Free Complaint - District Court of California - California

Case 3:08-cv-04017-WHA

Document 1

Filed 08/22/2008

Page 1 of 6

1 Muriel B. Kaplan, Esq. (SBN 124607) Michele R. Stafford, Esq. (SBN 172509) 2 Shaamini A. Babu, Esq. (SBN 230704) SALTZMAN & JOHNSON LAW CORPORATION 3 44 Montgomery Street, Suite 2110 San Francisco, CA 94104 4 (415) 882-7900 (415) 882-9287­ Facsimile 5 [email protected] [email protected] 6 [email protected] 7 Attorneys for Plaintiff BAY AREA PAINTERS AND TAPERS 8 PENSION TRUST FUNDS, et al. 9 10 11 12 BAY AREA PAINTERS AND TAPERS 13 PENSION TRUST FUNDS, DISTRICT COUNCIL 16 NORTHERN CALIFORNIA 14 HEALTH AND WELFARE FUND, DISTRICT COUNCIL 16 NORTHERN 15 CALIFORNIA APPRENTICE AND JOURNEYMAN TRAINING TRUST FUND; 16 THE JOINT BOARDS OF TRUSTEES; LES PROTEAU, CHARLES DEL MONTE, and 17 DOUG CHRISTOPHER, as Trustees; and DISTRICT COUNCIL 16 OF THE 18 INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES; 19 Plaintiffs, 20 v. 21 FRANK WILLIAM MITCHELL, individually and dba MITCHELL CONSTRUCTION 22 DRYWALL METAL STUDS and dba MITCHELL CONSTRUCTION, 23 Defendant. 24 25 26 1. Parties The Bay Area Painters and Tapers Pension Trust Funds which includes the Bay Case No.: C08-4017 WHA COMPLAINT UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

27 Area Painters and Tapers Pension Trust Fund ­ The Annuity Plan ("Pension and Annuity Fund"), 28 the District Council 16 Northern California Health and Welfare Fund ("Health Fund"), and the
-1COMPLAINT

Case No.: C08-4017 WHA
P:\CLIENTS\PATCL\Mitchell Construction\Pleadings\Complaint August 2008\C08-4017 WHA Complaint 082108.doc

Case 3:08-cv-04017-WHA

Document 1

Filed 08/22/2008

Page 2 of 6

1 District Council 16 Northern California Apprentice and Journeyman Training Trust Fund 2 ("Apprenticeship Fund") are employee benefit plans as defined in the Employee Retirement 3 Income Security Act of 1974 ("ERISA") § 3(3), 29 U.S.C. § 1002(3). The Joint Boards of "Trustees of said funds are the named fiduciaries of the funds under ERISA §402(a), 29 ") 4 Trustees ( 5 U.S.C. §1002(a). Les Proteau is the Chairman and Charles Del Monte is the Secretary of the 6 Trustees and both are fiduciaries of said funds. Doug Christopher is the Chairman of the District 7 Council 16 Northern California Apprentice and Journeyman Training Trust Fund. 8 2. The Health Fund was formerly Bay Area Painters and Tapers Health Fund prior to

9 its merger with other health and welfare trust funds effective January 1, 2008. 10 3. District Council 16 of the International Union of Painters and Allied Trades,

"Union") is a labor organization as defined in §2(5) of the National Labor Relations Act 11 ( 12 ("NLRA"), 29 U.S.C. §152(5). 13 4. FRANK WILLIAM MITCHELL dba MITCHELL CONSTRUCTION

"Defendant ) is an employer by virtue of ERISA §3(5), 29 U.S.C. " 14 DRYWALL METAL STUDS ( 15 §1002(5), and NLRA §2(2), 29 U.S.C. §152(2). 16 5. The Pension and Annuity Fund, Health Fund, Apprenticeship Fund, and their

" 17 fiduciaries are herein referred to as"ERISA Plaintiffs. 18 19 6. Jurisdiction Jurisdiction exists in this Court over the claims asserted by the ERISA Plaintiffs by

20 virtue of ERISA §502, 29 U.S.C. §1132, in that the ERISA Plaintiffs seek to enforce the 21 provisions of ERISA and the terms of their plans, seek to enjoin the acts and practices which 22 violate ERISA, seek equitable relief to redress such violations, and seek all other appropriate relief 23 under ERISA. 24 7. Jurisdiction exists in this Court over all the claims by virtue of Labor Management

25 Relations Act ("LMRA") §301, 29 U.S.C. §185, in that the ERISA Plaintiffs seek to enforce the 26 terms and conditions of a collective bargaining agreement between the Defendant and the Union. 27 8. To the extent jurisdiction over any claim does not exist under ERISA or the
-2COMPLAINT

