-PAL Trustees of the Plumbers and Pipefitters Union Local 525 Health and Welfare Trust and Plan et al v. Southwest Air Conditioning, Inc., No. 2:2011cv01995 - Document 15 (D. Nev. 2012)
Court Description: ORDER Granting 12 Plaintiffs' Motion for Summary Judgment. IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Plaintiffs in the amount of $56,556 and against Defendant Southwest Air Conditioning, Inc. Signed by Judge Kent J. Dawson on 12/4/12. (Copies have been distributed pursuant to the NEF - EDS)
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-PAL Trustees of the Plumbers and Pipefitters Union Local 525 He...Southwest Air Conditioning, Inc. Case 2:11-cv-01995-KJD -PAL Document 14 1 Filed 12/03/12 Page 1 of 6 7 Adam P. Segal, Esq. Nevada Bar No. 6120 Bryce C. Loveland, Esq. Nevada Bar No. 10132 BROWNSTEIN HYATT FARBER SCHRECK, LLP 100 North City Parkway, Suite 1600 Las Vegas, Nevada 89106-4614 Telephone: (702) 382-2101 Facsimile: (702) 382-8135 Email: asegal@bhfs.com Email: bcloveland@bhfs.com 8 Attorneys for Plaintiffs 2 3 4 5 6 9 BROWNSTEIN HYATT FARBER SCHRECK, LLP 100 North City Parkway, Suite 1600 Las Vegas, Nevada 89106-4614 (702) 382-2101 Doc. 15 UNITED STATES DISTRICT COURT 10 11 12 13 14 15 16 17 DISTRICT OF NEVADA TRUSTEES OF THE PLUMBERS AND PIPEFITTERS UNION LOCAL 525 HEALTH AND WELFARE TRUST AND PLAN; TRUSTEES OF THE PLUMBERS AND PIPEFITTERS UNION LOCAL 525 PENSION PLAN; AND THE TRUSTEES OF PLUMBERS AND PIPEFITTERS LOCAL UNION 525 APPRENTICE AND JOURNEYMAN TRAINING TRUST FOR SOUTHERN NEVADA, Case No. 2:11-cv-01995-KJD -PAL JUDGMENT Plaintiffs, 18 19 vs. 20 SOUTHWEST AIR CONDITIONING, INC., a Nevada corporation, 21 Defendant. 22 23 24 25 26 27 Plaintiffs provide the following proposed judgment pursuant to the Court’s Order filed on November 15, 2012 (ECF No. 13): Presently before the Court is Plaintiffs’ Motion for Summary Judgment (ECF No. 12). Defendant Southwest Air Conditioning, Inc. (“Southwest”) failed to file a response. 28 020136\0048\1757903.1 1 Dockets.Justia.com Case 2:11-cv-01995-KJD -PAL Document 14 1 Filed 12/03/12 Page 2 of 6 I. Facts 2 Southwest is signatory to a Master Labor Agreement Proxy with Mechanical Contractors 3 Association, Inc. (“MCA”), which designates MCA as Southwest’s exclusive bargaining 4 representative and authorizes MCA to negotiate, administer and make Southwest signatory to the 5 Master Labor Agreement (“MLA”) with the United Association of Journeymen and Apprentices 6 7 8 BROWNSTEIN HYATT FARBER SCHRECK, LLP 100 North City Parkway, Suite 1600 Las Vegas, Nevada 89106-4614 (702) 382-2101 9 of Plumbing and Pipe Fitters Local 525 (“Union”). Under the MLA, Southwest was required to contribute to the Plaintiffs (“Trust Funds”) and to abide by all terms and conditions of the agreements establishing the Trust Funds as well as 10 any rules and regulations adopted by the Trustees of the Trust Funds. Under the Trust Funds’ 11 governing documents, all Trust Fund contributions are due on the 20th day of the month following 12 the month of work, and are delinquent if not received by that same date. The Trust Funds’ 13 Collection Policy also states that delinquent contributions accrue 14% interest and a 20% penalty. 14 15 16 The Policy also requires delinquent employers to pay all attorney’s fees and costs associated with collecting delinquent contributions. Southwest submitted reports for February 2012 through March 2010, January 2011 17 18 through August 2011, and April 2012 through June 2012, admitting the amount of contributions 19 due, which were not paid, with the exception of Southwest’s payments for February 2010 and 20 March 2010 contributions to the Trust Fund that were untimely. Thus, the amount of 21 22 23 24 contributions owed totals $34,218, interest totals $5,908 (through November 30, 2012), liquidated damages totals $7,403 and attorneys’ fees and costs total $9,027. Plaintiffs have moved for summary judgment alleging that they are due the full amount of damages claimed and that no 25 genuine issue of material fact prevents the Court from entering judgment in the amount of 26 $56,556. 