MC-UA Local 119 Health and Welfare Fund et al v. HLH Constructors, Inc.
ORDER granting in part and denying in part 9 Motion for Default Judgment. Default judgment will be entered in favor of plaintiffs and against defendant in the total amount of $60,541.40. Signed by Chief Judge William H. Steele on 11/9/2011. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MC-UA LOCAL 119 HEALTH and
WELFARE FUND, et al.,
HLH CONSTRUCTORS, INC.,
CIVIL ACTION 11-0241-WS-M
This matter comes before the Court on plaintiffs’ Motion for Default Judgment (doc. 9),
as well as their Supplemental Brief in Support of Motion for Default Judgment (doc. 15). The
Motion is ripe for disposition.
This action for payment of employer contributions to certain benefit plans and remittance
of union wage deductions was initiated by a host of plaintiffs, including the MC-UA Local 119
Health and Welfare Fund (the “Welfare Fund”), the MC-UA Local 119 Pension Plan (the
“Pension Plan”), the Joint Apprenticeship Training Fund (the “JAT Fund”), various trustees of
such plans, and the United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, Local 119 (“Local 119”). On May 11,
2011, these defendants collectively filed suit against defendant, HLH Constructors, Inc., alleging
that HLH was in violation of the plans’ documents, the Employee Retirement Income Security
Act, and the applicable collective bargaining agreement by failing to make required payments.
The well-pleaded factual allegations in the Complaint included the following: (i) in a
collective bargaining agreement whose effective dates were July 23, 2008 through June 22, 2011,
HLH agreed to make contributions to the Welfare Fund, the Pension Plan and the JATC Plan,
and to remit certain deductions from employee wages to Local 119; (ii) HLH has failed to make
timely contributions to the benefit plans since July 2010 (excluding the period of September
through December 2010 for the Pension Plan and Welfare Fund), and is delinquent in such
contributions; (iii) HLH has likewise failed to remit authorized working assessment and other
deductions (which it withheld from employees’ wages) to Local 119 since July 2010, instead
converting those funds to its own use; and (iv) such conduct breaches the terms of the collective
bargaining agreement and plan documents. (Doc. 1, ¶¶ 15-21.) On the strength of these
allegations, the Complaint asserts causes of action against HLH for violation of 29 U.S.C.
§§ 1145 and 185(a), and requests declaratory and injunctive relief, as well as a money judgment
for the delinquency amount, interest and liquidated damages (plus reasonable attorney’s fees and
The record shows that plaintiffs timely served process on HLH on or about May 16,
2011. (See doc. 4.) Notwithstanding service, however, HLH neither appeared nor otherwise
undertook to defend against plaintiffs’ claims in this action. On that basis, a Clerk’s Entry of
Default (doc. 8) was entered against HLH pursuant to Rule 55(a), Fed.R.Civ.P., on August 15,
2011.1 Thereafter, plaintiffs filed a Motion for Default Judgment, and (after a court-authorized
opportunity to supplement the record) submitted supporting affidavits and exhibits to prove up
the monetary award sought.
Entry of Default Judgment is Appropriate.
In this Circuit, “there is a strong policy of determining cases on their merits and we
therefore view defaults with disfavor.” In re Worldwide Web Systems, Inc., 328 F.3d 1291, 1295
(11th Cir. 2003); see also Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. and Canada,
674 F.2d 1365, 1369 (11th Cir. 1982) (“Since this case involves a default judgment there must be
strict compliance with the legal prerequisites establishing the court’s power to render the
judgment.”). Nonetheless, it is well established that a “district court has the authority to enter
default judgment for failure … to comply with its orders or rules of procedure.” Wahl v. McIver,
773 F.2d 1169, 1174 (11th Cir. 1985).
The Clerk’s Office mailed a copy of the August 15 Clerk’s Entry of Default to
defendant. Additionally, Certificates of Service appended to plaintiffs’ filings reflect that
plaintiffs served copies of both their Motion for Default Judgment and their Supplemental Brief
in support of that Motion on HLH via U.S. mail. Despite unequivocal, repeated notice of these
ongoing default proceedings, HLH chose to refrain from taking any action to defend its interests
in this case. Accordingly, the Court concludes that no further notice or invitation to defendant is
warranted prior to entry of default judgment.
