Locals 302 and 612 of the International Union of Operating Engineers Construction Industry Health and Security Fund v. 509 Excavating LLC

MOTION for Default Judgment Against 509 Excavating LLC

W.D. Wash.October 24, 2019

THE HONORABLE JAMES L, ROBART 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 !8 19 20 21 22 23 24 25 26 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE LOCALS 302 AND 612 OF THE INTERNATIONAL UNION OF OPERATiNG ENGiNEERS CONSTRUCTiON INDUSTRY HEALTH AND SECURITY FUND , et aL Plaintiffs, V. 509 EXCAVATING LLC, a Washington limited iiability company, Defendant, NO. C19-01527-JLR MOTION FOR AND AFFIDAVIT FOR ENTRY OF DEFAULT JUDGMENT Pursuant to Rule 55(b) of the Federal Rules of Civil Procedure, Plaintiffs pray the Court for judgment against Defendant, 509 Excavating LLC. This motion is based on documents on file with the court, upon the attached affidavit of Russell J. Reid and exhibits hereto, and upon the Declaration of Adam Keck and exhibits thereto, which evidence Plaintiffs are entitled to judgment against Defendant, 509 Excavating LLC. MOTION FOR AND AFFIDAVIT FOR ENTRY OF DEFAULT JUDGMENT - C19-0527-JLR Page 1 Reid, McCarthy, Ballcw & Lcahy, L.L.E ATTORNEYS AT LAW 100 WRST 11AIUUSON STRRF.T • NORTH TOWER, SUITE 300 SEATTLE, WASHiNOTON 98119 TELEPHONE: (206) 285-0464 • FAX: (206) 285-8925 ®^g^w Case 2:19-cv-01527-JLR Document 6 Filed 10/24/19 Page 1 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 !6 !7 18 19 20 21 22 23 24 25 26 DATED this day of October, 2019, REID, MCCARTHY, BALLEW& LEAHY, L.L.P. Russell J, Reid/^t3A#2560 Attorney for Plairftiffs AFFIDAVIT ) ) ss, STATE OF WASHINGTON County of King ) RUSSELL J. REID, being first duly sworn on oath, deposes and says: 1. I am one of the Plaintiffs' attorneys and make this affidavit in support of their motion for judgment after entry of default. 2. Plaintiffs brought this action to collect contributions, dues, liquidated damages, interest, attorneys' fees and costs due them by reason of Defendant's employment of members of the bargaining unit represented by Local 302 of the International Union of Operating Engineers, with which the Defendant has a valid labor contract, and by reason of its acceptance of Plaintiff Trusts' Agreements &< Declarations of Trust (hereinafter "Trust Agreements"), 3. As evidenced by the records on file with the Court, an Order of Default has been entered against Defendant. (See Exhibit A attached). MOTION FOR AND AFFIDAVIT FOR ENTRY OF DEFAULT JUDGMENT - C19-0527-JLR Page 2 Rcid, McCarthy, Ballew & Leahy, L.i..P. ATTORNB'.SATLAW 100 WEST 1-iARRkSON STIU:[;T • NORTH TOWER, SUITE ?0 SEATTLE, WASHINGTON 98119 TELEP] 10NE: (206) 285-046-t • FAX: (206) Zti'i.W) Case 2:19-cv-01527-JLR Document 6 Filed 10/24/19 Page 2 of 8 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4. The Court has jurisdiction over the subject matter of this action under Section 502 (e)(l) and (f) of the Employee Retirement income Security Act of 1974 ("ERISA"), 29 U,S.C. §1132 (e)(l) and (f) and under Section 301 (a) of the Taft- Hartiey Act, 29 U.S.C. §185 (a). 5, Venue is proper in this district under Section 502 (e)(2) of ERiSA, 29 U.S.C. §1132 (e)(2), because plaintiff Trusts are administered in this district. 6. As alleged in COUNT ONE, paragraph i of Plaintiffs' complaint. Plaintiff Trusts are unincorporated associations operating as Trust Funds pursuant to Section 302 of the Labor Management Relations Act of 1947, as amended, under the respective names of Locais 302 and 612 of the International Union of Operating Engineers-Construction Industry Health & Security Fund, Locals 302 and 612 of the International Union of Operating Engineers-EmpEoyers Construction Industry Retirement Fund, and Western Washington Operating Engineers-Empioyers Training Trust Fund, to provide medical, retirement, and training benefits to eligible participants. Plaintiffs' offices are located in King County, Washington. 7. As alleged in COUNT ONE, paragraph V of Plaintiffs' complaint, Defendant is bound to a collective bargaining agreement (see, Keck Decl. T|7, Ex. A) with Local 302 of the international Union of Operating Engineers (hereinafter "Locai"), under which Defendant is required to promptly and fuliy report for and pay monthly contributions to the Plaintiffs at varying, specified rates for each hour of compensation Defendant pays to its employees who are members of the bargaining unit represented by the Local (such bargaining unit members are any of Defendant's MOTION FOR AND AFFIDAVIT FOR ENTRY OF DEFAULT JUDGMENT - C19-0527-JLR Page 3 Reid, McCarthy, Ballew & Leahy, L.L.P. ATTORNEYS AT LAW 100 WEST 1 iARRISON STKtiET • NORTH TOWER, SUITE 300 SEATTLE, WASI 1INGTON 98119 TELEPHONE: (206) 2Sci-OW • VAX: (206)285-8925 Case 2:19-cv-01527-JLR Document 6 Filed 10/24/19 Page 3 of 8 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 i6 17 i8 19 20 21 22 23 24 25 26 part time or full time employees who perform any work tasks covered by Defendant's labor contract with the Locai, whether or not those employees actually join the Local). 