Motions to compel are “entrusted to the sound discretion of the district court.”
How later courts described this case
- Motions to compel are “entrusted to the sound discretion of the district court.”
Written by the judges who cited it.
The opinion
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.
DECISION AND ORDER
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.
Currently before the Court is plaintiffs’ motion 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 proffer 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 affirm that defendant has not
provided the requested information. Dkt. #9, ¶ 6. Plaintiffs argue 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 has
been 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
attaches a determination from the National Labor Relations Board that defendant
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 affirms that plaintiffs have not received any of the contributions
-2-
and deductions required. Dkt. #14, p.7, ¶ 15. More specifically, the Funds Administrator
affirms 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.
Plaintiffs are clearly entitled to audit defendant’s books and records
pursuant to the Funds’ Collections Policy. Dkt. #14, Exh. B. Moreover, courts routinely
compel an audit of an employer’s books and records pursuant to Section 302(b)(20) of
ERISA. Annuity, Pension, Welfare, Training & Labor Mgmt.Cooperation Trust Funds of
the Int’l Union of Operating Eng’rs, 714 F. Supp.3d 167, 177 (E.D.N.Y. 2024). Courts
may also enforce a union’s contractual right to audit an employer’s books and records
under the LMRA. Id. at 180. In addition, the Court 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, plaintiffs’ motion to compel disclosure of 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 is
GRANTED.
SO ORDERED.
DATED: Buffalo, New York
September 29, 2025
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge