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TOTTEN v. BUTTE CONSTRUCTION

United States District Court, Northern District of California


June 2, 2003

LARRY TOTTEN AS CHAIRMAN AND JOSE MORENO AS CO-CHAIRMAN OF THE BOARDS OF TRUSTEES FOR THE LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS VACATION-HOLIDAY TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS PENSION TRUST FUND FOR NORTHERN CALIFORNIA; AND LABORERS TRAINING AND RETRAINING TRUST FUND FOR NORTHERN CALIFORNIA, PLAINTIFFS,
v.
BUTTE CONSTRUCTION, INC., DBA BUTTE CONSTRUCTION AND DBA RENT ME, INC., A BUSINESS ENTITY; ROBERT GEORGE WEIR, AN INDIVIDUAL, MEL WEIR, AN INDIVIDUAL, AND DOES ONE THROUGH TEN, DEFENDANTS.

The opinion of the court was delivered by: Edward M. Chen, United States District Magistrate Judge

STIPULATED JUDGMENT AND ORDER

Larry Totten and Jose Moreno, as Chairman and Co-Chairman, respectively, of the Board of Trustees for the Laborers' Health and Welfare Trust Fund for Northern California; Laborers Vacation Holiday Trust Fund for Northern California; Laborers Pension Trust Fund for Northern California, and Laborers Training and Retraining Trust Fund for Northern California (collectively the "Trust Funds") and Mel Weir ("Mel Weir"), enter into this Stipulated Judgment (the "Stipulated Judgment"). This Stipulated Judgment is to resolve matters at issue in the lawsuit filed by the Trust Funds against Mel Weir in the United States District Court for the Northern District of California, on or about July 29, 2002, Case No. C 02-3633 JSW (the "Lawsuit").

The Lawsuit's First Cause of Action seeks to recover unpaid contributions by Mel Weir and its Second Cause of Action seeks a mandatory injunction to conduct an audit of Butte Construction, Inc.'s financial records. Except to the extent governed by federal law, this Stipulated Judgment will be governed by the statutes and common law of California. Jurisdiction and venue of any action regarding the interpretation and enforcement of this Stipulated Judgment shall exist exclusively in the United States District Court in San Francisco, California.

Trust Funds and Mel Weir agree as follows:

Section 1 — Essential Terms of Stipulated Judgment

(a) Payment:

(1) Mel Weir agrees to pay to the Trust Funds FIVE THOUSAND DOLLARS AND ZERO CENTS ($5,000.00) (the "Initial Payment Amount") on or before June 1, 2003.
(2) Mel Weir agrees to pay to the Trust Funds SEVEN HUNDRED AND FIFTY DOLLARS AND ZERO CENTS ($750.00) per month for thirty-six (36) months beginning July 1, 2003 and ending June 1, 2006 (the "Repayment Period"), for a total of TWENTY-SEVEN THOUSAND DOLLARS AND ZERO CENTS ($27,000.00) (the "Installment Payment Amount"). Each payment is due to Trust Funds on or before the first day of each month.
(3) Mel Weir agrees to pay to the Trust Funds THIRTY THOUSAND SEVEN HUNDRED AND TWO DOLLARS AND NINETY-TWO CENTS ($30,702.92) (the "Balloon Payment") on or before July 1, 2006.
(4) Mel Weir's total payments for items 1-3 above to the Trust Funds shall be SIXTY-TWO THOUSAND SEVEN HUNDRED AND TWO DOLLARS AND NINETY-TWO CENTS ($62,702.92).
(5) Payment of all amounts described above by Mel Weir shall go first to the oldest contributions owed to the Trust Funds and progress to the most recent unpaid contributions (i.e. payments shall first be credited against the August 2001 unpaid contributions, interest on same, and attorneys fees, progressing to the next oldest unpaid contributions from September 2001, and concluding with payment for the September 2002 unpaid contributions).
(6) Except in the event that Mel Weir fails to make any payment on or before the date stipulated in this Stipulated Judgment, post-judgment interest shall not accrue on the $62,702.92. In the event that Mel Weir fails to make any payment on or before the day indicated above in this Stipulated Judgment, interest shall accrue on the entire unpaid balance at the legal rate.
(7) Except in the event that Mel Weir fails to make any payment on or before the day stipulated in this Stipulated Judgment, the Trust Funds will not levy against Mel Weir for payment of the Stipulated Judgment. In the event that Mel Weir fails to make any payment on or before the day stipulated in this Stipulated Judgment, the Trust Funds may immediately levy to collect the entire Stipulated Judgment.
(8) In the event that the Trust Funds receive any payment in connection with its proof of claim against Butte Construction, Inc. arising from the current bankruptcy proceedings (In re Butte Construction, Inc., U.S. Bankruptcy Court, Case No. 02-44870 N), the Trust Funds shall apply any such amount to the most recent unpaid portion of the Installment Payment Amount and then to the next most recent unpaid contribution (i.e. payments shall first be credited against the September 2002 unpaid contributions, interest on same, and attorneys fees, progressing to the next most recent unpaid contributions from August 2002, and concluding with payment for the August 2001 unpaid contributions). In the event that the Trust Funds receive any payment from Butte Construction, Inc. that exceeds the payment obligation of Mel Weir pursuant to this Stipulated Judgment, any such excess shall be treated by the Trust Funds as a credit against any future contributions owed by Butte Construction, Inc. to the Trust Funds.
(b) Entry of Stipulated Judgment: Defendant Mel Weir agrees to have this Stipulated Judgment entered against him immediately.

