International Brotherhood of Electrical Workers Local No. 237 Health & Welfare Fund, et al v. Freedom Electrical Construction

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL 237 HEALTH
& WELFARE FUND, ET AL.,
24-CV-644 LJV(Sr)
Plaintiffs,
v.
FREEDOM ELECTRICAL CONSTRUCTION,
Defendant.
ORDER TO SHOW CAUSE
This case was referred to the undersigned by the Hon. Lawrence J.
Vilardo, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report
upon dispositive motions. Dkt. #11.
Plaintiffs commenced this action on July 10, 2024 seeking contributions,
deductions, interest, liquidated damages, attorneys’ fees, and costs pursuant to the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C.
§ 1132(g)(2), and the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C.
§ 185(a). Dkt. #1.
Defendant did not answer the complaint and, upon request by plaintiffs,
the Clerk of the Court entered Default on September 12, 2024. Dkt. #7. A copy of the
Clerk’s Entry of Default was mailed to defendant by the Court. Dkt. #7.
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On September 16, 2024, plaintiff’s moved to compel defendant to disclose
its books and records from October 1, 2019 through the present for plaintiffs’ review
and audit. Dkt. #9. In support of the motion, plaintiffs proffered letters dated November
8, 2023 and April 3, 2024 seeking disclosure of defendant’s payroll records and other
financial records to its auditor to verify contributions on hours worked by employees to
the plaintiffs. Dkt. #9-2 & 9-3. Plaintiffs affirmed that defendant has not provided the
requested information. Dkt. #9, ¶ 6. Plaintiffs argued that disclosure of this information
is required to permit them to conduct an audit as provided in collective bargaining
agreement (“CBA”), and to assess any amount that may be due so that plaintiffs can
move for default judgment. Dkt. #9-4.
Plaintiffs filed a certificate of service indicating that the motion papers
were served upon defendant by mail. Dkt. #10. In addition, the Court mailed a copy of
the text order directing defendant to respond to the motion. Dkt. #12. No response was
received.
Plaintiffs subsequently filed an affidavit from the Funds Administrator
attaching a copy of the CBA and defendant’s assent to the CBA (Dkt. #14, Exh. A), as
well as the Collections Policy requiring that a company disclose its books and records to
plaintiffs’ auditors upon request. Dkt. #14, Exh. B. The Funds Administrator also
attached a determination from the National Labor Relations Board that def endant
committed unfair labor practices by failing to comply with contractual wage and fringe
benefit provisions under the CBA. Dkt. #14, Exh. C. Despite this determination, the
Funds Administrator affirmed that plaintiffs have not received any of the contributions
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and deductions required. Dkt. #14, p.7, ¶ 15. More specifically, the Funds Administrator
affirmed that defendant has not remitted fringe benefit contributions and deductions due
for work in covered employment since October 1, 2019. Dkt. #14, p.7, ¶ 16.
By Decision and Order entered September 29, 2025, the Court
determined that plaintiffs are clearly entitled to audit defendant’s books and records
pursuant to the Funds’ Collections Policy (Dkt. #14, Exh. B), as well as Section
302(b)(20) of ERISA and the LMRA. See Annuity, Pension, Welfare, Training & Labor
Mgmt.Cooperation Trust Funds of the Int’l Union of Operating Eng’rs, 714 F. Supp.3d
167, 177 & 180 (E.D.N.Y. 2024). The Court also noted that it maintains discretion to
compel a party to produce documents requested pursuant to Rule 37(a)(3)(B)(iv) of the
Federal Rules of Civil Procedure. See In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003)
(Motions to compel are “entrusted to the sound discretion of the district court.”).
Accordingly, the Court granted plaintiffs’ motion to compel and ordered defendant to
disclose books and records, including payroll and other financial records necessary to
verify compliance with the CBA, for the period from October 1, 2019 through the
present for plaintiffs’ review and audit. Dkt. #15.
By Affidavit of Service notarized on October 27, 2025, a process server
affirmed that he affixed a copy of the Decision and Order upon defendant’s door on
October 25, 2025 after attempting unsuccessfully to contact a person of suitable age
and discretion at the premises on October 13, 2025; October 17, 2025; October 24,
2025; and October 25, 2025, and that he also m ailed a copy of the Decision and Order
to defendant on October 27, 2025. Dkt. #16.
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Currently before the Court is plaintiffs’ motion to hold defendant in
contempt of court. Dkt. #17. In support of the motion, plaintiffs’ counsel affirms that
defendant has not produced the requested documents or otherwise complied with the
Decision and Order. Dkt. #17-1, ¶ 9.
