Board of Trustees of the Employee Painters Trust v. Marin Bros Inc

Opinion

The Honorable Tana Lin

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE BOARD OF TRUSTEES OF THE Case No.: 2:23-cv-00483-TL EMPLOYEE PAINTERS' TRUST; BOARD OF TRUSTEES OF THE WESTERN SECOND STIPULATION AND ORDER WASHINGTON PAINTERS DEFINED TO STAY PROCEEDINGS CONTRIBUTION PENSION TRUST; BOARD OF TRUSTEES OF THE DISTRICT Noting Date: July 22, 2024 COUNCIL NO. 5 APPRENTICESHIP AND TRAINING TRUST FUND; BOARD OF TRUSTEES OF THE INTERNATIONAL PAINTERS AND ALLIED TRADES INDUSTRY PENSION FUND; BOARD OF TRUSTEES OF THE FINISHING TRADES INSTITUTE; THE PAINTERS AND ALLIED TRADES LABOR-MANAGEMENT COOPERATION INITIATIVE; WESTERN WASHINGTON SIGNATORY PAINTING EMPLOYERS ASSOCIATION; NORTHWEST WALL 7 CEILING CONTRACTORS ASSOCIATION; INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES DISTRICT COUNCIL NO. 5,

Plaintiffs,

v.

MARIN BROS., INC., an Illinois corporation; ABEL MARIN, an individual; JENNIFER GARCIA, an individual; DOES & ROES I-X,

