Free Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00412-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE N.E.C.A. LOCAL UNION NO. 313 I.B.E.W. HEALTH AND WELFARE FUND, N.E.C.A. LOCAL UNION NO. 313 I.B.E.W. PENSION FUND, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 313 DEFERRED INCOME PLAN, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 313 APPRENTICESHIP AND TRAINING COMMITTEE, THE DELAWARE DIVISION INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS' VACATION FUND, and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 313, Plaintiffs, v. TRI-STATE TECHNOLOGIES, INC., A Delaware Corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. ____________________

COMPLAINT Plaintiffs, by and through their undersigned counsel and for their complaint against the Defendant, state as follows:

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JURISDICTION AND VENUE 1. This Court has jurisdiction over the subject matter of this action pursuant

to 29 U.S.C. §§ 185(a), 1132, 1145. 2. A copy of this Complaint is being served on the Secretary of Labor and

Secretary of Treasury of the United States by certified mail. 3. 1132(e)(2). THE PARTIES 4. Plaintiffs, N.E.C.A. Local Union No. 313 I.B.E.W. Health and Welfare Venue lies in this District pursuant to 29 U.S.C. §§ 185(a) and/or

Fund, N.E.C.A. Local Union No. 313 I.B.E.W. Pension Fund, International Brotherhood of Electrical Workers Local Union No. 313 Deferred Income Plan, International Brotherhood of Electrical Workers Local Union No. 313 Apprenticeship and Training Committee, and the Delaware Division International Brotherhood of Electrical Workers' Vacation Fund (jointly the "Funds"), are trust funds established pursuant to 29 U.S.C. § 186(c)(5) and "multiemployer plans" and "employee benefit plans" within the meaning of 29 U.S.C. § 1002(37) (1),(2), and (3). 5. Plaintiff International Brotherhood of Electrical Workers Union Local No.

313 ("Union") is an unincorporated association commonly referred to as a labor union, and is an employee organization that represents, for purposes of collective bargaining, employees of Tri-State Technologies, Inc. who are and/or were employed in an industry affecting commerce within the meaning of 29 U.S.C. §§ 152 (2) ,(6), and (7), and §§ 1002 (5),(11), and (12).

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6.

Defendant Tri-State Technologies, Inc. (the "Company") is a Delaware

corporation and an employer in industry affecting commerce within the meaning of 29 U.S.C. §§ 152 (2) ,(6), and (7), and §§ 1002 (5),(11), and (12). The Company's registered agent for service of process in Delaware is YCS&T Services LLC, 1000 West Street, Brandywine Building, 17th Floor, Wilmington, DE 19801. FACTS 7. At all times relevant hereto, the Company was party to a collective

bargaining agreement(s) with the Union ("Labor Contract"). 8. The Company also signed or otherwise agreed to abide by the terns of the

Trust Agreements of the Funds ("Trust Agreements") made between certain employers and employee representatives in an industry affecting interstate commerce to promote stable and peaceful labor relations. 9. Under the Labor Contract or Trust Agreements, the Company agreed: (a) To make full and timely payments on a monthly basis to the

Plaintiffs as required by the Labor Contracts; (b) To file monthly remittance reports with the Plaintiffs detailing all

employees or work for which contributions were required under the Labor Contract; (c) To produce, upon request by the Plaintiffs, individually or jointly,

all books and records deemed necessary to conduct an audit of the Company's records concerning its obligations to Plaintiffs; and (d) To pay liquidated damages, interest, and all costs of litigation,

including attorneys' fees, expended by the Plaintiffs to collect any amounts due as a

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consequence of the Company's failure to comply with its contractual obligations described above. 10. The Company also agreed to make full and timely payments on a monthly

basis to the International Brotherhood of Electrical Workers Local Union No. 313 Apprenticeship and Training Committee, and the Delaware Division International Brotherhood of Electrical Workers' Vacation Fund. 11. The Company failed to make require payments to the Funds in November

2006 ($7,413.16), December 2006 ($44,269.43), and January 2007 ($28,835.60). The Company further failed to pay liquidated damages in the amount of $2,367.88 for a late payment made for the month of April 2007. COUNT I (Contributions Under Contract ­ Sum Certain) 12. The allegations of paragraphs 1-11 are incorporated by reference as if

fully set forth herein. 13. The Company has breached the Labor Contract and Trust Agreements by

failing to make contributions in November 2006, December 2006, and January 2007. 14. Based upon the information available to date, the Company owes

contributions under the Labor Contract and/or Trust Agreements in the amount of $80,518.19 for the period November 2006-January 2007. COUNT II (ERISA Contributions ­ Sum Certain) 15. The allegations of paragraphs 1-14 are incorporated by reference as if

fully set forth herein.

