Free Motion for Default Judgment - District Court of California - California

Case 3:07-cv-05045-MMC

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1 Muriel B. Kaplan, Esq. (SBN 124607) Michele R. Stafford, Esq. (SBN 172509) 2 SALTZMAN & JOHNSON LAW CORPORATION 120 Howard Street, Suite 520 3 San Francisco, CA 94105 (415) 882-7900 4 (415) 882-9287 ­ Facsimile [email protected] 5 [email protected] 6 Attorneys for Plaintiffs 7 8 9 10 11 12 GIL CROSTHWAITE, et al., as Trustees of the 13 OPERATING ENGNEERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN 14 CALIFORNIA, et al., 15 16 v. Plaintiffs, Case No.: C07-5045 MMC NOTICE OF MOTION AND MOTION FOR DEFAULT JUDGMENT; POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: May 16, 2008 Time: 9:00 a.m. Location: 450 Golden Gate Avenue San Francisco, California Courtroom: 7, 19th Floor Judge: The Honorable Maxine M. Chesney TO JOHN TAYLOR NORTHROP, individually and dba KRISTIN CONSTRUCTION: PLEASE TAKE NOTICE that pursuant to Federal Rule of Civil Procedure 55(b)(2), the 24 25 court shall conduct a hearing on the application of the plaintiffs for the entry of default judgment UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

17 JOHN TAYLOR NORTHROP, individually and dba KRISTIN CONSTRUCTION, 18 Defendant. 19 20 21 22 23

26 in this matter. Said hearing shall be conducted on Friday, May 16, 2008, at 9:00 a.m., or as soon 27 thereafter as counsel may be heard before the Honorable Maxine M. Chesney, in Courtroom 7, 28 19th Floor, Federal Courthouse, 450 Golden Gate Avenue, San Francisco, California. Court 1
NOTICE OF MOTION FOR DEFAULT JUDGMENT CASE NO.: C07-5045 MMC
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1 information from the United States District Court, Northern District of California website 2 regarding the location of the Courthouse is attached hereto as Exhibit A. 3 4 5 6 7 Plaintiffs seek entry of a judgment by default ordering defendant to make payment of employee benefit contributions due and unpaid by defendants John Taylor Northrop, individually I. POINTS AND AUTHORITIES STATEMENT OF RELIEF SOUGHT.

8 and dba Kristin Construction, for amounts found due on audit for the period of January 1, 2004 9 through March 31, 2007; the liquidated damages and interest incurred thereon; auditors' fees and 10 costs; fringe benefit shortages and unpaid liquidated damages and interest thereon for the period 11 12 through the present; and the attorneys fees and costs incurred in this action. 13 14 Pursuant to the terms of the Collective Bargaining Agreement and Trust Agreements, July 2006 through February 2007; that defendants provide reports for the period March 2007

15 defendants are indebted to the Trust Funds for the following known amounts: 16 17 18 19 20 21 22 23 24 25 26 27 28 12% Interest on unpaid or underpaid contributions per audit (7/21/07-5/16/08) Attorneys Fees (8/5/07-47/08) Costs of Suit TOTAL Contributions (7/06-2/07) Liquidated damages Interest Unpaid contributions found due on audit (1/1/043/31/07) 15% Liquidated Damages 12% Interest on combined contributions and liquidated damages found due on audit (to 7/20/07) Wage violations Audit Fees and Costs $49,099.39 $7,154.36 $12,278.80 $68,532.55 $17,787.51 $3,880.30 $1,650.52 $3,468.47 $11,377.69 $38,164.48 $2,137.10 $2,558.50 $587.50 $111,980.13 2
NOTICE OF MOTION FOR DEFAULT JUDGMENT CASE NO.: C07-5045 MMC
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ARGUMENT. A. BACKGROUND.

As the Court's file will reflect, plaintiffs filed this action on October 1, 2007. Service on the defendant John Taylor Northrop, individually and dba Kristin Construction, was completed by October 18, 2007. A Proof of Service was filed with the Court on November 26, 2007. Defendant has failed to plead or otherwise defend or appear, and pursuant to plaintiffs' request, the Clerk

8 entered the defendant's default on December 3, 2007. 9 10 11 12 Northrop, individually and dba Kristin Construction, was completed by October 18, 2007. A 13 14 Proof of Service was filed with the Court on November 26, 2007. Defendant failed to plead or B. THE COURT IS AUTHORIZED TO ENTER DEFAULT JUDGMENT.

