Board of Trustees of the Construction Industry and Laborers Health and Welfare Trust v. Emmanuel Environmental, Inc. ( 2024 )

1 Christopher M. Humes, Esq. Nevada Bar No. 12782 2 William D. Nobriga, Esq. Nevada Bar No. 14931 3 BROWNSTEIN HYATT FARBER SCHRECK, LLP 100 North City Parkway, Suite 1600 4 Las Vegas, Nevada 89106-4614 5 Telephone: (702) 382-2101 Facsimile: (702) 382-8135 6 Attorneys for Plaintiffs 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 THE BOARD OF TRUSTEES OF THE Case No. 2:23-cv-01774-APG-MDC 10 CONSTRUCTION INDUSTRY AND 11 LABORERS HEALTH AND WELFARE TRUST; THE BOARD OF TRUSTEES OF 12 THE CONSTRUCTION INDUSTRY AND LABORERS JOINT PENSION TRUST; MOTION TO ENLARGE TIME FOR 13 THE BOARD OF TRUSTEES OF THE SERVICE OF COMPLAINT AND CONSTRUCTION INDUSTRY AND SUMMONS 14 LABORERS VACATION TRUST; THE 15 BOARD OF TRUSTEES OF THE SOUTHERN NEVADA LABORERS 16 LOCAL 872 TRAINING TRUST, Plaintiffs, 17 vs. 18 EMMANUEL ENVIRONMENTAL, INC. 19 a foreign corporation; and ROMELLE EMMANUEL, an individual 20 Defendants. 21 22 23 Plaintiffs, the Boards of Trustees of the Construction Industry and Laborers Health and 24 Welfare Trust, the Construction Industry and Laborers Joint Pension Trust, the Construction 25 Industry and Laborers Vacation Trust, and the Southern Nevada Laborers Local 872 Training 26 Trust (“Trust Funds”), respectfully request the Court enlarge the Trust Funds’ period of service of 27 the complaint and summons on Defendants Emmanuel Environment, Inc. (“Emmanuel 1 Pursuant to Federal Rule of Civil Procedure, a plaintiff has ninety (90) days to serve the 2 complaint and summons on a defendant after the complaint is filed. Fed. R. Civ. P. 4(m). 3 However, if the plaintiff shows good cause, the Court may extend the time for service for an 4 appropriate period of time. Id. “Generally, good cause is demonstrated ‘where a plaintiff has 5 shown diligent efforts to effect service.’” Signature Surgery Ctr. LLC v. Cel Servs. Grp., Inc., No. 6 221CV00215JCMEJY, 2022 WL 1432444, at *1 (D. Nev. Apr. 5, 2022) (quoting Mitchell v. City 7 of Henderson, No. 2:13-cv-01154-APG-CWH, 2015 WL 427835, at *7 (D. Nev. Feb. 2, 2015)). 8 Courts enjoy substantial discretion to enlarge the time for service for any reason, even if there is 9 no good cause shown. See id. 10 Good cause exists here. The Trust Funds filed their Complaint on October 31, 2023, 11 alleging claims for delinquent employee benefit contributions under the Employee Retirement 12 Income Security Act of 1974 (“ERISA”) and enforcement of a settlement agreement. (ECF No. 13 1.) In the beginning of this dispute, the amounts initially sought related to work performed by 14 Emmanuel Environment in December 2022 and January 2023, but as described below, the Trust 15 Funds discovered more delinquent contributions were due prior to filing the Complaint. See Ex. 1 16 (Feb. 28, 2023, C. Humes Demand Letter); Ex. 2 (Settlement Agreement). When the Complaint 17 was filed, the Trust Funds attempted to serve Emmanuel Environment’s registered agent, but the 18 address listed with the Nevada Secretary of State was not a valid address. Ex. 3 (Nov. 18, 2023, 19 Aff’d of Due Diligence). 20 Shortly before filing the Complaint, the Trust Funds completed a contract compliance 21 review (“Audit”) of Emmanuel Environment, which revealed substantial additional delinquent 22 employee benefit contributions. See Ex. 4 (Oct. 31, 2023, C. Humes Demand Letter). After a 23 demand was sent, the Emmanuel Defendants approached the Trust Funds on November 10, 2023, 24 about establishing a revised payment plan and settlement agreement for all amounts owed, 25 wherein the Emmanuel Defendants would pay $10,000 until the balance owed was reduced to 26 zero. Ex. 5 (Nov. 10, 2023, R. Emmanuel Email). 