Opinion
NO. C 10 2212 EMC.
October 6, 2011
ERSKINE TULLEY, A PROFESSIONAL CORPORATION, MICHAEL J. CARROLL (ST. BAR #50246), Sausalito, CA, ATTORNEYS FOR PLAINTIFFS.
DECLARATION OF MICHAEL J. CARROLL IN SUPPORT OF DISMISSAL OF CERTAIN PLAINTIFFS AND FOR ENTRY OF JUDGMENT; ORDER
1. I am one of the attorneys for all plaintiffs in this action. Plaintiffs' motion for default judgment was granted June 30, 2011. An issue remains over the propriety of the named plaintiffs. It appears that proper service has not occurred of the First Amended Complaint, a pleading filed solely to correct the name of the Health and Welfare Trust Fund party to this case.
2. All trust funds named in the original complaint and the first amended complaint are signatories to the Joint Services Agreement, Exhibits 6 and 12. Please note that under that Agreement the Sheet Metal Workers Pension Trust for Northern California (hereinafter referred to as the "Nor Cal Pension Trust") is responsible to bill for, and take all necessary steps to collect contributions due under collective bargaining agreements, to the various fringe benefit trust funds. Ex. 12 ¶ 1, 3. This includes the responsibility to file suit in the name of and for and on behalf of the parties signatory to the Joint Services Agreement. The parties have all agreed and authorized ". . . the trustees of the Nor Cal Pension Trust to sue in its name and/or to enter into settlements of delinquencies on its behalf." Ex. 12, ¶ 3, page 4.
3. Plaintiffs respectfully request that the Court enter an order dismissing all named plaintiffs from both the original complaint and the First Amended Complaint without prejudice, save and except for one plaintiff named in the original complaint: Board of Trustees of the Sheet Metal Workers Pension Trust of Northern California, and that Judgment be entered in favor of that entity in the amounts set forth in the Court's June 30, 2011 Order, to wit:
(1) $118,079.29 in unpaid contributions
(2) $23,615.86 in liquidated damages
(3) $3,149.23 in interest, and
(4) $2,905 in fees and costs.
The total damages awarded are $144,844.37.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on October 4, 2011 at Sausalito, California.
ORDER
IT IS SO ORDERED.