COMPLAINT against Frank Demartino, Frank Demartino III, Donna Demartino, Scott Love, Secured Systems Technology, Inc.. (Filing Fee $ 350.00, Receipt Number 643400)Document filed by Sheet Metal Workers International Association Local No. 38 Vacation Fund, Sheet Metal Workers International Association Local No. 38 Insurance and Welfare Fund, Sheet Metal Workers International Association Local No. 38 Profit Sharing Plan, Sheet Metal Workers Local 38 Labor Management Committe And Trust, Sheet Metal Workers Local 38 Craft Training Fund, Sheet Metal Workers National Pension Fund, Sheet Metal Workers Local 38 Craft Training Building Fund, TRUST FUNDS.(jma)
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Page 1 Case 7:08-cv-02026-SCR Document 1 Filed 02/29/2008 Page 1 of6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SULLIVAN, WARD, ASHER & PATTON, P.C.
25800 Northwestern Hwy.
1000 Maccabees Center
PO Box 222
Southfield, Michigan 48037-0222
Telephone: 248.746.0700
Facsimile: 248.746.2760
Attorneys of Record for Plaintiff
David J. Selwocki (DS1018)
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION LOCAL NO. 38 VACATION FUND, JUDGE ROBINSON
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION LOCAL NO. 38 INSURANCE AND
WELFARE FUND, SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION LOCAL NO. 38
PROFIT SHARING PLAN, SHEET METAL WORKERS CY 2 6
LOCAL 38 LABOR MANAGEMENT COMMITTEE
AND TRUST, SHEET METAL WORKERS LOCAL 38 =
CRAFT TRAINING FUND, SHEET METAL WORKERS
NATIONAL PENSION FUND, SHEET METAL WORKERS
LOCAL 38 CRAFT TRAINING BUILDING FUND, TRUST 3 =
FUNDS established and administered pursuant to federal law, = _
wom Oe
Plaintiffs, Case No.: 08-cv- o Ace
Judge ow sm
vs. 1 tt
z
ok,
SECURED SYSTEMS TECHNOLOGY, INC., a New Jersey
Corporation and a Connecticut Corporation, FRANK
DEMARTINO, FRANK DEMARTINO III, DONNA
DEMARTINO and SCOTT LOVE, Individually.
Defendants.
COMPLAINT
NOW COME the above-named Plaintiffs, by and through their attorneys, SULLIVAN,
WARD, ASHER & PATTON, P.C., and for their Complaint against Defendants, SECUREDPage 2 Case 7:08-cv-02026-SCR Document 1 Filed 02/29/2008 Page 2of6
SYSTEMS TECHNOLOGY, INC., FRANK DEMARTINO, FRANK DEMARTINO III, DONNA
DEMARTINO and SCOTT LOVE, Individually, state as follows:
1. Plaintiffs SHEET METAL WORKERS INTERNATIONAL ASSOCIATION LOCAL
NO. 38 VACATION FUND, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION
LOCAL NO. 38 INSURANCE AND WELFARE FUND, SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION LOCAL NO. 38 ANNUITY FUND, SHEET METAL
NATIONAL PENSION FUND; SHEET METAL CONTRACTORS INDUSTRY FUND; SHEET
METAL WORKERS LOCAL 38 LABOR MANAGEMENT COMMITTEE AND TRUST, SHEET
METAL WORKERS LOCAL 38 CRAFT TRAINING FUND, SHEET METAL WORKERS LOCAL
38 CRAFT TRAINING BUILDING FUND, TRUST FUNDS (“FUNDS”), have administrative
offices in the City of Brewster, New York.
2. Defendant SECURED SYSTEMS TECHNOLOGY, INC., is a New Jersey
Corporation and a Connecticut Corporation, that has a place of business and conducts business
in the State of New York (hereinafter “SECURED SYSTEMS’).
3. Defendants FRANK DEMARTINO, FRANK DEMARTINO Hl, DONNA
DEMARTINO and SCOTT LOVE, (hereinafter “DEMARTINO” and “LOVE” respectively) are
individuals who are the principal owners/officers of the Corporate Defendant. The Individual
Defendants are responsible for running the day-to-day operations of the company and
responsible for all its decisions pertaining to the payment of contributions to the Funds, including
decisions whether to pay coniributions.
