Free Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00483-SLR

Document 1

Filed 08/03/2007

Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT DELAWARE

INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS LOCAL UNION No. 42 1188 River Road New Castle, DE 19720 KIM CICERO, FUND ADMINISTRATOR c/o Carday Associates Inc. 4600 Powder Mill Road, Suite 100 Beltsville, MD 20705-2675 Fund Administrator for ASBESTOS WORKERS UNION No. 42 WELFARE FUND and ASBESTOS WORKERS UNION No. 42 PENSION FUND and ASBESTOS WORKERS UNION No. 42 APPRENTICESHIP FUND Plaintiffs, v. ASAP INSULATORS 3019 McDaniel Lane Newark, DE 19702 Defendant.

: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :

Attorney for Plaintiffs

CIVIL ACTION

No. ______________

COMPLAINT PARTIES 1. Plaintiff International Association of Heat and Frost Insulators and Asbestos

Workers Local Union No. 42 (Union) is a labor organization within the meaning of Section 2(5)

Case 1:07-cv-00483-SLR

Document 1

Filed 08/03/2007

Page 2 of 5

of the National Labor Relations Act, 29 U.S.C. §152(5), and Section 301(a) of the Labor Management Relations Act (LMRA), 29 U.S.C. §185(a), with its principal office at 1188 River Road, New Castle, Delaware 19809. 2. Plaintiff, Kim Cicero ("Cicero"), is the administrator for the Asbestos Workers

Union No. 42 Welfare Fund (Welfare Fund), an employee welfare plan within the meaning of Section 2(1) and (3) of ERISA, 29 U.S.C. §1002(1) and (3), and Section 2(37) of ERISA, 29 U.S.C. §1002(37), with its principal office at c/o Carday Associates, 4600 Powder Mill Road, Suite 100, Beltsville, Maryland 20705-2675. 3. Plaintiff, Cicero, is the administrator for the Asbestos Workers Union No. 42

Joint Apprenticeship Fund (Apprenticeship Fund), an employee training plan within the meaning of Section 2(2) and (3) of ERISA, 29 U.S.C. §1002(2) and (3), and Section 2(37) of ERISA, 29 U.S.C. §1002(37), with its principal office at c/o Carday Associates, 4600 Powder Mill Road, Suite 100, Beltsville, Maryland 20705-2675. 4. Plaintiff, Cicero, is the administrator for the Asbestos Workers Union No. 42

Pension Fund (Pension Fund), an employee pension plan within the meaning of Section 2(2) and (3) of ERISA, 29 U.S.C. §1002(2) and (3), and Section 2(37) of ERISA, 29 U.S.C. §1002(37), with its principal office at c/o Carday Associates, 4600 Powder Mill Road, Suite 100, Beltsville, Maryland 20705-2675. 5. Plaintiff, Cicero brings this action as the administrator of the aforereferenced

Funds and on behalf of the participants and beneficiaries of the said Funds. 6. Defendant ASAP Insulators ("ASAP") is believed and therefore averred to be a

corporation organized and existing under the laws of the State of Delaware with its principal place of business at 3019 McDaniel Lane, Newark, DE 19702. Defendant ASAP is registered to

2

Case 1:07-cv-00483-SLR

Document 1

Filed 08/03/2007

Page 3 of 5

do business or otherwise performs substantial business in the State of Delaware. Defendant ASAP is an employer within the meaning of Section 2(2) of the National Labor Relations Act, 29 U.S.C. §152(2) and Section 301(a) of the Labor-Management Relations Act 29 U.S.C. §185(a). Defendant ASAP is also an employer within the meaning of Section 2(5) of ERISA, 29 U.S.C. §1002(5) and within the meaning of Section 515 of ERISA, 29 U.S.C. §1145.

JURISDICTION AND VENUE

7.

The Court has jurisdiction over this matter under Section 301(c) of the LMRA, 29

U.S.C. §185(c), and Section 502(a)(3) of ERISA, 29 U.S.C. §1132(a)(3), and 28 U.S.C. §§1331 and 1337 providing for original jurisdiction in the District Courts of the United States in Civil Actions that arise out of Acts of Congress regulating commerce. 8. The Court also has jurisdiction over Plaintiffs' state law claims under Section

1367 of the U.S. Code, which provides a District Court with supplemental jurisdiction over all claims that form part of the same case or controversy over which the Court has original jurisdiction 28 U.S.C. §1367(a). 9. Venue in the United States District Court for the District of Delaware is proper

pursuant to Section 301(c) of the LMRA, 29 U.S.C. §185(c), and Section 502(e)(2) of ERISA, 29 U.S.C. §1132(e)(2), since the Defendant resides and maintains its principal office in the District of Delaware and the work for which the benefit fund contributions at issue was performed in Delaware.

3

Case 1:07-cv-00483-SLR

Document 1

Filed 08/03/2007

Page 4 of 5

COUNT ONE Welfare Fund, Pension and Apprenticeship Fund v. Company 10. At all times relevant hereto, Defendant ASAP has been party to a Collective

Bargaining Agreement with the Union requiring the payment of Welfare, Pension and Apprenticeship Fund contributions to the Plaintiff Funds. 11. Defendant has failed and refused to remit such contributions, or has remitted

insufficient contributions, to the Plaintiff Funds for the months of December, 2006, January, 2007, and April, 2007. 12. In addition, Defendant has failed and refused to remit late fees and interest

assessed pursuant to the Funds' Statement of Policy for Collection of Delinquent Contributions for the months of February through April, 2007. 13. Defendant's actions are in willful derogation of its responsibilities under the

Collective Bargaining Agreement and under the terms of the Agreement and Declaration of Trust of the Plaintiff Funds. 14. 15. Defendant's actions are also in violation of Section 515 of ERISA, 29 USC 1145. Under the terms of the Collective Bargaining Agreement and the Agreement and

Declaration of Trust of the Plaintiff Funds, as well as pursuant to Section 502 of ERISA, 29 USC 1132, Plaintiff Funds are entitled to recovery of all principal contributions, prejudgment interest, liquidated damages, attorney's fees and costs. WHEREFORE, Plaintiffs Cicero, and Asbestos Workers Union No. 42 do hereby seek judgment on their own behalf and on behalf of their participants and member and request relief from this Honorable Court as follows:

4

Case 1:07-cv-00483-SLR

Document 1

Filed 08/03/2007

Page 5 of 5

(a)

Judgment against Defendant of the principal amounts due to the individual Funds and Union plus prejudgment interest and liquidated damages as applicable;

(b) (c) (d)

Appropriate additional post judgment interest; Costs and reasonable attorney's fees; and Such other and further relief as the Court deems just and proper.

_________________________________ CLAIBORNE S. NEWLIN, ESQUIRE Identification No.: 4745 Meranze and Katz, P.C. Legal Arts Building 1225 King Street Wilmington, DE 19801 Tel.: (302) 655-5510 Fax: (215) 790-1382 E-Mail: [email protected]

Dated: 8/2/07

Attorney for the Plaintiffs

5

Case 1:07-cv-00483-SLR

Document 1-2

Filed 08/03/2007

Page 1 of 2

Case 1:07-cv-00483-SLR

Document 1-2

Filed 08/03/2007

Page 2 of 2

Case 1:07-cv-00483-SLR

Document 1-3

Filed 08/03/2007

Page 1 of 1