Defendants. 1 The Plaintiffs, Board of Trustees of The Employee Painters’ Trust, et al. (collectively 2 the “Plaintiffs”), and Defendants Marin Bros., Inc., Abel Marin, and Jennifer Garcia 3 (collectively the “Defendants”) (Plaintiffs and Defendants are collectively referred to herein as 4 the “Parties”), each acting by and through their undersigned counsel, respectfully file this 5 Stipulation to Stay Proceedings. This Stipulation is the Parties’ second request to stay the 6 proceedings and is made for cause and not for the purpose of delay. This Stipulation is made 7 with respect to the following: 8 1. The Court issued an Order Setting Bench Trial Date and Related Dates on 9 October 27, 2023 [ECF No. 17]. The Court issued an Order granting the Parties’ Stipulated 10 Motion to Extend Deadlines on February 5, 2024 [ECF No. 24]. The Court also issued an 11 Order to Stay Proceedings on May 7, 2024, staying the proceedings and all unexpired deadlines 12 to August 5, 2024 [ECF No. 28]. 13 2. This case centers on alleged fringe benefit payment obligations arising from 14 Collective Bargaining Agreements (“CBA”) between the International Union of Painters and 15 Allied Trades District Council No. 5 (“Union”) and Defendant Marin Bros., Inc. (“Marin 16 Bros”). 17 3. The Plaintiffs, as employee benefit trust funds governed by the Employee 18 Retirement Income Security Act (“ERISA”), have alleged the right to be paid certain fringe 19 benefit contributions and related damages for work performed by Marin Bros’ employees 20 pursuant to the terms of the CBA. 21 4. The Plaintiffs alleged in the Complaint [ECF No. 1] the right to perform a 22 payroll compliance review (audit) of Marin Bros’ payroll and related records to determine the 23 extent of contributions of contributions owed to the Plaintiffs. See Cent. States, Se. & Sw. 24 Areas Pension Fund v. Cent. Transp., Inc., 472 U.S. 559, 573-74 (1985) (discussing the role 25 of a payroll auditor in determining unpaid contributions). 26 5. Since the filing of the Complaint and since the Court’s Order to Stay 1 Proceedings, the parties continued to engage in diligent discovery, have worked together to 2 avoid any court intervention of discovery issues, and have cooperated with sharing documents 3 and information so that an audit of Marin Bros’ records could be performed by a professional 4 accounting firm engaged by the Plaintiffs. 5 6. The Plaintiffs’ auditor issued a report for the period March 1, 2022 through 6 December 31, 2022 (“First Audit Period”). Since the Court’s Order to Stay Proceedings, the 7 Plaintiffs’ auditor completed a draft audit for the period of January 1, 2023 through September 8 30, 2023 (“Second Audit Period”). 9 7. Defendants engaged a separate professional accounting firm to conduct their 10 own review of Marin Bros’ payroll records, had issued its preliminary report regarding the 11 First Audit Period, and reviewed the draft audit for the Second Audit Period. Defendants 12 believe that this case involved potential mistakes in payments for benefits either (1) not owed 13 to Plaintiffs or (2) covered in Plaintiffs’ scope but accidentally paid to another entity. For 14 Defendants’ separate professional accounting firm to adequately assess and respond to 15 Plaintiffs’ draft audit of the Second Audit Period, Defendants require additional time to obtain 16 and gather additional documents regarding its payroll and payment of benefits and for 17 Defendants’ separate professional accounting firm to review and prepare a report for the 18 Second Audit Period. 19 8. The parties expect that they will soon have competing audit reports that will 20 need to be reviewed and evaluated before discovery in this case can continue. 21 9. Additionally, the Parties intend to evaluate whether settlement discussions will 22 be fruitful and hope to engage in meaningful settlement negotiations once final audit results 23 are issued by each auditor. The Parties are committed to their ongoing obligation to explore 24 settlement options in this case. 25 10. The Parties agree that a ninety (90) day stay of proceedings is warranted due to 26 the need to complete the audits and to allow for discussion of the results of the audits and 1 potential settlement. 2 11. This Stipulation is made to avoid unnecessary expenditure of resources in 3 litigation and is not intended to delay or for any improper purpose. 4 12. Accordingly, the Parties by and through their undersigned counsel, stipulate 5 and agree, subject to the Court’s approval, that these proceedings and all unexpired deadlines 6 set forth in the Court’s February 5, 2024 Order [ECF No. 24] shall be stayed an additional 7 ninety (90) days from August 5, 2024. 8 13. No later than two weeks prior to the expiration of the stay, the Parties will meet 9 and confer and file a joint status report to update the Court on the status of the audits, 10 settlement, and, if not settled, a schedule for how the Parties intend to complete discovery. 11 DATED: July 22, 2024. 12 CHRISTENSEN JAMES & MARTIN BUCHALTER 13 By: s/Wesley J. Smith, per email approval By: s/Michelle Q. Pham 14 Wesley J. Smith, WSBA #51934 Bradley P. Thoreson, WSBA #18190 7440 W. Sahara Ave. bthoreson@buchalter.com 15 Las Vegas, NV 89021 Michelle Q. Pham, WSBA # 44286 (702) 255-1718 mpham@buchalter.com 16 wes@cjmlv.com Counsel for Plaintiffs Board of Trustees of 1420 Fifth Avenue, Suite 3100 17 the Employee Painters’ Trust, et al. Seattle, WA 98101 (206) 319-7052 18 Counsel for Defendants Marin Bros., Inc., Abel Marin, and Jennifer Garcia 19

21 Good Cause Appearing, in accordance with the foregoing Stipulation, these proceedings 22 and all unexpired deadlines set forth in the Court’s February 5, 2024 Order [ECF No. 24] shall be 23 stayed for an additional ninety (90) days from the date of entry of this Order. No later than two 24 weeks prior to the expiration of the stay, the Parties will meet and confer and file a joint status report 25 26 1 to update the Court on the status of the audits, settlement, and, if not settled, a schedule for how the 2 Parties intend to complete discovery. 3 DATED this 23rd day of July, 2024. 4 A 5 Tana Lin 6 United States District Judge 7

8 Presented by:

10 By: s/Michelle Q. Pham 11 Bradley P. Thoreson, WSBA #18190 bthoreson@buchalter.com 12 Michelle Q. Pham, WSBA # 44286 mpham@buchalter.com 13 1420 Fifth Avenue, Suite 3100 14 Seattle, WA 98101 (206) 319-7052 15 Counsel for Defendants Marin Bros., Inc., Abel Marin, and Jennifer Garcia 16 17 18 19 20 21 22 23 24 25 26