Service Employees International Union National Industry Pension Fund v. Metro Man I, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SERVICE EMPLOYEES INTERNA-
TIONAL UNION NATIONAL INDUSTRY
PENSION FUND et al.,
Plaintiffs,
Civil Action No. 22-748 (TJK)
v.
METRO MAN I, INC. d/b/a WESTWOOD
NURSING CENTER,
Defendant.
MEMORANDUM OPINION
Plaintiffs, a pension fund and its board of trustees, sued Defendant, a nursing center, for its
failure to make certain contributions into the pension fund and to provide it certain remittance
reports under the governing collective bargaining agreements, the fund’s collection policy and
trust agreement, and the Employee Retirement Income Security Act of 1974. To date, Defendant
has failed to answer or otherwise defend this action. Thus, Plaintiffs move for default judgment
and ask the Court to award damages for Defendant’s delinquent contributions plus interest, liqui-
dated damages, attorney’s fees and costs, and injunctive relief. For the below reasons, the Court
will grant the motion for default judgment and award most of the relief requested.
Background
Plaintiff Service Employees International Union (“SEIU”) National Industry Pension Fund
is a multiemployer employee benefit plan within the meaning of the Employee Retirement Income
Security Act (“ERISA”). ECF No. 1 (“Compl.”) ¶ 4 (citing 29 U.S.C. § 1002(37)(A)). The pen-
sion fund is administered by its board of trustees—the other named plaintiff—a designated fiduci-
ary of the pension fund as defined under ERISA. Id. ¶ 6 (citing 29 U.S.C. § 1002(21)(A)). De-
fendant Metro Man I, Inc., which does business as Westwood Nursing Center (“Westwood”), is a
participating employer in the pension fund and an “employer” as defined under ERISA. Id. ¶¶ 7–8
(citing 29 U.S.C. § 1002(5), (9), (11), (12)); ECF No. 10-2 at 2.
In 2016 and 2019, Westwood (and SEIU Healthcare Michigan) entered into collective bar-
gaining agreements (“CBAs”), obligating Westwood to contribute $.40 per hour to the pension
fund on behalf of covered employees. See ECF No. 10-2 at 2, 21, 53; Compl. ¶ 8. Through the
CBAs, Westwood was bound by the pension fund’s Amended and Restated Agreement and Dec-
laration of Trust (the “trust agreement”). Compl. ¶ 10. The trust agreement gave the board of
trustees the power to establish procedures, rules, and regulations necessary to carry out the opera-
tion of the pension fund. ECF No. 10-2 at 3. With that power, the board of trustees adopted the
Statement of Policy for Collection of Delinquent Contributions (the “collection policy”). Id. at 3,
85–94; Compl. ¶ 9. The collection policy mandates that participating employers must pay contri-
butions and submit supporting remittance reports to the pension fund by the 15th day of the month
after the month in which the work was performed. ECF No. 10-2 at 3, 86–87; Compl. ¶ 9. The
collection policy further provides that unpaid or untimely contribution payments are subject to
interest calculated at a rate of 10% per year and compounded monthly from the date the payment
is due until it is paid. ECF No. 10-2 at 92. And if the pension fund pursues litigation to collect
delinquent amounts, the participating employer must also pay liquidated damages in the greater of
the amount of the interest due or 20% of the principal amount due. Id.Beyond paying base contributions and submitting supporting remittance reports, partici-
pating employers like Westwood must also pay supplemental contributions under Plaintiffs’ reha-
bilitation plan. Since 2009, the pension fund’s actuary has certified the pension fund as in “critical
2
status.” Compl. ¶ 16; ECF No. 10-2 at 2, 67. Under the Pension Protection Act of 2006, this status
entitled the board of trustees to adopt its rehabilitation plan to “enable the plan to cease to be in
critical status by the end of the plan’s rehabilitation period.” ECF No. 10-2 at 2, 67; Compl.
