the company wants big but once again fell behind and served had to file the present lawsuit now as is often the case when a matter gets this far the company kind of ignored the legal proceeding it didn't answer the complaint or respond to any of the motions or orders again or sent someone to a deposition and that's why it's important for a fund like serve to have the option of seeking civil contempt against the corporate officers and agents in a case like this because that sends a message to a human decision maker that the company has to take the matter seriously and comply with what it's agreed to do and in fact what this report did hold the president of how or what will contracting michelle howard in civil contempt once i actually issued a bench warrant for her arrest which quickly cause the count to come up today the problem is that the last time serve moved for a show cause hearing against ms howard the district court said that it wouldn't consider doing that and would not convene a hearing because and this was the only reason given the miss  howard was not a named party in the litigation or in the original case that resulted in the injunction that we believe is legally or under this court's reported decision to gary's electrical service and gary's electrical service the court held that a non corporate officer is subject to civil contempt sanctions bite for not causing the company to make require contributions to a taft hartley fund so it's really the exact same situation we have here and according to two main reasons for holding now the first is the language of federal rule of civil procedure sixty five b which says that every injunction automatically binds not only the parties to the case but also their agents and officers and so that would include a corporate officer like mr howard and even before will sixty five united states supreme court held in wilson versus united states essentially the same thing that a corporate officer is bound by an injunction directive the corporation and can be held in civil contempt for not causing the corporation to follow the junction so that is really well settled law we believe in applies directly to this situation howard electrics i human as i understand it is that gary's electric and gash how do you say that or distinguishable because in that case you were in forcing an injunction in the docket in which it was obtained and here you filed a new action so i'm just fascinated as to why did you file a new action as opposed to an additional proceeding in the former  believe that is their argument and i did not do it but i think the reason was that the district judge who typically handled these cases of the time expressed a preference for funds like serve and doing it that way in this case there's been a lot of time elapsed between the original case and then the second one and the judge who issued the injunction in the original case he retired so there really wasn't a way to get it back to him since he was most familiar with the case so either way you went it was going to get randomly assigned to a new judge and there really wasn't any kind of benefit from doing it that way but i think that is how electrical companies argument this court to my knowledge has not specifically addressed that procedural issue but the third circuit court of appeals has in the independent enterprise's case which we cited in our reply brief and what it held there in a footnote was that one of the arguments have been but one of the statements by the district court had been that the party seeking contempt should have tried to reopen the original case as opposed to filing a new case with a new documentary and the court of appeal said that doesn't really make a difference you're doing the same thing you know we're not going to let that procedural issue really stand in the way of you getting the remedy you're entitled to especially when the district judge has retired and there's no even practical benefit to trying to reopen the original case and so we believe that's the only appellate authority this directly on point and that would suggest that we've not done anything wrong the company getting a good show well at a minimum we'd be seeking service attorney's fees and expenses they were caused by having to pursue the collection that or when the company failed to to live up to the  one that was sworn in two thousand and one and then since the case was this case was filed in two thousand and fourteen there's been several several instances right but their obligation to pay has nothing to do with this case it has to do with their preexisting their obligation to pay comes really at two different ways the one is that the collective bargaining agreement requires it and that can be enforced through a recession and so our complaint in this case has a freestanding a risk claim under twenty nine u s c section eleven forty five but the other obligation it's the same obligation but it's a different sources from the agreed permanent injunction and that's what i'm saying yes you're not your problem here isn't with pre the priest standing rissa claim great it's with the reviews will to hold her in contempt that's right the decision we're peeling from really just deals with the civil contempt  yes i mean because it it would seem to be very easy matter to just resolve the attorney fees  here to get the money are you here so that if she falls into file again you can follow the scores it's both actually so so there is a liability for the attorneys fees and whatever other expenses surface incur because that money has to be taken out of the pot to pay benefits and other has to be make and make made up by other employers or just comes out of the money available to pay going to benefits so that it's the trustees have fiduciary duty to seek money like benefits that's go to the fund but the other part of it is yes there's a reasonable basis to suspect that this situation may come up again and if it does go to their status in the district court right now is that we're not allowed to seek civil contempt against the human decision maker of the company and you can get all the remedies nor should want to use the corporation but as we've seen time and time again that they don't get you so far if nobody's going to pay attention to them and so the civil contemp is sometimes and maybe in this case the most important remedy you can get because they actually get somebody's attention if you pursue the case that you file right now you can you can presumably get yet another injunction in this docket for which then you could later seek to hold the company and officer in contempt you just want to be able to hold them contempt in the old one in the meantime that's right because we want to gotten that injunction that you so in this case you know we we played it both ways  and we can get damages and liquidated damages in theory if the company actually has assets in and we can collect them through that way but as far as the injunction goes we really already gotten that relief in the first case it's that gets us as far as we need to go we just need to enforce them as a company denied that they were in contempt of the earlier injunction on numerous occasions as opposed to whether you're pursuing it