Where, as here, a defendant has failed to appear or otherwise acknowledge the pendency
of a lawsuit for more than five months after being served, entry of default judgment is
appropriate. Indeed, Rule 55 itself provides for entry of default and default judgment where a
defendant “has failed to plead or otherwise defend.” Rule 55(a), Fed.R.Civ.P. In a variety of
contexts, courts have entered default judgments against defendants who have failed to appear and
defend in a timely manner following proper service of process.2 In short, “[w]hile modern courts
do not favor default judgments, they are certainly appropriate when the adversary process has
been halted because of an essentially unresponsive party.” Flynn v. Angelucci Bros. & Sons,
Inc., 448 F. Supp.2d 193, 195 (D.D.C. 2006) (citation omitted). That is precisely what HLH has
done here. Despite being served with process back in May, HLH has declined to appear or
defend, and has effectively prevented this litigation from leaving the starting blocks.
The law is clear, however, that HLH’s failure to appear and the Clerk’s Entry of Default
do not automatically entitle plaintiffs to a default judgment in the requested (or any) amount. A
default is not “an absolute confession by the defendant of his liability and of the plaintiff’s right
to recover,” but is instead merely “an admission of the facts cited in the Complaint, which by
themselves may or may not be sufficient to establish a defendant’s liability.” Pitts ex rel. Pitts v.
Seneca Sports, Inc., 321 F. Supp.2d 1353, 1357 (S.D. Ga. 2004); see also Nishimatsu Const. Co.
v. Houston Nat’l Bank, 515 F.2d 1200, 1204 (5th Cir. 1975) (similar); Descent v. Kolitsidas, 396
F. Supp.2d 1315, 1316 (M.D. Fla. 2005) (“the defendants’ default notwithstanding, the plaintiff
is entitled to a default judgment only if the complaint states a claim for relief”). Stated
differently, “a default judgment cannot stand on a complaint that fails to state a claim.”
See, e.g., In re Knight, 833 F.2d 1515, 1516 (11th Cir. 1987) (“Where a party
offers no good reason for the late filing of its answer, entry of default judgment against that party
is appropriate.”); Matter of Dierschke, 975 F.2d 181, 184 (5th Cir. 1992) (“when the court finds
an intentional failure of responsive pleadings there need be no other finding” to justify default
judgment); PNCEF, LLC v. Hendricks Bldg. Supply LLC, 740 F. Supp.2d 1287, 1290 (S.D. Ala.
2010) (“Where, as here, a defendant has failed to appear or otherwise acknowledge the pendency
of a lawsuit for more than three months after being served, entry of default judgment is
appropriate.”); Kidd v. Andrews, 340 F. Supp.2d 333, 338 (W.D.N.Y. 2004) (entering default
judgment against defendant who failed to answer or move against complaint for nearly three
months); Viveros v. Nationwide Janitorial Ass'n, Inc., 200 F.R.D. 681, 684 (N.D. Ga. 2000)
(entering default judgment against counterclaim defendant who had failed to answer or otherwise
respond within time provided by Rule 12(a)(2)).
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir. 1997); see also Eagle
Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009) (“A default
defendant may, on appeal, challenge the sufficiency of the complaint, even if he may not
challenge the sufficiency of the proof.”).
In light of these principles, the Court has reviewed the Complaint, and is satisfied that it
sets forth viable causes of action against HLH under the relevant statutes. Count I asserts a
violation of 29 U.S.C. § 1145, which provides that “[e]very employer who is obligated to make
contributions to a multiemployer plan under the terms of the plan or under the terms of a
collectively bargained agreement shall, to the extent not inconsistent with law, make such
contributions in accordance with the terms and conditions of such plan or such agreement.” Id.
The plans are authorized to bring such a cause of action against HLH for failure to fulfill this
obligation, pursuant to 29 U.S.C. § 1132.3 Allegations in the pleading that the plans are
multiemployer ERSA plans, that HLH is an employer obligated to pay contributions under the
terms of such plans, and that it failed to do so are sufficient to support a cognizable claim for
violation of § 1145.
As for Count II of the Complaint, it asserts that HLH breached the collective bargaining
agreement with Local 119. In particular, Count II alleges that this agreement required HLH to
honor authorized deductions from employee wages and to remit said deductions to Local 119;
however, it also alleges that HLH deducted these assessments from the wages of its workers,
then failed to remit same to Local 119 beginning in July 2010. This claim is actionable under 29
See, e.g., Bakery and Confectionery Union and Industry Int’l Pension Fund v.