¶¶ 15–18 (citing 29 U.S.C. § 1085(e)(3)). Under the rehabilitation plan, which was in effect during
the times relevant to this litigation, participating employers could choose from two supplemental-
contribution options, the default or preferred schedule. Compl. ¶ 18; ECF No. 10-2 at 68, 72–75.
In 2012, Westwood elected the preferred schedule and agreed that its provisions would be “auto-
matically” adopted in all future contracts. ECF No. 10-2 at 2, 83; Compl. ¶ 20. Under that sched-
ule, Westwood was required to pay supplemental contributions of 132% of the base contributions
for May 2020 through April 2021, 150% for May 2021 through April 2022, and 169% for May
2022 and afterward. ECF No. 10-2 at 2; Compl. ¶ 20.
In March 2022, Plaintiffs sued Westwood for delinquent contribution payments and un-
submitted remittance reports in violation of the CBAs, the rehabilitation plan, the collection policy,
and ERISA. See Compl. As for contributions, the complaint alleged, Westwood entirely failed to
pay contributions owed to the pension fund for April, June, October, and December 2020, and
April 2021 through August 2022. Id. ¶¶ 24, 26; ECF No, 10-2 at 3, 96. And although Westwood
ultimately paid contributions owed for May, July through September, and November 2020, and
January through March 2021, it failed to make those payments on time. Compl. ¶ 25; ECF
No. 10-2 at 3, 96. As for remittance reports, Westwood allegedly failed to provide such reports
for June and October 2020 and April 2021 through August 2022. Compl. ¶ 26; ECF No. 10-2 at
3.
Westwood did not respond to Plaintiffs’ complaint, so Plaintiffs requested an entry of de-
fault, which the Clerk of Court entered. See ECF Nos. 6, 8. In September 2022, Plaintiffs moved
3
for a default judgment seeking an order for: (1) monetary damages of $72,408.84 in unpaid con-
tributions, $8,192.59 in interest through September 15, 2022, $14,481.77 in liquidated damages,
$11,440.80 in attorney’s fees and costs, and an additional $20.39 in interest per day from Septem-
ber 15, 2022, through the date of judgment; (2) an injunction requiring Westwood to provide all
remittance reports not previously submitted; and (3) an injunction requiring Westwood to comply
with its obligation to pay contributions to the pension fund for hours worked by covered employees
for months after August 2022. ECF No. 10 at 1; ECF No. 10-1 at 9; ECF No. 10-4.
Legal Standard
“A court has the power to enter default judgment when a defendant fails to defend its case
appropriately or otherwise engages in dilatory tactics.” Boland v. Elite Terrazzo Flooring, Inc.,
763 F. Supp. 2d 64, 66–67 (D.D.C. 2011) (citing Keegel v. Key W. & Caribbean Trading Co., 627
F.2d 372, 375 n.5 (D.C. Cir. 1980)). But “[b]ecause courts strongly favor resolution of disputes
on their merits,” a default judgment “usually is available ‘only when the adversary process has
been halted because of an essentially unresponsive party.’” Id. at 67 (quoting Jackson v. Beech,
636 F.2d 831, 836 (D.C. Cir. 1980)).
Federal Rule of Civil Procedure 55 provides a “two-step procedure” for obtaining a default
judgment. Ventura v. L.A. Howard Constr. Co., 134 F. Supp. 3d 99, 102 (D.D.C. 2015). First,
after a defendant “has failed to plead or otherwise defend,” the plaintiff may request that the Clerk
of the Court enter default against that defendant. Fed. R. Civ. P. 55(a). Second, after default is
entered, the plaintiff may move for a default judgment. Fed. R. Civ. P. 55(b)(2). “By providing
for a two-step process, Rule 55 allows the defendant the opportunity to move the court to set aside
the default before the court enters default judgment.” Int’l Painters & Allied Trades Indus. Pen-
sion Fund v. Zak Architectural Metal & Glass, LLC, 635 F. Supp. 2d 21, 23 n.1 (D.D.C. 2009);
see also Fed. R. Civ. P. 55(c).