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16.

Based upon the information available to date, the Company has failed to

pay contributions in the amount of $80,518.19 for the period November 2006-January 2007 in violation of 29 U.S.C. § 1145. 17. U.S.C. § 1145. 18. Under ERISA, the Company is also obligated to pay liquidated damages The Plaintiffs have been damaged by the Company's violation of 29

for the three unpaid months in the amount of $16,103.64 (20% of the delinquent amount per the terms of the Labor Contracts) plus an additional $2,367.88 for a late payment that was made for the month of April 2007. COUNT III (Audit) 19. The allegations of paragraphs 1-18 are incorporated by reference as if

fully set forth herein. 20. The Company is obligated to permit the Plaintiffs to audit its records and

to cooperate in determining any additional contributions due to Plaintiffs. 21. The amount of contributions and work dues the Company is required to

pay to the Plaintiffs is based upon hours worked and wages paid to employees performing work covered by the Labor Contract. 22. The books, records and information necessary to calculate the full extent

of the Company's delinquency are in the exclusive possession, custody and control of the Company.

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23.

Computation of the precise amount of an employer's delinquency is

normally achieved by an audit of the employer's books and records and/or is calculated from contractually required remittance reports submitted by the employer. 24. No audit of the Company's books and records has been performed to

determine the full extent of the employer's delinquency. 25. The Company is required by the Labor Contract, Trust Agreement, or

applicable law to permit the Funds to audit their records and to cooperate in determining the contributions due the Plaintiffs. 26. The Funds have no adequate remedy at law for the calculation of the full

amount of damages suffered as a result of the Company's breach. 27. All conditions precedent to equitable relief have been satisfied. COUNT IV (Contributions under Contract after Audit) 28. The allegations of paragraphs 1-27 are incorporated by reference as if

fully set forth herein. 29. On information and belief, the Company has failed to make contributions

to the Plaintiffs as required by the Labor Contract and/or Trust Agreements in a period not barred by the applicable statute of limitations. 30. Upon information and belief, Plaintiffs have been damaged by the

Company's failure to make contributions as required by the Labor Contract and/or Trust Agreements. COUNT V (Contributions under ERISA after Audit)

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31.

The allegations of paragraphs 1-30 are incorporated by reference as if

fully set forth herein. 32. Upon information and belief, the Company has failed to make

contributions to Plaintiffs in violation of 29 U.S.C. § 1145 in a period not barred by an applicable statute of limitations or similar bar. 33. The Plaintiffs are without sufficient information or knowledge to plead the

precise nature, extent and amount of the Company's delinquency since the books, records and information necessary to determine this liability are in the Company's possession, custody and/or control. 34. Upon information and belief, Plaintiffs have been damaged by the

Company's violation of 29 U.S.C. § 1145. COUNT VI (Injunction) 35. The allegations of paragraphs 1-34 are incorporated by reference as if

fully set forth herein. 36. A monetary judgment or other legal remedy does not provide full relief

and is inadequate because the Company has shown its disregard of its contractual and legal obligations by a pattern of delinquencies. 37. Unless ordered to satisfy its obligations by this Court, the Company will

continue to refuse to submit remittance reports and pay the contributions presently due and owing or which become due and owing in the future, and the Funds and their participants will suffer immediate, continuing and irreparable damage by, among other matters, the loss of investment earnings, the inability to properly determine eligibility and

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calculate benefits, and a substantial increase in the administrative costs of the Funds with a diminution of the assets otherwise available to pay benefits to Company employees and employees of other employers who fully and timely pay their obligatory contributions. 38. All conditions precedent to equitable relief have been satisfied.

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor as follows: A. B. C. Awarding Plaintiffs the sum of at least $80,518.19; and Awarding Plaintiffs liquidated damages in the sum of $18,471.52; and Awarding Plaintiffs pre-judgment interest at the rate of 8% per annum, as specified in ERISA and the relevant Labor Contracts; and Awarding Plaintiffs post-judgment interest at the rate of 8% per annum, as specified in ERISA and the relevant Labor Contracts; and Awarding Plaintiffs their costs incurred in connection with this lawsuit; and Awarding Plaintiffs their reasonable attorneys fees, as specified in ERISA; and Entering an injunction requiring Defendant to permit an audit of all records under the actual or constructive control of the Company to determine work for which contributions are due and the amount of any such contributions and, in the absence of records, requiring Defendant to cooperate in alternative methods for the determination of work for which contributions are due and the amount of any such contributions; and Entering an injunction restraining the Company from continuing to violate the terms of the current collective bargaining agreement(s) between the Company and the Union providing for the timely filing of remittance reports with complete, accurate and proper information and timely payment of contributions to the Plaintiffs for so long as the Company is contractually required to do so; and

D.