28 LMRA, supplemental jurisdiction exists in this Court over such claims by virtue of 29 U.S.C. Case No.: C08-4017 WHA
P:\CLIENTS\PATCL\Mitchell Construction\Pleadings\Complaint August 2008\C08-4017 WHA Complaint 082108.doc

Case 3:08-cv-04017-WHA

Document 1

Filed 08/22/2008

Page 3 of 6

1 §1367 in that they arise out of a common nucleus of operative facts that form the basis of the 2 federal claims asserted herein, each of which has a substantial ground in federal jurisdiction. 3 4 9. Venue Venue exists in this Court with respect to the claims under ERISA §502 because all

5 of the plans of the ERISA Plaintiffs are administered within this district and the breach took place 6 in this district. 7 10. Venue exists in this Court with respect to the claims under LMRA §301(a) because

8 this Court has jurisdiction over the parties, as the Union maintains its principal place of business in 9 this district, its duly authorized officers or agents are engaged in representing employee members 10 in this district, and the claims arise in this district. 11 12 11. Intradistrict Assignment The basis for assignment of this action to this court's Oakland Division is that all of

13 the events and omissions giving rise to plaintiffs' claims occurred in the County of Alameda, 14 where the ERISA Plaintiff funds and Union dues, were administered during the period claimed 15 herein, and where Defendant therefore failed to fulfill its statutory and contractual obligations to 16 the Plaintiffs. 17 18 12. Bargaining Agreement The Union and Defendant entered into a collective bargaining agreement

19 ("Bargaining Agreement") requiring the payment of dues to the Union, and contributions to be 20 made to the ERISA Plaintiffs and other funds more fully described under Schedule A of the 21 Bargaining Agreement. The ERISA Plaintiffs are third party beneficiaries of the Bargaining 22 Agreement. 23 13. The Trustees are the assignees of monies due under the Bargaining Agreement for

24 the Work Preservation Fund, a California non-profit organization, the Painters & Allied Trades 25 Labor Management Cooperation Initiative, and the Northern California Painting & Finishing "). 26 Contractors Administrative Fund (collectively the "Funds 27 14. Defendant has a statutory duty to make timely required payments to the ERISA
-3COMPLAINT

28 Plaintiffs under ERISA §515, 29 U.S.C. §1145.

Case No.: C08-4017 WHA
P:\CLIENTS\PATCL\Mitchell Construction\Pleadings\Complaint August 2008\C08-4017 WHA Complaint 082108.doc

Case 3:08-cv-04017-WHA

Document 1

Filed 08/22/2008

Page 4 of 6

1

15.

Under the terms of the Bargaining Agreement and of the governing documents of

2 the ERISA Plaintiffs and the Funds which documents are incorporated into the Bargaining 3 Agreement and made binding on Defendant, Defendant is required to submit monthly reports of 4 hours worked by its employees, and to regularly pay to the ERISA Plaintiffs, the Funds, and to the 5 Union for union dues, certain sums of money, the amounts of which are determined by the hours 6 worked by employees of Defendant, as more fully set forth in the Bargaining Agreement. Under 7 the terms of the Bargaining Agreement and the governing documents of the ERISA Plaintiffs and 8 the Funds, Defendant agreed to pay liquidated damages for each delinquent payment. Defendant 9 further agreed to pay interest on the combined total of contributions plus liquidated damages at the 10 rates set by the Bargaining Agreement, from the day immediately following the date that each 11 such payment became due until paid in full. 12 13 16. Facts Defendant has submitted reports without payment of contributions to the ERISA

14 Plaintiffs for work performed by Defendants' employees during the months of March 2008, May 15 2008, and June 2008. Defendant has failed to submit a report or pay contributions to the ERISA 16 Plaintiffs for work performed by its employees during the month of July 2008. Additionally, 17 Defendant has failed to pay liquidated damages and interest to the ERISA Plaintiffs for said time 18 periods. 19 17. On several occasions, demand was made on Defendant for payment of delinquent

20 contributions, liquidated damages and interest due to the ERISA Plaintiff, the Funds, and the 21 Union. Defendant has failed and refused to report and pay the amounts claimed herein as required 22 by the Bargaining Agreement. 23 18. Defendant has breached its statutory under ERISA §515, 29 U.S.C. §1145 and

24 contractual duty under the Bargaining Agreement by failing to timely pay the required 25 contributions, liquidated damages and interest to the ERISA Plaintiffs and the Funds, and to 26 timely pay dues to the Union. 27 19. Defendant's failure and refusal to timely submit the aforesaid reports and provide
-4COMPLAINT

28 payments was at all times, and still is, willful. Said refusal is unjustified and done with malicious Case No.: C08-4017 WHA
P:\CLIENTS\PATCL\Mitchell Construction\Pleadings\Complaint August 2008\C08-4017 WHA Complaint 082108.doc

