1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HEAT AND FROST INSULATORS OF Case No. 20-cv-00913-JSC

NORTHERN CALIFORNIA LOCAL

8 UNION NO. 16 HEALTH AND ORDER TO SHOW CAUSE WELFARE TRUST FUND, et al., RE: MOTION FOR DEFAULT 9 JUDGMENT Plaintiffs, 10 v. Re: Dkt. No. 24 11

TRI-COUNTY INSULATION COMPANY,

12 INC, Defendant. 13 14 Now pending before the Court is Plaintiffs’ motion for a default judgment. (Dkt. No. 24.) 15 Plaintiffs’ requested relief is attorneys’ fees and costs pursuant to 29 U.S.C. § 1132(g)(2)(D). 16 (Dkt. No. 24 at 10.)1 The Ninth Circuit has held that an award under § 1132(g)(2) is “mandatory and not discretionary” where: (1) the employer is “delinquent at the time the action is filed; (2) the 17 district court . . . enter[s] a judgment against the employer; and (3) the plan . . . provide[s] for such 18 an award.” Nw. Adm’rs, Inc. v. Albertson's, Inc., 104 F.3d 253, 257 (9th Cir. 1996) (internal 19 quotation marks and citations omitted). Plaintiffs have not established that the first and third 20 requirements are met. 21 First, Defendant was not delinquent in their contributions to Plaintiff when this action was 22 filed. (Dkt. No. 27, Hallmon Decl. ¶¶ 9–11.) The eventual completion of the mandatory payroll 23 audit confirmed this lack of delinquency. (Id.) Plaintiffs have not cited any authority that 24 Defendant’s delayed compliance with the mandatory payroll audit makes them delinquent under 25 29 U.S.C. § 1132(g)(2). 26 27 1 Second, while Plaintiffs assert in their motion that the Agreement provides for an award of 2 || fees and costs (Dkt. No. 24 at 2), they do not cite evidence or complaint allegations to support this 3 attorney argument. The declaration of Sandra Snyder, the authority upon which Plaintiffs rely for 4 this assertion, cites Exhibit D, Article IX, Sec. 122 and Exhibit E, Article I, Sec. 4 to support her 5 claim that “[t]he Bargaining Agreement . . . provides for reimbursement of attorneys’ fees and any 6 other expenses, including costs and audit fees, incurred in connection with the collection of 7 delinquent contributions.” (Dkt. No. 26 at ¥ 11.) However, there is no reference to attorneys’ fees or costs in Exhibit D. (Dkt. No. 26-4, Exhibit D.) Plaintiffs did not supply an Exhibit E in support of Ms. Snyder’s declaration. The Court is thus not persuaded that Plaintiffs are eligible for a ° mandatory award of attorneys’ fees and costs under 29 U.S.C. 1132(g)(2). 10 The Court also notes that while there is no longer any need for a judgment ordering M Defendant to comply with the mandatory audit requirement, fees under section 1132(g)(2) may 12 still be awarded. See Nw. Adm'rs, Inc, 104 F.3d at 258 (“mandatory fees are available under § 13 1132(g)(2) ‘notwithstanding the defendant's post-suit, pre-judgment payment of the delinquent 14 || contributions themselves. 15 Accordingly, Plaintiffs are ordered to show cause that they are entitled to a default 16 || judgment award of fees and costs pursuant to 29 U.S.C. § 1132(g)(2) or otherwise. Plaintiffs shall 3 17 respond to this Order on or before March 19, 2021. 18 IT IS SO ORDERED. 19 Dated: March 11, 2021

21 ne

JAGQQUELINE SCOTT CORL

22 United States Magistrate Judge 23 24 25 26 27 28