Board of Trustees et al v. Vargas & Esquivel Construction, Inc., No. 3:2008cv05652 - Document 11 (N.D. Cal. 2009)
Court Description: ORDER Granting re 8 Joint Case Management Statement,, filed by Vargas & Esquivel Construction, Inc., Board of Trustees. Parties are referred to Alternative Dispute Resolution. Initial Case Management Conference set for 6/5/2009 08:30 AM.. Signed by Judge Charles R. Breyer on 3/20/09. (fj, COURT STAFF) (Filed on 3/20/2009)
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Board of Trustees et al v. Vargas & Esquivel Construction, Inc. 1 2 3 4 Doc. 11 BARRY E. HINKLE, Bar No. 071223 NICOLE M. PHILLIPS, Bar No. 203786 WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, CA 94501-1091 Telephone (510) 337-1001/Facsimile (510) 337-1023 5 6 7 8 9 10 Attorneys for Plaintiffs GENE FARBER Law Offices of Gene A. Farber 4258 26th Street San Francisco, CA 94131 Telephone (415) 956-1800/Facsimile (415) 282-4228 Attorneys for Defendant 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 14 15 16 17 18 19 20 21 22 23 THE BOARD OF TRUSTEES, in their capacities as Trustees of the LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS VACATION-HOLIDAY TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS PENSION TRUST FUND FOR NORTHERN CALIFORNIA; and LABORERS TRAINING AND RETRAINING TRUST FUND FOR NORTHERN CALIFORNIA; and THE BOARD OF TRUSTEES, in their capacities as Trustees of the CEMENT MASONS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; CEMENT MASONS PENSION TRUST FUND FOR NORTHERN CALIFORNIA; CEMENT MASONS VACATION/HOLIDAY TRUST FUND FOR NORTHERN CALIFORNIA; CEMENT MASONS APPRENTICESHIP AND TRAINING TRUST FUND FOR NORTHERN CALIFORNIA, 24 25 26 Plaintiffs, v. VARGAS & ESQUIVEL CONSTRUCTION, INC., a California Corporation, 27 28 WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway Suite 200 Alameda, CA 94501-1091 (510) 337-1001 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 1:08-CV-5652-CRB JOINT CASE MANAGEMENT CONFERENCE STATEMENT; (PROPOSED) ORDER Date: March 27, 2009 Time: 10 a.m. Courtroom: 17thth Floor JOINT CASE MANAGEMENT CONFERENCE STATEMENT/(PROPOSED) ORDER Dockets.Justia.com The parties to the above-entitled actions jointly submit this Case Management Conference 1 2 Statement and Proposed Order and a Stipulation to Continue the Case Management Conference for 3 approximately 60 days, filed herewith. 4 A. FACTS AND ALLEGATIONS 5 The Plaintiffs in the consolidated matter are Trustees representing Laborers Union or 6 Cement Masons Union employee benefit plans created by written Trust Agreements subject to and 7 pursuant to section 302 of the Labor Management Relations Act (29 U.S.C. § 186) and multi- 8 employer employee benefit plans within the meaning of sections 3, 4 and 502 of ERISA (29 U.S.C. 9 §§ 1002, 1003 and 1132). 10 Defendant VARGAS & ESQUIVEL CONSTRUCTION, INC., a California Corporation, 11 has been an employer within the meaning of section 3(5) and section 515 of ERISA (29 U.S.C. §§ 12 1002(5), 1145) and an employer in an industry affecting commerce within the meaning of section 13 301 of the LMRA (29 U.S.C. § 185). Plaintiff alleges that Defendant has also been a member of 14 the Engineering & Utility Contractors Association (hereinafter referred to as EUCA), and by virtue 15 of such membership, became subject to all the terms and conditions of the Laborers Master 16 Agreement (hereinafter “Laborers Agreement”) and the Cement Masons Master Labor Agreement 17 (hereinafter “Cement Masons Agreement”). 18 The Laborers and Cement Masons Agreements provide for prompt payment of all 19 delinquent contributions to the various Trust Funds, and provide for the payment of interest on all 20 delinquent contributions, liquidated damages, attorneys’ fees, and other collection costs, and for 21 the audit of the signatory employer or employers’ books and records in order to permit the 22 Plaintiffs to ascertain whether all fringe benefit contributions have been timely paid as required by 23 the applicable labor agreements and law. 24 Plaintiffs THE BOARD OF TRUSTEES, in their capacities as Trustees of the LABORERS 25 HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS 26 VACATION-HOLIDAY TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS 27 PENSION TRUST FUND FOR NORTHERN CALIFORNIA; and LABORERS TRAINING AND 28 WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway Suite 200 Alameda, CA 94501-1091 (510) 337-1001 JOINT CASE MANAGEMENT CONFERENCE STATEMENT/(PROPOSED) ORDER 1 RETRAINING TRUST FUND FOR NORTHERN CALIFORNIA, (hereinafter “Laborers Trust 2 Funds”) allege that Defendant has failed, neglected, or refused to make timely fringe benefit 3 contributions to the Laborers Trust Funds as required by the Laborers Agreement and Trust 4 Agreements establishing Plaintiff trust funds, and there is now due and owing and unpaid to 5 Plaintiffs contributions in the sum of at least $16,252.86 and liquidated damages and interest in the 6 sum of at least $1,669.72 for hours reported, but not paid, for the months of February 2008 through 7 July 2008; and liquidated damages and interest for hours reported and paid, but paid late, for the 8 period of November 2005 through May 2008, in the sum of at least $10,772.71. 