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Fanning v. Warner Ctr., L.P.

United States District Court, D. Columbia.

November 26, 2013

MICHAEL R. FANNING, as Chief Executive Officer of the Central Pension Fund of the International Union of Operating Engineers and Participating Employers, Plaintiff,
v.
WARNER CENTER, L.P., Defendant

Page 264

For MICHAEL R. FANNING, as Chief Executive Officer of the Central Pension Fund of the International Union of Operating Engineers and Participating Employers, Plaintiff: R. Richard Hopp, O'DONOGHUE & O'DONOGHUE LLP, Washington, DC.

OPINION

ELLEN SEGAL HUVELLE, United States District Judge.

Page 265

MEMORANDUM OPINION

Plaintiff Michael R. Fanning, as Chief Executive Officer of the Central Pension Fund of the International Union of Operating Engineers and Participating Employers (" Central Pension Fund" ), brings this action against defendant Warner Center, L.P., under the Employee Retirement Income Security Act of 1974 (" ERISA" ), 29 U.S.C. § § 1132(a)(3), (g) & 1145. Before the Court is plaintiff's motion for default judgment, asking the Court to enter judgment in the amount of $4,275.00 and to order defendant to submit to an audit of its payroll records for the period of January 2012 to the present. (Mot. for Default Judgment, Nov. 25, 2013 [ECF No. 7].) For the reasons stated herein, the motion will be granted and a default judgment entered in favor of the Central Pension Fund and against defendant Warner Center, L.P.

BACKGROUND

The Central Pension Fund is a multiemployer employee benefit plan as those terms are defined in Sections 3(1) and 3(37) of ERISA, 29 U.S.C. § § 1002(1), & (37). (Am. Compl. ¶ 1.) It " was established and is maintained according to the provisions of its Restated Agreement and Declaration of Trust." ( Id. ¶ 1.) Pursuant to a " Collective Bargaining Agreement with International Union of Operating Engineers Local Union No. 95 and Participating Agreements with the Central Pension Fund," defendant " agreed to pay certain sums of money to the Central Pension Fund for certain hours worked by employees of the defendant performing work covered by the Agreements." ( Id. ¶ ¶ 6-7.) " [A]n employer who fails to pay required contributions is liable for liquidated damages in the amount of 20% of the total contributions owed," " interest at the rate of 9% simple interest per annum," and " all attorneys' fees, costs and audit fees." ( Id. ¶ ¶ 10-12.)

Defendant self-reported the number of hours worked by its employees with a document known as a " Remittance Report." (Fanning Decl. ¶ 11.) In May 2013, a payroll audit found that for the period of January 2010 through December 2012, defendant had failed to pay all the contributions it owed to the Central Pension Fund. (Am. Compl. ¶ 17.) Based on the audit's findings, plaintiff filed the original complaint in this action on September 10, 2013, seeking to collect unpaid contributions, interest, liquidated damages, audit fees, attorneys' fees and costs.[1] (Compl., Sept. 10, 2013 [ECF No. 1].) (Compl. ¶ ¶ 15-19.) After the lawsuit was filed, defendant paid $6,841.79 to the Central Pension Fund, which resolved the outstanding contributions, interest and liquidated damages owed, but did not cover the audit fee of $2,200.00 or the attorney's fees and costs expended in bringing the lawsuit. (Fanning Decl. ¶ 15.)

Plaintiff filed an Amended Complaint on October 14, 2013 (Am. Compl., Oct. 14, 2013 [ECF No. 3]), seeking to recover the

Page 266

audit fee and attorneys' fees and costs. ( Id. ¶ 20.) In addition, as defendant has failed to submit remittance reports since March 2012, plaintiff seeks an updated audit of defendant's payroll records from January 2012 to the present, and depending on the results of the audit, unpaid contributions, interest, liquidated damages, attorneys' fees and costs. ( Id. ¶ ¶ 14-16, 19, 23, 24.)

The Amended Complaint was served on October 28, 2013, and defendant's answer was due on November 18, 2013. (Aff. of Service, Nov. 6, 2013 [ECF No. 4].) On November 19, 2013, pursuant to Federal Rules of Civil Procedure Rule 55(a), plaintiff requested the Clerk to enter a default against defendant (Aff. for Entry of Default, Nov. 19, 2013 [ECF No. 5]), which the Clerk did on November 20, 2013. (Clerk's Entry of Default, Nov. 20, 2013 [ECF No. 6].) Plaintiff now moves for entry of default judgment ...


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