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Trustees of Construction Industry v. Demo & Doors Enterprises

United States District Court, D. Nevada

July 30, 2014

TRUSTEES OF THE CONSTRUCTION INDUSTRY AND LABORERS HEALTH AND WELFARE TRUST, et al., Plaintiffs,
v.
DEMO & DOORS ENTERPRISES, Defendant.

CERTIFICATION OF FACTS FOR CIVIL CONTEMPT

C. W. HOFFMAN, Jr., Magistrate Judge.

Before the Court is Plaintiffs' Motion for Attorney Fees (#16), filed March 24, 2014.[1] Plaintiffs request an order requiring Defendant to pay $8, 416.00 as a contempt sanction for the repeated failure to comply with the Court's orders.

BACKGROUND

This case began when, on August 29, 2012, the parties filed a Stipulated Consent Judgment ("Judgment") in favor of Plaintiffs. (#1). The stipulated Judgment was for the sum of $179, 984.00 against Defendant "for delinquent employee benefit contributions, liquidated damages, interest, and attorney's fees and costs." The parties stipulated to the following facts:

1. Defendant was a signatory and bound by the terms of a collective bargaining agreement ("CBA"), in which it agreed to abide by trust agreements.
2. Under the CBA and the trust agreements, Defendant was obligated to pay employee contributions to trust funds on behalf of bargaining unit employees.
3. Defendant was delinquent in contributing funds for the period of January 2012 - March 2012.
4. Defendant owes the funds (a) $138, 543.00 in unpaid employee benefit contributions, (b) past interest of $2, 482.00, (c) liquidated damages of $29, 709.00, (d) administrative fees of $3, 000.00, and past attorney fees of $1, 250.00. The total monetary amount owed to the fund was $174, 984.00.
5. In the event the judgment must be executed, the parties agreed that an additional $5, 000.00 would be included.

The stipulated Judgment was approved on April 19, 2013, by the presiding District Judge in this matter - Chief Judge Gloria M. Navarro. (#3).

Thereafter, on October 31, 2013, Plaintiffs filed a post-judgment motion for a judgment debtor examination. (#5). The motion indicated that Defendant had failed to satisfy the judgment and requested an examination pursuant to Fed.R.Civ.P. 69. The motion for judgment debtor examination was referred to the undersigned and granted on November 5, 2013. (#6). Defendant was ordered to appear on December 18, 2013 in the office of Plaintiff's counsel for the examination. Defendant was further precluded from effectuating the transfer or interference with any property not exempt from execution. Id. Plaintiffs were instructed to personally serve the order on Defendant. Defendant was specifically informed that "[f]ailure to appear [at the judgement debtor examination] may subject [it] to sanctions for contempt of court." Id. On December 2, 2013, Plaintiffs filed an affidavit of service indicating that a copy of the order setting the judgment debtor examination was served on Defendant by "personally delivering and leaving a copy... Alana Duggan[, ]" who is identified as Defendant's registered agent for service of process. (#8).

On January 23, 2014, Plaintiffs filed a motion requesting that Defendant be required to show cause why it should not be held in contempt for failure to produce a witness at the December 18, 2013 judgment debtor examination. (#9). The motion indicated that neither Defendant nor anyone acting on its behalf appeared at the examination. The motion included a certification of nonappearance (attached as exhibit 1), which included a statement from Plaintiffs' counsel that he had not received any communication from Defendant or been provided any documents.

Based on the facts and evidence set forth in the motion (#9), the motion was granted and an order to show cause issued. The order to show cause included the following specific requirements:

1. That Defendant show cause in writing why it should not be sanctioned pursuant to, inter alia, the Court's inherent authority, LR IA 4-1, and Fed.R.Civ.P. 16(f), including certification that Defendant be held in civil contempt, for its failure to comply with the Court's order (#6) and failure to appear at the scheduled judgment debtor ...

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