the correct way here i don't think so you know again i bought the attorney fees do they deny that you incurred attorney fees and trying to force them to pay that generally gets them eventually to pay i don't believe so and the company hasn't filed anything in the district courts completely ignore all the filing so there  but but has not been so so far i think there are there position if i may be allowed to characterize it really is what you said just kidding it's just that there's a procedural difference here and that supposedly sort of made a mistake by not trying to reopen the original case electrical could could we unpack that just to make sure we absolutely this idea that you can't proceed against a corporate officer assuming that you're doing it in the right docket and all those kind of things seems to be squarely foreclosed by your process then there question about that our position on this issue that you can't go against the president of howard you're conceding they can proceed assuming they do it correctly to hold her in contempt for the failure of howard electric to electric has has routinely failed to pay and not paid until they were sued there is past history in regards to whether or not they had been in contempt currently they are not they are in compliance and as i've pointed out to opposing counsel last week this is not going to be a recurring issue any longer as howard electricals no longer operational they are gone they have gone completely out of business therefore any issue in regards to any teacher will liability in regards to a violation of a perm injunction or an order of judgement by the court is no longer valid so it is an issue of what these attorney fees there are starting that's exactly what they're trying to get this is nothing but innit for attorney's fees and a fortune in permanent injunction that's not even the right case  our position he makes the statement that there is no case law that supports our position however in milan versus department of transportation the court made it clear in that case there's two remit is in regards to forcing a consent decree there is the ability regards to still contend and that it provides a prompt remedy for future violations whereas a new law suit actually provides additional benefits to both parties both procedurally as well as for rights and remedies for the parties and so our position is similar to what malone stated in that filing the new lawsuit they have forgotten the ability of the civil contempt action and instead have started the new lawsuit in which all parties are required to follow a different procedure requirements why have they forgotten anything why couldn't they simply sue you under the old docket today they absolutely could so if they could then why are we spending all of this time and energy and money in fighting over whether it's got the right caption got two cases one that's the final judgment and as injunction judgment you got this one that is in its preliminary stages correct if you concede that they could do what they're trying to do now by simply reopening the earlier case they're not barred from that by anything you can think of right passage of time or doesn't mean you can't reopen it so if they could do that the fact that you think they're doing it the wrong way here because they're seeking to enforce a prior injunction in a current case what difference does it make even if you're right why should we rule in your  favor what are we accomplishing by saying they can't do it this way they have to do it the other way when it seems to be one in the same to me well i remember my position on that would be that the long provides  years that it's moot they're not in concern they are in compliance with reports and contributions for them or they are no longer operational but they were in contempt because they didn't pay they brought it current and let's assume that moots the issue of further enforcement of making timely contributions because you're out of business part of the damages that they say they incurred by your not paying is they had to sue you and they incurred attorney fees so why can't they enforce that why shouldn't they be able to force that in this docket as opposed to reopening the or the other docket what difference my position on that would be that by following the new lawsuit they brought in additional issues that need to be addressed including i was not representing them at that time all i know is that our employee they they are in compliance they became in compliance and once i became compliance the issue was no longer my complaint rely on the prior lawsuit as the complaint it was a prior lawsuit that resulted in a permanent injunction and that the defendant has violated the permanent junction by not making the payments the complaint attaches the copy of the of the permanent injunction it does not make a statement that they are seeking civil contempt the appellate in the reply in their reply brief actually acknowledged out on page three that they did not seek civil contempt in their original pleading so they are making an assumption that howard would be under the understanding that by filing an attachment or an exhibit as an attachment to the complaint that the understanding was that they were sticking to enforce that final judgment in the previous two th that you never got to that in this proceeding because the new district judge said that because the president was not a party to the first case you can't proceed against the president so you only get to the issues you're raising once we officer they have not found anything against howard alleged cool finding them in contempt and one of the main steps to be able to appoint corporate officer in as civil contempt is a finding by the corporation that they are in violation of some order of this court which we do not have and there was no motion for show cause trying to find that against how an electrical you know they stand for the proposition that gary electric falls directly under and is very affable to this case our position is that it is not that it is distinguishable why because gary a lecture it they filed under the original lawsuit a judgment against the corporation then the corporation failed to comply with the judgment they fall for contempt not only against the corporate officer but also against the corporation and the court found against the corporation and is trying to figure out i take it you've never answered this case right so we don't we were not able to answer the case so we don't really know what your position is in terms of looking at a y answer but i'm just trying to find out from you do you dispute that the corporation was in contempt repeatedly here not the question of whether you cured it by making the payment late but i did when i read this it collecting funds and allowing them to be becoming compliance and collect and make payment in requirements under twenty nine u s c eleven forty five if you guys used up more than the six thousand dollars in attorney fees fool around with  you know i'll be honest with your honor this is nothing but for attorney's fees and what did you guys just sit on and suddenly attorneys you know we tried to get this appeal dismissed when we found out how to lead school was no longer in operation instead we were informed that you know our position is they want entitled to attorney fees just because they are seeking them force an injunction in the wrong case and as a result there is not an injunction against how it on their school here are you going to spend more than six thousand dollars fighting over that even though you sort of admitted that if they were in the right docket they could get the six agree with you that we should not be here today this case should have never come before the court of appeals what they should have done is fall of the district court's order followed a default judgment against howard electrical and proceeded for not under that new docket number they're the ones that chose to not truly they sought civil contempt in this case they are trying to correct well they did before the district judge greg but our position there is that just because a district judge allowed actions to occur that are not in compliance with the rules of civil procedure does that mean that they can continue to conduct those actions over and over again our position is what did the judge allow that was incorrect the judge allowed for a show cause order to be issued against that they already have a preliminary injunction and that the payments haven't been made and sought relief of contempt against the officer what would be wrong with that agreed order that's not being enforced if they had if they filed a complaint that said we have obtained a permanent injunction in case number whatever which is attached it obligates the company to make these payments the payments were not made on these dates and we seek is relief in order for them to pay and to show cause why the cheap officer should not be held in contempt can they do that but that's where my position is that they would not be able to do that under the new lawsuit until a judgment has been in or because they chose to follow a new lawsuit in which gives new rights and procedures to all the parties ok but the judgment a default judgment was entered but i do manservant a default judgment wasn't in and we only have an entry of default in january twenty fifth teen and entry of default violation ok so that what you're saying but but you did default and you're saying the problem is that they did not enter a default judgment right the problem is we don't have a judgment against hard electrical and we could not foll wouldn't you raise the question of whether there had actually been a default in connection with the the contempt proceedings that friedman said couldn't go forward because the woman wasn't a party to the earlier case when you showed up for that seating you'd say geez judge i don't know what you're talking about we paid we don't know anything it hasn't gotten that far we'll why shouldn't it get that far why should we just say you're wrong you can hold a corporate party you can you can hold the corporate office or in contempt garry's electric and you figure it out because my position would be that under fifty five b when you enter a felt that it's up to the court to make a determination that the truth of the allegations and the evidence but that's a different argument the judge never got that far because he said you you can't find her and can write because there wasn't a judgment and they weren't asking to enforce that you didn't say because it wasn't a judgment it he said because she wasn't a party to the earlier case and that seems to be completely contrary to our precedent but my fit my position on that statement is the court was telling him that it was telling the appellant's she's not a party here she's not a party there you could not file a contempt of court action against the corporation instead they follow the contempt against her individually and even under gary electorate in that case they found that the corporation first was in violation before they were able to pull in the corporate officer for a violation opposing counsel said the company's not operational there's nothing in the record about this a few days before today's argument the company sent some letters to the local unions saying that it was in discussions to sell its assets to another company i have no idea whether that's going for what's happening with that i'm not aware of the company's declare bankruptcy or does all of this a corporation or anything to our knowledge it's still an operating company and it will have a bill due on february fifteenth for for january's were incurring more fees here i concur and we would love to if we could accept the attorney's fees and have a company pay that into the trust fund by agreement we would happily do that i don't think that's ever going to happen voluntarily bush says that she's talked to you about that you don't want to talk about them paid the attorney fees is that i think there's a misunderstanding there and i received an e mail a few days ago before the argument saying asking us to dismiss our pealed with no payment of attorneys  circuit mediator in this case no no but but again so so i turned to my knowledge of the company still operational i'm still doing work on it may be that they do start making their contributions timely despite you know the history of this but even if it is just attorneys fees the comment was made this is just about attorneys fees again surf board of trustees has it's not always advisable for to collect money but it has a fiduciary obligation to collect the money they don't they don't owe contributions unless work is being done right that had to be a big contribution amount is based on hours worked by the covered employees that's correct so if they're not if they're if they're not working for whatever reason as ms whole says then they want to show any any monies and february fifteenth well the letter that we received said they intended to stop working at the end of january so they've been working through january so and that bill will come due february fifteenth but again i don't know if they've stopped working or not i mean again just a few days before today's argument we got a letter saying what the company intended to do so i don't know what that means and they haven't f are you satisfied with that does that in this assuming they make the february fifteenth payment and they go out of business yes some of them make all the payments for the work that's being done through january or going forward then yes then the not that should result i assume my cli well i'll be happy to make a phone call or ask my wall partner to do that because i agree that you know we should have a huge amount of litigation but this is what surface been going through with this company for years until until we put the pressure on through the legal system we just can't get any response and so that's that's why we're trying to keep the option open for civil contempt one last point about the notice in the complaint we think it was clear from the complaint something that was attached that's right why else would you attach it if you weren't trying to enforce it well that's our point but just the additional point is by the time we serve sort of following the motions just for show cause i mean those did have the magic language in those we showed up on this our district