Rule 55 of the Federal Rules of Civil Procedure authorizes the entry of judgment by default. This action was filed on October 1, 2007. Service on the defendant John Taylor

15 otherwise defend or appear per the Court's Order, and pursuant to plaintiffs' request, the Clerk 16 entered the defendant's default on December 3, 2007. Plaintiffs are therefore entitled to a default 17 judgment in their favor and request that the Court now enter default judgment against John Taylor 18 Northrop, individually and dba Kristin Construction. 19 20 Request for Default Judgment, and has made no appearance in this matter. The defendant is not 21 22 an infant or incompetent person. Accordingly, there exists no obstacle to the granting of plaintiffs' Defendant was properly served with plaintiffs' Request to Enter Default and Notice of

23 motion. 24 25 26 27 28 C. INTEREST, LIQUIDATED DAMAGES, ATTORNEYS FEES AND COSTS SHALL BE AWARDED TO PLAINTIFFS. ERISA Section 515 (29 U.S.C. § 1145) states: Every employer who is obligated to make contributions to a multiemployer plan under the terms of a collectively bargained agreement shall to the extent not inconsistent with law, make such 3
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contributions in accordance with the terms and conditions of such plan or such agreement. (Emphasis added). At the time of the October 1, 2007 filing of this action, John Taylor Northrop, individually

4 and dba Kristin Construction, had failed to submit payment of contributions he reported as due for 5 the period July 2006 through February 2007, and failed to pay amounts found due on an audit for 6 the period January 1, 2004 through March 31, 2007, plus liquidated damages, interest and 7 8 response. 9 10 None of the contributions due have been paid nor has payment of liquidated damages and auditors' fees. Demand for the audit payment had been made on August 20, 2008, without

11 interest which accrued for those unpaid contributions been made. Interest on delinquent and 12 unpaid contributions, as well as liquidated damages, attorneys fees, and costs in an action for 13 collection of contributions are authorized by ERISA Section 502(g), 29 U.S.C. 1132(g), which 14 states: 15 16 17 18 19 20 21 22 23 24 25 26 (E) such other legal or equitable relief as the court deems appropriate. (D) (i) interest on the unpaid contributions, (ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent [of the unpaid contributions], reasonable attorneys fees and costs of the action, to be paid by the defendant, and (g)(2)In any action under this title by a fiduciary for or on behalf of a plan to enforce section 515 (29 U.S.C. § 1145) in which a judgment in favor of the plan is awarded, the court shall award the plan (B) (C) interest on the unpaid contributions an amount equal to the greater of

The plaintiffs' action in this matter is based on the statutory duty provided by ERISA

27 Section 515 for payment of contributions provided by the terms of a valid Collective Bargaining 28 Agreement to which defendant is signatory. Defendant's failure to comply with the terms of that 4
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1 Agreement by failing to pay contributions as revealed above was the cause of this litigation, at 2 great expense to plaintiffs in administration, attorneys fees, and costs, and plaintiffs therefore 3 4 5 6 7 8 To award statutory liquidated damages, the Ninth Circuit requires that unpaid contributions 9 10 exist at the time the lawsuit was filed. Idaho Plumbers & Pipe Fitters Health and Welfare Fund v. ERISA Section 502(g)(2)(B)(C) and (D). D. STATUTORY AWARD OF LIQUIDATED DAMAGES, INTEREST, AND ATTORNEYS FEES IS MANDATORY. request that default judgment be entered in their favor. Upon entry of judgment in favor of plaintiffs, interest, liquidated damages, attorneys fees, and costs must be awarded pursuant to

11 United Mechanical Contractors, Inc., 875 F.2d 212 (9th Cir. 1989). In this case, amounts found 12 due on audit for the period of January 1, 2004 through March 31, 2007, and those owed for hours 13 worked from July 2006 through February 2007, remain unpaid to date, along with the liquidated 14 damages and interest incurred by all of those delinquencies as provided above by ERISA Section 15 16 In Local 81 v. Wedge Roofing, 15 EBC 2470 (ND Cal. 1991), the court further specified 17 18 that liquidated damages shall be awarded where further unpaid contributions become delinquent 502(g), 29 U.S.C. 1132(g).

19 after the filing of the lawsuit. Defendants have not reported to the Trust Funds for hours worked 20 from March 2007 through February 2008, so those amounts are unknown until reported by 21 defendants. 22 23 24 25 26 collect unpaid contributions. Pursuant to the terms of the Trust Agreement, John Taylor Northrop, individually and dba Kristin Construction is liable for audit fees as well. Under ERISA Section 502(g), 29 U.S.C. 1132(g), liquidated damages, interest, and reasonable attorneys fees and costs of this action must be awarded where, as here, suit was filed to

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Plaintiffs therefore request that Judgment be entered in their favor and against John Taylor

2 Northrop, individually dba Kristin Construction. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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Dated: April 11, 2008

Respectfully submitted, SALTZMAN & JOHNSON LAW CORPORATION

By:____________________/s/__________________ Muriel B. Kaplan Attorneys for Plaintiffs

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1 2 3 4 5 6 7 8 9 10 I, the undersigned, declare:

PROOF OF SERVICE

I am a citizen of the United States and am employed in the County of San Francisco, State of California. I am over the age of eighteen and not a party to this action. My business address is 120 Howard Street, Suite 520, San Francisco, California 94105. On April 11, 2008, I served the following document(s): NOTICE OF MOTION AND MOTION FOR DEFAULT JUDGMENT; POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in said action by placing a true and exact copy of each document in a sealed envelope with postage thereon fully prepaid, in a United States Post Office box in San

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NOTICE OF MOTION FOR DEFAULT JUDGMENT CASE NO.: C07-5045 MMC
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Francisco, California, addressed as follows: John Taylor Northrop dba Kristin Construction 1781 Autumn Meadows Fairfield, California 94585

I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on this 11th day of April, 2008, at San Francisco, California.

______________/s/__________________ Vanessa de Fábrega