Free Complaint - District Court of California - California

Case 3:07-cv-02787-SI

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ERSKINE & TULLEY A PROFESSIONAL CORPORATION MICHAEL J. CARROLL (ST. BAR #50246) 220 Montgomery Street, Suite 303 San Francisco, CA 94104 Telephone: (415) 392-5431 Facsimile: (415) 392-1978 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

BOARD OF TRUSTEES OF THE WESTERN STATES ASBESTOS PENSION FUND, WESTERN STATES ASBESTOS HEALTH PLAN; RON HOBBS, TRUSTEE,

) ) ) ) Plaintiffs, ) ) vs. ) ) RM MECHANICAL,INC., a corporation ) ) ) ) Defendant. ) ____________________________________________)

NO. C 07 2787 SI

COMPLAINT

Plaintiffs complain of defendant and for a cause of action alleges that: 1. Jurisdiction of this Court is founded upon Section

301(c) (1) of the National Labor Relations Act of 1947 [29 U.S.C. §185(a)] and Section 502 of the Employee Retirement Income Security Act of 1974, said Act being hereinafter referred to as "ERISA" (29 U.S.C. §1132), in that defendant has violated a collective bargaining agreement and certain Trust Agreements, thereby violating the

provisions of ERISA and the provisions of the National Labor Relations Act of 1947. This action is also brought pursuant to the Federal COMPLAINT 1

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Declaratory Judgment Act (28 U.S.C. §2201 et seq.) in a case of actual controversy between plaintiffs and defendant, and for a Judgment that defendant pay fringe benefit contributions in accordance with its contractual obligations. 2. Plaintiffs Boards of Trustees of the Trust Funds named

in the caption (hereinafter "Trust Funds") are trustees of employee benefit plans within the meaning of §§3(1) and (3) and §502(d)(1) of ERISA, 29 U.S.C. §1002(1) and (3) and §1132(d)(1), and a multiemployer plan within the meaning of §§3(37) and 515 of ERISA, 29 U.S.C. §§1002(37) and §1145. Plaintiff Ron Hobbs is a Trustee. Said Trust

Funds are authorized to maintain suit as independent legal entities under §502(d)(1) of ERISA, 29 U.S.C. §1132(d)(1). 3. Plaintiffs are informed and believe and thereupon

allege that defendant, RM MECHANICAL, INC., resides and does business in Boise, Idaho. Performance of the obligations to pay fringe

benefits set forth in the collective bargaining agreement is in this judicial district. ERISA specifically authorizes Trust Funds to bring this action in the district where the plans are administered, 29 U.S.C. §1132(e)(2); the plans are administered in the Northern

District of California. 4. Each and every defendant herein is the agent of each Defendants and each of them are

and every other defendant herein.

engaged in commerce or in an industry affecting commerce. 5. a written At all times pertinent hereto defendant was bound by collective bargaining agreement with International

Association of Heat & Frost Insulators and Asbestos Workers No. 69, a labor organization in an industry affecting commerce. The aforesaid agreement provide that defendant shall make contributions to the TRUST COMPLAINT 2

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FUNDS, on behalf of defendant's employees on a regular basis on all hours worked, and that defendant shall be bound to and abide by all the provisions of the respective Trust Agreements and Declarations of Trust of said TRUST FUNDS (hereinafter the "Trust Agreements"). 6. The Trust Funds rely upon a self reporting system.

Defendant has unique knowledge of the amounts of contributions that it is liable to pay each month, and has a fiduciary obligation to accurately report the amount to the Trust Funds. 7. Defendant has breached both the provisions of the

collective bargaining agreement and Trust Agreements referred to above by failing to complete and send in monthly reports and/or to pay moneys due thereunder on behalf of defendant's employees to the TRUST FUNDS. Said breach constitutes a violation of ERISA (29 U.S.C. 1102,

et seq.) and of the National Labor Relations Act of 1947. 8. Defendant has failed and refused to pay in a timely Pursuant to the terms of the collective

manner since June 2005.

bargaining agreement there is now due, owing and unpaid from defendant to the TRUST FUNDS on account number 069-079000 contributions for hours worked by covered employees for the months of July 2006 to present and liquidated damages and interest which are specifically provided for by said agreements. The total amount due is unknown;

additional monthly amounts will become due during the course of this litigation and in the interest of judicial economy, recovery of said sums will be sought in this case. Interest is due and owing on all

principal amounts due and unpaid at the legal rate from the dates on which the principal amounts due accrued. The total amount due in this paragraph is unknown at this time, except to the defendant. 9. Demand has been made upon said defendant, but defendant COMPLAINT 3

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has failed and refused to pay the amounts due the TRUST FUNDS or any part thereof; and there is still due, owing and unpaid from defendant the amounts set forth in Paragraph 8 above. 10. An actual controversy exists between plaintiffs and defendant in that plaintiffs contend that plaintiffs are entitled to a timely monthly payment of trust fund contributions now and in the future pursuant to the collective bargaining agreement and the Trust Agreements, and defendant refuses to make such payments in a timely manner. 11. The Trust Funds do not at this time seek to audit the The only issue raised in this

books and records of defendant.

complaint is defendant's failure to complete and file voluntary monthly reports and pay the contributions due. The Trust Funds seek

to obtain a judgment for any outstanding delinquent contributions based on defendant's reports and to reserve the right to audit defendant for this or any other unaudited period. 12. The Trust Agreements provide that, in the event suit

is instituted to enforce payments due thereunder, the defendant shall pay court costs and reasonable attorneys' fee. It has been necessary

for plaintiffs to employ ERSKINE & TULLEY, A PROFESSIONAL CORPORATION, as attorneys to prosecute the within action, and reasonable

attorneys' fee should be allowed by the Court on account of the employment by plaintiffs of said attorneys. WHEREFORE, plaintiffs pray: 1. That the Court render a judgment on behalf of

plaintiffs for all contributions due and owing to the date of judgment based upon unaudited reporting forms, plus liquidated damages provided for by the contract, interest at the legal rate, reasonable attorneys' COMPLAINT 4

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fees incurred in prosecuting this action and costs. 2. That the Court enjoin the defendant from violating the

terms of the collective bargaining agreement and the Trust Agreements for the full period for which defendant is contractually bound to file reports and pay contributions to the TRUST FUNDS. 3. That the Court reserve plaintiffs' contractual right to audit defendant for months prior to judgment, and in the event of such audit, collect any additional sums which may be due. 4. That the Court retain jurisdiction of this cause

pending compliance with its orders. 5. For such other and further relief as the Court deems

just and proper. DATED: May 22, 2007 ERSKINE & TULLEY A PROFESSIONAL CORPORATION By:/s/Michael J. Carroll Michael J. Carroll Attorneys for Plaintiffs

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