4
An entry of default “establishes the defaulting party’s liability for the well-pleaded allega-
tions of the complaint.” Elite Terrazzo, 763 F. Supp. 2d at 67 (collecting cases). But this “does
not automatically establish liability in the amount claimed by the plaintiff.” Carazani v. Zegarra,
972 F. Supp. 2d 1, 12 (D.D.C. 2013). Rather, “the court is required to make an independent de-
termination of the sum to be awarded,” and it is afforded “considerable latitude” in making that
determination. Pescatore v. Palmera Pineda, 345 F. Supp. 3d 68, 70 (D.D.C. 2018) (citations
omitted). A plaintiff moving for default judgment must therefore prove to the Court the requested
damages “to a reasonable certainty.” Elite Terrazzo, 763 F. Supp. 2d at 68. In support, the plaintiff
may offer “detailed affidavits or documentary evidence” on which the Court may rely and is “en-
titled to all reasonable inferences from the evidence offered.” Int’l Painters & Allied Trades Indus.
Pension Fund v. R.W. Amrine Drywall Co., 239 F. Supp. 2d 26, 30 (D.D.C. 2002). The Court may
conduct a hearing to determine damages, Fed. R. Civ. P. 55(b)(2), but need not do so “as long as
it ensure[s] that there [is] a basis for the damages specified in the default judgment,” Elite Terrazzo,
763 F. Supp. 2d at 67 (alterations in original) (internal quotation marks omitted).
Analysis
As explained below, the Court will grant the motion for default judgment and award most
of the relief requested. First, it finds it has personal jurisdiction over Westwood. Second, it finds
that Plaintiffs have adequately alleged their claims for liability. Third, it will award monetary
damages, interest, liquidated damages, and attorney’s fees and costs. Fourth, the Court will order
Westwood to submit unsubmitted remittance reports but decline to order it to timely pay future
contribution payments.
A. Personal Jurisdiction
“[A] court should satisfy itself that it has personal jurisdiction before entering judgment
against an absent defendant.” Safex Found., Inc. v. Safeth, Ltd., 538 F. Supp. 3d 1, 7 (D.D.C.
5
2021) (cleaned up). An ERISA action may be brought “in the district where the plan is adminis-
tered, where the breach took place, or where a defendant resides or may be found, and process may
be served in any other district where a defendant resides or may be found.” 29 U.S.C. § 1132(e)(2).
“ERISA’s venue provision has been interpreted to authorize nationwide service of process.” Maz-
zarino v. Prudential Ins. Co. of Am., 955 F. Supp. 2d 24, 28 (D.D.C. 2013) (quotation omitted).
When a statute allows for nationwide service of process, “minimum contacts with the United States
suffice” for a court to exercise personal jurisdiction over a defendant. Id. (citing SEC v. Bilzerian,
378 F.3d 1100, 1106 n.8 (D.C. Cir. 2004)).
The Court has personal jurisdiction over Westwood. Plaintiffs sued in this District, where
the pension fund is administered. Compl. ¶¶ 3, 5; 29 U.S.C. § 1132(e)(2). And Plaintiffs served
Westwood (through its chief financial officer) in the district where it resides, as the Federal Rules
permit. See Compl. ¶ 7; ECF No. 5 at 1; Fed. R. Civ. P. 4(h)(1)(B) (permitting service on a cor-
poration through “an officer, a managing or general agent, or any other agent authorized by ap-
pointment or by law to receive service of process”). And as a corporation residing and operating
a nursing and rehabilitation facility in the state of Michigan, Compl. ¶ 7, Westwood has sufficient
“minimum contacts with the United States” to give rise to personal jurisdiction in this Court, see
Mazzarino, 955 F. Supp. 2d at 28; see also, e.g., Bricklayers & Trowel Trades Int’l Pension Fund
v. Kel-Tech Constr., Inc., 319 F. Supp. 3d 330, 340 (D.D.C. 2018).