4. The Individual Defendants are employers or agents of an employer engaged in
commerce and in an industry or activity affecting commerce as defined in §501(1) and (3) of the
LMRA, 29 USC §142(1) and (3), and within the meaning of §301(A) of the LMRA, 29 USC
§185(A), or the agents acting in the interest of such an employer as defined in §501(3) of the
LMRA, 29 USC §142(3). The Individual! Defendant is an employer within the meaning of §3(5)Page 3 Case 7:08-cv-02026-SCR Document 1 Filed 02/29/2008 Page 3of6
of ERISA, 29 USC §1002(5) and is thus obligated to make contributions to a multi-employer
Plan within the meaning of 29 USC §1145.
5. The Plaintiff FUNDS are administered by a Joint Board of Trustees, pursuant to
the terms and provisions of their respective Agreements and Declarations of Trust. The Plaintiff
FUNDS have been established pursuant to a Collective Bargaining Agreement heretofore
entered into between Sheet Meta! Local Union No. 38, (hereinafter referred to as "Union") and
certain Employers and Employer Associations, whose members employ members of the Union,
and are required to be maintained and administered in accordance with the provisions of the
LMRA, ERISA and other applicable state and federal laws.
6. At all times relevant hereto, Defendant SECURED SYSTEMS was signatory to a
Collective Bargaining Agreement with the Union.
7. Plaintiff FUNDS are third-party beneficiaries of the Collective Bargaining
Agreement.
8. Pursuant to the terms and provisions of the Collective Bargaining Agreement
between SECURED SYSTEMS, and the Union, SECURED SYSTEMS, agreed to pay, in
addition to wages, employee fringe benefit contributions to the FUNDS for each employee
employed by SECURED SYSTEMS, and covered by the Agreement.
9. Pursuant to the provisions of the Plans of the Fringe Benefit Funds, contributions
become vested Plan assets when due.
10. | That pursuant to the Collective Bargaining Agreement, when such submission of
payments and contributions are not timely made, the signatory employer is charged with
liquidated damages and the costs of collection.
11. That pursuant to the Collective Bargaining Agreement, the trustees are
authorized and empowered to examine and copy the payroll records and books of a signatory
employer to permit the trustees to determine whether such employer is making the appropriate
contributions under the Agreement.Page 4 Case 7:08-cv-02026-SCR Document 1 Filed 02/29/2008 Page4of6
12. That Plaintiffs are entitled as a matter of law to enforce collection of such
delinquent fringe benefits pursuant to 29 USC §1132(g)(2) and Section 1145.
13. This court has jurisdiction pursuant to Section 301 of the LMRA, 29 USC §185,
this being an action arising out of a Collective Bargaining Agreement between a labor
organization and an employer.
COUINT | — Breach of Collective Bargaining Aqreement
And Violation of 29 USC §1145
14. ‘Plaintiffs reallege and incorporate the allegations set forth in paragraphs 1
through 13 above as though fully set forth herein.
15. That notwithstanding its contractual obligations, Defendant, SECURED
SYSTEMS has failed and refused to pay its obligations and thus has violated the Collective
Bargaining Agreement.
16. Plaintiff FUNDS are without adequate remedy at law and will suffer immediate,
continuing and irreparable injury, loss and damage unless Defendants are ordered to
specifically perform all obligations on Defendant's part required to be performed under the
Collective Bargaining Agreement and is restrained from continuing to refuse to perform as
thereunder required.
WHEREFORE, Plaintiff FUNDS request that this Honorable Court grant the following
relief:
A. Order an injunction against Defendants restraining them from continuing
violations of the Collective Bargaining Agreement as set forth above;
B. Enter a Judgment in favor of Plaintiff FUNDS against Defendant, SECURED
SYSTEMS TECHNOLOGY INC., for all unpaid fringe benefit contributions,
together with any liquidated damages thereon, accumulated interest, actual
attorney fees, court costs, audit and other collection costs and such other sums
as may become due to the FUNDS during the pendency of this action;
C. Enter an Order that jurisdiction of this matter be retained pending compliance
with the court’s Orders; andPage 5 Case 7:08-cv-02026-SCR Document 1 Filed 02/29/2008 Page5of6
D. Order a complete audit of Defendants’ books and records.
E. Any such other, further, or different relief as may be just and equitable under the
circumstances.