Ralph’s Grocery Co., 118 F.3d 1018, 1021 (4th Cir. 1997) (“In a collection action based on
section , a multiemployer plan can enforce, as written, the contribution requirements
found in the controlling documents.”); International Painters and Allied Trades Industry Pension
Fund v. LaSalle Glass & Mirror Co., 267 F.R.D. 430 (D.D.C. 2010) (awarding default judgment
to union pension fund and fiduciary against employer on § 1145 claim that employer had failed
timely to pay contributions to funds); Mo-Kan Iron Workers Pension Fund v. Challenger Fence
Co., 426 F. Supp.2d 1001, 1006 (W.D. Mo. 2006) (“trust funds may directly enforce this
obligation by a court action”); Wisconsin UFCW Unions & Employers Health Plan v.
Woodman’s Food Market, Inc., 348 F. Supp.2d 1005, 1008 (E.D. Wis. 2004) (“A multi-employer
plan may enforce as written the contribution requirements found in a collective bargaining
agreement.”) (citation and internal quotation marks omitted); Seipel v. MacHill Const. Services,
LLC, 2009 WL 82364 (D. Minn. Jan. 9, 2009) (entering default judgment in favor of trustees and
fiduciaries of multiemployer plans against employer on unpaid contributions).
U.S.C. § 185, which authorizes unions to file suits against employers for breach of a collective
Because the well-pleaded factual allegations in the Complaint are deemed admitted by
HLH’s default, and because they are sufficient to state claims under the applicable federal
statutes, the Court finds that HLH is liable to plaintiffs under both Counts I and II. As such,
then, entry of default judgment against HLH is appropriate pursuant to Rule 55, given HLH’s
failure to appear after service of process and the sufficiency of the fact allegations of the
Complaint (all of which HLH has now admitted) to establish its liability to plaintiffs on the legal
theories specified therein, to-wit: that it failed to make required contributions to multiemployer
plans and that it breached the collective bargaining agreement by not remitting to Local 119
certain deductions from employee wages. Liability having thus been established, the only
remaining question is the damages that should be awarded to plaintiffs in the Default Judgment.
Applicable Legal Standard.
Notwithstanding the propriety of default judgment against HLH, it remains incumbent on
plaintiffs to prove their damages. “While well-pleaded facts in the complaint are deemed
admitted, plaintiffs’ allegations relating to the amount of damages are not admitted by virtue of
default; rather, the court must determine both the amount and character of damages.” Virgin
Records America, Inc. v. Lacey, 510 F. Supp.2d 588, 593 n.5 (S.D. Ala. 2007); see also Eastern
Elec. Corp. of New Jersey v. Shoemaker Const. Co., 652 F. Supp.2d 599, 605 (E.D. Pa. 2009)
(“A party’s default does not suggest that the party has admitted the amount of damages that the
moving party seeks.”). Even in the default judgment context, “[a] court has an obligation to
assure that there is a legitimate basis for any damage award it enters.” Anheuser Busch, Inc. v.
See, e.g., Wooddell v. International Broth. of Elec. Workers, Local 71, 502 U.S.
93, 98, 112 S.Ct. 494, 116 L.Ed.2d 419 (1991) (recognizing that § 185 allows suits “for violation
of a contract between an employer and a labor organization representing employees in an
industry affecting commerce”); Office & Professional Employees Int’l Union, Local 2 v.
F.D.I.C., 962 F.2d 63 (D.C. Cir. 1992) (under § 185, “when a claim derives from a collective
bargaining agreement … the labor organization is an appropriate party (although not the only
appropriate party) to vindicate employees’ rights”); Lynchburg Foundry Co. v. United
Steelworkers of America, AFL-CIO, 409 F. Supp. 773, 775 (W.D. Va. 1976) (“When a union and
an employer differ over the existence of the rights of employees established by a collective
bargaining agreement, then a cognizable cause of action [under § 185] appears to exist.”).
Philpot, 317 F.3d 1264, 1266 (11th Cir. 2003); see also Adolph Coors Co. v. Movement Against
Racism and the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985) (explaining that damages may be
awarded on default judgment only if the record adequately reflects the basis for award);
Everyday Learning Corp. v. Larson, 242 F.3d 815, 818 (8th Cir. 2001) (affirming lower court’s
decision not to award damages on default judgment, where requested damages were “speculative
and not proven by a fair preponderance of the evidence”); Natures Way Marine, LLC v. North
America Materials, Inc., 2008 WL 1776946, *1 (S.D. Ala. Apr. 16, 2008) (in default judgment
setting, district court has obligation “not to award damages that are uncertain or speculative”).5
“Rather than merely telling the Court in summary fashion what its damages are, a plaintiff
seeking default judgment must show the Court what those damages are, how they are calculated,
and where they come from.” PNCEF, LLC v. Hendricks Bldg. Supply LLC, 740 F. Supp.2d
1287, 1294 (S.D. Ala. 2010).