9 Plaintiffs THE BOARD OF TRUSTEES, in their capacities as Trustees of the CEMENT 10 MASONS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; 11 CEMENT MASONS PENSION TRUST FUND FOR NORTHERN CALIFORNIA; CEMENT 12 MASONS VACATION/HOLIDAY TRUST FUND FOR NORTHERN CALIFORNIA; CEMENT 13 MASONS APPRENTICESHIP AND TRAINING TRUST FUND FOR NORTHERN 14 CALIFORNIA, allege that Defendant has failed, neglected, or refused to make timely fringe 15 benefit contributions as required by the Cement Masons Agreement and Trust Agreements 16 establishing Plaintiff Cement Masons Trust Funds there is now due and owing and unpaid to 17 Plaintiff Cement Masons Board of Trustees contributions in the sum of at least $32,520.87 and 18 liquidated damages and interest in the sum of at least $4,823.06 for hours reported, but not paid, 19 for the months of December 2007 through September 2008; and liquidated damages and for hours 20 reported and paid, but paid late, for the period of November 2005 through November 2007 in the 21 sum of at least $6,830.00. 22 Plaintiffs bring this suit against Defendant to collect said amounts owed and allege that 23 Defendant breached its contracts with Plaintiff Trust Funds and their fiduciaries under ERISA. 24 Plaintiffs also request an audit to be performed of Defendant’s books and records. 25 26 Defendant denies Plaintiffs’ material allegations, and further denies that Plaintiffs are entitled to relief as requested. 27 28 WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway Suite 200 Alameda, CA 94501-1091 (510) 337-1001 JOINT CASE MANAGEMENT CONFERENCE STATEMENT/(PROPOSED) ORDER 1 B. 2 JURISDICTION AND SERVICE This action arises under and is brought pursuant to section 502 of the Employee Retirement 3 Income Security Act, as amended (ERISA), 29 U.S.C. § 1132, and section 301 of the Labor 4 Management Relations Act (LMRA), 29 U.S.C. § 185. The jurisdiction of this Court is founded on 5 28 U.S.C. § 1331. 6 Venue properly lies in this district court because a substantial part of the events and 7 omissions giving rise to these claims occurred in this district, including, but not limited to 8 Defendant’s master agreements with Plaintiffs, which requires that trust fund contributions are due 9 and payable in the County of San Francisco. 10 11 All parties have been served and appeared. C. 12 LEGAL ISSUES 1. What amounts, if any, are properly owed to the Trust Funds for contributions, 13 liquidated damages, interest, and audit costs for violations of the Defendant’s collective bargaining 14 agreement and Trust Agreements referenced therein. 15 2. 16 granted. 17 D. 18 Whether the Complaint in this action states a claim upon which relief can be MOTIONS Plaintiffs and Defendant anticipate settling this matter, but if it does not settle, Plaintiffs 19 anticipate filing a motion for summary judgment or summary adjudication. 20 E. 21 22 None anticipated, unless to add additional parties as revealed in discovery. F. 23 24 25 26 AMENDMENT OF PLEADINGS EVIDENCE PRESERVATION The parties have taken necessary steps to preserve all relevant evidence presently in their respective possession and control. G. DISCLOSURES The parties will exchange initial disclosures prior to the Case Management Conference. 27 28 WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway Suite 200 Alameda, CA 94501-1091 (510) 337-1001 JOINT CASE MANAGEMENT CONFERENCE STATEMENT/(PROPOSED) ORDER 1 H. DISCOVERY 2 The parties do not agree to any limitation regarding discovery, other than the limitations 3 specified in the Federal Rules of Civil Procedure. The parties anticipate settling this matter and 4 have not agreed upon a discovery cut-off date at this time. 5 I. 6 7 The instant matter is not a class action. J. 8 9 CLASS ACTIONS RELATED CASES PENDING None. K. RELIEF 10 Plaintiffs pray judgment against Defendant, Vargas & Esquivel Construction, as follows: 11 1. 12 the amount of $21,447.39, plus interest thereon; 13 14 2. 3. 4. 