COUNT Il — Breach of Fiduc Duties
17. Plaintiffs reallege and incorporate the allegations set forth in paragraphs 1
through 16 above as though fully set forth herein.
18. DEMARTINO and LOVE were fiduciaries with respect to the various Fringe
Benefit Plans within the meaning of ERISA, 29 USC §1002(21)(A) in that they exercised
discretionary authority or control respecting management or disposition of assets of the Plans.
19. By engaging in the acts and omissions described, HARKINS has breached his
fiduciary duty regarding the Funds within the meaning of 29 USC §1104(a)(1)(A).
20. Individual Defendants, DEMARTINO and LOVE are personally liable based on
breaching their fiduciary duties pursuant to 29 USC §1109(a).
WHEREFORE, Plaintiff FUNDS request that this Honorable Court grant the following
relief:
A. Order an injunction against Defendants restraining them from continuing
violations of the Collective Bargaining Agreement as set forth above;
B. Enter a Judgment in favor of Plaintiff FUNDS against Defendants, SECURED
SYSTEMS TECHNOLOGY, INC., FRANK DEMARTINO, FRANK DEMARTINO
ll, DONNA DEMARTINO and SCOTT LOVE, for all unpaid fringe benefit
contributions, together with any liquidated damages thereon, accumulated
interest, actual attorney fees, court costs, audit and other collection costs and
such other sums as may become due to the FUNDS during the pendency of this
action;
C. Enter an Order that jurisdiction of this matter be retained pending compliance
with the court’s Orders; and
D. Order a complete audit of Defendants’ books and records.Page 6 Case 7:08-cv-02026-SCR Document 1 Filed 02/29/2008 Page 6of6
E. Any such other, further, or different relief as may be just and equitable under the
circumstances.
Respectfully Submitted,
SULLIVAN, WARD, ASHER,
& PATTON, P.C.
By LOL ge
DAVID J. SELWOCKI _DS1018
orneys for Plaintiffs
25800 Northwestern Highway, Suite 1000
Southfield MI 48037-0222
248.746.0700
a
Dated: February 27, 2008
W0606589/S23-117811
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 7:08-cv-02026-SCR Document 1 Filed 02/29/2008 Page 1 of6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SULLIVAN, WARD, ASHER & PATTON, P.C.
25800 Northwestern Hwy.
1000 Maccabees Center
PO Box 222
Southfield, Michigan 48037-0222
Telephone: 248.746.0700
Facsimile: 248.746.2760
Attorneys of Record for Plaintiff
David J. Selwocki (DS1018)
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION LOCAL NO. 38 VACATION FUND, JUDGE ROBINSON
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION LOCAL NO. 38 INSURANCE AND
WELFARE FUND, SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION LOCAL NO. 38
PROFIT SHARING PLAN, SHEET METAL WORKERS CY 2 6
LOCAL 38 LABOR MANAGEMENT COMMITTEE
AND TRUST, SHEET METAL WORKERS LOCAL 38 =
CRAFT TRAINING FUND, SHEET METAL WORKERS
NATIONAL PENSION FUND, SHEET METAL WORKERS
LOCAL 38 CRAFT TRAINING BUILDING FUND, TRUST 3 =
FUNDS established and administered pursuant to federal law, = _
wom Oe
Plaintiffs, Case No.: 08-cv- o Ace
Judge ow sm
vs. 1 tt
z
ok,
SECURED SYSTEMS TECHNOLOGY, INC., a New Jersey
Corporation and a Connecticut Corporation, FRANK
DEMARTINO, FRANK DEMARTINO III, DONNA
DEMARTINO and SCOTT LOVE, Individually.
Defendants.