In that regard, the Eleventh Circuit has explained that “[f]ederal law similarly
requires a judicial determination of damages absent a factual basis in the record,” even where the
defendant is in default. Anheuser Busch, 317 F.3d at 1266. Ordinarily, unless a plaintiff’s claim
against a defaulting defendant is for a sum certain, the law “requires the district court to hold an
evidentiary hearing” to fix the amount of damages. S.E.C. v. Smyth, 420 F.3d 1225, 1231 (11th
Cir. 2005). However, no hearing is needed “when the district court already has a wealth of
evidence from the party requesting the hearing, such that any additional evidence would be truly
unnecessary to a fully informed determination of damages.” Id. at 1232 n.13; see also Flynn v.
Extreme Granite, Inc., 671 F. Supp.2d 157, 160 (D.D.C. 2009) (district court is not required to
hold hearing to fix damages in default judgment context as long as it ensures there is a basis for
damages specified); Eastern Elec. Corp., 652 F. Supp.2d at 605 (“In considering the amount of
damages ..., the Court may make its determination by conducting a hearing or by receiving
detailed affidavits from the claimant.”); Virgin Records, 510 F. Supp.2d at 593-94 (“Where the
amount of damages sought is a sum certain, or where an adequate record has been made via
affidavits and documentary evidence to show ... damages, no evidentiary hearing is required.”);
Natures Way Marine, LLC v. North American Materials, Inc., 2008 WL 801702, *3 (S.D. Ala.
Mar. 24, 2008) (“Although the trial court must make determinations as to the amount and
character of damages, it is not necessary to conduct an evidentiary hearing to fix damages if the
amounts sought by plaintiff are adequately supported by supporting affidavits and other
documentation.”). In this case, plaintiffs have not requested a hearing, but have instead
submitted detailed evidence in support of their requested damages amount. Under these
circumstances, the damages determination will stand or fall on plaintiffs’ written evidentiary
submission, without the necessity of a formal hearing.
ERISA Cause of Action.
The damages award on plaintiffs’ § 1145 cause of action is governed by 29 U.S.C.
§ 1132(g)(2), which provides that when a plan is awarded judgment on an § 1145 claim, “the
court shall award the plan – (A) the unpaid contributions, (B) interest on the unpaid
contributions, (C) an amount equal to the greater of – (i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan …, (D) reasonable attorney’s fees and costs
of the action, to be paid by the defendant, and (E) such other legal or equitable relief as the court
deems appropriate.” Id. Where the plan prevails on an § 1145 claim, “award of these damages
is mandatory, so long as: (1) the employer is delinquent at the time of the action; (2) the Court
enters judgment against the employer; and (3) the plan provides for the award.” Trustees of
Southern California IBEW-NECA Pension Plan v. Jam Fire Protection, 718 F. Supp.2d 1176,
1185 (C.D. Cal. 2009); see also Bricklayers and Allied Craftworkers Local 2 v. C.G. Yantch,
Inc., 316 F. Supp.2d 130, 154 (N.D.N.Y. 2003) (“the five components of an award under Section
1132(g)(2) are mandatory”). All of these conditions are satisfied here. Thus, it is appropriate to
examine plaintiffs’ evidence on each category of § 1132(g)(2) damages.
With regard to the unpaid contributions, plaintiffs present substantial evidence
quantifying certain of those amounts. In particular, plaintiffs show via declaration and
supporting exhibits that HLH has failed to pay the following required contributions: (i) the sum
of $21,991.40 in contributions due and owing under the Pension Plan for the months of July
2010, August 2010, January 2011, February 2011, April 2011, and June 2011; and (ii) the sum of
$18,794.73 in contributions due and owing under the Welfare Fund for the months of July 2010,
August 2010, January 2011, February 2011, April 2011, and June 2011. (Clapper Decl. (doc. 151), ¶¶ 5, 7 & Exhs. 4, 5.) Accordingly, plaintiffs have properly shown that they are entitled to
unpaid contributions in the amount of $40,786.13 (or $21,991.40 + $18,794.73) on their § 1145
cause of action.6
Plaintiffs also request $4,090.75 for unpaid contributions under the JAT Fund.