B. Liability
Next, the Court finds that Westwood is “a totally unresponsive” party. See SEIU Indus.
Pension Fund v. Liberty House Nursing Home of Jersey City, Inc., 232 F. Supp. 3d 69, 76 (D.D.C.
2017); Elite Terrazzo, 763 F. Supp. 2d at 67–68. Westwood was served in May 2022 and, since
then, has failed to respond to the complaint, move to set aside the default entered by the Clerk,
oppose Plaintiffs’ motion for default judgment, or otherwise defended this action. See ECF
6
Nos. 5, 8. Westwood is thus liable for the well-pleaded allegations in the complaint. Elite Ter-
razzo, 763 F. Supp. 2d at 67; see also, e.g., Bricklayers & Trowel Trades Int’l Pension Fund v.
KAFKA Constr., Inc., 273 F. Supp. 3d 177, 180 (D.D.C. 2017). Upon review of Plaintiffs’ factual
allegations and the relevant law, the Court concludes that Plaintiffs’ allegations are, in fact, well-
pleaded, and will enter default judgment for Plaintiffs as to Westwood’s unpaid and untimely con-
tributions.
Westwood is liable for those contributions it failed to pay. “ERISA requires employers to
make contributions to multiemployer plans ‘in accordance with the terms and conditions of’ the
relevant collective-bargaining agreements.” Boland v. Smith & Rogers Constr. Ltd., 201
F. Supp. 3d 144, 147–48 (D.D.C. 2016) (quoting 29 U.S.C. § 1145). Further, “[a]ny failure to
make a contribution under a [rehabilitation plan] schedule of contribution rates provided under [29
U.S.C. § 1085(e)] shall be treated as a delinquent contribution under section 1145 of this title and
shall be enforceable as such.” 29 U.S.C. § 1085(e)(3)(C)(iv). Here, Plaintiffs alleged that West-
wood entered into CBAs that required it to contribute base contributions of $.40 per hour to the
pension fund for covered employees. See ECF No. 10-2 at 2, 21, 53; Compl. ¶ 8. And Plaintiffs
alleged that Westwood accepted the rehabilitation plan’s preferred schedule, which Westwood
agreed would “automatically” apply to future contracts. ECF No. 10-2 at 2, 83; Compl. ¶ 20.
Under that preferred schedule, Westwood was required to pay supplemental contributions above
the base amounts. ECF No. 10-2 at 2, 74–75, 83; Compl. ¶ 20. Plaintiffs alleged that Westwood
failed to remit base and supplemental contributions as required for April, June, October, and De-
cember 2020, and April 2021 through August 2022, as required by the CBAs. See Compl. ¶¶ 24,
26–27; ECF No. 10-2 at 96.
7
Along with unpaid contributions, Westwood is liable for its untimely contributions. To be
sure, “ERISA provides for interest and liquidated damages only on contributions that are unpaid,
not contributions that are made late but paid before suit is brought.” Kel-Tech, 319 F. Supp. 3d at
342. But the collection policy here, which binds Westwood,1 establishes liability for interest and
liquidated damages on late contribution payments. See Compl. ¶ 13; ECF No. 10-2 at 87–88, 96.
To that end, Plaintiffs have adequately alleged that Westwood is liable for interest and liquidated
damages on late payments made for May, July through September, and November 2020, and Jan-
uary through March 2021. Compl. ¶ 25; ECF No. 10-2 at 96.
For these reasons, Plaintiffs have adequately pleaded a claim under ERISA, the CBAs, the
rehabilitation plan, and the collection policy for unpaid and untimely contributions, and the Court
will enter default judgment for Plaintiffs as to those contributions.
