Fanning v. Warner Center, L.P.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
MICHAEL R. FANNING, )
as Chief Executive Officer of the Central )
Pension Fund of the International Union of )
Operating Engineers and Participating )
Employers, )
)
Plaintiff, ) Civil Action No. 13-1367 (ESH)
)
v. )
)
WARNER CENTER, L.P., )
)
Defendant. )
_________________________________________ )
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 audit fee and attorneys’ fees and costs. (Id. ¶ 20.) In
addition, as defendant has failed to submit remittance reports since March 2012, plaintiff seeks
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Plaintiff is “a designated fiduciary in accordance with the [Agreement] and as defined in
Section 3(21) of ERISA, 29 U.S.C. § 1002(21).” (Am. Compl. ¶ 1.)
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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 pursuant to Federal Rule of Civil Procedure
55(b)(2).2 To date, defendant has failed to answer or otherwise defend this action.
ANALYSIS
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., No. 99-3044, 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 satisfied.3 Id.2
Federal Rule of Civil Procedure 55 specifies a two-step process for a party seeking to obtain a
default judgment. First, the plaintiff must request that the Clerk of the Court enter a default
against the party who has “failed to plead or otherwise defend” against an action. Fed. R. Civ. P.
55(a). Second, if the plaintiff's claim is not for a “sum certain,” the party must apply to the court
for an entry of default judgment. Fed. R. Civ. P. 55(b)(2).
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The Court has subject matter jurisdiction pursuant to 29 U.S.C. §§ 1132(a)(3), (g), 1145, and
personal jurisdiction over the defendant pursuant to 29 U.S.C. § 1132(e)(2). Venue is proper
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Although the default establishes a defendant’s liability for the well-pleaded allegations of
the complaint, 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 plaintiffs: (A) the
unpaid contributions; (B) 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. 2002).
Plaintiff has filed the declarations of Michael R. Fanning, on behalf of the Central
Pension Fund, and R. Richard Hopp, plaintiff’s attorney, in support of the motion for default
judgment. Based on these declarations, the Court finds that plaintiff has established that
defendant owes $2,200.00 for the unpaid auditor’s fee and $2,075.00 in attorney’s fees and costs.
(Fanning Decl. ¶¶ 15-16; Hopp Decl. ¶¶ 4-5.)
In addition, plaintiff is entitled to the requested injunctive relief. (Am. Compl., Prayer
for Relief.) “Equitable relief in this context includes ‘an injunction requiring a defendant to
permit, and cooperate with, an audit of its books and records.’” Int’l Painters & Allied Trades
Indus. Pension Fund v. ZAK Architectural Metal & Glass LLC, 635 F. Supp. 2d 21, 26 (D.D.C.
2009) (quoting Flynn v. Mastro Masonry Contractors, 237 F. Supp. 2d at 70 (D.D.C. 2002)).
Here, equitable relief is warranted because defendant “has demonstrated no willingness to
pursuant to 29 U.S.C. § 1132(e)(2).
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comply with either its contractual or statutory obligations or to participate in the judicial
process.” Id. (internal quotations omitted).
CONCLUSION
Accordingly, and for the reasons stated above, judgment will be entered for the Central
Pension Fund in the amount of $4,275.00 and defendant will be ordered to comply with
plaintiff’s request for an audit of the time period from January 2012 to the present, and to remit
any outstanding contributions discovered as a result of that audit, and pay any late charges,
interest and liquidated damages consistent with this Memorandum Opinion as well as the cost of
the audit. A separate Order and Judgment accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: November 26, 2013
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