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Patt v. H & S Contracting, Inc.

United States District Court, D. Minnesota

February 1, 2019

Bill Patt, Corey Bergerson, and their successors as Trustees of the Operating Engineers Local #49 Health and Welfare Fund, et al, Plaintiffs,
v.
H & S Contracting, Inc., Defendant.

          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR ENTRY OF JUDGMENT

          DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE.

         This matter came on for hearing before the undersigned on February 1, 2019 on Plaintiffs' Motion for Entry of Judgment. (Doc. No. 10.) Christy E. Lawrie of McGrann Shea Carnival Straughn & Lamb, Chartered, appeared for and on behalf of the Plaintiffs. There was no appearance on behalf of the Defendants.

         FINDINGS OF FACT

         1. The Complaint was filed with the Court on September 5, 2018. (Doc. No. 1). The Summons and Complaint was served on Defendant H & S Contracting, Inc. (“H & S Contracting”) on September 12, 2018. (Doc. No. 4.)

         2. H & S Contracting failed to file and serve a response or Answer to the Summons and Complaint. Accordingly, the Clerk entered default on October 4, 2018. (Doc. No. 9.)

         3. H & S Contracting was served with the Trustees' Motion for Entry of Judgment on December 8, 2018.

         4. Plaintiffs are Trustees of the Operating Engineers Local #49 Health and Welfare Fund, the Central Pension Fund of the International Union of Operating Engineers and Participating Employers, and the Local #49 International Union of Operating Engineers and Associated General Contractors of Minnesota Apprenticeship and Training Program (“Funds”).

         5. The Funds are multi-employer jointly-trusteed fringe benefit plans created and maintained pursuant to provisions of the Employee Retirement Income Security Act of 1974, as amended 29 U.S.C. § 1001, et seq. (“ERISA”).

         6. The Funds are exempt from federal taxation pursuant to the Internal Revenue Code.

         7. Defendant H & S Contracting is bound by a series of collective bargaining agreements negotiated between the Highway, Railroad, and Heavy Construction Division of Associated General Contractors of Minnesota and the International Union of Operating Engineers, Local No. 49 (“CBAs”).

         8. The CBAs require H & S Contracting to make monthly contributions to the Funds, not later than the fifteenth day of the following month, in an amount set forth in the CBAs for each hour worked by its employees covered by the CBAs.

         9. The CBAs further require H & S Contracting to calculate the contributions due and owing to the Funds in any given month on a report form which must be submitted to the Funds with H & S Contracting's monthly contribution payment.

         10. The CBAs state that an employer shall be considered delinquent for a particular month if the required remittance report and payment are not postmarked on or before the fifteenth day of the following month.

         11. The CBAs permit the Funds or their authorized agents to examine employer's payroll and employment records whenever such examination is deemed necessary by the Funds or their authorized ...


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