Case 3:08-cv-04017-WHA

Document 1

Filed 08/22/2008

Page 5 of 6

1 intent. Defendant's failure to timely report and make such payments in compliance with the 2 Bargaining Agreement has reduced the corpus of the ERISA Plaintiff funds and operating ability 3 of the Union, thereby impairing their ability to pay or provide benefits to members and 4 beneficiaries, and causing harm to all ERISA Plaintiffs funds and to the Union. Defendant's 5 obligations pursuant to the Bargaining Agreement are continuing obligations. Defendant

6 continues to breach said Bargaining Agreement by failing and refusing to timely report and pay 7 monies due thereunder to the ERISA Plaintiffs Funds and the Union. Plaintiffs are informed and 8 believe, and therefore allege, that Defendant will continue to willfully refuse to report and make 9 said payments unless ordered by this Court to comply. 10 20. Plaintiffs are without an adequate remedy at law and will suffer continuing and

11 irreparable injury, loss and damage unless Defendant is ordered specifically to perform all 12 obligations required on Defendant's part to be performed under ERISA, 29 U.S.C. §§1101-1381, 13 the LMRA, 29 U.S.C. §§141-197, the Bargaining Agreement, and the governing documents of the 14 ERISA Plaintiffs and the Funds, and are restrained from continuing to refuse to perform as 15 required thereunder. 16 17 18 Prayer WHEREFORE, Plaintiffs pray as follows: 1. For judgment against Defendant for all contributions owed for hours worked by its

19 employees for the month of March 2008, and May through July 2008, together with liquidated 20 damages and interest owed for said time period. 21 2. For judgment against Defendant in favor of the ERISA Plaintiffs, the Funds, and

22 the Union, in an amount equal to: 23 (a) Any unpaid contributions owed to the ERISA Plaintiffs and Funds at the

24 time of judgment in accordance with ERISA §502(g)(2)(A), 29 U.S.C. §1132(g)(2)(A) and the 25 Bargaining Agreement and the governing documents of the ERISA Plaintiffs; 26 (b) Any dues owed to the Union at the time of judgment in accordance with the

27 Bargaining Agreement; 28
-5COMPLAINT

Case No.: C08-4017 WHA
P:\CLIENTS\PATCL\Mitchell Construction\Pleadings\Complaint August 2008\C08-4017 WHA Complaint 082108.doc

Case 3:08-cv-04017-WHA

Document 1

Filed 08/22/2008

Page 6 of 6

1

(c)

Liquidated damages on late-paid and unpaid contributions owed at the time

2 of judgment in an amount provided for under the Bargaining Agreement and governing documents 3 of the ERISA Plaintiffs and the Funds, and with respect to the ERISA Plaintiffs, ERISA 4 §502(g)(2)(c), 29 U.S.C. §1132(g)(2)(c); and 5 (d) Interest on late-paid and unpaid contributions plus liquidated damages, and

6 on dues owed to the Union owed at the time of judgment in accordance with the Bargaining 7 Agreement and the governing documents of the ERISA Plaintiffs and the Funds, and ERISA 8 §502(g)(2)(B), 29 U.S.C. §1132(g)(2)(B) with respect to the ERISA Plaintiffs, and the applicable 9 legal rate with respect to dues or where otherwise appropriate. 10 3. Reasonable attorneys' fees and costs of this action incurred by the ERSIA Plaintiffs

11 in accordance with ERISA §502(g)(2)(D), 29 U.S.C. §1132(g)(2)(D) and the Bargaining 12 Agreement; and the reasonable attorneys' fees and costs incurred by the Plaintiffs in accordance 13 with the Bargaining Agreement and with LMRA §301, 29 U.S.C. § 185. 14 4. For an order requiring that Defendant complies with its obligations to Plaintiffs

15 under the terms of the Bargaining Agreement and the governing documents referred to therein; 16 enjoining Defendant from violating the terms of the Bargaining Agreement and the governing 17 documents referred to therein, disposing of any assets until said terms have been complied with, 18 and continuing or operating of Defendant's business until said terms have been complied with. 19 20 21 22 Dated: August 21, 2008 23 24 25 26 27 28
-6COMPLAINT

5. 6.

That the Court retain jurisdiction of this case pending compliance with its orders. For such other and further relief as the Court may deem just and proper.

SALTZMAN & JOHNSON LAW CORPORATION

By:_______________/s/__________________ Shaamini A. Babu Attorneys for Plaintiffs

Case No.: C08-4017 WHA
P:\CLIENTS\PATCL\Mitchell Construction\Pleadings\Complaint August 2008\C08-4017 WHA Complaint 082108.doc