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Service National Indus. Pension Fund v. Artharee

United States District Court, D. Columbia.

June 10, 2014

SERVICE EMPLOYEES INTERNATIONAL UNION NATIONAL INDUSTRY PENSION FUND, et al., Plaintiffs,
v.
BERNADETTE ARTHAREE, Defendant

For SERVICE EMPLOYEES INTERNATIONAL UNION NATIONAL INDUSTRY PENSION FUND, STEPHEN ABRECHT, RODERICK S. BASHIR, KEVIN J. DOYLE, DAVID A. STILWELL, STEVEN W. FORD, LARRY T. SMITH, FRANK A. MAXSON, EDWARD MANKO, JOHN J. SHERIDAN, MYRIAM ESCAMILLA, as Trustees of, and on behalf of, Service Employees International Union National Industry Pension Fund, Plaintiffs: Richard C. Welch, MOONEY, GREEN, SAINDON, MURPHY & WELCH, P.C., Washington, DC.

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MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

The Service Employees International Union Industry Pension Fund (" the Fund" ) and ten Trustees of the Fund (collectively, " Plaintiffs" ), filed suit against Bernadette Aratharee, d/b/a Coast Janitorial Services and d/b/a Coast Industries, Inc., alleging that Defendant failed to submit remittance reports and contributions to the Fund for the months of July 2010 and June 2011 through the filing of the Complaint, and owes liquidated damages, interest, and Pension Protection Act (" PPA" ) surcharges for these periods and for late contributions in the months of August 2010 through May 2011. Defendant did not respond to Plaintiffs' Complaint and, accordingly, the Clerk of Court entered default against Defendant. On April 18, 2013, the Court denied Plaintiffs' Motion for Default Judgment because Plaintiffs failed to provide sufficient documentation to support their request for damages and attorneys' fees and costs, but held that Plaintiffs were entitled to remittance reports for the months of July 2010 and June 2011 through the date of the Order. The Court ordered Defendant to submit the delinquent remittance reports by no later than June 3, 2013. After Defendant failed to provide the reports, Plaintiffs filed a Motion to Compel Production of Past-Due Reports, which the Court granted. On October 7, 2013, the Court ordered Defendant to submit all past-due remittance reports by no later than November 8, 2013. Plaintiffs allege that Defendant again failed to submit the reports. Presently before the Court is Plaintiffs' [18] Motion for Order of Contempt. Defendant did not file a response to Plaintiffs'

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Motion. Upon consideration of the pleadings,[1] the relevant legal authorities, and the record as a whole, Plaintiffs' Motion is GRANTED.

I. BACKGROUND

Defendant is a party to a collective bargaining agreement (" CBA" ) with the Service Employees International Union, Local No. 49. Compl., ECF No. [1], ¶ ¶ 8-9. The CBA requires the employer to make specific contributions to the Fund based on the number of compensable hours worked by the employer's employees. Compl., Ex. 1 (CBA), art. 22, § 4. When the Fund is in " critical status" (as determined by certain actuarial standards), a " Pension Protection Act Surcharge" is added to all employer contributions. Compl., Ex. 4 (4/30/09 Notice of Critical Status), at 5. Employers are also required to submit monthly remittance reports reflecting the contributions owed to the Fund. Compl., Ex. 1 (CBA), art. 22 § 4. If an employer like Defendant fails to timely remit its monthly contributions, the employer is liable for 10% annual interest on the late contributions. Compl., Ex. 3 (SEIU Pension Fund Stmt. of Policy for Collection of Delinquent Contributions) (" Collection Policy" ), § 5(1). If the Fund files suit to collect late payments, the employer is further liable for liquidated damages in the amount of the greater of 20% of the late contributions for that month or $50. Id. § § 2(4), 5(2); accord 29 U.S.C. § 1132(g)(2).