The problem is that, despite two opportunities to do so, plaintiffs have not made no showing of
how they reached that figure. At best, plaintiffs offer a cursory statement in a declaration that
“[t]he JAT Plan records show delinquencies in the amount of $4,090.75.” (Clapper Decl., ¶ 7.)
Although plaintiffs purport to append the JAT Plan records to that declaration, they do not
explain how the records support that claim. Moreover, upon inspection, those “records” consist
of a largely-inscrutable two page document, whose heading and partial content were lopped off
The next category of mandatory § 1132(g)(2) damages is interest on the unpaid
contributions. The statute provides that “interest on unpaid contributions shall be determined by
using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of Title
26.” 29 U.S.C. § 1132(g)(2). Both the Welfare Fund and the Pension Plan documents provide
that interest on delinquent calculations will accrue at a rate of 12% per annum; therefore, that
rate applies.7 Plaintiffs’ own calculations and documents confirm that these interest amounts are
properly calculated at $1,032.35 for delinquent Welfare Fund contributions, and $947.52 for
delinquent Pension Plan contributions, yielding a total interest award of $1,979.87.
The third type of damages available under § 1132(g)(2) is “liquidated damages provided
for under the plan in an amount not in excess of 20 percent” of the amount of unpaid
contributions. 29 U.S.C. § 1132(g)(2)(C)(ii). Both the Welfare Fund and Pension Plan
documents assess liquidated damages in the amount of 20% of the delinquent contributions, to
compensate the plans for the additional burdens and expense incurred in collecting such
contributions and administering the trusts. (Clapper Decl., Exh. 1, at § 6.08(2); Id., Exh. 2, at
in the copying / scanning process, with a maze of numbers and abbreviations, none of which
plaintiffs have defined or explained. (Clapper Decl., at Exh. 6.) Plaintiffs are silent as to what
the many columns of numbers mean, which (if any) relate to the JAT Plan, where those numbers
come from, who prepared them, who maintains them, or what period of time they are counting
for damages. More fundamentally, these do not appear to be “JAT Plan records” at all, but rather
to be a Local 119-generated spreadsheet tracking a variety of contributions and deductions, most
of which seem to have nothing do with the JAT Plan. The upshot is that, despite considerable
effort to replicate plaintiffs’ calculations, the Court cannot discern how plaintiffs computed the
delinquent contributions for the JAT Plan. Because it is incumbent on plaintiffs to prove their
damages by a preponderance of the evidence, and because they have offered an inadequate
showing as to the JAT Plan contributions despite multiple opportunities to prove up damages, the
Court will disallow an award for unpaid contributions to the JAT Plan. See generally PNCEF,
740 F. Supp.2d at 1294 (“Rather than merely telling the Court in summary fashion what its
damages are, a plaintiff seeking default judgment must show the Court what those damages are,
how they are calculated, and where they come from, by reference to … appropriate back-up
documentation, and witness testimony as appropriate.”).
Specifically, the Welfare Fund trust document provides that interest will accrue
on delinquent amounts “at the rate of twelve percent (12%) per annum from the date such
payment was due.” (Clapper Decl., Exh. 1, at § 6.08(1).) And the Pension Plan trust document
likewise states that interest will accrue on delinquent contributions “at the rate of twelve percent
(12%) per annum from the date such payment was due.” (Id., Exh. 2, at § 6.08(1).)
§ 6.08(2).) Accordingly, liquidated damages will be awarded against HLH in the amount of
$4,398.28 (or $21,991.4 x 0.2) as to the delinquent contributions under the Pension Plan, and in
the amount of $3,758.94 (or $18,794.73 x 0.2) as to the delinquent contributions under the
Welfare Fund, for a total liquidated damages figure of $8,157.22.
The fourth type of damages due under § 1132(g)(2) consists of reasonable attorney’s fees
and costs of the action. See, e.g., McDonald v. Centra, Inc., 946 F.2d 1059, 1065 (4th Cir. 1991)
(“when a fund is successful in a suit to recover delinquent contributions attorneys fees are
mandatory not discretionary”); Building Service Local 47 Cleaning Contractors Pension Plan v.