(c) Retained jurisdiction: Trust Funds and Mel Weir agree that the Court shall retain jurisdiction over the Lawsuit to ensure compliance with this Stipulated Judgment. No new action would need to be filed to seek relief for enforcement of this right.

(d) Dismissal: The Trust Funds agree to dismiss. Robert G. Weir as a defendant with prejudice upon the entry of this Stipulated Judgment.

(e) Cooperation: Mel Weir agrees to cooperate fully with the Trust Funds' audit of the financial records of Butte Construction, Inc. for the period inclusive of October 2000 to the present. Mel Weir agrees to produce, and give the Trust Funds access to, the financial records necessary for the Trust Funds to conduct an audit of Butte Construction, Inc. within the next sixty (60) days. Mel Weir agrees to fully cooperate with recording the Stipulated Judgment against him and shall take no action to interfere with or encumber the right of the Trust Funds to enter the Stipulated Judgment.

(f) Released parties: The released parties are Mel Weir and Robert G. Weir. Nothing in this Stipulated Judgment shall operate, or be deemed to operate, to discharge, diminish, release or compromise Trust Funds claims against Butte Construction, Inc. with regard to its proof of claim or any other claims against the corporation.

Section 2 — Miscellaneous

(a) Entire Stipulated Judgment: This Stipulated Judgment is the entire agreement between Mel Weir and the Trust Funds relating to the claim for unpaid contributions at issue in the Lawsuit. The Stipulated Judgment supersedes any prior understanding or agreement between Trust Funds and Mel Weir relating to this Lawsuit. Both Mel Weir and the Trust Funds acknowledge that neither party has made representations or promises other than those in or referred to by this Stipulated Judgment. If any provision in this Stipulated Judgment is found to be unenforceable, all other provisions will remain fully enforceable.

(b) Interpretation: This Stipulated Judgment will be construed as a whole according to its fair meaning. It will not be construed strictly for or against either Mel Weir or the Trust Funds as both parties participated in the drafting of it. Unless the context indicates otherwise, the term "or" will be deemed to include the term "and" and the singular or plural number will be deemed to include the other. Captions are intended solely for convenience of reference and will not be used in the interpretation of this Stipulated Judgment.

(c) Advice of counsel: Trust Funds and Mel Weir have obtained advice of legal counsel prior to and for the execution of this Stipulated Judgment, and warrant and represent that the person executing this Stipulated Judgment on each party's behalf is duly authorized and empowered to execute this Stipulated Judgment for and on such behalf. Each of the parties affirms and acknowledges that it has read and fully appreciates and understands the words, terms, conditions and provisions of this Stipulated Judgment.

(d) Enforcement: In the event of Mel Weir's failure to make timely payments pursuant to the terms of this Stipulated Judgment, Trust Funds shall be entitled to recover their costs and attorneys fees associated with such enforcing their rights under this Stipulated Judgment and in levying to recover the amounts due to Trust Funds.

ORDER

Good cause appearing, the Court hereby enters this Stipulated Judgment against Mel Weir in the amount of SIXTY TWO THOUSAND SEVEN HUNDRED TWO DOLLARS AND NINETY TWO CENTS ($62,702.92) and retains jurisdiction over the matter to enforce its terms, if necessary.

JOINT REQUEST FOR DISMISSAL, RETAINED JURISDICTION, AND ENTRY OF STIPULATED JUDGMENT
The parties to the above entitled action have resolved their dispute pursuant to a Stipulated Judgement. The Stipulated Judgment is against Mel Weir and the parties request the Court enter it accordingly. The Stipulated Judgment requests the Court to retain jurisdiction over this matter to enforce the Stipulated Judgment. A true and correct copy of the Stipulated Judgment is attached as Exhibit A.

Pursuant to the Stipulated Judgment, plaintiffs hereby give notice pursuant to FRCP 41(a) that they are voluntarily dismissing the above action with prejudice against Robert G. Weir. Plaintiffs are also dismissing the above action with prejudice against Mel Weir in accordance with the terms of the Stipulated Judgment.

Plaintiffs dismiss their Complaint against Butte Construction, Inc. without prejudice. Butte Construction, Inc. did not appear in this action and its consent is not required for this dismissal.

Plaintiffs hereby dismiss their Complaint against Does One through Ten without prejudice.

IT IS SO ORDERED.

20030602

© 1992-2003 VersusLaw Inc.



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