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Thomas Gesualdi and Frank Finkel, Trustees of Local 282 International v. Advanced Ready Mix Corp

September 28, 2012


The opinion of the court was delivered by: Townes, United States District Judge:


In July 2010, Plaintiffs Thomas Gesualdi and Frank Finkel, the Trustees of the Welfare, Pension, Annuity, Job Training and Vacation Sick Leave Trust Funds (collectively, the "Funds") of Local 282 of the International Brotherhood of Teamsters (the "Union"), commenced this action against defendant Advanced Ready Mix Corp. ("Defendant"), seeking to recover delinquent fringe benefit contributions owed to the Funds. On January 3, 2011, this Court approved a Stipulation of Settlement between the parties (the "Stipulation") that provided, inter alia, that Defendant would pay $77,000 in nine monthly installments, but that Plaintiffs could enter judgment for $88,516.87 "with interest from October 21, 2010," plus other amounts, if Defendant failed to make the required payments. Defendant failed to make the required payments and Plaintiffs now move for judgment in accordance with the terms of the Stipulation. For the reasons set forth below, Plaintiffs are directed to submit a revised proposed judgment in accordance with this Memorandum and Order.


In October 2008, Defendant signed a collective bargaining agreement with the Union (the "CBA"), which covered the period from 2008 to 2011. The CBA -- a copy of which is attached as Exhibit B to the Declaration of Theresa Cody dated November 29, 2011 (the "Cody Declaration") -- requires Defendant to make contributions to the Funds in accordance with elaborate provisions and detailed schedules set forth in the CBA. CBA at 14-15. These contributions, which are calculated based on the number of hours worked by Defendant's employees, are due 45 days after the close of the calendar month during which the contributions were earned. Id. at 15. In addition, the CBA provides that any employer who fails to pay the contributions "when due . . . shall be subject to all the remedies set forth in Section 502(g)(2) of ERISA." Id.

The CBA also incorporates by reference the Trust Agreement governing the Funds. Id. A copy of that Trust Agreement, which consists of the Restated Agreement and Declaration of Trust effective July 1, 1999 (the "Declaration of Trust") and several amendments thereto, is attached as Exhibit A to the Cody Declaration. The Declaration of Trust requires, inter alia, that Defendant submit "[d]etailed written reports" each month, regardless of whether any contributions are owed for that month. Id. at Art. IX, §1(c). The Declaration of Trust also provides a method for estimating the hours worked by Defendant's employees in the event that the hourly reports are not submitted as required:

In the event the Employer fails to submit the required reports . . . , the Trustees, or their agents, may compute the sum due for any month by adding 10 percent to the number of hours for the month in which the largest number of hours were reported in the previous twelve (12) reports submitted by the Employer (hereinafter referred to as the base month). . . . The total number of hours for the unreported period as determined aforesaid shall be multiplied by the current contribution rate, and the amount of contributions so computed shall be binding on the Employer and shall be deemed the amount due from the Employer for the purpose of any legal proceeding.

Id., §1(e).

This Action and the Stipulation of Settlement

On July 30, 2010, Plaintiffs filed this ERISA action, alleging that Defendant had failed to pay fringe benefit contribution and/or delinquency charges owed to the Funds for the week ending March 5, 2010, the week ending March 19, 2010, and all subsequent weeks until May 29, 2010. On August 2, 2010, Plaintiffs served a copy of the complaint and a summons on Defendant through the New York Secretary of State. See Affidavit of Service of Maria Schmitz, dated Aug. 2, 2010 (Document #2). Defendant failed to answer the complaint within the time permitted by the Federal Rules of Civil Procedure and, on August 27, 2010, Defendant moved for a default judgment.

Three days after Plaintiffs filed their motion, an attorney filed a notice of appearance on behalf of Defendant. On September 2, 2010 -- without moving to vacate the default or moving for permission to file a late answer -- this same attorney filed an answer to Plaintiffs' complaint. Plaintiffs promptly objected to the filing of an answer but requested that the Court hold the motion for default judgment in abeyance to permit the parties to discuss resolution. Letter to Hon. Sandra L. Townes from Linc C. Leder, dated Sept. 3, 2010. In response to this request, this Court deemed the motion for default judgment to be withdrawn, but granted leave to renew the motion on or before November 1, 2010. See Order dated Sept. 9, 2010.

Settlement discussions dragged on for several months. On December 29, 2010, however, the parties finally filed an executed settlement agreement entitled, "Stipulation of Settlement" (the "Stipulation"). A copy of that Stipulation -- which was "so ordered" by this Court on January 3, 2011 -- is attached to the Cody Declaration as Exhibit E.

The Terms of the Stipulation

Since the terms of the Stipulation are central to the instant motion, this Court will discuss its provisions in some detail. In the first paragraph, the parties agreed to amend the Complaint to include the period beginning at the start of the week ending June 5, 2010, and ending on August 28, 2010. The parties then agreed that, for the period covered by the complaint, Defendant owed Plaintiffs a total of $88,516.87 as of October 20, 2010 -- a sum which included principal, interest calculated at 18% per annum, liquidated damages and attorneys' fees.

In the second paragraph, the Stipulation stated that Defendant had agreed to pay, and that Plaintiffs had agreed to accept, $77,000.00 in satisfaction of the $88,516.87 debt actually owed by Defendant. This paragraph provided that the $77,000.00 was to be paid in nine monthly installments of $8,555.55, with one installment due on the first day of each of the first nine months of 2011. However, the Stipulation specifically noted that these payments did not affect or diminish "Defendant's obligation to pay current contributions." Stipulation at ΒΆ2. In the third paragraph of the Stipulation, Defendant agreed to "keep current in ...

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