Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Harris v. Hardt

United States District Court, Ninth Circuit

June 21, 2013

SETH D. HARRIS, Acting Secretary of Labor, United States Department of Labor, [1] Plaintiff,
v.
TIMOTHY JOHN HARDT, MARK DELL DONNE, and the JOURNEY ELECTRICAL TECHNOLOGIES, INC. 401(K) PLAN, Defendants.

Janet M. Herold, Regional Solicitor, Bruce L. Brown, Associate Regional Solicitor, Danielle L. Jaberg, Counsel for ERISA, Evan H. Nordby, Trial Attorney, WSBA #35937, Office of the Solicitor, U.S. Department of Labor, Seattle, WA, Attorneys for Hilda L. Solis, Secretary of Labor, United States Department of Labor, Plaintiff.

MARK DELL DONNE Solicitor of Labor, Defendant.

STIPULATION TO AMEND PARTIAL CONSENT JUDGMENT AND ORDER BETWEEN THE SECRETARY OF LABOR AND MARK DELL DONNE AND THE JOURNEY ELECTRICAL TECHNOLOGIES, INC. 401(K) PLAN

ANTHONY W. ISHII, District Judge.

WHEREAS:

A. Plaintiff HILDA L. SOLIS, then-Secretary of Labor, United States Department of Labor; MARK DELL DONNE, an individual ("Dell Donne"); and the JOURNEY ELECTRICAL TECHNOLOGIES, INC. 401(K) PLAN (the "Plan" or "401(k) Plan")[2] agreed to a Partial Consent Judgment and Order to resolve this matter, which was entered by this Court on May 30, 2012. (Dkt. 49).

B. The May 30, 2012 Partial Consent Judgment and Order awarded a judgment in the amount of $472, 235.11 against Dell Donne.

C. Under the May 30, 2012 Partial Consent Judgment and Order, Dell Donne assigned the right to collect $450, 000.00 of the proceeds of an arbitration award in the matter of Tri-State, Inc. d/b/a Journey Electrical Technologies, et al. v. Taisei Construction Corporation, et al., Los Angeles County Superior Court Case No. NC053609 (the "Arbitration Award") from Journey Electrical Technologies to the Plan.

D. Under the May 30, 2012 Partial Consent Judgment and Order, Dell Donne further forfeited his account balance in the Plan, totaling $22, 235.11 valued as of April 21, 2012.

E. Following Dell Donne's assignment of the $450, 000.00 portion of the Arbitration Award to the Plan, other creditors of Journey Electrical Technologies asserted claims against the Arbitration Award, and Taisei Construction Corporation interpleaded the entirety of the Arbitration Award funds in Los Angeles County Superior Court.

F. Representatives of Plaintiff SETH D. HARRIS, Acting Secretary of Labor, United States Department of Labor ("Secretary" or "EBSA"), and, Defendant Dell Donne participated in a mediation on March 26, 2013, which resolved the dispute over the interpleaded Arbitration Award funds resulting in a recovery of $312, 240.44 to the Plan under the assignment from Journey Electrical Technologies, Inc. under the Stipulated Settlement and Order Pursuant to Stipulation for Distribution of Interpleaded Funds attached as Exhibit A.

G. The Secretary and Defendants Dell Donne and the Plan therefore wish to amend the Partial Consent Judgment and Order.

H. The Secretary and Defendants Dell Donne and the Plan reaffirm that the Partial Consent Judgment and Order as amended shall settle all claims of the Secretary asserted in the Complaint against Defendants Dell Donne and the Plan, as set forth in Paragraph 14 in the May 30, 2012 Partial Consent Judgment and Order.

THEREFORE:

The Secretary and Defendants Dell Donne and the Plan stipulate to amend the May 30, 2012 Partial Consent Judgment and Order, which is appended to this Stipulation as Exhibit B and is incorporated by reference, by substituting each of the following numbered paragraphs for those corresponding numbered paragraphs in the May 30, 2012 Partial Consent Judgment and Order, and by adding a new Paragraph 19 as set forth below:

1. Judgment is hereby entered against Defendant Dell Donne in the amount of $334, 475.55.

2. Pursuant to ERISA Section 409, 29 U.S.C. ยง 1109, Defendant Dell Donne is responsible for restoring $334, 475.55 in unremitted employee salary reduction contributions and uncollected mandatory employer prevailing wage contributions, including lost-opportunity costs ("Amount Due"), to the Plan, through the obligations set forth in Paragraphs 7 and 8, infra.

4. M. Larry Lefoldt, of Lefoldt & Co., P.A., 690 Towne Center Boulevard, Post Office Box 2848, Ridgeland, MS XXXXX-XXXX, phone number (601) 956-2374, is appointed Independent Fiduciary and Trustee of the Plan with the duties set forth in Paragraph 5, infra. Defendant Dell Donne is removed as the Trustee of the Plan and is permanently enjoined and restrained from serving as fiduciary of, or service provider to, any ERISA-covered plan.

7. On April 23, 2012, Defendant Dell Donne executed a fully binding and irrevocable assignment of the right to collect a portion of the proceeds of the arbitration award, in the amount of $450, 000, in Tri-State, Inc. d/b/a Journey Electrical Technologies v. Taisei Const. Corp. Los Angeles Superior Court No. NC053609, from Tri-State, Inc., d/b/a Journey Electrical Technologies, Inc. to the Plan, directed that Tri-State, Inc., d/b/a Journey Electrical Technologies, Inc. pay such $450, 000 to the Plan when received in partial satisfaction of the Amount Due to the Plan, and fully warrants and represents that he had authority to execute such assignment and make such direction. Under the Stipulated Settlement and Order Pursuant to Stipulation for Distribution of Interpleaded Funds entered May 1, 2013 in Tri-State, Inc. d/b/a Journey Electrical Technologies v. Taisei Const. Corp, Los Angeles Superior Court No. NC053609, the Plan will recover $312, 240.44 from the Arbitration award ("Amended Arbitration Award") under said assignment from Journey Electrical Technologies, Inc.

19. Within five business days of receipt of the check representing the Amended Arbitration Award to the Plan set forth in Paragraph 7, supra, Defendant Dell Donne shall deposit the check into the Plan's trust account at American United Life Insurance Company. The Secretary agrees that upon the deposit of the Amended Arbitration Award to the Plan set forth in Paragraph 7 supra, in addition to Defendant Dell Donne's forfeiture of his entire account balance in the Plan, totaling $22, 235.11 valued as of April 21, 2012, set forth in Paragraph 8 supra, that Defendant Dell Donne's obligation to pay the Amount Due under this Partial Consent Judgment and Order is satisfied in full.

20. Within ten business days from the date the Secretary receives written confirmation of the deposit of the check representing the Amended Arbitration Award to the Plan set forth in Paragraph 7, supra, to the Plan's trust account, the Secretary will execute and file a Satisfaction of Judgment form with the Court and provide a copy to Dell Donne's counsel, Muzi & Associates.

SO STIPULATED:

IT IS SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.