C. Monetary Damages
“In cases where ‘a court awards a default judgment against a defendant for contributions
owed under a collective bargaining agreement,’ such as this one, Section 502(g)(2) of ‘ERISA
provides that the court may award: (1) the unpaid contributions; (2) interest on the unpaid contri-
butions; (3) liquidated damages; and (4) reasonable attorney’s fees and costs of the action.’” Kel-
Tech, 319 F. Supp. 3d at 343–44 (quotation omitted); see also 29 U.S.C. § 1132(g)(2)(A)–(D).
The Court addresses each in turn.
1
The board of trustees adopted the collection policy pursuant to its authority under the trust
agreement. Compl. ¶ 9; ECF No. 10-2 at 3. The trust agreement binds employers “upon the sign-
ing of a collective bargaining agreement or participation agreement, or upon remitting contribu-
tions to the Fund,” and such employers are also bound “to all rules and regulations adopted by the
Trustees” (like the collection policy). Compl. ¶ 10. Westwood, which has entered CBAs and
remitted contributions to the pension fund, is thus bound by the trust agreement and the resulting
collection policy. See Compl. ¶ 8; ECF No. 10-2 at 5–80, 96.
8
First, the Court finds that Plaintiffs have, to a reasonable certainty, proven that Westwood
owes $72,520.23 in unpaid contributions. See Elite Terrazzo, 763 F. Supp. 2d at 687. To support
their request for unpaid contributions, Plaintiffs submitted the declaration of Yolanda Montgom-
ery, the pension fund’s Assistant Executive Director and Counsel. ECF No. 10-2 at 1, 3; see R.W.
Amrine, 239 F. Supp. 2d at 30 (“[C]ourt[s] may rely on detailed affidavits or documentary evidence
to determine the appropriate sum for the default judgment.”). Montgomery attached to her decla-
ration a spreadsheet, prepared by pension-fund contract technicians, detailing the contribution
amounts owed by Westwood for the relevant months. ECF No. 10-2 at 3, 95–96. To make the
spreadsheet, the contractors pulled data from the pension fund’s electronic database that contains
the hours reported, amounts received, and amounts due for Westwood between April 2020 and
August 2022. Id. at 3. For June and October 2020 and April 2021 through August 2022, West-
wood did not provide required remittance reports that would have allowed the pension fund to
calculate the accurate amounts owed. See ECF No. 10-1 at 9; ECF No. 10-2 at 3; ECF No. 10-4
¶ 3. The report therefore estimates the amounts owed for those months based on the hours reported
in the previous month. ECF No. 10-2 at 3, 96; see also ECF No. 10-2 at 88 (The collection policy
expressly permits the board of trustees to estimate unpaid contributions based on “the most recent
remittance report submitted to the Fund.”). The Court approves of this calculation as a reasonable
way to estimate the amounts of those unpaid contributions. See Int’l Painters & Allied Trades
9
Indus. Pension Fund v. LaSalle Glass & Mirror Co., 267 F.R.D. 430, 434 (D.D.C. 2010) (collect-
ing cases). The sum of the certain and estimated unpaid contributions is $72,520.23, which the
Court will award in monetary damages.2
Second, the Court finds that Plaintiffs have adequately proven the interest that has accrued
on Westwood’s unpaid and untimely contributions. See 29 U.S.C. § 1132(g)(2)(B). ERISA pro-
vides that “interest on unpaid contributions shall be determined by using the rate provided under
the plan, or, if none, the rate prescribed under [26 U.S.C. § 6621].” 29 U.S.C. § 1132(g). Here,
the pension fund’s collection policy, which, as the Court has noted, binds Westwood, calculates
interest at a rate of 10% per year, from the date the payment is due to the date paid. ECF No. 10-2
at 92. The Court will also award Plaintiffs interest on Westwood’s late contributions, per the
collection policy. See Compl. ¶ 13; ECF No. 10-2 at 87–88, 96. Montgomery’s declaration details
the interest Westwood owes for: unpaid contributions for April, June, October, and December
2020, and April 2021 through August 2022; and late payments for May, July through September,
and November 2020, and January through March 2021. ECF No. 10-2 at 96. The total of that
interest, Plaintiffs calculate, is $8,192.59. Id. at 4, 96; ECF No. 10-1 at 7. As the Court finds this
amount reasonably certain, the Court will award Plaintiffs interest of $8,192.59. See Elite Ter-
razzo, 763 F. Supp. 2d at 687. Plaintiffs also seek daily interest from September 15, 2022, through
the date of the Court’s judgment (i.e., prejudgment interest), which Plaintiffs arrived at by calcu-
lating “10% of the total contributions due divided by 365.” ECF No. 10-1 at 7; ECF No. 10-2 at 4.