Grandview Raceway, 46 F.3d 1392, 1401-02 (6th Cir. 1995) (utilizing traditional “lodestar”
approach in computing reasonable attorney’s fees in § 1145 action, and placing burden on
plaintiff of presenting evidence showing hours worked and rates claimed). The undersigned has
reviewed plaintiffs’ invoices documenting their accrued attorneys’ fees in this matter, and finds
both the hourly routes and hours billed to be reasonable under the circumstances. The Court
further finds that plaintiffs reasonably incurred the attorneys’ fees and costs in litigating and
attempting to resolve this action. Accordingly, the default judgment award will include an award
of $9,246.25 in attorney’s fees and $371.93 in costs (consisting of the court filing fee and the
cost of delivering lawsuit documents to HLH in Baldwin County).
The fifth and final category of damages under § 1132(g)(2) is “such other legal or
equitable relief as the court deems appropriate.” 29 U.S.C. § 1132(g)(2)(E). Plaintiffs’ Motion
for Default Judgment does not request any such other relief, and none will be awarded under this
“catch-all” residual provision.
In light of the foregoing, the Court finds that plaintiffs have proven damages on their
§ 1145 cause of action equal to the sum of all bold-type figures set forth in this subsection, for a
total of $60,541.40.
Breach of Collective Bargaining Agreement Cause of Action.
With respect to Count II, the claim for breach of collective bargaining agreement, Local
119 may be awarded compensatory damages for HLH’s breach, which in this case would consist
of the deductions that HLH failed to remit to the union. See generally Contempo Design, Inc. v.
Chicago and N.E. Ill. Dist. Council of Carpenters, 226 F.3d 535, 554 (7th Cir. 2000) (“Under
§ 301, the measure of damages recoverable for a breach of contract is the actual loss sustained as
the direct result of the breach.”); Local 78, Asbestos, Lead & Hazardous Waste Laborers, AFL-9-
CIO v. Termon Const., Inc., 521 F. Supp.2d 316, 318 (S.D.N.Y. 2007) (awarding compensatory
damages for benefit contributions that employer was obliged to make to union funds on behalf of
employees). Thus, to the extent that Local 119 proves such damages, it is entitled to an award in
the amount of the wage deductions that HLH was contractually obligated to pay to the union, but
which it failed to remit.
The problem is that plaintiffs have not made an adequate showing of their damages on
this cause of action. Their evidence consists of a union official’s bare statement that “Local
119’s records show $10,719.62 is owed to Local 119.” (Morrison Decl. (doc. 15-2), ¶ 2.)8 The
“records” in question consist solely of the same two-page spreadsheet described in footnote 6,
supra, which plaintiffs previously classified as “JAT Plan records.” (Id. at Exh. 3.) The initial,
obvious question is whether this exhibit is a “JAT Plan record” or a “Local 119 record.” The
Court has no idea from this conflicting, skeletal information who created this record, who
maintains it, when it was created, or how it was compiled. Moreover, as already chronicled in
the aforementioned footnote, this exhibit is wanting on numerous levels. It was poorly scanned
so that parts of its contents (including its heading and various lines of data) are omitted.
Plaintiffs have not attempted to explain the many columns of numbers, the abbreviations in the
column headings, or the source and meaning of the data. On this minimal showing (which
constitutes plaintiffs’ second attempt to prove their damages), the Court would be compelled to
guess, to speculate, and to assume in order to derive damages figures from this exhibit. What’s
more, even engaging in a combination of guesswork and conjecture (which are not permissible in
damages awards), the undersigned has been unable to replicate the amount listed in the Morrison
Declaration using various combinations of columns and a calculator. The inescapable
conclusion from the foregoing is that plaintiffs have not adequately met their burden of proving
damages on Count II, such that no damage award is appropriate on this cause of action. See, e.g.,
Fanning v. Permanent Solution Industries, Inc., 257 F.R.D. 4, 7 (D.D.C. 2009) (“when moving
for a default judgment, the plaintiff must prove its entitlement to the amount of monetary
Morrison’s Declaration does not indicate that he has any personal knowledge as to
the amounts owed by HLH to Local 119 in wage deductions that have not been remitted; rather,
it is clear from his Declaration that he is merely reciting what is in the “records.”
For all of the foregoing reasons, plaintiffs’ Motion for Default Judgment (doc. 9) is
granted in part, and denied in part. Default judgment will be entered in favor of plaintiffs and
against defendant in the total amount of $60,541.40. A separate default judgment will enter.
Because this Order and the accompanying Default Judgment resolve all issues against all
parties herein, the Clerk’s Office is directed to close this file for administrative and statistical
DONE and ORDERED this 9th day of November, 2011.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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