United States District Court, D. Minnesota
Bill Patt, Corey Bergerson, and their successors as Trustees of the Operating Engineers Local #49 Health and Welfare Fund, et al, Plaintiffs,
H & S Contracting, Inc., Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR
ENTRY OF JUDGMENT
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE.
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
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.)
& 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.)
& S Contracting was served with the Trustees' Motion
for Entry of Judgment on December 8, 2018.
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”).
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.
Funds are exempt from federal taxation pursuant to the
Internal Revenue Code.
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 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.
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.
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.
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