United States District Court, D. Nevada
TRUSTEES OF THE BRICKLAYERS & ALLIED CRAFTWORKERS LOCAL 13 DEFINED CONTRIBUTION PENSION TRUST FOR SOUTHERN NEVADA, et al., Plaintiffs,
COMMERCIAL UNION TILE & STONE, INC., et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
SUMMARY JUDGMENT (ECF NO. 54)
P. GORDON UNITED STATES DISTRICT JUDGE.
November 21, 2016, the plaintiffs filed a motion for summary
judgment against defendants Commercial Union Tile &
Stone, Inc.; Vegas Affordable Stone and Tile, Inc. (VAST);
and Jonathan William Canja. ECF No. 54. None of these
defendants opposed the motion. I nevertheless must ensure the
plaintiffs met their burden under Federal Rule of Civil
Procedure 56 of showing no genuine fact dispute remains and
they are entitled to judgment as a matter of law. See In
re Rogstad, 126 F.3d 1224, 1227 (9th Cir. 1997). When,
as here, “the party moving for summary judgment would
bear the burden of proof at trial, it must come forward with
evidence which would entitle it to a directed verdict if the
evidence went uncontroverted at trial.” C.A.R.
Transp. Brokerage Co. v. Darden Restaurants, Inc., 213
F.3d 474, 480 (9th Cir. 2000) (quotation omitted). “In
such a case, the moving party has the initial burden of
establishing the absence of a genuine issue of fact on each
issue material to its case.” Id.
plaintiffs are collectively bargained multi-employer fringe
benefit trust funds created pursuant to written declarations
of trust and collective bargaining agreements between
multi-employer associations and the International Union of
Bricklayers and Allied Craftworkers, Local Union No. 13
(“Local 13”). Defendant Commercial Union is a
signatory to a collective bargaining agreement (CBA) with
Local 13, pursuant to which Commercial Union agreed to make
fringe benefit contributions to the plaintiffs for all hours
Commercial Union's employees performed work covered by
the Local 13 CBA.
Canja was an owner and officer of Commercial Union. Canja
also operated VAST, a company owned by defendant Jedediah
Feller. Canja was responsible for controlling the labor
relations for Commercial Union and VAST, and he was
responsible for supervising the companies' employees.
Commercial Union and VAST are involved in the tile and
masonry industry within Local 13's jurisdiction.
Union and VAST failed to submit timely reports or
contributions to the plaintiffs, and refused to submit to
audits even though the CBA allows the plaintiffs to conduct
audits to ensure compliance with the CBA and with the
Employment Retirement Income Security Act of 1974
(“ERISA”). Through discovery, the plaintiffs were
able to conduct an audit for the period of December 1, 2014
through April 30, 2016. The audit showed Commercial Union had
not made all required contributions. The plaintiffs thus
demanded payment but no payments were made. This court
previously ordered that the audit report “shall be
accepted as fact” and Commercial Union “will not
be permitted to enter a defense as to the accuracy of the
audit report and auditor assumptions.” ECF No. 51 at 1.
Commercial Union and Vast
plaintiffs submit evidence showing that Canja operated VAST
as a non-union alter ego to Commercial Union. Although VAST
was owned by Feller, Canja conducted all substantive
operations, including signing contracts, making bids, and
supervising employees. VAST and Commercial Union shared
employees but VAST did not provide any pension or health care
benefits for its employees. When Canja would bid on projects
for the two companies, he would make Commercial Union's
bid higher by forty percent or more for labor.
on these facts, and as more fully set forth in the motion
with citation to the supporting evidence, the plaintiffs have
met their initial burden of showing that Commercial Union
breached the CBA and violated 29 U.S.C. § 1145 by
failing to make contributions to the plans as required under
the CBA. The plaintiffs have also met their initial burden of
showing that Commercial Union and VAST are alter egos.
See S. Cal. Painters & Allied Trades, Dist. Council
No. 36 v. Rodin & Co., 558 F.3d 1028, 1031 (9th Cir.
2009). Although the two entities do not share common
ownership, they do share common management, operations, and
labor relations. See Id. Additionally, the
plaintiffs have presented evidence that Canja operated the
two entities to avoid CBA obligations by inflating Commercial
Union's bids by forty percent or more and by using the
same employees to perform both companies' work.
Id. at 1032.
the plaintiffs bear the burden of proof on the question of
alter ego, “they had the burden of establishing a prima
facia case on their motion for summary judgement.”
UA Local 343 United Ass'n of Journeymen &
Apprentices of Plumbing & Pipefitting Indus. of U.S.
& Canada, AFL-CIO v. Nor-Cal Plumbing, Inc., 48 F.3d
1465, 1471 (9th Cir. 1994). Having met that burden by
presenting evidence that, if left uncontroverted, would show
that Commercial Union and VAST were alter egos, “it
became incumbent on [the defendants] to set forth specific
facts showing that there is a genuine issue for trial.”
Id. (quotation omitted). Neither Commercial Union
nor VAST oppose the motion. I therefore grant the
plaintiffs' motion as to Commercial Union and VAST.
1132(g)(2) of ERISA provides that when an employment benefit
trust obtains judgment in its favor for unpaid contributions,
the court “shall” award the trust unpaid
contributions, interest on the unpaid contributions,
liquidated damages, and reasonable attorney's fees and
costs. They are also entitled to “such other legal or
equitable relief as the court deems appropriate.” 29
U.S.C. § 1132(g)(2)(E). Audit costs “are
recoverable under subsection (E).” Operating
Eng'rs Pension Trust v. A-C Co., 859 F.2d 1336, 1343
(9th Cir. 1988).
evidence in this case supports the following awards:
(a) unpaid contributions in the amount of $200, 729.76;
(b) pre-judgment interest on the unpaid contributions in the
amount of $26, 824.30 through November 21, 2016; and
(c) liquidated damages in the amount of $33, 605.87.
the plaintiffs are entitled to reasonable attorney's fees
and costs in the amount of $84, 390.37 ($75, 090.00 in fees
and $9, 300.37 in costs). Finally, the plaintiffs are
entitled to the audit costs in the amount of $31, 713.44.