2
Plaintiffs request, and Montgomery represents, that Westwood owes them a little less:
$72,408.84. And indeed, that is the sum reflected at the bottom of the “Contribution Overpay-
ment/Underpayment” column in the spreadsheet attached to Montgomery’s declaration. ECF
No. 10 at 1; ECF No. 10-2 at 3, 96. But that sum appears to result from a math error. According
to the Court’s own calculations adding together the various amounts listed in the column, the cor-
rect total is $72,520.23, and so it will award that amount. See ECF No. 10-2 at 96.
10
Thus, the Court calculates prejudgment interest at $19.87 per day.3 Three hundred and seven days
have passed since September 15, 2022, so the Court will award an additional $6,100.09 in interest.
Third, Plaintiffs have adequately supported their request for liquidated damages on the un-
paid contributions. ERISA entitles Plaintiffs to a liquidated damages award of “an amount equal
to the greater of—(i) interest on the unpaid contributions, or (ii) liquidated damages provided for
under the plan in an amount not in excess of 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).” 29 U.S.C. § 1132(g)(2)(C); see also ECF No. 10-2 at 88. Twenty percent of the total unpaid
contributions of $72,520.23 is $14,504.05, which would be greater than a second award of inter-
est.4 See Kel-Tech, 319 F. Supp. 3d at 344 (citing U.S.C. § 1132(g)(2)(C)); ECF No. 10-2 at 4;
ECF No. 10-1 at 7. Thus, the Court will award Plaintiffs liquidated damages of $14,504.05.5
3
Plaintiffs request prejudgment interest at the slightly higher rate of $20.39 per day, alt-
hough they do not explain, and the Court cannot determine, how they arrived at that number. ECF
No. 10-1 at 7. As previously explained, the Court calculates the “total contributions due” as
$72,520.23. And ten percent of that sum divided by 365 is $19.87. The difference is not explained
by Plaintiffs’ slightly different calculation of the total contributions due, because that sum—
$72,408.84—yields a rate of $19.84 per day.
4
Plaintiffs request a little less in liquidated damages: $14,481.77. ECF No. 10 at 1; ECF
No. 10-1 at 7. But again, the Court has found that the sum of unpaid contributions is $72,520.23
and so calculates liquidated damages as twenty percent of that figure. In this instance, the differ-
ence between Plaintiffs’ request and the Court’s award is directly attributable to the slight differ-
ence in unpaid contributions calculated.
5
Plaintiffs also allege in the complaint that Westwood “owes . . . liquidated damages on
th[e] late payments” from May, July through September, November 2020, and January through
March 2021. Compl. ¶ 25 (emphasis added); see also id. ¶ 13(b). But Plaintiffs do not appear to
seek a separate award of liquidated damages for these late payments in their motion for default
judgment or the supporting memorandum, Montgomery declaration, or proposed order. See ECF
No. 10 at 1; ECF No. 10-1 at 7; ECF No. 10-2 at 4; ECF No. 10-4 ¶ 12. Thus, the Court cannot
determine them to a reasonable certainty, and so it will not award any liquidated damages for
Westwood’s late payments. See, e.g., Kel-Tech, 319 F. Supp. 3d at 344 (Where the “Plans have
not calculated their damages . . . they have failed to show the amount of interest and liquidated
damages due ‘to a reasonable certainty’ on the current record.”).
