at 29 U.S.C. § 1002(2). Defendant is a party to a collective bargaining requiring the
payment of contributions to Plaintiff, and Defendant is an employer as that term is defined in
ERISA at 29 U.S.C. § 1002(5). Under terms of the collective bargaining agreement, Defendant is
obligated to send Plaintiff a monthly payroll report with details about the hours of work and wages
of its employees and the report is to be accompanied with payment of contributions.
Plaintiff filed suit pursuant to 29 U.S.C. § 1145, which was added to ERISA in 1980 due to
the Congressional recognition that delinquencies of employers in making required contributions in

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a timely fashion impose a variety of costs to welfare and pension plans, including the loss of funds
to pay benefits, interest income, additional administrative expenses, attorney’s fees and other legal
costs, and also the possibility that employees may not receive health or pension benefits 1.
Consideration of Plaintiff’s motion for a preliminary injunction requires weighing the
interests of Plaintiff and Defendant upon the consideration of four factors: (1) whether there is a
strong or substantial likelihood of Plaintiff’s success on the merits; (2) whether an injunction will
save Plaintiff from irreparable injury; (3) whether an injunction will harm others, including
Defendant; and (4) the impact the Court’s ruling will have upon the public interest. International
Longshoreman’s Assn. v. Norfolk Southern Corp., 927 F.2d 900, 903 (6th Cir.), cert. den. 112 S.
Ct. 63 (1991). These factors are to be balanced and do not receive rigid application or an
assignment of equal weight. In re Eagle-Pilcher Indus., Inc., 963 F.2d 855, 859 (6th Cir. 1992).
Because uncontested facts as stated in the affidavit of Angela Rye establish Defendant has
violated 29 U.S.C. § 1145, there is a strong or substantial likelihood of Plaintiff’s success on the
merits. Issuance of the injunction will likely save Plaintiff from irreparable injury, as the Rye
affidavit reveals that absent the payment of contributions, employees of Defendant may not
receive health benefits. Issuance of the injunction will not harm others, as Defendant will merely
be required to conform its conduct to § 515 of ERISA. The public interest embodied in § 515 of
ERISA will be served by issuance of the injunction.
Accordingly, pursuant to Fed. R. Civ. P. 65(a), the Court hereby enters a preliminary
injunction against the Defendant requiring the timely future payment of contributions and
submission of all monthly payroll reports, as required under the collective bargaining agreement

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Senate Committee on Labor and Human Resources, S1076 - The Multiemployer
Pension Plan Act Amendments of 1980, Summary and Analysis of Consideration 96th Cong., 2d
Sess. at 43-4 (Comm. Print, 1980).
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and 29 U.S.C. § 1145. All payments presently owing and all payroll reports presently due shall be
submitted to Plaintiff within twenty (20) days from the date of entry of this order.
Plaintiff has also moved to waive any requirement for security in connection with issuance
of the preliminary injunction pursuant to Fed. R. Civ. P. 65(c). For reasons stated in Plaintiff’s
memorandum in support, the motion is hereby granted and bond is hereby waived.

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KEVIN SHARP
United States District Judge

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APPROVED FOR ENTRY:

s/R. Jan Jennings
R. Jan Jennings, BPR No. 1536
Branstetter, Stranch & Jennings, PLLC
227 Second Avenue North, 4th Floor
Nashville, TN 37201-1631
Tel.: [phone]
Email: [e-mail]

CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing has been served via United States First
Class Mail with adequate postage affixed thereon to the following:
DSM, Inc.
c/o Sheila DeLaup, Reg. Agent
3208 Lake Trail Drive
Metairie, LA 70003
This 11th day of January, 2013.
s/R. Jan Jennings
R. Jan Jennings

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