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Trustees of Northern Nevada Laborers Health & Welfare Trust Fund v. Diversified Concrete Cutting Inc.

United States District Court, D. Nevada

March 23, 2018

TRUSTEES of the NORTHERN NEVADA LABORERS HEALTH & WELFARE TRUST FUND, CRAIG MADOLE, DAVE BACKMAN, CRAIG HOLT, DAN RUSNAK, ELOY JARA, RICHARD DALY; TRUSTEES of the LABORERS PENSION TRUST FUND FOR NORTHERN NEVADA, CRAIG MADOLE, DAVE BACKMAN, CRAIG HOLT, DAN RUSNAK, ELOY JARA, RICHARD DALY; TRUSTEES of the CONSTRUCTION WORKERS VACATION SAVINGS TRUST PLAN, CRAIG MADOLE, DAVE BACKMAN, CRAIG HOLT, DAN RUSNAK, ELOY JARA, RICHARD DALY; TRUSTEES of the LABORERS TRAINING TRUST FOR NORTHERN NEVADA, CRAIG MADOLE, DAVE ELIZONDO, FRED REEDER, DAN RUSNAK, ELOY JARA, RICHARD DALY; TRUSTEES of the CEMENT MASONS ANNUITY TRUST FUND FOR NORTHERN NEVADA, CRAIG MADOLE, SHANE GLENN, KEVIN LINDERMAN, MARC LEAVITT, THOMAS NORTHRUP, JESSE BARAJAS; TRUSTEES of the CEMENT MASONS JOINT APPRENTICESHIP AND TRAINING TRUST FUND, CRAIG MADOLE, KEVIN LINDERMAN, SHANE GLENN, MARC LEAVITT, THOMAS NORTHRUP, JAMES OBREGON; TRUSTEES of the NORTHERN NEVADA OPERATING ENGINEERS HEALTH & WELFARE TRUST FUND, CRAIG MADOLE, FRED REEDER, LANCE SEMENKO, STEVE INGERSOLL, DYLAN GALLAGHER, SCOTT FULLERTON; TRUSTEES of the OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS PREAPPRENTICE, APPRENTICE, AND JOURNEYMAN AFFIRMATIVE ACTION TRAINING FUND FOR NORTHERN NEVADA, CRAIG MADOLE, FRED REEDER, LANCE SEMENKO, STEVE INGERSOLL, DYLAN GALLAGHER, SCOTT FULLERTON; TRUSTEES of the OPERATING ENGINEERS PENSION TRUST FUND, JAMES MURRAY, KEVIN ALBANESE, STEVE CLARK, F.G. CROSTHWAITE, BRYAN FLAKE, THOMAS HOLSMAN, LANCE INOUYE, RICHARD PIOMBO, TOM SQUERI, DAVID STANTON, RUSSELL BURNS, MIKE CROLL, JUSTIN DISTON, DAVID HARRISON, STEVE INGERSOLL, PANE MEATOGA, JR., BRUCE NOEL, DAN REDING, JAMES SULLIVAN, NATE TUCKER; TRUSTEES of the OPERATING ENGINEERS VACATION HOLIDAY AND SICK PAY TRUST FUND, JAMES MURRAY, BRYAN FLAKE, LANCE INOUYE, TOM SQUERI, RUSSELL BURNS, JUSTIN DISTON, STEVE INGERSOLL, DAN REDING, JAMES SULLIVAN; and TRUSTEES of the OPERATING ENGINEERS PENSIONED HEALTH & WELFARE TRUST FUND, JAMES MURRAY, KEVIN ALBANESE, STEVE CLARK, F.G. CROSTHWAITE, BRYAN FLAKE, THOMAS HOLSMAN, LANCE INOUYE, RICHARD PIOMBO, TOM SQUERI, DAVID STANTON, RUSSELL BURNS, MIKE CROLL, JUSTIN DISTON, DAVID HARRISON, STEVE INGERSOLL, PANE MEATOGA, JR., BRUCE NOEL, DAN REDING, JAMES SULLIVAN, NATE TUCKER; Plaintiffs,
v.
DIVERSIFIED CONCRETE CUTTING, INC., a Nevada corporation; ALLEGHENY CASUALTY COMPANY, a Pennsylvania corporation; and DOES 1-10, Defendants.

          JENKINS LAW FIRM Attorneys for Plaintiffs.