E.

F.

G.

H.

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I.

Awarding such other and further relief as the Court deems just and proper.

CROSS & SIMON, LLC By:_ / s / Erica N. Finnegan Erica N. Finnegan (#3986) 913 North Market Street, 11th Floor Wilmington, DE 19801 Tel.: (302) 777-4200 Fax: (302) 777-4224 [email protected]

Dated: June 25, 2007

Counsel to Plaintiffs

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Document 1-2 SHEET06/26/2007 CIVIL COVER Filed

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JS 44 (REV. 07/89) The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS N.E.C.A. LOCAL UNION NO. 313 I.B.E.W. HEALTH AND WELFARE FUND, N.E.C.A. LOCAL UNION NO. 313 I.B.E.W. PENSION FUND, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 313 DEFERRED INCOME PLAN, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 313 APPRENTICESHIP AND TRAINING COMMITTEE, THE DELAWARE DIVISION INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS' VACATION FUND, and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 313
(b) County of residence of first listed plaintiff (EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS TRI-STATE TECHNOLOGIES, INC.
County Of Residence Of First Listed Defendant (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED

Attorneys (If Known)

New Castle
(c) Attorneys (Firm Name, Address, and Telephone Number)

Erica N. Finnegan (#3986) Cross & Simon, LLC 913 North Market Street, 11th Floor Wilmington, DE 19801 (302) 777-4200 II. BASIS OF JURISDICTION (Place an "X" in One Box Only)
1. U.S. Government Plaintiff U.S. Government Defendant 3. Federal Question (U.S. Government Not a Party) 4. Diversity

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box
(For Diversity Cases Only) for Plaintiff and One Box for Defendant)

Citizen of This Sate

PTF 1

DEF 1

Incorporated or Principal Place of Business in This State Incorporated and Principal Place of Business in Another State Foreign Nation

PTF 4

DEF 4

2.

Citizen of Another State (Indicates Citizenship of Parties in Item III) Citizen or Subject of a Foreign Country

2

2

5

5

3

3

6

6

IV. NATURE OF SUIT (Place an "X" in One Box Only)
CONTRACT
110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability 196 Franchise PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury

TORTS
PERSONAL INJURY 362 Personal InjuryMed Malpractice 365 Personal InjuryProduct Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability

FORFEITURE/PENALTY
610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure of Property 21 USC 881 630 Liquor Laws 640 R.R. & Truck 650 Airline Regs. 660 Occupational Safety/Health 690 Other

BANKRUPTCY
422 Appeal 28 USC 158 423 Withdrawal 28 USC 157

OTHER STATUES
400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influence and Corrupt Organizations 810 Selective Service 850 Securities/Commod ities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts

PROPERTY RIGHTS
820 Copyrights 830 Patent 840 Trademark

LABOR
710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 730 Labor/Mgmt. Reporting & Disclosure Act

SOCIAL SECURITY
861 HIA(1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS

FEDERAL TAX SUITS

210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

441 Voting 501 Case 1:07-cv-00412-GMS Motions to Vacate Sentence 1-2 740 Railway Labor06/26/2007 870 Taxes (U.S. Plaintiff or 2 Document Filed Act Page 442 Employment Defendant) 2 of Habeas Corpus: 443 Housing/ Accommodations 444 Welfare 445 Amer..w/DisabilitiesEmployment 446 Amer.w/DisabilitiesOther 440 Other Civil Rights 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act 871 IRS-Third Party 26 USC 7609

892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900 Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statues

V. ORIGIN (Place an "X" in One Box Only)
1 Original Proceeding 2 Removed from State Court 3 Remanded from Appellate Court 4 Reinstated or Reopened 5 Transferred from another district (specify) 6 Multisdistrict Litigation Appeal to District 7 Judge from Magistrate Judgment

VI. CAUSE OF ACTION

Cite the U.S. Civil Statue under which you are filing (Do not cite jurisdictional statues unless diversity):

ERISA ­ 29 U.S.C. §§ 185(a), 1132(e) and 1145
Brief description of cause:

Suit for breach of collective bargaining agreement and violations of ERISA

VII. REQUEST IN COMPLAINT: VIII. RELATED CASE(S) IF ANY
DATE 6/26/2007 FOR OFFICE USE ONLY
RECEIPT #_________

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

DEMAND:

CHECK YES only if demand in complaint: JURY DEMAND: YES NO

$98,989.71 plus interest

(See instructions): JUDGE: SIGNATURE OF ATTORNEY OF RECORD /s/ Erica N. Finnegan DOCKET NUMBER:

AMOUNT _________ APPLYING IFP _________ JUDGE _________ MAG. JUDGE __________________________

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