United States District Court, D. Columbia
November 21, 2005.
INTERNATIONAL PAINTERS AND ALLIED TRADES UNION AND INDUSTRY PENSION FUND, Plaintiff,
THE TROAST GROUP, INC., Defendant.
The opinion of the court was delivered by: ELLEN 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 29, 2005, and has failed to answer
or otherwise defend this action. The Clerk of Court entered
default on October 25, 2005. Pursuant to the Court's October 25,
2005 Order requesting plaintiff to apply for entry of judgment,
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
responded to the summons and complaint, the entry of default, or
the motion for default judgment. Gutierrez v. Berg Contracting
Inc., 2000 WL 331721, at *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 satisfied. Id.
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) and section 10.12 of plaintiff's Industry
Pension Plan, the Court shall award plaintiff: (A) the unpaid
contributions; (B) the interest on the unpaid contributions; (C)
liquidated damages in an amount equal to the greater of (i)
interest on the unpaid contributions, or (ii) 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; and (E) such
other legal or equitable relief as the court deems appropriate.
The Court may rely on detailed affidavits or documentary evidence
to determine the appropriate sum for default judgment. Flynn v.
Mastro Masonry Contractors, 237 F. Supp. 2d 66, 69 (D.D.C.
Plaintiff filed the declaration of Thomas C. Montemore,
Assistant to the Fund Administrator of the International Painters
and Allied Trades Union and Industry Pension Fund (the "Fund"),
in support of the motion for default judgment. Based on the
declaration and the exhibits to plaintiff's motion, the Court finds that plaintiff
has established damages in the amount of $32,007.99 in
contributions to the Fund for work performed during the period
January 2001 through March 2005, and $8,553.51 for underpayments
during the period May 2004 through April 2005 pursuant to
29 U.S.C. § 1132(g)(2)(A); $2800.66 in interest on those unpaid
contributions pursuant to 29 U.S.C. § 1132(g)(2)(B); and
$8,112.30 for liquidated damages assessed on unpaid contributions
pursuant to 29 U.S.C. § 1132(g)(2)(C)(ii).*fn2 The Court
further finds that plaintiff is entitled to $213.12 in late
charges for late payments made from March 2004 through May 2004,
and $1,674.43 in audit costs pursuant to Article VI, Section 6 of
the Agreement and Declaration of Trust of the Pension Fund.
Plaintiff has also requested attorney's fees and costs pursuant
to 29 U.S.C. § 1132(g)(2)(D) and has filed the declaration of
plaintiff's counsel, Sanford G. Rosenthal, in support of this
request. The Rosenthal declaration states that plaintiff's
counsel has accrued $2,839.56 in legal fees. The Court finds that
plaintiff is entitled to attorney's fees and costs in this
amount.*fn3 In addition, 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(s). Because plaintiff's request
reiterates defendant's contractual obligations, and access to
defendant's records is necessary to ensure defendant's compliance
with these obligations, the Court believes such relief is
appropriate. The Court further requires defendant to provide
access to its payroll books and related records as necessary for
plaintiff to audit defendant's contributions for all relevant
periods, including those covered by this judgment.
Therefore, judgment will be entered for plaintiff in the amount
of $56,201.57, pursuant to 29 U.S.C. § 1132(g)(2). Pursuant to
29 U.S.C. § 1132(g)(2)(E), the Court will order defendant to produce
remittance reports and make available its records for audit
A separate Order of judgment will accompany this Opinion.
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