          MOORE LAW GROUP, PC Attorneys for Defendant Diversified Concrete Cutting, Inc. JOHN D. MOORE

          THE FAUX LAW GROUP Attorneys for Defendant Allegheny Casualty Company KURT C. FAUX, JORDAN F. FAUX

          STIPULATION AND ORDER TO ALLOW PLAINTIFF TRUST FUNDS TO FILE FIRST AMENDED COMPLAINT

         The parties on record herein, Plaintiff Trust Funds, Defendant Diversified Concrete Cutting, Inc. ("Diversified"), and Defendant Allegheny Casualty Company ("Allegheny"), by and through their respective attorneys of record, stipulate and agree that, pursuant to FRCP Rule 15(a), Plaintiff Trust Funds be granted leave to file the First Amended Complaint, attached hereto as Exhibit "A." The filing of the proposed First Amended Complaint is necessary to allow Plaintiff Trust Funds to add Fast-Track Services Ltd as a Defendant. The filing of the First Amended Complaint will not cause any undue delays herein, as a stipulated discovery plan and scheduling order was filed only recently.

         ORDER

         The Court having reviewed the above stipulation and good cause therefore appearing, it is hereby ordered and decreed that Plaintiff Trust Funds may file the First Amended Complaint, attached to this stipulation and Wrder as Exhibit ?A."

         EXHIBIT A

         FIRST AMENDED COMPLAINT

         Plaintiffs, by and through their attorneys, JENKINS LAW FIRM, allege as follows against Defendants:

         JURISDICTION AND VENUE

         1. This is an action brought by the Trustees of the Northern Nevada Laborers Health & Welfare Trust Fund; the Trustees of the Laborers Pension Trust Fund for Northern Nevada; the Trustees of the Construction Workers Vacation Savings Trust Plan; the Trustees of the Laborers Training Trust for Northern Nevada; the Trustees of the Cement Masons Annuity Trust Fund for Northern Nevada; the Trustees of the Cement Masons Joint Apprenticeship and Training Trust Fund; Trustees of the Northern Nevada Operating Engineers Health & Welfare Trust Fund; Trustees of the Operating Engineers and Participating Employers Preapprentice, Apprentice, and Journeyman Affirmative Action Training Fund for Northern Nevada; Trustees of the Operating Engineers Pension Trust Fund; the Operating Engineers Vacation and Holiday Pay Plan; and the Trustees of the Operating Engineers Pensioned Health & Welfare Trust Fund (collectively, the "Trust Funds"), to enforce the terms of the Trust Funds and the provisions of Section 515 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. §1145. This action arises under ERISA Section 502(a)(3), 29 U.S.C. §1132(a)(3). ERISA Section 502(e)(1), 29 U.S.C. §1132(e)(1), confers jurisdiction on this Court.

         2. This Court has supplemental jurisdiction over Plaintiffs' state law claims pursuant to 28 U.S.C. §1367.

         3. Venue is proper in the unofficial Northern Division of this Court under 29 U.S.C. § 1132 (e)(2) because the Trust Funds are administered in Washoe County, in the District of Nevada, the breaches took place in Washoe County, in the District of Nevada, and the Defendants conduct business in Washoe County, in the District of Nevada.

         THE PARTIES

         4. Plaintiffs are Trustees of the Trust Funds. The Trust Funds are "employee benefit plan[s]" within the meaning of Section 3(3) of ERISA, 29 U.S.C. §1002(3), and are "multiemployer plan[s]" within the meaning of Section 3(37) of ERISA, 29 U.S.C. §1002(37). Plaintiffs bring this action on behalf, and for the benefit, of the beneficiaries of the Trust Funds and in their respective capacities as trustees and Trust Fund fiduciaries.

         5. Defendant Diversified Concrete Cutting, Inc. ("Diversified") is, and at all times hereinafter mentioned was, a Nevada corporation conducting business in the District of Nevada.

         6. Defendant Fast-Track Services Ltd ("Fast-Track") is, and at all times hereinafter mentioned was, a Nevada limited liability company conducting business in the District of Nevada.

         7. Defendant Allegheny Casualty Company is a Pennsylvania corporation licensed to execute surety bonds under the provisions of the Nevada Insurance Code and is conducting business in the District of Nevada. Defendant Allegheny Casualty Company issued license bond no. 0602136 to Diversified.

         8. The true names and capacities, whether individual, corporate, associate, or otherwise, of the Defendants designated as Does 1 through 10 are presently unknown to Plaintiffs. Plaintiffs are informed and believe, and on that basis allege, that Defendants Does 1-10 took some part in the acts and omissions complained of herein and, as a proximate result of such acts and omissions, incurred legal liability to Plaintiffs for the relief sought herein. Plaintiffs will request permission to amend this Complaint when the identity of Defendants Does 1-10 become known to them.

         9. At all material times and during the acts alleged herein, the Defendants were acting as the agents of each and every other Defendant within the course and scope of their agency or employment, and all acts conducted and alleged herein were known to, authorized, and ratified by each and every Defendant, and/or liability therefore has been assumed by each and every Defendant.

         FIRST CAUSE OF ACTION

         (Payment of Unpaid Contributions under ERISA ...


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