21 That Defendant be ordered to pay Plaintiff Cement Masons Trust Funds liquidated damages and interest in the amount of $12,899.38, plus interest thereon; 19 20 That Defendant be ordered to pay Plaintiff Cement Masons Trust Funds contributions in the amount of $35,033.15, plus interest thereon; 17 18 That Defendant be ordered to pay Plaintiff Laborers Trust Funds liquidated damages and interest in the amount of $15,623.25, plus interest thereon; 15 16 That Defendant be ordered to pay Plaintiff Laborers Trust Funds contributions in 5. That Defendant be ordered to pay each the Plaintiffs actual damages according to 6. That this Court issue an Order directing and permanently enjoining Defendant to proof; 22 submit to the Trust Funds, all reports and contributions due and owing by Defendant, plus interest, 23 attorneys’ fees, and costs as provided in ERISA sections 502(a)(3) and (g)(2) (29 U.S.C. § 24 1132(a)(3), (g)(2); 25 7. That this Court issue an Order permanently enjoining Defendant for so long as it 26 remains obligated to contribute to the Trust Funds, from failing, neglecting, or refusing to timely 27 submit required monthly contributions reports and payments as required by the terms of the 28 WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway Suite 200 Alameda, CA 94501-1091 (510) 337-1001 JOINT CASE MANAGEMENT CONFERENCE STATEMENT/(PROPOSED) ORDER 1 collective bargaining agreements, Trust Agreements and ERISA sections 502(a)(3) and (g)(2) (29 2 U.S.C. § 1132(a)(3), (g)(2)); 3 8. That Defendant be ordered to pay attorney’s fees; 4 9. That Defendant be ordered to pay costs of suit herein; 5 10. That Defendants be ordered to submit to an audit by Plaintiffs; 6 11. That this Court grant such further relief as this Court deems just and proper; and 7 12. That this Court retain jurisdiction of this matter to enforce the Order compelling an 8 Audit and payment of all amount found due and owing. 9 L. 10 11 The parties agree to participate in court-sponsored settlement conference and/or mediation. M. 12 15 Judge for trial. N. OTHER REFERENCES The case is not suitable to binding arbitration, a special master or the Judicial Panel. 16 17 CONSENT TO ASSIGNMENT OF THIS CASE TO A UNITED STATES MAGISTRATE JUDGE FOR TRIAL: Neither of the parties consents to assignment of this case to a United States Magistrate 13 14 ADR O. NARROWING OF ISSUES Plaintiffs believe that the issues may be narrowed by means of a motion for summary 18 19 judgment or summary adjudication. 20 P. The case is not suited for expedited scheduling. 21 22 Q. R. 25 26 27 SCHEDULING The Parties anticipate settling this matter and have not agreed upon a schedule. 23 24 EXPEDITED SCHEDULE TRIAL Defendant has demanded a jury trial. S. CONTINUANCE OF CASE MANAGEMENT CONFERENCE The parties have already commenced settlement negotiations and Defendant has agreed to 28 WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway Suite 200 Alameda, CA 94501-1091 (510) 337-1001 JOINT CASE MANAGEMENT CONFERENCE STATEMENT/(PROPOSED) ORDER 1 allow Plaintiffs audit entry to audit their payroll records to see what, if any, additional fringe 2 benefit contributions are owed. Plaintiffs’ legal counsel has indicated that she will be on vacation 3 on the day of the case management conference, and as lead trial counsel, she requests the ability to 4 attend the conference herself. For these reasons, the Parties respectfully request by a Stipulation 5 attached hereto that this Case Management Conference be continued for at least 60 days. 6 7 Dated: March 13, 2009 WEINBERG, ROGER & ROSENFELD A Professional Corporation 8 9 By: //s// NICOLE M. PHILLIPS Attorneys for Plaintiffs 10 11 Dated: March 13, 2009 FIRM 12 13 By: //s// Signature Authorized GENE FARBER Attorneys for Defendant 14 15 16 120217/524034 17 18 19 20 21 22 23 24 25 26 27 28 WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway Suite 200 Alameda, CA 94501-1091 (510) 337-1001 JOINT CASE MANAGEMENT CONFERENCE STATEMENT/(PROPOSED) ORDER 1 [PROPOSED] ORDER 2 The Case Management Statement and Proposed Order is hereby adopted by the Court and 3 as per the Parties’ request, the Parties are referred to Alternative Dispute Resolution and the Case 4 Management Conference has been continued until: June 5, 2009 5 13 S R NIA FO ER H 12 RT 11 HONORABLE CHARLES BREYER reyer UNITED STATES DISTRICT les R. B JUDGE r a h C e Judg NO 10 I _________________________________________ LI 9 ERED ORD T IS SO A 8 UNIT ED 7 RT U O ISTRIC ES D TC T A T 6 N F D IS T IC T O R C 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway Suite 200 Alameda, CA 94501-1091 (510) 337-1001 JOINT CASE MANAGEMENT CONFERENCE STATEMENT/(PROPOSED) ORDER
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