27 /// 28 020136\0048\1757903.1 2 Case 2:11-cv-01995-KJD -PAL Document 14 1 Filed 12/03/12 Page 3 of 6 II. Standard for Summary Judgment 2 Summary judgment may be granted if the pleadings, depositions, answers to 3 interrogatories, and admissions on file, together with affidavits, if any, show that there is no 4 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 5 matter of law. See Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 6 7 8 BROWNSTEIN HYATT FARBER SCHRECK, LLP 100 North City Parkway, Suite 1600 Las Vegas, Nevada 89106-4614 (702) 382-2101 9 10 (1986). The moving party bears the initial burden of showing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to set forth specific facts demonstrating a genuine factual issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 11 All justifiable inferences must be viewed in the light must favorable to the nonmoving 12 party. See Matsushita, 475 U.S. at 587. However, the nonmoving party may not rest upon the 13 mere allegations or denials of his or her pleadings, but he or she must produce specific facts, by 14 15 16 17 affidavit or other evidentiary materials as provided by Rule 56(e), showing there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court need only resolve factual issues of controversy in favor of the non-moving party where the facts 18 specifically averred by that party contradict facts specifically averred by the movant. See Lujan v. 19 Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990); see also Anheuser-Busch, Inc. v. Natural 20 Beverage Distribs., 69 F.3d 337, 345 (9th Cir. 1995) (stating that conclusory or speculative 21 22 23 24 testimony is insufficient to raise a genuine issue of fact to defeat summary judgment). Evidence must be concrete and cannot rely on “mere speculation, conjecture, or fantasy. O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th Cir. 1986). “[U]ncorroborated and self-serving 25 testimony,” without more, will not create a “genuine issue” of material fact precluding summary 26 judgment. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). 27 28 020136\0048\1757903.1 3 Case 2:11-cv-01995-KJD -PAL Document 14 Filed 12/03/12 Page 4 of 6 Summary judgment shall be entered “against a party who fails to make a showing 1 2 sufficient to establish the existence of an element essential to that party’s case, and on which that 3 party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Summary judgment shall 4 not be granted if a reasonable jury could return a verdict for the nonmoving party. See Anderson, 5 477 U.S. at 248. 6 7 8 BROWNSTEIN HYATT FARBER SCHRECK, LLP 100 North City Parkway, Suite 1600 Las Vegas, Nevada 89106-4614 (702) 382-2101 9 III. Analysis When an employer fails to remit employee benefit contributions in accordance with the employer’s written obligations, the employer is subject to suit for its delinquencies. See 29 U.S.C. 10 § 1145. Moreover, ERISA requires the Court to award unpaid contributions, interest, liquidated 11 damages and attorneys’ fees in suits to enforce 29 U.S.C. § 1145. See 29 U.S.C. § 1132(g). No 12 question of material fact prevents the Court from awarding summary judgment here; Southwest 13 failed to file an opposition to the Plaintiffs’ motion. “The failure of an opposing party to file 14 15 16 17 points and authorities in response to any motion shall constitute a consent to the granting of the motion.” LR 7-2(d). Accordingly, the Court grants Plaintiffs’ motion for summary judgment. /// 18 19 /// 20 21 /// 22 23 24 /// 25 26 /// 27 28 020136\0048\1757903.1 4 Case 2:11-cv-01995-KJD -PAL Document 14 1 2 3 4 5 Filed 12/03/12 Page 5 of 6 IV. Conclusion Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Summary Judgment (ECF No. 12) is GRANTED; IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Plaintiffs in the amount of $56,556 and against Defendant Southwest Air Conditioning, Inc. 6 7 4th December DATED this ____ day of ________________, 2012. 8 __________________________________________ UNITED STATES DISTRICT COURT JUDGE BROWNSTEIN HYATT FARBER SCHRECK, LLP 100 North City Parkway, Suite 1600 Las Vegas, Nevada 89106-4614 (702) 382-2101 9 10 11 Respectfully submitted by: 12 BROWNSTEIN HYATT FARBER SCHRECK, LLP 13 18 /s/ Bryce C. Loveland_________________________ Adam P. Segal, Esq. Nevada Bar No. 6120 Bryce C. Loveland, Esq. Nevada Bar No. 10132 100 North City Parkway, Suite 1600 Las Vegas, Nevada 89106-4614 Telephone: 702.382.2101 Facsimile: 702.382.8135 19 Attorneys for Plaintiffs 14 15 16 17 20 21 22 23 24 25 26 27 28 020136\0048\1757903.1 5 Case 2:11-cv-01995-KJD -PAL Document 14 Filed 12/03/12 Page 6 of 6 CERTIFICATE OF SERVICE 1 2 Pursuant to Federal Rules of Civil Procedure 5(b), I certify that I am an employee of 3 Brownstein Hyatt Farber Schreck, LLP and that on this 3rd day of December, 2012, I served a 4 true copy of the foregoing PROPOSED JUDGMENT upon: 5 6 7 8 BROWNSTEIN HYATT FARBER SCHRECK, LLP 100 North City Parkway, Suite 1600 Las Vegas, Nevada 89106-4614 (702) 382-2101 9 10 11 12 Jeffrey J. Whitehead, Esq. Whitehead Law Offices 2431 W. Horizon Ridge Pkwy., Ste. 110 Henderson, Nevada 89052 Email: jay@whiteheadlaw.org Attorney for Defendant Southwest Air Conditioning, Inc. a. BY CM/ECF System I declare under penalty of perjury that the foregoing is true and correct. /s/ Ebony Davis_______________________________ An Employee of Brownstein Hyatt Farber Schreck, LLP 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 020136\0048\1757903.1 6
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