The Board of Trustees et al v. SLR Concrete Construction, Inc
Filing
32
ORDER by Judge Samuel Conti granting 28 Motion for Default Judgment (sclc2, COURT STAFF) (Filed on 12/28/2010)
The Board of Trustees et al v. SLR Concrete Construction, Inc
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For the Northern District of California
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
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) ) BOARD OF TRUSTEES, in their ) capacities as Trustees of the ) CEMENT MASONS HEALTH AND WELFARE ) TRUST FUND FOR NORTHERN ) CALIFORNIA, CEMENT MASONS PENSION ) TRUST FUND FOR NORTHERN ) CALIFORNIA, CEMENT MASONS ) VACATION/HOLIDAY TRUST FUND FOR ) NORTHERN CALIFORNIA, CEMENT MASONS ) APPRENTICESHIP AND TRAINING TRUST ) FUND FOR NORTHERN CALIFORNIA, ) ) Plaintiffs, ) ) v. ) ) S L R CONCRETE CONSTRUCTION, INC., ) a California Corporation, ) ) Defendant. ) ) )
No. 09-2005 SC ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
I.
INTRODUCTION Before the Court is the Motion for Default Judgment
("Motion") submitted by Plaintiffs Board of Trustees of the Cement Masons Health and Welfare Trust, et al. ("Plaintiffs"). 28. ECF No.
The Court entered default as to Defendant S L R Concrete ECF No. 7. The Court
Construction, Inc. ("Defendant" or "SLR"). ordered SLR to comply with an audit. Order").
ECF No. 18 ("Dec. 9, 2009
Having reviewed the Motion and all supporting papers,
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the Court GRANTS the Motion.
II.
BACKGROUND SLR is a general building contractor. Hagan Decl. ¶ 8.1 In
2005, SLR executed an agreement with Plaintiffs, binding it to a collective bargaining agreement ("CBA"). See Hagan Decl. Exs. A Plaintiffs contend
("Trust Agreements"), B ("Mem. of Agreement").
that SLR is bound by the CBA to abide by the Cement Masons Master Agreement, Hagan Decl. Exs. C, D (collectively, "Master Agreements"), and the requirements of the Employee Retirement Income Security Act of 1974 ("ERISA"). Compl., ECF No. 1. SLR is
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required to make monthly payments to Plaintiffs on behalf of SLR's employees in amounts that are determined according to the hours worked by SLR's employees. Id. at 3.
Plaintiffs allege that SLR missed a number of payments due under the Master Agreements. Id. at 3-4. Plaintiffs filed their
Complaint in May 2009, seeking the payments due, liquidated damages, attorneys' fees, and an order that SLR submit to an audit to determine if additional fees were due. Compl. at 6. On
December 9, 2009, the Court denied Plaintiff's first motion for default judgment as premature, but required SLR to submit to an audit. See Dec. 9, 2009 Order. The audit was completed on March
24, 2010, covering the period of August 2005 to December 2009. Mot. at 2. Plaintiffs sent the results of the audit to SLR on May
John Hagan ("Hagan"), Accounts Receivable Manager for the Laborers Funds Administrative Office of Northern California, submitted a declaration in support of the Motion. ECF No. 30. 2
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11, 2010.
Id.
SLR has failed to dispute the amounts, and failed Id. On October 8, 2010, Plaintiffs filed See Mot.
to pay the amounts due.
their renewed Motion for Default Judgment.
III. LEGAL STANDARD After entry of default, the Court may enter a default judgment. Fed. R. Civ. P. 55(b)(2). The Court's decision whether Aldabe v.
to enter a default judgment, while "discretionary,"
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980), is guided by several factors. First, the Court must "assess the adequacy of the
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service of process on the party against whom default is requested." Bd. of Trs. of the N. Cal. Sheet Metal Workers v.
Peters, No. C-00-0395, 2000 U.S. Dist. LEXIS 19065, at *2 (N.D. Cal. Jan. 2, 2001). If the Court determines that service was
sufficient, it may consider the following factors: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). "The
general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." Geddes v. United Fin. Group, 559 F.2d
557, 560 (9th Cir. 1977).
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IV.
DISCUSSION A. Service of Process
Plaintiffs properly served SLR with the Complaint and Summons. See ECF No. 4 ("Proof of Service"). The Proof of
Service indicates that the documents were delivered to Laura Romanazzi, who is recorded with the California Secretary of State as SLR's designated agent for service. Id.; Hagan Decl. Ex. E.
This service complies with Rule 4(h)(1)(B) of the Federal Rules of Civil Procedure. B. Default Judgment
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Accepting the allegations in the Complaint as true, as it must, the Court finds that the Eitel factors favor default judgment. Section 502(a) of ERISA gives the participants and
beneficiaries of an ERISA-governed pension plan a cause of action in federal court where an employer violates the terms of the plan. See 29 U.S.C. § 1132(a)(1)(B), (a)(3). By failing to make timely
contributions, SLR has violated the terms of the CBA and Master Agreements. Therefore, Plaintiffs' substantive claims appear
solid on the merits, and are pled sufficiently in the Complaint. SLR's default cannot be said to be the result of excusable neglect. As previously noted, SLR was properly served.