11
Fourth, the Court finds that Plaintiffs’ requests for attorney’s fees and costs are both sup-
ported and reasonable. ERISA itself provides that in cases like this one, the Court must award
“reasonable attorney’s fees and costs of the action, to be paid by the defendant.” 29 U.S.C.
§ 1132(g)(2)(D). Moreover, the CBAs here provide that “[i]n the event the employer does not
remit to the Union the dues deducted from the employee’s paychecks as required under this Agree-
ment the Employer shall reimburse the union for all legal and/or other costs incurred by the Union
in collecting such money.” See ECF No. 10-2 at 8, 38. Plaintiffs therefore request $10,708.50 in
attorney’s fees and $732.30 in costs, for a total of $11,440.80. ECF No. 10-3 at 2–3. To establish
these amounts, Plaintiffs provide the declaration of Kathleen Keller, an attorney from the law firm
that represents the pension fund. ECF No. 10-3. Keller attached to her declaration a spreadsheet
outlining the number of hours worked by the law firm’s attorneys and paralegals with a description
of the work performed, the rates charged, and the timekeepers’ identities. See id. at 5–9 (charging
hourly rates of $300 for senior attorneys, $200 for junior attorneys, and $135 for paralegals). Plain-
tiffs’ request for $10,708.50 in attorney’s fees, which accounts for 32.6 hours of attorney work and
25.1 hours of paralegal work, is reasonable. See id. at 3; see also, e.g., Smith & Rogers, 201
F. Supp. 3d at 149 (finding attorney’s fees reasonable based on hourly rates as high as $615 for
the plaintiff’s attorney and $170 for the assigned paralegal). The request for $732.30 in costs,
which covers research, filing, and service expenses, is also reasonable. See ECF No. 10-3 at 3, 8.
Thus, the Court will award attorney’s fees and costs of $11,440.80.
In sum, the Court will award Plaintiffs the following monetary damages: (1) $72,520.23 in
unpaid contributions; (2) $8,192.59 in interest plus prejudgment interest of $6,100.09;
(3) $14,504.05 in liquidated damages; and (4) $11,440.80 in attorney’s fees and costs.
12
D. Injunctive Relief
Plaintiffs also ask the Court for an injunction requiring Westwood (1) to turn over to the
pension fund all remittance reports for hours worked by covered employees for the months not
previously submitted: June and October 2020 and April 2021 through August 2022; and (2) “to
comply with its ongoing obligation to pay the [pension fund] timely contributions for hours worked
by covered employees for months after August 2022.” ECF No. 10 at 1; see also ECF No. 10-1 at
9; ECF No. 10-4. The Court will enter an injunction granting the first request but not the second.
A “party seeking a permanent injunction must show the following: (1) that it has suffered
an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate
to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted; and (4) that the public interest would not be dis-
served by a permanent injunction.” SEIU Nat’l Indus. Pension Fund v. Hebrew Homes Health
Network, Inc., No. 17-cv-1215 (TNM), 2019 WL 4346325, at *19 (D.D.C. Sept. 12, 2019) (quot-
ing Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau, 785 F.3d 684, 694 (D.C. Cir. 2015)).