27 The Trustees of the Trust Funds approved revising the settlement agreement in an effort to 1 Funds’ counsel sent a revised settlement agreement to the Emmanuel Defendants. Ex. 6 (Dec. 11, 2 2023, C. Humes email); Ex. 7 (Revised Settlement Agreement). Although the Emmanuel 3 Defendants never executed the settlement agreement, they did make an initial settlement payment 4 of $10,000. Ex. 8 (Wells Fargo Notice of Insufficient Funds), at 2. Given the agreement to enter 5 into a revised settlement agreement and the provision of the first settlement payment, the Trust 6 Funds withheld service of the pending Complaint. 7 Unfortunately, on December 26, 2023, the Trust Funds received notice that the $10,000 8 was returned for insufficient funds. See id. at 1. The Trust Funds attempted to give the Emmanuel 9 Defendants the opportunity to cure by January 2, 2024. Ex. 9 (Dec. 27, 2023, C. Humes Email). 10 The Emmanuel Defendants reported that they would provide a cashier’s check to cure the 11 payment rejected for insufficient funds, but that never occurred. Ex. 10 (Dec. 28, 2023, R. 12 Emmanuel Email). 13 After the Emmanuel Defendants failed to cure the returned check and because Emmanuel 14 Environment’s resident agent’s address had proved invalid, the Trust Funds attempted to serve an 15 alternate address, 4550 Donovan Way, Ste 114, North Las Vegas, NV 89081, which is listed on 16 all of the Emmanuel Defendants emails. Unfortunately, that address is not valid either. Ex. 11 17 (Jan. 12, 2024, Aff’d of Diligence). The Trust Funds have requested a valid address from the 18 Emmanuel Defendants, but have not received a response. Ex. 12 (Jan. 23, 2024, C. Humes email). 19 The Trust Funds therefore respectfully request the Court to enlarge the period to serve the 20 Emmanuel Defendants. The Trust Funds have not failed to serve the Emmanuel Defendants due 21 to delay or lack of effort. Instead, the Trust Funds were continuously trying to work with the 22 Emmanuel Defendants to resolve this dispute through multiple communications and sustained 23 efforts to revise the settlement agreement and put Emmanuel Environment on a payment plan. 24 When the Emmanuel Defendants provided a payment that was returned for insufficient funds, the 25 Trust Funds again attempted to resolve this dispute amicably by providing the Emmanuel 26 Defendants an opportunity to cure. After these efforts failed, the Trust Funds quickly attempted to 27 serve the last remaining address the Trust Funds possess for the Emmanuel Defendants, but to no 1 As such, the Trust Funds request an additional sixty (60) days, through March 24, 2024, t 2 || effectuate service on the Emmanuel Defendants. The Trust Funds will use this time to perforn 3 || person searches through LexisNexis and conduct additional investigations in an attempt to □□□□□ 4 ||serviceable address for the Emmanuel Defendants. If those efforts are unsuccessful, the Trus 5 || Funds will move this Court to permit service by publication prior to the expiration of the extende 6 || service period. 7 A Proposed Order is provided beneath the undersigned’s signature block. g || Dated: January 25, 2024. BROWNSTEIN HYATT FARBER SCHRECK, LLP 10 /s/ Christopher M. Humes 11 Christopher M. Humes, Esq. Nevada Bar No. 12782 12 William D. Nobriga, Esq. Nevada Bar No. 14931 13 100 North City Parkway, Suite 1600 Las Vegas, Nevada 89106-4614 Telephone: (702) 382-2101 15 Facsimile: (702) 382-8135 16 Attorneys for Plaintiffs 17 RDER 18 19 0 IT IS SO ORDERED that Plaintiffs’ deadline to serve Emmanuel Environment, Inc., an: >] Romelle Emmanuel is extended until March 24, 2024. f ZA _— LY~L/ 22 fb ‘\ UNITES STATES HST 41CT/MAGISTRATE JUDGE Date: 2/13/24 25 26 Case 2:23-cv-01774-APG-MDC 27 28 1 CERTIFICATE OF SERVICE 2 Pursuant to Federal Rule of Civil Procedure 5(b), I certify that I am an employee of 3 Brownstein Hyatt Farber Schreck, LLP and that on January 25, 2024, I served a true copy of the 4 foregoing MOTION TO ENLARGE TIME FOR SERVICE OF COMPLAINT AND 5 SUMMONS via the Court’s electronic filing system and upon: 6 NO PARTIES ENTERED 7 8 I declare under penalty of perjury that the foregoing is true and correct. 9 /s/ Ebony Davis An Employee of Brownstein Hyatt Farber Schreck, LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27