On July 26, 2012, Plaintiffs filed suit against Defendant alleging that Defendant failed to submit remittance reports and contributions to the Fund for the months of July 2010 and June 2011 through the filing of the Complaint.[2] Compl. ¶ 21. Plaintiffs further allege that Defendant owes liquidated damages, interest, and PPA surcharges for late contributions for the months of August 2010 through May 2011. Id. ¶ 23. Defendant was served with process on August 22, 2012, but failed to file a timely response to the Complaint. See Proof of Service, ECF No. [4]. The Clerk of Court entered default against Defendant on September 21, 2012. See ECF No. [6]. Plaintiff subsequently filed a Motion for Default Judgment on November 7, 2012, requesting liquidated damages, interest, and surcharges arising out of late contributions by Defendant for the months of August 2010 through May 2011, as well as attorneys' fees and costs. See ECF No. [7], at 1. Plaintiffs also requested the Court enter an order requiring Defendant to submit its delinquent remittance reports for the period of July 2010 and June 2011 through the time of the filing of the Motion. Id. Plaintiffs requested the Court retain jurisdiction to enter judgment for contributions, surcharges, interest, and liquidated damages once the delinquent remittance reports were received. Id. On April 18, 2013, the Court granted in part Plaintiffs' Motion for Default Judgment and, in its Memorandum Opinion, ordered Defendant to submit all outstanding remittance reports for July 2010 and June 2011 through the date of the Memorandum Opinion and to conduct an accounting for all past-due contributions. Serv. Employees Int'l Union Nat'l Industry Pension Fund v. Artharee, 942 F.Supp.2d 27, 30

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(D.D.C. 2013). The Court, however, denied Plaintiffs' request for damages and attorneys' fees and costs as Plaintiffs had provided insufficient documentation to support these damages. Id. Although the Court clearly indicated in its April 18, 2013, Memorandum Opinion that Defendant should submit all past-due remittance reports and an accounting for all past-due contributions, the Court's Order accompanying the Memorandum Opinion included a typographical error stating that Plaintiff should take such actions by no later than June 3, 2013. See ECF No. [8].

The Court mailed copies of its April 18, 2013, Memorandum Opinion and Order to Defendant. As of July 9, 2013, Defendant had yet to submit all past-due remittance reports, see Status Report (July 9, 2013), ECF No. [11], consequently, on July 16, 2013, Plaintiffs filed a Motion to Compel production of the past-due reports. See ECF No. [12]. On October 7, 2013, the Court granted Plaintiffs' Motion to Compel and ordered Defendant to submit all past-due reports to the Fund and to conduct an accounting for all past-due contributions, this time by no later than November 8, 2013. See Order (Oct. 7, 2013), ECF No. [15].

Plaintiffs received neither the past-due reports, nor a response of any kind from Defendant by November 8, 2013. See Status Report (Nov. 21, 2013), ECF No. [16]. On November 25, 2013, the Court ordered that another copy of the Court's October 7, 2013, Order to Compel be mailed to Defendant to ensure that Defendant was aware of the Order. ECF No. [17]. On December 6, 2013, Plaintiffs filed the Motion for Order of Contempt presently before the Court, requesting the Court find Defendant in contempt for failing to comply with the Court's April 18, 2013, and October 7, 2013, Orders to submit all past-due reports. ECF No. [18]. Plaintiffs also request that the Court enter judgment against Defendant for the estimated amounts due for the period of time for which Defendant failed to file remittance reports in addition to amounts owed by Defendant for late paid contributions for the period of August 2010 through May 2011.

In order to ensure that Defendant was receiving the Court's orders, the Court filed a Minute Order on December 16, 2013, requesting that Plaintiffs confirm they had the correct current address for Defendant. Upon receiving confirmation of Defendant's correct address, the Court ordered that Defendant again be mailed copies of the Court's April 18, 2013, and October 7, 2013, Orders and a copy of Plaintiffs' Motion for Order of Contempt. Order (Jan. 13, 2014), ECF No. [20]. The Court further ordered that Defendant must file a response to Plaintiffs' Motion for Order of Contempt ...


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