Plaintiffs are entitled to their first request, for an order that Westwood submit to the pension
fund previously unsubmitted remittance reports. Trustees of benefit plans have “the right to review
the records of employers contributing to such plans” under ERISA. Int’l Painters & Allied Trades
Indus. Pension Fund v. Exec. Painting, Inc., 719 F. Supp. 2d 45, 53 (D.D.C. 2010). And ERISA
authorizes courts to grant “such other legal or equitable relief as the court deems appropriate.” 29
U.S.C. § 1132(g)(2)(E). In addition, the collection policy here required Westwood to submit re-
mittance reports—detailing covered hours worked or owed, contributions owed, and contributions
paid—on the 15th of the month following the month in which the hours are worked. ECF No. 10-2
at 3, 86–87; Compl. ¶ 21. Courts regularly find injunctive relief appropriate when, in circum-
13
stances like these, “the defendant has demonstrated no willingness to comply with either its con-
tractual or statutory obligations or to participate in the judicial process.” Hebrew Homes, 2019
WL 4346325, at *19; see, e.g., Exec. Painting, 719 F. Supp. 2d at 53 (“Because the defendant has
not complied with the CBAs or ERISA and has remained unresponsive throughout the judicial
process, the court grants the plaintiffs’ request for injunctive relief” and orders the defendant to
“complete and file all outstanding remittance reports.”); Fanning v. AMF Mech. Corp.,
326 F.R.D 11, 16 (D.D.C. 2018) (similar). Because Westwood has failed to provide remittance
reports for June and October 2020 and April 2021 through August 2022, and has otherwise been
unresponsive throughout this case, the Court finds it appropriate to require Westwood to submit
those outstanding remittance reports, which are necessary for the pension fund to ensure that the
accurate contributions are paid. See Compl. ¶¶ 26–27; ECF No. 10-2 at 3.
For Plaintiffs’ second request—for an injunction ordering Westwood to comply with its
ongoing obligations to make timely contribution payments—Plaintiffs have failed to establish an
irreparable injury. See ECF No. 10 at 1. When a “monetary judgment might serve to alter the
defendant’s conduct as effectively as a permanent injunction would,” an injunction may be “un-
necessary.” Kel-Tech, 319 F. Supp. 3d at 347. Thus, substantial but recoverable economic loss
“alone will rarely constitute irreparable harm . . . because economic injuries are generally repara-
ble with monetary damages in the ordinary course of litigation.” Hebrew Homes,
2019 WL 4346325, at *19 (citations and internal quotation marks omitted); id. at *20 (“[T]his
reasoning is especially applicable [where] the claims at issue arise under a statutory framework
that provides for penalties and attorney’s fees” and protects funds from collection expenses.”). To
establish irreparable injury to support an injunction, plaintiffs must instead go beyond economic
14
loss to show, for example, that such loss “threaten[s] the . . . very existence” of the movant’s busi-
ness. Kel-Tech, 319 F. Supp. 3d at 346 (citations omitted) (suggesting also that the risk of com-
promising “the actuarial soundness of the fund” or a defendant’s “‘precarious financial condition’
[that] le[aves] the plan unlikely to recover its losses” could support an injunction for timely con-
tributions).
Plaintiffs are not entitled to their second request because they have not shown that they will
suffer irreparable injury or that the monetary damages for any future violations would be inade-
quate. See Hebrew Homes, 2019 WL 4346325, at *19; see also Morgan Drexen, Inc., 785 F.3d at
694 (“Failing to satisfy any factor [required for a permanent injunction] is grounds for denying
relief.”). Plaintiffs do not claim, and the record does not reflect, that they will suffer any loss on
top of the type of economic loss that the Court is able to redress through its award of monetary
damages. For example, they do not claim that any future unpaid contributions by Westwood would
“threaten the . . . very existence” of the pension fund. See Kel-Tech, 319 F. Supp. 3d at 346.
Therefore, the Court will grant an injunction requiring Westwood to submit to the pension
fund the missing remittance reports for June and October 2020 and April 2021 through August
2022, but it will deny the request for an injunction requiring Westwood to timely remit future
contribution payments.
Conclusion
For all the above reasons, the Court will grant Plaintiffs’ motion for default judgment and
award monetary damages and an injunction requiring Westwood to provide the pension fund re-
mittance reports for June and October 2020 and April 2021 through August 2022. The Court will
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deny the motion to the extent that it seeks an injunction requiring Westwood to make timely pay-
ments to the pension fund in the future. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: July 19, 2023
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