8. As alleged in COUNT ONE, paragraph VI of Piaintiffs' compiaint, Defendant accepted Plaintiffs' respective Agreements and Declarations of Trust and thereby agreed to pay to the Operating Engineers Construction Industry Health and Security Trust and to the Operating Engineers-Empioyers Construction industry Retirement Fund liquidated damages equal to twelve percent (12%) ofait delinquent and deiinquently paid contributions, or $25.00 per month, whichever is greater, and tweive percent (12%) annual interest accruing upon each monthly contribution delinquency from the first day thereof until fully paid, as well as all attorneys fees and costs, including audit expenses ifappiicabie, which Plaintiffs incur in the collection of ail of Defendant's unpaid obligations. See, Keck Decl., Ex. B (Article II, Section 9. pp. 12-14). Ex. C (Article II. Section 9, pp. 10-12), and Ex. D (Article II. Section 9, PP. 4-5)). 9. As alleged in COUNT TWO, paragraph I of Plaintiffs' complaint, Plaintiff Local 302 of the International Union of Operating Engineers is a iabor organization with its principal offices in King County, and brings this action pursuant to Section 301 of the Labor Management Relations Act of 1947, as amended. 10. As alleged in COUNT TWO, paragraph II of Plaintiffs' complaint, Defendant is a Washington limited liability company. MOTION FOR AND AFFIDAVIT FOR ENTRY OF DEFAULT JUDGMENT - C19-0527-JLR Page 4 Reid, McCarthy, Ballew & Leahy, L.LP. ATTORNEYS AT LAW 100 WEST HARR1SON STREET • NORTH TOWRR, SUiTC 300 SiiATTLE, WASHINGTON 98119 TELEPHONE: (206) 285-046'! * FAX; (206)285-8925 Case 2:19-cv-01527-JLR Document 6 Filed 10/24/19 Page 4 of 8 I 2 3 4 5 6 7 8 9 10 It 12 13 14 15 16 17 !8 19 20 21 22 23 24 25 26 11. As alleged in COUNT TWO, paragraph ill of Plaintiffs' complaint, Defendant entered into an agreement with the Loca!, whereunder Defendant agreed to deduct from the periodic paychecks of Defendant's employees who are represented by the Local specified amounts for each hour of compensation Defendant pays to those employees and to remit the total thus deducted each month to the Trusts no later than the fifteenth (15th) of the month immediateiy foilowing the month in which such deductions were made. (Keck Decl. (Ex. A). 12. Defendant submitted its reports for the period June 2019 through August 2019 (Exhibit E attached to Adam Keck's Dec.), but failed to pay the contributions and dues owed to the Trust for that period. Accordingly, Defendant is obligated to the Trust Funds for contributions in the amount of $91,590,55, for dues in the amount of $5,673.55, for liquidated damages in the amount of $11,014.25, and for interest (thru 10/25/19) in the amount of $2,038.35 for the period June 2019 through August 2019. 13, The Excel spreadsheet, which is attached as Exhibit F to Adam Keck's Declaration, reflects the date when contributions and dues were due, and also includes calculations of liquidated damages and pre-Judgment interest. Exhibit F shows the amounts owed for the Health and Welfare Trust, the Pension Trust and the Training Trust. This information is based on the employer remittance reports found as Exhibit E to Keck's Declaration. Liquidated damages are calculated at a rate of 12% of the amount of the delinquent contributions still owed for the Health and Welfare Trust Fund, the Pension Trust Fund and the Training Trust Fund, interest MOTION FOR AND AFFIDAVIT FOR ENTRY OF DEFAULT JUDGMENT - C19-0527-JLR Page 5 Reid, McCarthy, Ballcw & Leahy, L.LR ATTORNEYS AT LAW 100 WKST HAKR1SON STREET • NORTH TOWF.H. SUITE W SEATTLE, WASHINGTON Wl 19 TP.LFiPHONl;: (206) 285-0464 • FAX: (206)285.8925 Case 2:19-cv-01527-JLR Document 6 Filed 10/24/19 Page 5 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 accrues until the contributions are paid in fuli. Interest is only calculated based on the delinquent contributions still owed. Interest accrues from the date contributions are due at a rate of 12% per annum until paid in fu!l. Dues are calculated at a rate of 2% of gross wages paid out by 509 Excavating LLC. This is calculated on the remittance reports found as Exhibit E to Adam Keck's Dedaration. These calculations are then inserted into the Exce! spreadsheet that is found as Exhibit F to Adam Keck's Declaration. 