Boland v. Loring and Son Masonry Restoration, Inc. ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JAMES BOLAND, et al. )
)
Plaintiffs, )
)
v. ) Civil Number 1:11-cv-1766 (ABJ)(AK)
)
LORING & SON MASONRY )
RESTORATION, INC., )
)
Defendant. )
)
AMENDED MEMORANDUM OPINION1
Pending before the Court is an Amended Motion for Default Judgment [11] by Plaintiffs,
James Boland, et al. (“Plaintiffs”), trustees of the Bricklayers and Trowel Trades International
Pension Fund (“IPF”). Plaintiffs seek damages for withdrawal liability payments, interest and
liquidated damages from Defendant Loring and Son Masonry Restoration, Inc. (“Defendant” or
“Loring”) under the Employee Retirement Investment Securities Act (“ERISA”). On February
23, 2012, the Clerk of Court made an Entry of Default as to Loring [7]. Plaintiffs filed a Motion
for Default Judgment on March 22, 2012 [8] and the Motion was referred to the undersigned
pursuant to LCvR 72.2(a) [10]. Plaintiffs filed the Amended Motion on March 27, 2012. An
evidentiary hearing was held on April 30, 2012, at which Plaintiffs offered evidence from Peter
Robert Hardcastle, an enrolled actuary for IPF. Defendant did not appear at the hearing.
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In the original Memorandum Opinion, the document referenced in the Conclusion
section was Docket Entry 8, rather than Docket Entry 11.
I. BACKGROUND
Loring is a Connecticut building and construction company that employed members of
the Bricklayers and Trowel Trades International Union local affiliates and executed a collective
bargaining agreement with the Union. (Decl. of David F. Stupar [11-1] at 1-2.) Pursuant to the
bargaining agreement, Loring was obligated to make contributions to IPF to fund the benefits
provided to employees. (Id. at 1.) Loring ceased making its required contributions, and in 2009,
IPF determined that Loring had withdrawn from the Fund. (Id. at 2-3). See 29 U.S.C. § 1383(b).
Plaintiffs seek $41,159.97 in damages, of which $32,551.75 is in withdrawal liability, $2,097.87
in interest and $6,510.35 in liquidated damages.
II. DISCUSSION
A. Standard for Default Judgment
The clerk of court must enter a default “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by
affidavit or otherwise.” Fed. R. Civ. P. 55(a). Where the plaintiff’s claim is not for a sum
certain, the party must apply to the court for a default judgment. Fed. R. Civ. P. 55(b). “The
determination of whether default judgment is appropriate is committed to the discretion of the
trial court.” Int’l Painters & Allied Trades Indus. Pension Fund v. Auxier Drywall, LLC, 531 F.
Supp. 2d 56, 57 (D.D.C. 2008) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)).
The standard for default judgment is satisfied where the defendant makes no request to set aside
the default and no suggestion that it has a meritorious defense. J.D. Holdings, LLC v. BD
Ventures, LLC, 766 F. Supp. 2d 109, 113 (D.D.C. 2011).
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Upon entry of default by the clerk of the court, the “defaulting defendant is deemed to
admit every well-pleaded allegation in the complaint.” U.S. v. Bentley, 756 F. Supp. 2d 1, 3
(D.D.C. 2010). The court must then make a determination of the sum to be awarded. Id. “The
court may rely on detailed affidavits or documentary evidence to determine the appropriate sum
for the default judgment.” Id.Under ERISA, a pension fund which has obtained liability against a delinquent employer
may seek damages of (1) the unpaid contributions, (2) interest on the unpaid contributions; (3)
liquidated damages as provided in the pension plan but not exceeding 20 percent of the unpaid
contributions; (4) reasonable attorneys fees and costs; and (5) other legal or equitable relief that
the court finds appropriate. 29 U.S.C. § 1132(g)(2).
B. Damages
Upon Loring’s withdrawal, IPF calculated Loring’s withdrawal liability and notified
Loring. See 29 U.S.C. § 1399. According to IPF, Loring’s withdrawal liability totaled $231,387.
(Attachment 2 to Exhibit A of Stupar Decl.) See 29 U.S.C. § 1391. Accordingly, Loring was
required to pay $2,959.25 per month for 101 months plus a final payment of $1,576.04.
(Attachment 2 to Exhibit A of Stupar Decl.) Loring made the first payment but no further
payments. (Stupar Decl. at 3.) This first payment was not a contribution to IPF, but rather a
payment of withdrawal liability. 29 U.S.C. § 1392(b).
Defendant noted a desire to engage in arbitration with Plaintiffs as allowed under ERISA.
(Stupar Decl. at 4.) Plaintiffs stated at the hearing that Defendant has taken no action to pursue
arbitration after expressing this desire. Even if Defendant were to initiate arbitration
proceedings, it would still be responsible for complying with the payment schedule for
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withdrawal liability until the arbitrator issued a final opinion. (Withdrawal Liability Procedures
of IPF [11-1] at III.F.)
Plaintiffs’ suit seeks damages for eleven payments following the one paid by Defendant,
totaling $32,551.75. Plaintiffs seek $2,097.87 in interest, as provided in 29 U.S.C. §
1132(g)(2)(C)(i), calculated at 15 percent per annum, the rate established in the General
Collection Procedures of the Central Collection Unit of the Bricklayers and Allied Craftworkers.
(Attachment 3 to Exhibit A of Stupar Decl. at 23.) Finally, Plaintiffs seek liquidated damages of
20% of the delinquent amount, pursuant to 29 U.S.C. §1132(g)(2)(C)(ii) and established in the
same General Collection Procedures. Plaintiffs request $6,510.35 in liquidated damages. (Id.)
The total sought is $41,159.97.
The Clerk of Court’s Entry of Default as to Defendant established Defendant’s liability.
Defendant offered no evidence prior to or at the evidentiary hearing disputing the sum to be
awarded and Plaintiffs offered sufficient evidence in support of their request.
III. CONCLUSION
For the foregoing reasons, the Court grants Plaintiffs’ Amended Motion for Default
Judgment [11], awards damages totaling $41,159.97.
A separate Order of judgment will accompany this Opinion.
Date: May 4, 2012 /s/
ALAN KAY
UNITED STATES MAGISTRATE JUDGE
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