United States District Court, N.D. California, San Jose Division
BOARD OF TRUSTEES OF THE LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA,, Plaintiffs,
CEM BUILDERS, INC., Defendant.
ORDER GRANTING PLAINTIFFS' SECOND MOTION FOR
RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT RE: DKT. NO.
J. DAVILA, UNITED STATES DISTRICT JUDGE
January 31, 2018, Plaintiffs filed a complaint against
Defendant, seeking damages for breach of a collective
bargaining agreement, recovery of unpaid trust fund
contributions, and injunctive relief. Dkt. No. 1
(“Compl.”). Plaintiffs now move for a right to
attach order and writ of attachment of two of Defendant's
bank accounts, as well as “any of Defendant's
accounts receivable, other later identified checking accounts
held in its names, and any proceeds from the sale of its
business assets.” Dkt. No. 14 (“Mot”), at
14. Defendant has been served with a copy of the Complaint
and a previous version of Plaintiffs' motion, Dkt. No.
12, but has not yet appeared or filed a response. For the
reasons discussed below, Plaintiffs' motion is GRANTED.
are the boards of trustees of several trust funds, which
serve to provide employee benefit plans created by written
trust agreements subject and pursuant to §§ 3(3)
and 3(37) of ERISA, 29 U.S.C. §§ 1002(3) and (37).
Compl. ¶ 3; Declaration of Michele Lauziere
(“Lauziere Decl.”), Dkt. No. 16, at ¶ 4. The
trust funds were established through collective bargaining
agreements between the Northern California District Council
of Laborers (“Laborers Union”) and employer
associations representing construction industry employers.
about June 8, 2006, Defendant entered into a Memorandum
Agreement in which it agreed to be bound to the terms of one
of these collective bargaining agreements, the Laborers'
Master Agreement for Northern California (“Master
Agreement”). Lauziere Decl. ¶ 6; Compl. ¶ 9.
The Master Agreement provided that “each individual
Employer shall pay hourly contributions for each hour paid
for and/or worked [by a covered employee], including overtime
pay, shift pay, show-up time pay and similar payments.”
Lauziere Decl., Ex. G (“Master Agreement”), at
§ 28A. According to Plaintiffs,
[i]t is the usual practice of the Fund Office to send each
employer a monthly Combined Employer Report of Contributions
form showing the contribution rate per hour of covered work.
The employer is to fill out the form, showing the total
number of hours of covered work performed in the reporting
month, and calculating the amount due for the employer's
contribution. . . . The employer is to return the completed
Employer Report of Contributions form, along with its payment
for the contributions due, by the 25th day of the month
following the month in which the hours were worked.
Decl. ¶ 7.
Master Agreement also provided for certain penalties that
would be incurred if a participating employer became
delinquent in its contributions:
Any Individual Employer who is found to be delinquency as a
result of an audit will pay and satisfy such delinquency with
accrued interest and in addition pay liquidated damages. All
delinquent contributions shall bear simple interest at the
rate of one and one-half percent (1.5%) per month until
receipt of payment. Subject to accounting verification,
liquidated damages shall be assessed on delinquent
contributions at a flat rate of one hundred and fifty dollars
($ 150.00) per month to reflect the internal administrative
costs incurred by the trust administrators in monitoring and
tracking such late contributions.
Agreement § 28A. This was also reflected in the
Liquidated Damages Program-Board Policy, which stated in
relevant part that:
Liquidated damages and interest will be assessed under the
Employer's original report is postmarked after the 25th
day of the month following employment. If contributions are
paid within thirty (30) days of the due date, the employer
will only be assessed the flat fee of $ 150.00. If
contributions are paid more than thirty (30) days after they
become due, the employer will be assessed interest at the
rate of one and one-half percent (1.5%) per month until
contributions are paid in full.
Decl., Ex. H.
report that, beginning in June 2015, Defendant failed to
timely pay certain contributions which it reported as due and
owing. Specifically, during the periods June-December 2015,
January-September 2016, December 2016, and January-March
2017, Defendant paid its contributions but not on time.
Lauziere Decl. ¶ 17. During the periods May-August 2017,
November 2017, and December 2017, Defendant did not pay its
contributions at all. Id. ¶ 18.
now seek payments and penalties which are due and owing under
the terms of the Master Agreement, as well as associated
attorneys fees and costs. Specifically:
• For the periods June-December 2015, January-September
2016, December 2016, and January-March 2017 where Defendant
paid its contributions but not on time, Plaintiffs assert
that section 28A of the Master Agreement entitles them to
1.5% interest and $150 liquidated damages, both assessed on a
per-month basis until the full payment is received.
See Master Agreement § 28A. Plaintiffs
calculate that, for all of the payments Defendant did not
make on time, they are owed $11, 864.13 in
interest and liquidated damages. Lauziere Decl. ¶ 17 and
Ex. I (chart showing per-month breakdown liquidated damages
and interest incurred due to late payments).
• For the periods May-August 2017, November 2017, and
December 2017 where Defendant did not pay its contributions
owed, Plaintiffs argue that 29 U.S.C. §§ 1134(g)(2)
entitles them to recover $327, 931.12,
broken down as follows: (1) $303, 850.68 in
“unpaid contributions, ” § 1132(g)(2)(A);
(2) $12, 040.22 in “interest on the
unpaid contributions, ” § 1132(g)(2)(B),
calculated using the per-month 1.5% interest and $150
liquidated damages fee under section 28A of the Master
Agreement; and (3) $12, 040.22 in “an
amount equal to the greater of-- interest on the unpaid
contributions, or liquidated damages provided for under the
plan. . ., ” § 1132(g)(2)(C). Lauziere Decl.
¶¶ 18-28 and Ex. J (chart of per-month unpaid
contributions) and Ex. V (chart of per-month liquidated
damages and interest).
• Plaintiffs also seek attorneys fees and costs incurred
by its counsel in the underlying collection efforts and in
this litigation, which total $14, 961.00.
Declaration of C. Todd Norris (“Norris ...