14, Plaintiff Trusts have incurred attorneys' fees of $543.00 and court costs of $461.00 in connection with Defendant's unpaid obligations. Exhibit B, attached hereto, sets forth the true and correct itemization of attorney and non-attorney time spent on this matter. The attorney's hourly rate does not incorporate the cost of work performed by non-attomeys. Consistent with Trustees of Construction Industry v. Redtand Insurance Company, 460 F.3d 1253 (9 dr., 2006) the award of fees for both attorneys and non-attorneys is customary and fees for both attorneys and non- attorneys have been approved by numerous judges in the United States District Court for the Western District of Washington. True and correct copies of the Orders awarding fees and declarations showing the fees awarded were for work by attorneys and non-attorneys are attached hereto as Exhibit C. 15. The attorney fees incurred by Plaintiffs include work performed by attorney, Russell J. Reid, and non-attorneys, Shelly Azus and Shelly Trahin. 16. Based upon the pleadings heretofore filed with the Court, upon the foregoing information and exhibits hereto, it has been evidenced as foilows: MOTION FOR AND AFFIDAVIT FOR ENTRY OF DEFAULT JUDGMENT - C19-0527-JLR Page 6 Reld, McCarthy, Ballew & Leahy, L.L.P. ATTORNEYS AT LAW 100 WEST HARR1SON STREET * NORTH TOWiiR, SUITE MO SEATTLE;, WASHINGTON 98119 T(;U;PHONE: (206) 285-C464 • FAX: (206) Z85-8925 Case 2:19-cv-01527-JLR Document 6 Filed 10/24/19 Page 6 of 8 1 2 3 4 5 6 7 8 9 10 It 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 i. This action is properly within the Jurisdiction of the Court and venue is proper; ii. Defendant has contractual obligations to promptly and fully to report for and pay contributions and dues to Plaintiff Trusts on behalf of each of its empioyees who are members of the bargaining unit represented by the Local; iii. Defendant specificaiiy accepted the Plaintiff Trusts' Trust Agreements and thereby agreed to pay liquidated damages equal to tweive percent (12%) of ail deiinquent and delinquently paid contributions, or $25.00 per month, whichever is greater, and twelve percent (12%) annual interest accruing upon each monthly contribution delinquency from the first day thereof until fuily paid, as well as all attorneys fees and costs, which Plaintiff Trusts incurred in the coilection of ail of Defendant's unpaid obligations. 17. Defendant failed to pay its contributions and dues for the period June 2019 through August 2019. Accordingly, Plaintiffs are entitled to take judgment against Defendant for the total amount of $111,320.70: $91,590.55 in contributions, $5,673.55 in dues, $11,014.25 in liquidated damages; $2,038.35 in pre-judgment interest; $543.00 in attorneys' fees and $461,00 in costs. This is the total amount owed for all three trusts: Locals 302 and 612 of the International Union of Operating Engineers-Construction Industry Health & Security Fund, Locals 302 and 612 of the International Union of Operating Engineers-Empioyers Construction industry MOTION FOR AND AFFIDAVIT FOR ENTRY OF DEFAULT JUDGMENT - C19-0527-JLR Page 7 Reid, McCarthy, Ballew & Leahy, L.L.R ATTORNEYS AT LAW 100 WEST HARRISON STREET • NOKTH TOWER, SUITE 300 SHATTLE, WASHINGTON 98119 TELEPHONE: (206) 285.0464 • FAX: (206) 2KS-K025 Case 2:19-cv-01527-JLR Document 6 Filed 10/24/19 Page 7 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Retirement Fund, and Western Washington Operating Engineers-Employers Training Trust Fund, and Local 302. I declare under penalty of perjury under the laws of the United States of America, that the foregoing is true and correct. 1 thExecuted this 24"' day of October, 2019, at Seattle, Klng^ounty, Washington Russell J. Reid, WS^yf^o. 2560 thSUBSCRIBED AND SWORN to before me this 24ln day of October, 2019 SHELLYA2US •NOTARY PUBLIC #68304 [STATE OF WASHINGTON COMMISSION EXPIRES DECEMBER 9, 2022 /^rint Name: ^hNv Azui Notary PublCTn and for the State of Washington, residing at Covington WA My commission expires: 12/9/22 MOTION FOR AND AFFIDAVIT FOR ENTRY OF DEFAULT JUDGMENT - C19-0527-JLR Page 8 Reid, McCarthy, Ballew & Leahy, L.L.P. ATTORNEYS AT LAW 100 WEST 11ARR1SON STRHET • NOHTH TOWER, SUITK TOO SbA'n'LE, WASHINGTON 98119 TELEPHONE: (206) 285.CH64 • FAX: (206)285.89Z5 Case 2:19-cv-01527-JLR Document 6 Filed 10/24/19 Page 8 of 8