Plaintiffs also sent the results of the Court-ordered audit to SLR. Hagan Decl. ¶ 17. Although federal policy favors a decision
on the merits, Rule 55(b) allows entry of default judgment in situations where defendants fail to litigate. Courts are less
inclined to enter default judgment if there is a large sum of money at stake. See Eitel, 782 F.2d at 1472 (denying default 4
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judgment where plaintiff sought almost three million dollars). Here, Plaintiffs seek an award of $154,122.72. ("Proposed Order"). Mot. at 2-3. See ECF No. 31
Although the amount of money at
stake is substantial, the Court finds that on balance the Eitel factors favor default judgment. C. Unpaid Contributions, Liquidated Damages and Interest
Plaintiffs seek an award based on unpaid contributions, liquidated damages, and interest from August 2005 to December 2009. Mot. at 2. Before this litigation began, Plaintiffs
conducted an audit of SLR's books and records for the period August 2005 through June 2007. Hagan Decl. ¶ 11. After the Court
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ordered SLR to submit to an audit, Plaintiffs conducted another audit for the period of August 2005 through December 2009 and found that SLR owed $87,293.95 in delinquent contributions. Id.
Plaintiffs have provided the Court with a chart summarizing the results of this audit, and breaking down the amount of contributions that were due to each of the four trusts. ("Audit Summary and Statement of Contributions Due"). Id. Ex. F
SLR also
self-reported contributions owed to Plaintiffs in the amount of $13,151.50 for the period of December 2008 to February 2009, which were not part of the audit amounts found to be due and owing. ¶ 12, Ex. H ("Statement of Self-Reported Contributions Due"). Based on the amount of delinquent contributions uncovered by the audits, Plaintiffs assessed liquidated damages and interest in the amount of $33,658.67 against SLR. Id. ¶ 11, Ex. G ("Interest Based on the Id.
and Liquidated Damages on Unpaid Contributions").
amount of self-reported delinquent contributions, Plaintiffs 5
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assessed liquidated damages and interest in the amount of $5786.70 against SLR. Id. ¶ 12, Ex. I ("Interest and Liquidated Damages on
Self-Reported Contributions"). Finally, SLR paid contributions for the months of December 2005, and September 2008 through January 2009, but the payments were late. As a result, Plaintiffs assessed liquidated damages Id. ¶ 13, Ex.
and interest in the amount of $4169.75 against SLR.
J ("Interest and Liquidated Damages on Late Payments"). Both interest and liquidated damages are authorized by statute. 29 U.S.C. § 1132(g)(2). Unpaid contributions must exist
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at the time of suit for statutory liquidated damages to be awarded. Idaho Plumbers and Pipefitters Health and Welfare Fund
v. United Mech. Contractors, Inc., 875 F.2d 212, 215-16 (9th Cir. 1989). Plaintiffs may also recover liquidated damages on See
contributions that became due after the Complaint was filed.
Roofers Local Union No. 81 v. Wedge Roofing, Inc., 811 F. Supp. 1398, 1401-02 (N.D. Cal. 1992) (finding it would undermine policy goals of deterring ERISA violations to require plaintiff to file multiple lawsuits to recover liquidated damages which came due after complaint was filed). Here, the first audit was conducted before the Complaint was filed, and based on audits conducted, Plaintiffs found that SLR owed contributions, liquidated damages and interest. a copy of the audit results and did not dispute them. ¶ 17. SLR was sent Hagan Decl.
Having failed to respond to this lawsuit, even after its
books were audited as a result of this Court's Order, and based on the evidence submitted, the Court finds that Plaintiffs are 6
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entitled to $100,445.45 in delinquent contributions ($87,293.95 + $13,151.50), and liquidated damages and interest in the amount of $43,615.12 ($33,658.67 + $5786.70 + $4169.75). D. Attorneys' Fees and Costs
In addition, under ERISA, Plaintiffs are entitled to recover reasonable attorneys' fees and costs. 29 U.S.C. § 1132(g)(2);
Operating Engineers Pension Trust v. Reed, 726 F.2d 513, 514 (9th Cir. 1984). The declaration submitted by Plaintiffs' counsel
outlines the billing rates, explains the work performed by attorneys and one paralegal, and describes the experience of the attorneys and paralegal who worked on the case. Decl. ¶¶ 4-8.2 Lozano-Batista
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Accordingly, the Court awards Plaintiffs Plaintiffs' counsel itemized their The Court awards costs of $655.90.
attorneys' fees of $9406.25. incurred costs. /// /// /// /// /// /// /// /// /// /// /// Id. ¶ 13.
Concepción E. Lozano-Batista, attorney for Plaintiffs, filed a declaration in support of the Motion. ECF No. 29. 7
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V.
CONCLUSION For the foregoing reasons, the Court GRANTS the Motion for
Default Judgment filed by Plaintiffs Board of Trustees, in their capacities as Trustees of the Cement Masons Health and Welfare Trust Fund for Northern California, Cement Masons Pension Trust Fund for Northern California, Cement Masons Vacation/Holiday Trust Fund for Northern California, and Cement Masons Apprenticeship and Training Trust Fund for Northern California.
IT IS SO ORDERED.
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11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 UNITED STATES DISTRICT JUDGE December 28, 2010
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