United States District Court, D. Nevada
TRUSTEES OF THE OPERATING ENGINEERS PENSION TRUST; TRUSTEES OF THE OPERATING ENGINEERS HEALTH AND WELFARE FUND; TRUSTEES OF THE OPERATING ENGINEERS JOURNEYMAN AND APPRENTICE TRAINING TRUST; and TRUSTEES OF THE OPERATING ENGINEERS VACATION-HOLIDAY SAVINGS TRUST, Plaintiffs,
DIVERSIFIED CONCRETE CUTTING, INC., a Domestic Corporation; SPECIALTY CONTRACTING CO. d/b/a DIVERSIFIED DEMOLITION CO.; and KENNETH M. MERCURIC, an individual, Defendant.
ORDER GRANTING DEFAULT JUDGMENT AGAINST DIVERSIFIED
CONCRETE CUTTING, INC. AND KENNETH M. MERCURIC (ECF NO.
P. GORDON UNITED STATES DISTRICT JUDGE
plaintiffs move for default judgment against defendants
Diversified Concrete Cutting, Inc. (DCC) and Kermeth M.
Mercuric (collectively hereinafter "Defendants").
Based on the record before me, good cause exists to grant the
motion and enter default judgment.
Plaintiffs are the Trustees of collectively bargained fringe
benefit trusts. They brought this action under Section 301(a)
of the Labor Management Relations Act of 1947
("LMRA"), 29 U.S.C. § 185(a), and Section 502
of the Employee Retirement Income Security Act of 1974
("ERISA"), as amended 29 U.S.C. § 1132. The
Plaintiffs' complaint seeks unpaid fringe benefit
contributions owing to the Trusts from the Defendants. The
contributions are owed pursuant to a collective bargaining
agreement between the Defendants and the International Union
of Operating Engineers, Local 12. The claim on the motion for
default judgment is based upon DCC's failure to pay the
amount of fringe benefit contributions shown on fringe
benefit contribution reports provided by DCC to the Trusts
and an audit of DCC's records by the Plaintiffs. The
Plaintiffs also seek liquidated damages, prejudgment
interest, attorneys' fees, and costs from DCC and
Mercurio based on the unpaid contributions shown on the audit
and monthly report:s. These additional amounts are required
under the collective bargaining agreement and are mandated
under 29 U.S.C. § 1132(g)(2).
DCC Failed to Pay Required Contributions.
DCC's obligations under its agreements, it failed to
timely pay fringe benefit contributions for the months of
June - November 2017. Additionally, DCC owes additional
amounts to the Plaintiffs based on the audit of its payroll
records. The total contributions shown in the audit are $8,
DCC and Mercuric Failed to Answer the Complaint, and Default
was Entered by the Clerk.
October 19, 2017, the Plaintiffs commenced this action by
filing their Complaint against defendants DCC, Mercurio, and
Specialty Contracting Co. d/b/a Diversified Demolition Co.
(Specialty Contracting Co. filed bankruptcy on January 11,
2018 and has been dismissed). The Plaintiffs asserted claims
for breach of written collective bargaining agreements and
related trust agreements, and breach of fiduciary duties. The
Plaintiffs' agents personally served DCC with the summons
and complaint on October 25, 2017, by service upon its
registered agent. The Plaintiffs' agents personally
served Mercurio with the summons and complaint on October 25,
2017. Under Federal Rule of Civil Procedure 12(a), DCC and
Mercurio's responses were due no later than November 15,
Mercurio failed to respond to the summons and complaint
within the time allotted, and on November 16, 2017, the
Plaintiffs moved for entry of default against them. On
November 17, 2017, the Clerk of Court entered default against
DCC and Mercurio.
Defendants did not appear in this case, and on April 10, 2018
the Plaintiffs moved for default judgment and served DCC and
Mercurio with the motion via U.S. Mail.
Plaintiffs are entitled to default judgment against DCC and
Mercurio because the Defendants failed to abide by the terms
of the collective bargaining agreements and related trust
agreements. In addition to breaching the collective
bargaining agreements and related trust agreements, the
Defendants are liable to the Plaintiffs for breaching
fiduciary duties to the Trusts, their participants, and
DCC BREACHED THE COLLECTIVE BARGAINING AGREEMENT, RELATED
TRUST AGREEMENTS AND VIOLATED ERISA.
considering a motion for default judgment, I must accept as
true all allegations in the complaint except those relating
to the amount of damages. Geddes v. United Financial
Coip.. 559 F.2d 557, 560 (9th Cir. 1977); Fed.R.Civ.P.
8(d). In their complaint, the Plaintiffs alleged DCC agreed
to the terms of collective bargaining agreements with Local
12. The Plaintiffs also submitted signed documents showing
DCC's written agreement to be a party to the collective
bargaining agreement. DCC and Mercurio failed to respond to
the complaint. It is therefore established that DCC is bound
by the terms of the collective bargaining agreements and
related trust agreements.
collective bargaining agreement in this case requires DCC to
make fringe benefit contributions for each hour worked by or
paid to any of its employees. It is well-established in this
Circuit that similar contractual provisions for the
collection of fringe benefit contributions are approved of
and well within the mandates of ERISA. Waggoner v. Wm.
Radkovich Co.. Inc., 620 F.2d 206 (9th Cir. 1980);
Burke v. Lenihan. 606 F.2d 840 (9th Cir. 1979);
Waggoner v. C & D Pipeline Co.. 601 F.2d 456
(9th Cir. 1979). In fact, the collective bargaining
agreements approved of in Wm. Radkovich Co.. Inc..
Burke, and C & D Pipeline Co. are substantially
similar to the collective bargaining agreement at issue here,
though, with minor differences. In C & D
Pipeline. the Ninth Circuit stated:
[t]he agreement requires employers to make contributions for
all hours worked by employees who perform any work covered by
A requirement that contributions be based on all hours worked
or paid permits the trustees to rely on payroll records to
determine if employers are making proper ...