Free Amended Complaint - District Court of California - California

Case 3:07-cv-04822-JL

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Filed 09/27/2007

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ERSKINE & TULLEY A PROFESSIONAL CORPORATION MICHAEL J. CARROLL (STATE BAR #50246) 220 Montgomery Street, Suite 303 San Francisco, CA 94104 Telephone: (415) 392-5431 Facsimile: (415) 392-1978 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

BOARD OF TRUSTEES OF THE AUTOMOTIVE ) INDUSTRIES PENSION FUND; JIM BENO, ) ) TRUSTEE, ) ) Plaintiffs, ) ) vs. ) ) GLENN N HARTZHEIM also doing business as HARTZHEIM DODGE, INC., ) ) a California corporation, ) ) Defendant. )

NO.

C 07 4822 JL

FIRST AMENDED COMPLAINT

Plaintiffs complain of defendant and for a cause of action allege that: 1. Jurisdiction of this Court is founded upon Section

301(c)(1) of the National Labor Relations Act of 1947 [29 U.S.C. §185(a)] and Section 502 of the Employee Retirement Income Security Act of 1974, said Act being hereinafter referred to as "ERISA" (29 U.S.C. §1132), in that defendant has violated a collective bargaining agreement and certain Trust Agreements, thereby violating provisions of ERISA and the provisions of the National Labor Relations Act of 1947. This action is also brought pursuant to the Federal Declaratory FIRST AMENDED COMPLAINT 1

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Judgment

Act

(28

U.S.C.

§

2201

et

seq.)

in

a

case

of

actual

controversy between plaintiffs and defendant, and for a Judgment that defendant pay fringe benefit contributions in accordance with its contractual obligations. 2. Plaintiffs, BOARD OF TRUSTEES OF THE AUTOMOTIVE

INDUSTRIES PENSION FUND (hereinafter "TRUST FUND"), named in the caption, are trustees of an employee benefit plan within the meaning of §§3(1) and (3) and §502(d)(1) of ERISA, 29 U.S.C. §1002(1) and (3) and §1132(d)(1), and a multi employer plan within the meaning of §§3(37) and 515 of ERISA, 29 U.S.C. §§1002(37) and §1145. Plaintiff

JIM BENO is a Trustee. Said TRUST FUND is authorized to maintain suit as an independent legal entity under §502(d)(1) of ERISA, 29 U.S.C. §1132(d)(1). 3. Plaintiffs are informed and believes and thereupon

alleges that defendant, HARTZHEIM DODGE, is found and is doing business in this judicial district. 4. Each and every defendant herein is the agent of each Defendant and each of them are

and every other defendant herein.

engaged in commerce or in an industry affecting commerce. 5. At all times pertinent hereto defendant was bound by

a written collective bargaining agreement with Machinists Local 1546, a labor organization in an industry affecting commerce. The aforesaid agreement provides that defendant shall make contributions to the TRUST FUND on behalf of defendant's employees on a regular basis on all hours worked, and that defendant shall be bound to and abide by all the provisions of the Trust Agreement. 6. The Trust Fund relies upon a self reporting system.

Defendant has unique knowledge of the amounts of contributions that FIRST AMENDED COMPLAINT 2

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it is liable to pay each month, and has a fiduciary obligation to accurately report the amount to the Trust Fund. 7. Defendant has breached both the provisions of the

collective bargaining agreement and the Trust Agreement above referred to by failing to complete and send in monthly reports and/or to pay all moneys due thereunder on behalf of defendant's employees to the TRUST FUND. Said breach constitutes a violation of ERISA (29 U.S.C.

1002, et seq.) and of the National Labor Relations Act of 1947. 8. Defendant has failed and refused to pay all

contribution due since November 1, 2002. Pursuant to the terms of the collective bargaining agreement there is now due, owing and unpaid from defendant to the TRUST FUND contributions due for the months of November 2002 through December 2005 and liquidated damages and The

interest which are specifically provided for by said agreements.

total amount due is $19,568.47; additional amounts may become due during the course of this litigation and in the interest of judicial economy, recovery of said sums will be sought in this case. Interest

is due and owing on all principal amounts due and unpaid at the legal rate from the dates on which the principal amounts due accrued. 9. Demand has been made upon said defendant, but defendant

has failed and refused to pay the amounts due the TRUST FUND or any part thereof; and there is still due, owing and unpaid from defendant the amounts set forth in Paragraph 8 above. 10. An actual controversy exists between plaintiffs and

defendant in that plaintiffs contend that plaintiffs are entitled to a timely monthly payment of trust fund contributions now and in the future pursuant to the collective bargaining agreement and the Trust Agreement, and defendant refuses to make such payments in a timely FIRST AMENDED COMPLAINT 3

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manner. 11. The Trust Fund does not at this time seek to audit the The only issue raised in this

books and records of defendant.

complaint is defendant's failure to complete and file voluntary monthly reports and pay the contributions due. The Trust Fund seeks

to obtain a judgment for any outstanding delinquent contributions based on defendant's reports and to reserve the right to audit defendant for this or any other unaudited period. 12. The Trust Agreement provides that, in the event suit

is instituted to enforce payments due thereunder, the defendant shall pay court costs and a reasonable attorneys' fee. It has been

necessary for plaintiffs to employ ERSKINE & TULLEY, A PROFESSIONAL CORPORATION, as attorneys to prosecute the within action, and a reasonable attorneys' fee should be allowed by the Court on account of the employment by plaintiff of said attorneys. WHEREFORE, plaintiff prays: 1. That the Court render a judgment on behalf of plaintiffs for all contributions due and owing to the date of judgment based upon unaudited reporting forms, plus liquidated damages provided for by the contract, interest at the legal rate, reasonable attorneys' fees incurred in prosecuting this action and costs. 2. That the Court enjoin the defendant from violating the

terms of the collective bargaining agreement and the Trust Agreements for the full period for which defendant is contractually bound to file reports and pay contributions to the TRUST FUND. 3. That the Court reserve plaintiffs' contractual right to audit defendant for months prior to judgment, and in the event of such audit, collect any additional sums which may be due. FIRST AMENDED COMPLAINT 4

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4. That the Court retain jurisdiction of this cause pending compliance with its orders. 5. For such other and further relief as the Court deems

just and proper. DATED: September 27, 2007 ERSKINE & TULLEY A PROFESSIONAL CORPORATION By:/s/Michael J. Carroll Michael J. Carroll Attorneys for Plaintiffs

FIRST AMENDED COMPLAINT 5