United States District Court, D. Colorado
EIGHTH DISTRICT ELECTRICAL PENSION FUND, and TRUSTEES OF EIGHTH DISTRICT ELECTRICAL PENSION FUND, Plaintiffs,
TPE Twin Peaks ELECTRIC, INC., a Colorado corporation, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KATHLEEN M. TAFOYA, Magistrate Judge.
This matter is before the court on the "Motion for Default Judgment" (Doc. No. 12, filed June 20, 2013).
A. Procedural History
Plaintiffs initiated this lawsuit on April 2, 2013, to collect delinquent employer contributions owed to multi-employer employee benefit plans under Section 502 of the Employee Retirement Income Security Act of 1974 ("ERISA"). ( See Compl.) Defendant was served with the Summons and Complaint on April 16, 2013. (Doc. No. 8.) Defendant, however, failed to answer or otherwise respond to Plaintiffs' Complaint. Following Plaintiffs' request for entry of default pursuant to Fed.R.Civ.P. 55(a) (Doc. No. 9), the Clerk of Court entered default against Defendant on May 22, 2013 (Doc. No. 10). Defendant has not responded to the Clerk's entry of default or the present Motion.
B. Factual Allegations
In the Complaint, Plaintiffs allege on March 5, 2001, Defendant Twin Peaks signed a "Letter of Assent-A, " by which it agreed to comply with and be bound by the collective bargaining agreement ("CBA") negotiated by the Intermountain Chapter of the National Electrical Contractors Association ("NECA") and Local Union No. 969 of the International Brotherhood of Electrical Workers ("IBEW Local 969"). Pursuant to Section 302(c)(4) of the Labor-Management Relations Act, 29 U.S.C. § 186(c)(4), Defendant Twin Peaks has been obligated under the terms of the CBA to deduct union dues from the wages of its employees who have submitted written authorizations, and to remit such dues and contributions to the administrator of the Pension Fund, acting as collection agent for IBEW Local 969.
In accordance with Section 302(c)(9) of the Labor-Management Relations Act, 29 U.S.C. § 186(c)(9), Defendant Twin Peaks was or has been obligated under the terms of the CBA to remit contributions for NECA membership fees, the Administration Fund, and the Labor-Management Cooperation Fund to the administrator of the Pension Fund, acting as collection agent for such funds. The CBA and Trust Agreements require Defendant Twin Peaks to complete, and to file with the administrator of the Pension Funds, monthly reports containing the names of its employees performing Covered Work, the number of hours worked by and the wages of such employees, its gross labor payroll paid to or accrued by such employees, and the amount of Contributions payable under the CBA by Defendant Twin Peaks (the "Monthly Reports"). In addition, the CBA and the Trust Agreements require Defendant Twin Peaks to submit the Contributions specified in the Monthly Reports along with such reports. The Monthly Reports contain a certification by the employer that the information contained therein is a full and accurate statement of hours worked and wages earned of all employees performing Covered Work.
Pursuant to the terms of the CBA and Trust Agreements, and the rules and regulations of the ERISA Funds, the Monthly Reports and Contributions are deemed delinquent if not received by the administrator of the Pension Fund on or before the 15th day of each month immediately following the month in which the work was performed, and the administrators are entitled to assess late charges and interest as a result of an employer's submission of delinquent Monthly Reports and Contributions.
The Pension Fund previously filed a civil action in this court against Defendant Twin Peaks and Michael Hoffman, Civil Action No. 11-cv-00193-MSK-MJW (filed on January 25, 2011), which the Pension Fund voluntarily dismissed on August 11, 2011, as a result of Defendant Twin Peaks' agreement to comply with its obligations up to July 2011. Since the Pension Fund's voluntary dismissal of the previous action, Defendant Twin Peaks has refused to comply with its legal obligations under ERISA and the CBA and Trust Agreements.
Delinquent Reports and Contributions Owed since July 2011
Defendant Twin Peaks has not submitted Monthly Reports or Contributions for Covered Work done from July 2011 to the present. From July 2011 to the present, Defendant Twin Peaks has continued to perform Covered Work for which it should have been submitting Monthly Reports and Contributions. Plaintiffs have made several efforts to obtain the cooperation of Defendant Twin Peaks in submitting monthly Reports and Contributions, including telephone conversations and messages between the Fund's representatives and Michael and Joan Hoffman, and correspondence dated March 21, 2013, from the Fund's attorney to the Hoffmans requesting that they submit the Monthly Reports and Contributions for the period from July 2011 to the present. Defendant Twin Peaks has disregarded the Pension Fund's efforts to obtain voluntary compliance with its legal obligations, and it continues to fail and refuse to submit Monthly Reports and Contributions from July 2011 to the present.
Pension Fund's Right to Audit Records of Defendant Twin Peaks
Under the provisions of the CBA, Trust Agreements, and/or rules and regulations of the Pension Fund, the Pension Fund is entitled to audit the books and records of Defendant Twin Peaks to determine whether it has been complying with the fringe benefit reporting and payment requirements of the CBA and Trust Agreements, and to determine accurately the amount of ...