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Northwest Laborers-Employers Health & Security Trust v. Barry Civil Construction, Inc.

United States District Court, W.D. Washington, Seattle

May 14, 2018

NORTHWEST LABORERS-EMPLOYERS HEALTH & SECURITY TRUST, et al., Plaintiffs,
v.
BARRY CIVIL CONSTRUCTION, INC., Defendant.

          ORDER GRANTING MOTION TO COMPEL

          BRIAN A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Motion to Compel of Plaintiffs Northwest Laborers-Employers Health & Security Trust, Western Washington Laborers-Employers Pension Trust, and Northwest Laborers-Employers Training Trust (Plaintiff Trusts). Dkt. 11. Plaintiff Trusts seek to compel Defendant Barry Civil Construction, Inc. to schedule an audit of its payroll records, and to produce payroll documents. Id. Defendant does not object to the audit, but otherwise opposes the motion to compel. Dkt. 13. The Court finds that the motion to compel shall be granted and Defendant shall produce the requested documents at an on-site payroll audit to be scheduled by May 29, 2018.

         DISCUSSION

         "A party seeking discovery may move for an order compelling an answer, ... production, or inspection." Fed.R.Civ.P. 37(a)(3)(B)(iii), (iv). "[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond." Fed.R.Civ.P. 37(a)(4).

         Plaintiff Trusts are ERISA Trusts seeking to collect allegedly delinquent fringe benefit contributions and wage deductions pursuant to 29 U.S.C. §§ 185, 1132, and 1145. Plaintiff Trusts are third-party beneficiaries to a collective bargaining contract between Defendant and Plaintiff Washington and Northern Idaho District Council of Laborers (Plaintiff Union).

         Plaintiff Trusts seek payroll records from Defendant to verify the accuracy of Defendants' monthly reporting of fringe benefit contributions and Union-negotiated wage deductions to the Plaintiff Trusts from March 2014 through December 2017. The documents sought include those specifying the number of hours worked by each employee each month, on each project, with job and wage classification, and project name and location. Plaintiff Trusts requested this information through a request for production on January 18, 2018 and through its auditors. Dkt. 12, Declaration of Mary M. Stoll, at 1; Dkt. 12-1 at 1-2 (Exhibit A); Dkt. 16, Declaration of Mary A. Stoll; Dkt. 16-1 (Exhibit A), at 4-6 (February 13, 2018 Audit Notification Letter). Specifically, Plaintiff Trusts seek to compel production of:

1. Time cards and time books; 2. Check registers, check stubs, bank statements, and canceled checks; 3. Payroll journals and cash disbursements journals; 4. Earning record cards, compensation records, or other such forms that reflect each employee's payment history; 5. Payroll tax reports to Federal and State agencies, including
(a) Form 941-Quarterly Reports to IRS (Social Security);
(b) Forms SF 7578-Quarterly Reports to State Department of L&I (Industrial Insurance);
(c) Form 5208-Quarterly Reports to State Employment Security Department (Unemployment Compensation);
(d) Form W-2-Annual Wage and Tax Statement; and
(e) Form W-4-Employee's Withholding Allowance Certificate.

         Defendant argues that Plaintiff Trusts are reaching beyond the scope of their initial document requests and contends that it has already produced documents "substantially responsive to the document requests, " including monthly remittance reports (containing payroll information); a list of every employee ever employed; a complete job listing reporting all projects with employee wage codes; wage code listing ...


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