United States District Court, D. Columbia
September 19, 2005.
INTERNATIONAL PAINTERS AND ALLIED TRADES INDUSTRY PENSION FUND Plaintiff,
MIKE NELSON COMPANY, INC. Defendant.
The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge
Before the Court is plaintiff's motion for entry of default
judgment. This case is an action for legal and equitable relief
under the Employee Retirement Income Security Act of 1974
("ERISA"), as amended by the Multiemployer Pension Plan
Amendments Act of 1980, 29 U.S.C. § 1145. Defendant was served
with the complaint on August 10, 2005, but have not appeared or
responded. Default was entered by the Clerk of Court on September
6, 2005. Plaintiff has moved for entry of default judgment
pursuant to Fed.R.Civ.P. 55(b)(2).*fn1
The determination of whether default judgment is appropriate is
committed to the discretion of the trial court. Jackson v.
Beech, 636 F.2d 831, 836 (D.C. Cir. 1980). For default judgment,
defendant must be considered a "totally unresponsive" party and
its default plainly willful, reflected by its failure to respond
to the summons and complaint, the entry of default, or the motion
for default judgment. Gutierrez v. Berg Contracting Inc., 2000
WL 331721, *1 (D.D.C. March 20, 2000) (citing Jackson, 636 F.2d at 836).
Given "the absence of any request to set aside the default or
suggestion by the defendant that it has a meritorious defense,"
it is clear that the standard for default judgment has been
Although the default establishes a defendant's liability, the
Court makes an independent determination of the sum to be awarded
in the judgment unless the amount of damages is certain. Adkins
v. Teseo, 180 F. Supp. 2d 15, 17 (D.D.C. 2001). Pursuant to
29 U.S.C. § 1132(g)(2), the Court shall award plaintiff: (A) the
unpaid contributions; (B) interest on the unpaid contributions;
(C) an amount equal to the greater of (i) interest on the unpaid
contributions, or (ii) liquidated damages provided for under the
plan in an amount not in excess of 20 percent (or such higher
percentage as may be permitted under federal or state law) of the
amount determined by the court under subparagraph (A); (D)
reasonable attorney's fees and costs of the action, to be paid by
the defendant; and (E) such other legal or equitable relief as
the court deems appropriate.
Plaintiff has filed the declarations of Thomas C. Montemore,
Assistant to the Fund Administrator of the International Painters
and Allied Trades Union and Industry Pension Fund ("Pension Fund"
or "Fund") and Sanford G. Rosenthal, Esq., in support of the
motion for default judgment. Based on the declarations and the
exhibits to plaintiff's motion, the Court finds that plaintiff
has established damages in the amount of $28,965.14 in unpaid
contributions to the Fund for the period February 2005 to June
2005, pursuant to 29 U.S.C. § 1132(g)(2)(A); $530.89 in interest
on those unpaid contributions, pursuant to
29 U.S.C. § 1132(g)(2)(B); and $5,793.02 for liquidated damages assessed on
delinquent contributions, pursuant to 29 U.S.C. § 1132(g)(2)(C)(ii).*fn2 In addition, plaintiff is entitled
to $2,407.92 in attorneys' fees and costs for the period May 2005
through September 2005, pursuant to 29 U.S.C. § 1132(g)(2)(D).
The Court further finds that plaintiff is entitled to $236.19 in
late charges for late payments made from December 2004 through
February 2005, pursuant to 20 U.S.C. § 1132(g)(2)(E).
Also pursuant to 29 U.S.C. § 1132(g)(2)(E), the Court may award
plaintiff equitable relief as appropriate. Plaintiff requests
that defendant file complete, proper, and timely remittance
reports with the accompanying pension contributions for those
periods defendant is obligated to do so under the collective
bargaining agreement. Because the reports, as well as access to
defendant's records, are necessary to ensure defendant's
compliance with its contractual obligations, the Court believes
such relief is appropriate.*fn3
Therefore, judgment will be entered for plaintiff in the amount
of $37,933.16, pursuant to 29 U.S.C. § 1132(g)(2). A separate
order of judgment will accompany this opinion.
© 1992-2005 VersusLaw Inc.