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Employee Painters' Trust v. CWS Contractors, LLC

United States District Court, D. Nevada

April 4, 2017

EMPLOYEE PAINTERS' TRUST; PAINTERS & FLOORCOVERERS JOINT COMMITTEE; PAINTERS, GLAZIERS & FLOORCOVERERS JOINT APPRENTICESHIP & JOURNEYMAN TRAINING TRUST; PAINTERS ORGANIZING FUND; PAINTERS, GLAZIERS & FLOORCOVERERS SAFETY TRAINING TRUST FUND; SOUTHERN NEVADA PDCA/FCA INDUSTRY PROMOTION FUND, through their designated fiduciary John Smirk; INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES INDUSTRY PENSION FUND; KJPAT FINISHING TRADES INSTITUTE; PAINTERS & ALLIED TRADES LABOR MANAGEMENT COOPERATION INITIATIVE; IUPAT POLITICAL ACTION TOGETHER FUND, through their designated fiduciary, Gary Meyers; DISTRICT COUNCIL 16 NORTHERN CALIFORNIA JOURNEYMAN & APPRENTICE TRAINING TRUST FUND; HOLIDAY & VACATION FUND; LOCAL 567 ORGANIZING FUND; LOCAL 567 UNITY FUND, through their designated fiduciary, Todd Koch, Plaintiffs,
v.
CWS CONTRACTORS, LLC, a Nevada limited liability company; CHRIS ARNOLD, an individual, Defendants.

          CHRISTENSEN JAMES & MARTIN Wesley J. Smith, Esq. Attorneys for Plaintiffs.

          ORDER

         THIRD AMENDED JUDGMENT BY CONFESSON

         Pursuant to the express Stipulation and Consent for Entry of Judgment by Confession ("Stipulation"), it is hereby ORDERED, ADJUDGED AND DECREED that:

         1. This Court has jurisdiction of this case and venue is proper pursuant to Section 301(a) of the Labor-Management Relations Act of 1947 ("LMRA"), as amended [29 U.S.C. § 185(a)] and Sections 502(a)(3) and 502(e)(2) of the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended [29 U.SC. §§ 1132(a)(3) & 1132(e)(2)]. Pursuant to 28 U.S.C. § 1367 this Court has ancillary jurisdiction over any secondary causes of action.

         2. The Plaintiff Trusts are express trusts created pursuant to written declarations of trust, consistent with Section 302(c) of the LMRA, as amended [29 U.S.C. § 186(c)], and bring this action in accordance with Sections 502(d)(1), 502(a)(3) and 515 of ERISA, as amended [29 U.S.C. § 1001, et seq.]. The Trusts maintain offices in Nevada for the purpose of administering benefits.

         3. At all times material herein, the International Union of Painters and Allied Trades, District Council 15 ("Union") has been a labor organization representing employees in the construction industry in southern Nevada. The Union is a labor organization representing employees in an industry affecting commerce within the meaning of Section 301(a) of the LMRA, as amended [29 U.S.C. § 185(a)].

         3. The above-named Plaintiff Trust Funds (hereinafter "Plaintiffs" or "Trusts") shall take Judgment by Confession ("Judgment") against Defendant Chris Arnold ("Arnold") for the sum of Three Hundred Thirty Nine Thousand Four Hundred Sixty Nine and 71/100 Dollars ($339, 469.71) ("Judgment Amount"), which sum includes reported but unpaid fringe benefit contributions owed to the Trusts for work performed in Northern Nevada and Southern Nevada during the period of April 1, 2015 through March 31, 2016 ("Delinquency Period"), as well as contribution delinquencies discovered by payroll compliance audit for the period of July 1, 2012 through December 31, 2015 ("Audit Period"), plus pre-judgment interest, liquidated damages, attorney's fees, and costs. Interest shall accrue on the Judgment Amount, less any payments received, at the rate of seven percent (7%) per annum until paid in full.

         4. The Judgment Amount shall be paid to Plaintiffs as third party beneficiaries under the terms of a written collective bargaining agreement ("Labor Agreement") between CWS Contractors, LLC ("CWS") and the Union.

         5. Mr. Arnold, as an individual and authorized representative of CWS, has participated in the negotiation of the Labor Agreement, has knowledge of the Judgment Amount and has agreed to be personally and separately liable for the Judgment Amount and for compliance with the terms and conditions as set forth below.

         6. This Judgment includes settlement of all known claims by Plaintiffs for reported but unpaid fringe benefit contributions and damages owed to the Trusts for the Delinquency Period for work performed in Southern Nevada under the jurisdiction of CWS' Labor Agreement with the Union, as well as work performed as "out of area work" under the jurisdiction of IUPAT District Council 16 in Northern Nevada. This Judgment also includes settlement of claims for contribution delinquencies discovered by payroll compliance audit for the Audit Period. Defendants acknowledge that the Trusts have not audited CWS's payroll records for certain portions of the Delinquency Period, including any period of time after December 31, 2015. This Judgment is not intended to, and it does not, resolve, address or secure claims that are as yet unknown to the Trusts, including any claims that may later be revealed by Audit for any period that has not been audited. The Trusts reserve all audit rights for periods that have not been audited.

         7. The Judgment Amount, including interest on the declining Judgment balance and any after-accruing amounts, shall be paid by Arnold as follows:

a. A payment in the amount of Two Hundred Seventy Four Thousand Six Hundred Ninety Four and 15/100 Dollars ($275, 744.04) from CWS' receivables on the Cal Neva Lodge project, to be paid upon prosecution and/or resolution of CWS' mechanic's lien claim on the project;
b. Monthly payments to the Trusts in the amount of Two Thousand Dollars ($2, 000.00) per month, commencing on June 1, 2016 and continuing on or before the first (1st) day of each month thereafter until the Judgment Amount is paid in full.

         Interest shall accrue on the declining balance of the Judgment Amount at seven percent (7%) per annum. Subject only to Arnold's right to cure as set forth herein, the final payment of all unpaid portions of the Judgment Amount shall be increased to include any late fees and after-accruing attorney's fees and costs ...


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