COMPLAINT
NOW COME the above-named Plaintiffs, by and through their attorneys, SULLIVAN,
WARD, ASHER & PATTON, P.C., and for their Complaint against Defendants, SECURED
PDF Page 3
Case 7:08-cv-02026-SCR Document 1 Filed 02/29/2008 Page 2of6
SYSTEMS TECHNOLOGY, INC., FRANK DEMARTINO, FRANK DEMARTINO III, DONNA
DEMARTINO and SCOTT LOVE, Individually, state as follows:
1. Plaintiffs SHEET METAL WORKERS INTERNATIONAL ASSOCIATION LOCAL
NO. 38 VACATION FUND, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION
LOCAL NO. 38 INSURANCE AND WELFARE FUND, SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION LOCAL NO. 38 ANNUITY FUND, SHEET METAL
NATIONAL PENSION FUND; SHEET METAL CONTRACTORS INDUSTRY FUND; SHEET
METAL WORKERS LOCAL 38 LABOR MANAGEMENT COMMITTEE AND TRUST, SHEET
METAL WORKERS LOCAL 38 CRAFT TRAINING FUND, SHEET METAL WORKERS LOCAL
38 CRAFT TRAINING BUILDING FUND, TRUST FUNDS (“FUNDS”), have administrative
offices in the City of Brewster, New York.
2. Defendant SECURED SYSTEMS TECHNOLOGY, INC., is a New Jersey
Corporation and a Connecticut Corporation, that has a place of business and conducts business
in the State of New York (hereinafter “SECURED SYSTEMS’).
3. Defendants FRANK DEMARTINO, FRANK DEMARTINO Hl, DONNA
DEMARTINO and SCOTT LOVE, (hereinafter “DEMARTINO” and “LOVE” respectively) are
individuals who are the principal owners/officers of the Corporate Defendant. The Individual
Defendants are responsible for running the day-to-day operations of the company and
responsible for all its decisions pertaining to the payment of contributions to the Funds, including
decisions whether to pay coniributions.
4. The Individual Defendants are employers or agents of an employer engaged in
commerce and in an industry or activity affecting commerce as defined in §501(1) and (3) of the
LMRA, 29 USC §142(1) and (3), and within the meaning of §301(A) of the LMRA, 29 USC
§185(A), or the agents acting in the interest of such an employer as defined in §501(3) of the
LMRA, 29 USC §142(3). The Individual! Defendant is an employer within the meaning of §3(5)
PDF Page 4
Case 7:08-cv-02026-SCR Document 1 Filed 02/29/2008 Page 3of6
of ERISA, 29 USC §1002(5) and is thus obligated to make contributions to a multi-employer
Plan within the meaning of 29 USC §1145.
5. The Plaintiff FUNDS are administered by a Joint Board of Trustees, pursuant to
the terms and provisions of their respective Agreements and Declarations of Trust. The Plaintiff
FUNDS have been established pursuant to a Collective Bargaining Agreement heretofore
entered into between Sheet Meta! Local Union No. 38, (hereinafter referred to as "Union") and
certain Employers and Employer Associations, whose members employ members of the Union,
and are required to be maintained and administered in accordance with the provisions of the
LMRA, ERISA and other applicable state and federal laws.
6. At all times relevant hereto, Defendant SECURED SYSTEMS was signatory to a
Collective Bargaining Agreement with the Union.
7. Plaintiff FUNDS are third-party beneficiaries of the Collective Bargaining
Agreement.
8. Pursuant to the terms and provisions of the Collective Bargaining Agreement
between SECURED SYSTEMS, and the Union, SECURED SYSTEMS, agreed to pay, in
addition to wages, employee fringe benefit contributions to the FUNDS for each employee
employed by SECURED SYSTEMS, and covered by the Agreement.
9. Pursuant to the provisions of the Plans of the Fringe Benefit Funds, contributions
become vested Plan assets when due.
10. | That pursuant to the Collective Bargaining Agreement, when such submission of
payments and contributions are not timely made, the signatory employer is charged with
liquidated damages and the costs of collection.
11. That pursuant to the Collective Bargaining Agreement, the trustees are
authorized and empowered to examine and copy the payroll records and books of a signatory
employer to permit the trustees to determine whether such employer is making the appropriate
contributions under the Agreement.
