United States District Court, D. Minnesota
Mark Conroy and Robert Dalsin, as Trustees of the Roofers Local No. 96 Health and Welfare Fund; Chris Cronin and James Hadel, as Trustees of the Roofers and Waterproofers Research and Education Joint Trust Fund; and Robert Dalsin and Kinsey Robinson, as Trustees of the National Roofing Industry Pension Fund, Plaintiffs,
Marianne's Roofing Company LLC, a Wisconsin limited liability company, separately and doing business as “W.J. Woodruff Roofing Contractors, ” Defendant.
REPORT AND RECOMMENDATION
E. RAU UNITED STATES MAGISTRATE JUDGE.
above-captioned case comes before the undersigned on
Plaintiffs' Motion for Preliminary Injunction to Compel
Compliance with Audit (“Motion for Emergency
Relief”) [Doc. No. 4], for which Plaintiffs requested
expedited relief. This matter has been referred for the
resolution of pretrial matters pursuant to 28 U.S.C. §
636(b)(1) and District of Minnesota Local Rule 72.1. (Order
of Reference) [Doc. No. 10]. For the reasons stated below,
the Court recommends granting the Motion for Emergency
Trust Funds are multi-employer, jointly-trusteed, fringe
benefit plans created and maintained” under the Labor
Management Relations Act and are multi-employer plans under
the Employment Retirement Income Security Act of 1974
(“ERISA”). (Compl. ¶ 2). The Trust Funds
“provide pension, health, and other benefits to
individuals performing labor in the trades, or to the
eligible dependents of such individuals.” (Id.
¶ 7). Defendant Marianne's Roofing Company, LLC
(“Marianne's Roofing”), is a Wisconsin-based
limited liability company. (Id. ¶ 4).
Roofing is a party to a collective bargaining agreement (the
“CBA”) that requires it to submit “fringe
benefit contribution reports and pay the fringe benefit
contributions owed for each hour worked in the immediately
preceding month.” (Id. ¶ 10); see
also (id. ¶ 8); (Articles of Agreement,
Ex. B at 15, Attached to Aff. of Thomas C. Atmore,
“Atmore Aff.”) [Doc. No. 7-1]. The reports and
contributions are to be submitted to Wilson-McShane
Corporation (“Wilson McShane”), the Trust
Funds' third-party administrator, on or before the
fifteenth day of the month. (Compl. ¶ 10); (Mem. of Law
in Supp. of Pls.' Mot. for Emergency Relief, “Mem.
in Supp.”) [Doc. No. 6 at 3]; (Articles of Agreement at
15); (Aff. of James F. Wilson, “Wilson Aff.”)
[Doc. No. 8 ¶ 2].
Roofing did not submit fringe benefit contribution reports
and failed to pay contributions for work performed in
September 2017, and each month thereafter. (Compl. ¶
14); (Wilson Aff. ¶ 5). In January 2018, Wilson-McShane
requested to audit Marianne's Roofing's books and
records as permitted by the CBA. (Compl. ¶ 15);
(Articles of Agreement at 15); (Wilson Aff. ¶ 7). On
January 19, 2018, Plaintiffs' counsel made a written
demand to Marianne's Roofing's attorney that it
comply with the audit. (Letter, Ex. D, Attached to Atmore
Aff.). To date, Marianne's Roofing has not responded to
the demands of Wilson-McShane and Plaintiffs' counsel,
and it has not complied with its audit obligations. (Compl.
¶ 15); (Wilson Aff. ¶¶ 7-8). The exact number
of jobs and projects for which Marianne's Roofing owes
benefits and reports cannot be determined without an audit.
(Wilson Aff. ¶ 9). Plaintiffs believe that
Marianne's Roofing “recently ceased active
operations.” (Mem. in Supp. at 2); (Atmore Aff. ¶
8) (“Upon information and belief, [Marianne's
Roofing] recently had active business operations, although
[Marianne's Roofing's] declination to respond to
requests for information has made it impossible to confirm
the accuracy of this statement.”).
February 2018, both Wilson-McShane and Plaintiffs'
counsel contacted general contractors of construction
projects that used Marianne's Roofing as a
subcontractor. (Mem. in Supp. at 4-5); see also
(Letters, Ex. E, Attached to Atmore Aff.); (Wilson Aff.
¶¶ 10-11). Wilson-McShane and Plaintiffs'
counsel explained that Marianne's Roofing “was
delinquent in reporting and paying its fringe-benefit
contributions” and requested that the general
contractors withhold amounts due to Marianne's Roofing so
that those amounts could be “used to defray the balance
of unpaid contributions” that Marianne's Roofing
owes the Trust Funds. (Mem. in Supp. at 4-5); see
also (Letters, Ex. E, Attached to Atmore Aff.); (Wilson
Aff. ¶¶ 10-11). Both Wilson-McShane and
Plaintiffs' counsel believe that the general contractors
are withholding payments to Marianne's Roofing as
requested. (Mem. in Supp. at 5); (Wilson Aff. ¶ 11).
initiated this lawsuit on February 14, 2018, and completed
service on February 23, 2018. (Compl.); (Summons Returned
Executed) [Doc. No. 13]. Plaintiffs filed their Motion for
Emergency Relief on February 26, 2018. (Mot. for Emergency
Relief). Plaintiffs served Marianne's Roofing with the
Motion for Emergency Relief and associated documents, as well
as this Court's Order setting a briefing schedule.
(Certificates of Serv.) [Doc. Nos. 9, 15]; see also
(Order Dated Mar. 2, 2018) [Doc. No. 14] (requiring
Marianne's Roofing to respond to the Motion for Emergency
Relief on or before March 7, 2018). To date, Marianne's
Roofing has not entered an appearance in this case or
responded to the Motion for Emergency Relief. Further, no
representative of Marianne's Roofing appeared at the
hearing on this motion. (Minute Entry Dated Mar. 12, 2018)
[Doc. No. 16].
making a determination regarding whether to issue a
preliminary injunction, the Court considers four factors:
“(1) the threat of irreparable harm to the movant; (2)
the state of the balance between this harm and the injury
that granting the injunction will inflict on other parties
litigant; (3) the probability that movant will succeed on the
merits; and (4) the public interest.” Dataphase
Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th
Cir. 1981). “A preliminary injunction is an
extraordinary remedy and the burden of establishing the
propriety of an injunction is on the movant.”
Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir.
2003) (internal citations omitted). “A court issues a
preliminary injunction in a lawsuit to preserve the status
quo and prevent irreparable harm until the court has an
opportunity to rule on the lawsuit's merits.”
Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.
1994) (per curiam).
Court considers each of the Dataphase factors in
turn, and concludes that a preliminary injunction should be