contributions to the pension
plans. Iron Workers Dist. Council of West. New York & Vicinity Welfare
& Pension Funds v. Hudson OCeel Fabricators & Erectors, Inc.,
68 F.3d 1502, 1506 (2d Cir. 1995). "The intent of this seCIction is to
promote the prompt payment of contributions and assist plans in recovering
the CAsts incurred in connection with delinquencies." Cent. States,
Southeast & Southwest Areas Pension Fund v. Alco Express Co.,
522 F. Supp. 919, 928 (E.D.Mich. 1981) (citing to Senate legislative
When a court awards a default judgment against a defendant for
contributions owed under a collective bargaining agreement, ERISA
provides that the court must award: (1) the unpaid contributions; (2)
interest on the unpaid contributions;*fn2 (3) liquidated damages;*fn3
and (4) reasonable attorney's fees and costs of the action.
29 U.S.C. § 1132(g)(2); Iron Workers, 68 F.3d at 1507; Local 306,
United Ass'n. Health & Welfare Fund v. Am. Testing & Inspection,
Inc., 1988 WL 134942, at *1 (D.D.C. Nov. 30, 1988). The unpaid
contributions, interest, and liquidated damages generally are considered
"sums certain" pursuant to the calculations mandated in ERISA and the
parties' agreements. Combs v. Coal & Mineral Mgmt. Servs., Inc.,
105 F.R.D. 472, 474 (D.D.C. 1984). The amount of attorney's fees, however, is
not considered a sum certain as the "reasonableness of the fees requested
by the [plaintiff] is a `judgment call' which only the [c]ourt can make."
Id. at 475.
Finally, ERISA authorizes the court to provide for other legal or
equitable relief as the court deems appropriate.
29 U.S.C. § 1132(g)(2)(E). This relief can include an injunction
requiring a defendant to permit, and cooperate with, an audit of its
books and records. Mason Tenders Dist. Council Welfare Fund v. Bold
Constr. Co., 2002 WL 1788024, at *3 (S.D.N.Y. Aug. 1, 2002).
B. The Court Grants the Plaintiffs' Motion for Default
The defendant has failed to plead or otherwise defend this action.
Consequently, the clerk of the court entered default, pursuant to
Rule 55. The plaintiffs now move the court to grant a default judgment, and
support their request with declarations and documentary evidence. Having
evaluated the relevant law and examined the declarations and other
submissions provided by the plaintiff, the court issues the following
The plaintiffs request $61,067.86 for unpaid pension and benefit
contributions and dues checkoff owed to the Pension Fund; $3,078.92 for
interest assessed on the delinquent contributions and dues checkoff; and
$9,951.13 in liquidated damages, calculated at a rate of 20 percent of
the unpaid contributions. Mitzner Decl. ¶ 4. As these calculations appear
accurate and these requests comply with ERISA, the court grants these
requests. 29 U.S.C. § 1132(g)(2)(A); Iron Workers, 68 F.3d at 1507;
Combs, 105 F.R.D. at 474.
The plaintiffs' also are entitled to those attorney's fees and costs
that the court determines to be reasonable. 29 U.S.C. § 1132(g)(2)(D);
Combs, 105 F.R.D. at 474. Here, the plaintiffs request attorney's fees
and costs in the amounts of $157.75 for service, $150.00
for filing, $895.00 for attorney's fees already incurred, and $700.00 for
anticipated future attorney's fees (four attorney hours) required for
executing the judgment. Mitzner Decl. ¶¶ 5-6. The plaintiffs have
provided an accounting of the incurred attorney's fees and costs that
demonstrates that the requested amounts are reasonable. Combs,
105 F.R.D. at 474. In contrast, the plaintiffs' argument for "anticipated" attorney's
fees is not similarly reasonable. Mitzer Decl. ¶ 5. The plaintiffs
provide no law or facts to support this speculative request. Thus, the
court denies this part of the request for attorney's fees because it has
insufficient law or fact to determine that executing the judgment will
reasonably require four attorney hours. Combs, 105 F.R.D. at 474.
For all these reasons, the court grants the plaintiffs' motion for
default judgment. An Order directing the parties in a manner consistent
with this Memorandum Opinion is separately and contemporaneously issued
this ___ day of December 2002.
GRANTING THE PLAINTIFF'S MOTION FOR DEFAULT
For the reasons stated in this court's Memorandum Opinion separately
and contemporaneously issued this ___ day of December 2002, it is
ORDERED that the plaintiffs' motion for default judgment is GRANTED;
and it is
FURTHER ORDERED that the defendant shall pay to the plaintiffs the
(a) $61,067.86 for unpaid contributions and dues checkoff;
(b) $3,078.92 for interest;
(c) $9,951.13 for liquidated damages;
(d) $1,202.75 for attorney's fees and costs.