Pursuant to Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure,
If a party or a party’s officer, director, or managing agent . . .
fails to obey an order to provide or permit discovery,
including an order under Rule . . . 37(a), the court where the
action is pending may issue further just orders. They may
include the following:
(i) directing that the matters embraced in the order or
other designated facts be taken as established for
purposes of the action, as the prevailing party
claims ;
(ii) prohibiting the disobedient party from supporting
or opposing designated claims or defenses, or
from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is
obeyed;
(v) dismissing the action or proceeding in whole or in
part;
(vi) rendering a default judgment against the
disobedient party; or
(vii) treating as contempt of court the failure to obey
any order except an order to submit to a physical
or mental examination.
A party may be held in contempt if “(1) the order the contemnor failed to comply with is
clear and unambiguous; (2) the proof of noncompliance is clear and convincing; and (3)
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the contemnor has not diligently attempted to comply in a reasonable manner.”
Paramedics Electromedicina Comercial, Ltda. v, GE Med. Sys. Info. Techs., Inc. 369
F.3d 645, 655 (2d Cir. 2004).
Civil contempt sanctions are designed to compel future compliance with a
court order and may be imposed in a civil proceeding upon notice and an opportunity to
be heard. International Union, United Mine Workers of America v. Bagwell, 512 U.S.
821, 827 (1994); See In re Weiss, 703 F.2d 653, 661 (2d Cir. 1983) (“If the disobedient
behavior is conduct of a continuing nature which the contemnor has the power to
terminate, the court may choose to hold the contemnor in civil contempt and impose a
sanction that is designed to coerce the contemnor to terminate his contemnacious
conduct.”); International Bus. Machs. Corp. v. United States, 493 F.2d 112, 115 (2d Cir.
1973) (“Civil contempt . . . has a remedial purpose - compelling obedience to an order
of the court for the purpose of enforcing the other party’s rights . . .”). “To the extent that
a contempt sanction is coercive, the court has broad discretion to design a remedy that
will bring about compliance.” Paramedics Electromedicina Comercial, 369 F.3d at 677.
In making such a determination, the court should consider: (1) the character and
magnitude of the harm threatened by the continued contumacy; (2) the probable
effectiveness of the sanction in bringing about compliance; and (3) the contemnor’s
financial resources and the consequent seriousness of the sanction’s burden. Cordius
Trust v. Kummerfeld Assocs., Inc., 658 F. Supp.2d 512, 525 (S.D.N.Y. 2009). Civil
contempt sanctions may include monetary sanctions payable to the court for each day
the contempt continues. See Livecchi v. Gordon, 513 B.R. 209, 214 (W.D.N.Y. 2014)
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(collecting cases imposing fine of $500 per day as civil contempt sanction for failure to
comply with court order); See also Rodriguez v. New Generation Hardware Store Corp.,
22-CV-4422, 2024 WL 1406953, at *2 (S.D.N.Y. April 2, 2024) (collecting cases
imposing fine of $500 per day as civil contempt for failure to comply with information
subpoena). “Arrest is” also “an appropriate coercive sanction for civil contempt, so long
as its purpose is not punitive but is instead to compel the contemnor to perform the
required act.” Cordius Trust v. Kummerfeld Assocs., Inc., 658 F. Supp.2d 512, 525
(S.D.N.Y. 2009).
Defendant has failed to obey this Court’s Order directing it to
disclose books and records, including payroll and other financial records necessary to
verify compliance with the CBA, for the period from October 1, 2019 through the
present, for plaintiffs’ review and audit. This failure has allowed defendant to continue to
deprive plaintiffs of the benefits of the CBA signed by defendant. As defendant is
already in default, and disclosure of the books and records is necessary for plaintiffs to
provide this Court with accurate information in support of plaintiffs’ motion for default
judgment, the Court concludes that the only available mechanism to obtain compliance
and move this matter forward is to treat defendant’s failure to obey this Court’s Decision
and Order as contempt of court and certify the facts set forth above to the Hon.
Lawrence J. Vilardo for a determination of civil contempt pursuant to 28 U.S.C.
§ 636(e)(6) (B)(iii).
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Accordingly, it is hereby ORDERED that:
(1) The Clerk of Court mail a copy of this Order to Show Cause to
Brandon Walker, Owner, Freedom Electrical Construction LLC, 6164 Karen Avenue,
Newfane, NY 14108;
(2) Plaintiffs serve a copy of this Order to Show Cause upon the New York
Secretary of State as agent for Freedom Electrical Construction LLC and file a
certificate of service with the Court no later than December 12, 2025; and
(3) Freedom Electrical Construction, LLC certify compliance with the
Court’s Order to disclose books and records, including payroll and other financial
records necessary to verify compliance with the CBA, for the period from October 1,
2019 through the present for plaintiffs’ review and audit or show cause why it should not
be held in civil contempt pursuant to 28 U.S.C. § 636(e)(6) (B)(iii), and subject to
coercive sanctions as set forth above, no later than January 9, 2026.
SO ORDERED.
DATED: Buffalo, New York
December 1, 2025
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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