Summary
holding that unpaid employer contributions were not plan assets where the only relevant language defined contributions as "payment made or to be made to the Fund by an Individual employer."
Summary of this case from Trustees of Bricklayers v. Granite Works, Inc.Opinion
No. C-05-3151 MMC.
August 10, 2007
On June 8, 2007, Magistrate Judge Elizabeth D. Laporte issued a report and recommendation with respect to plaintiffs' motion for default judgment against both defendants, and advised the parties that any objections thereto were required to be filed within ten working days after being served therewith. Plaintiffs have filed a proof of service demonstrating that defendants were served by mail on June 11, 2007. To date, no objections have been filed.
The above-titled action was reassigned to the undersigned on July 23, 2007. Having reviewed the matter de novo, the Court, for the reasons expressed therein, hereby ADOPTS the report and recommendation. Accordingly, the motion for default judgment is hereby GRANTED in part and DENIED in part, as follows:
1. Damages are awarded against defendant E.G. Construction in the amount of $40,870.11.
2. Liquidated damages and interest are awarded against defendant E.G. Construction in the amount of $63,419.16, consisting of $14,392.67 for interest on principal owed under such defendant's AECE account as of June 25, 2005, and $49,026.49 for liquidated damages and interest owed under such defendant's ACG account as of June 25, 2005.
3. Liquidated damages and interest are awarded against defendant E.G. Construction in the amount of $2,752.55 owed under such defendant's ACG account for under-reported hours discovered by a review of paycheck stubs from the period January 2004 to March 2005.
4. Additional interest accrued from August 10, 2005 through June 10, 2007 on the foregoing totals is awarded against defendant E.G. Construction in the amount of $18,880.20.
5. Attorneys' fees and costs are awarded against defendant E.G. Construction in the amount of $18,000 in attorneys' fees and $844.18 in costs.
6. Defendant E.G. Construction is ordered to submit to an audit on two days written notice from the plaintiffs, and will make available to plaintiffs the following records, for the time period April 1, 2005 to the date of this order:
Individual earnings records; Federal Tax Forms, W-3/W-2 and 1069/1099; Reporting forms for all Trust Funds, State DE-3/DE-6 Tax Reports; Workers' compensation insurance; Employee time cards; Payroll Registers/Journals; Quarterly payroll tax returns (Form 941); Check register and supporting cash vouchers; Forms 1120, 1040 or partnership tax returns; General ledger; Source records, including time cards and time card summaries for all employees; Certified payroll reports; Personnel records indicating job classifications and hire/termination dates; Cash disbursement journal; Vendor invoices; Copies of subcontract agreements; Cash receipts journal; Job costs records; and any other books and records that may be necessary to complete the auditor's determination or provide additional explanation of defendants' financial records.
7. Plaintiffs are entitled to no relief against defendant Ezra Philip Green.