United States District Court, D. Minnesota
JOHN RAINES and TIM McGOUGH, as Trustees of the Carpenters & Joiners Welfare Fund, and JOHN RAINES as Trustee of the Carpenters and Joiners Apprenticeship and Journeymen Training Trust Fund, and each of their successors, Plaintiffs,
KENNY WINGENDER, doing business as BN Service Inc., Defendant.
Boone, Amanda R. Cefalu, and Andrew R. Shedlock, Kutak Rock
LLP, Counsel for Plaintiffs.
appearance by Defendant.
MEMORANDUM OF LAW & ORDER
MICHAEL J. DAVIS UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Plaintiffs' Motion for
Entry of Default Order. [Docket No. 11] The Court heard oral
argument on August 1, 2019.
John Raines and Tim McGough are Trustees of the Carpenters
& Joiners Welfare Fund and Raines is also Trustee of the
Carpenters and Joiners Apprenticeship and Journeyman Training
Trust Fund (“the Funds”). (Compl. ¶¶
1-2.) The Funds are multi-employer jointly-trusteed fringe
benefit plans created and maintained under Sections 302(c)(5)
and 302(c)(6) of the Labor Management Relations Act of 1947
(“LMRA”), as amended, 29 U.S.C. §§
186(c)(5), 186(c)(6). (Compl. ¶¶ 1-2.) The Funds
are administered in accordance with the Employee Retirement
Income Security Act of 1974 (“ERISA”), as
amended, 29 U.S.C. § 1001, et seq. (Compl.
¶¶ 1-2.) Raines and McGough are Trustees of the
Funds and fiduciaries under ERISA, 29 U.S.C. § 1002(21).
(Id. ¶ 3.)
Kenny Wingender is doing business as BN Service, Inc., and is
engaged in the construction industry in Omaha, Nebraska.
(Compl. ¶ 4.) During the relevant time period, Defendant
employed individuals in the carpentry trade, submitted
reports for them to Plaintiffs, and made fringe benefit
contributions for them to Plaintiffs. (Wilson Supp. Aff.
¶ 5.) Although Defendant operated under the name
“BN Service, Inc., ” that entity is not an active
The Collective Bargaining Agreement
was bound to the terms of the collective bargaining agreement
negotiated between the Omaha Building Contractors Employers
Association and the Carpenters District Council of Kansas
City Local Union 427 (formerly known as Local 444)
(“CBA”). (Compl. ¶ 7; Wilson Aff. ¶ 2;
Wilson Aff., Ex. A, CBA at 13, 27.) Defendant signed the CBA
as “Kenny Wingender” and represented himself as
“President” of “BN SVCS.” (Wilson
Supp. Aff. ¶ 3; CBA at 2, 13.) There is no corporate
entity that operates under the name “BN SVCS.”
(Wilson Supp. Aff. ¶ 4.) Although Defendant operates
under the name of an inactive company, BN Service, Inc.,
Defendant personally employs the workers who are covered by
the CBA. (Id. ¶ 7.)
requires employers, including Defendant, to make fringe
benefit contributions to the Funds in accordance with its
terms. (Compl. ¶ 9; Wilson Aff. ¶ 4; CBA, Art 10.)
Employers must make contributions on behalf of each
bargaining unit employee as defined in the CBA in amounts set
forth in the CBA for the purpose of funding employee
benefits. (Compl. ¶ 9; Wilson Aff. ¶¶ 3-4; CBA
the CBA, an employer must complete a report form with the
information as required by the Trustees, identifying each of
its employees and each hour that employee performed covered
work during that month. (Compl. ¶ 10; Wilson Aff. ¶
4.) All fringe fund reports and contributions must be
submitted to Wilson-McShane Corporation by the 15th day of
the month after the month in which the hours were worked.
(Compl. ¶ 10; Wilson Aff. ¶¶ 4-5.) The
Declarations of Trust under which the Funds were established
also provide that when an employer is delinquent in the
submission of fringe benefit contributions, it is also liable
for liquidated damages of 10% of the amounts owed and must
pay interest on the unpaid contributions at the rate set
forth in IRC § 6621, starting on the date such
contributions were due. (Compl. ¶ 17; Wilson Aff. ¶
6.) Additionally, the CBA and Declarations of Trust, as well
as 29 U.S.C. § 1132(g)(2)(D), provide that Defendant is
liable for reasonable attorney's fees and costs incurred
by Plaintiffs in pursuing this action. (Compl. ¶ 19.)
Defendant's Breach of the CBA
failed to timely submit the fringe fund reports and
contributions for the months of August 2018 through December
2018. (Compl. ¶ 12; Wilson Aff. ¶ 7.) In March
2019, after Plaintiffs filed the current action, Defendant
submitted the remittance reports due for the months of August
2018 through January 2019. (Wilson Aff. ¶ 8.) Plaintiffs
determined that Defendant owed $16, 648.36 in fringe benefit
contributions for that time period, plus liquidated damages
and interest, and Defendant paid Plaintiffs $16, 648.36.
(Id. ¶¶ 8-9.) Defendant has not made
payments to Plaintiffs for the liquidated damages or
interest. (Id.) Plaintiffs are owed $1, 664.84 in
liquidated damages, $252.08 in interest, and attorney's