PDF Page 5
Case 7:08-cv-02026-SCR Document 1 Filed 02/29/2008 Page4of6
12. That Plaintiffs are entitled as a matter of law to enforce collection of such
delinquent fringe benefits pursuant to 29 USC §1132(g)(2) and Section 1145.
13. This court has jurisdiction pursuant to Section 301 of the LMRA, 29 USC §185,
this being an action arising out of a Collective Bargaining Agreement between a labor
organization and an employer.
COUINT | — Breach of Collective Bargaining Aqreement
And Violation of 29 USC §1145
14. ‘Plaintiffs reallege and incorporate the allegations set forth in paragraphs 1
through 13 above as though fully set forth herein.
15. That notwithstanding its contractual obligations, Defendant, SECURED
SYSTEMS has failed and refused to pay its obligations and thus has violated the Collective
Bargaining Agreement.
16. Plaintiff FUNDS are without adequate remedy at law and will suffer immediate,
continuing and irreparable injury, loss and damage unless Defendants are ordered to
specifically perform all obligations on Defendant's part required to be performed under the
Collective Bargaining Agreement and is restrained from continuing to refuse to perform as
thereunder required.
WHEREFORE, Plaintiff FUNDS request that this Honorable Court grant the following
relief:
A. Order an injunction against Defendants restraining them from continuing
violations of the Collective Bargaining Agreement as set forth above;
B. Enter a Judgment in favor of Plaintiff FUNDS against Defendant, SECURED
SYSTEMS TECHNOLOGY INC., for all unpaid fringe benefit contributions,
together with any liquidated damages thereon, accumulated interest, actual
attorney fees, court costs, audit and other collection costs and such other sums
as may become due to the FUNDS during the pendency of this action;
C. Enter an Order that jurisdiction of this matter be retained pending compliance
with the court’s Orders; and
PDF Page 6
Case 7:08-cv-02026-SCR Document 1 Filed 02/29/2008 Page5of6
D. Order a complete audit of Defendants’ books and records.
E. Any such other, further, or different relief as may be just and equitable under the
circumstances.
COUNT Il — Breach of Fiduc Duties
17. Plaintiffs reallege and incorporate the allegations set forth in paragraphs 1
through 16 above as though fully set forth herein.
18. DEMARTINO and LOVE were fiduciaries with respect to the various Fringe
Benefit Plans within the meaning of ERISA, 29 USC §1002(21)(A) in that they exercised
discretionary authority or control respecting management or disposition of assets of the Plans.
19. By engaging in the acts and omissions described, HARKINS has breached his
fiduciary duty regarding the Funds within the meaning of 29 USC §1104(a)(1)(A).
20. Individual Defendants, DEMARTINO and LOVE are personally liable based on
breaching their fiduciary duties pursuant to 29 USC §1109(a).
WHEREFORE, Plaintiff FUNDS request that this Honorable Court grant the following
relief:
A. Order an injunction against Defendants restraining them from continuing
violations of the Collective Bargaining Agreement as set forth above;
B. Enter a Judgment in favor of Plaintiff FUNDS against Defendants, SECURED
SYSTEMS TECHNOLOGY, INC., FRANK DEMARTINO, FRANK DEMARTINO
ll, DONNA DEMARTINO and SCOTT LOVE, for all unpaid fringe benefit
contributions, together with any liquidated damages thereon, accumulated
interest, actual attorney fees, court costs, audit and other collection costs and
such other sums as may become due to the FUNDS during the pendency of this
action;
C. Enter an Order that jurisdiction of this matter be retained pending compliance
with the court’s Orders; and
D. Order a complete audit of Defendants’ books and records.
PDF Page 7
Case 7:08-cv-02026-SCR Document 1 Filed 02/29/2008 Page 6of6
E. Any such other, further, or different relief as may be just and equitable under the
circumstances.
Respectfully Submitted,
SULLIVAN, WARD, ASHER,
& PATTON, P.C.
By LOL ge
DAVID J. SELWOCKI _DS1018
orneys for Plaintiffs
25800 Northwestern Highway, Suite 1000
Southfield MI 48037-0222
248.746.0700
a
Dated: February 27, 2008
W0606589/S23-117811
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