Pension Plan for Pension Trust Fund for Operating Engineers et al v. Construction Materials Testing, Inc.

Filing 45

ORDER To Submit Supplemental Briefing in Support of 20 MOTION for Default Judgment by the Court as to PLAINTIFFS NOTICE OF MOTION FOR DEFAULT JUDGMENT AGAINST CONSTRUCTION MATERIALS TESTING, INC.; AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Richard Piombo, Pension Plan for Pension Trust Fund for Operating Engineers, Russell E. Burns. Signed by Magistrate Judge Donna M. Ryu on 7/15/16. (dmrlc3, COURT STAFF) (Filed on 7/15/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7
8

PENSION PLAN FOR PENSION TRUST
FUND FOR OPERATING ENGINEERS, et
al.,
Plaintiffs,

9
v.
10

United States District Court
Northern District of California

11
12
13

CONSTRUCTION MATERIALS
TESTING, INC., et al.,

Case No. 15-cv-05325-DMR
ORDER TO SUBMIT SUPPLEMENTAL
BRIEFING IN SUPPORT OF MOTION
FOR DEFAULT JUDGMENT
Re: Dkt. No. 20

Defendants.
On April 15, 2016, Plaintiffs Pension Plan for Pension Trust Fund for Operating Engineers

14

filed a motion for default judgment. [Docket No. 20.] After reviewing the motion, the court

15

requested supplemental briefing, which Plaintiff timely filed. [Docket Nos. 39, 41.] The court

16

now requests additional briefing.

17

In order to recover damages after securing a default judgment, a plaintiff must prove the

18

relief it seeks by submitting proper evidence by way of a sworn affidavit. Bd. of Trs. of the

19

Boilermaker Vacation Trust v. Skelly, Inc., 389 F. Supp. 2d 1222, 1226 (N.D. Cal. 2005); see

20

PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1175 (C.D. Cal. 2002) (citing Televideo

21

Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987)).

22

Plaintiffs’ request for $2,454,916.00 in withdrawal liability is not sufficiently supported.

23

See MDJ at 1, 7, 9. Plaintiffs claim that the principal owed by Defendant Construction Materials

24

Testing, Inc. (“CMT”) is based upon calculations provided by Horizon Actuarial Services, LLC

25

(“Horizon”), the Plaintiffs’ actuary. Trento Decl. [Docket No. 22] at ¶ 7. Plaintiffs have attached

26

a letter from Johnathan Feldman, a consulting actuary for Horizon, stating that based on Horizon’s

27

calculations, CMT’s withdrawal liability is $$2,454,916.00. Trento Decl., Ex. B. However, Mr.

28

Feldman’s letter regarding CMT’s withdrawal liability is not under oath, and his letter does not

1

explain in detail how Horizon determined CMT’s withdrawal liability. The amount requested by

2

Plaintiffs is too large to be awarded on a motion for default judgment without a sufficient record

3

and a sworn affidavit justifying the sum in detail. See Pension Plan for Pension Tr. Fund for

4

Operating Eng’rs v. Dynamic Consultants, Inc., No. 3:12-CV-00487-WHA, 2012 WL 3629046, at

5

*3 (N.D. Cal. Aug. 21, 2012) (denying motion for default judgment requesting $1,094,355 in

6

unpaid ERISA contributions without prejudice where the sum was not supported by a sworn

7

record justifying the sum in detail).

8
9

Additionally, Plaintiffs request ten percent (10%) per annum in interest on the unpaid
liability under Section X(B) of the Trust’s Withdrawal Liability Procedures adopted on May 24,
2010 (“Procedures”). Trento Decl. at ¶ 9. Plaintiffs note that interest is calculated on the

11
United States District Court
Northern District of California

10

Accelerated Withdrawal Liability of $2,454,916.00 is $304,674.21, and requests the interest

12

continue to accrue at a rate of $672.57 until paid in full. MDJ at 7. Plaintiffs refer to the Trento

13

declaration, which has the same interest calculation of $304,674.21 but reports a daily accrual rate

14

of $672.58. Plaintiffs shall clarify the rate they are requesting and make changes to the accrued

15

interest request as necessary.

16

Plaintiff shall submit additional briefing by 9:00 a.m. on July 20, 2016, to address the

17

above deficiencies in the motion for default judgment. Any opposition or statement of non-

18

opposition is due no later than July 25, 2016.

19
20
21
22

The hearing on the motion for default judgment set for July 28, 2016 at 11:00 a.m. at 1301
Clay Street, Oakland, California remains on calendar.
Immediately upon receipt of this Order, Plaintiffs shall serve Defendant with a copy
of this Order and file a proof of service with the court.

23
24
25
26
27

IT IS SO ORDERED.
Dated: July 15, 2016
______________________________________
Donna M. Ryu
United States Magistrate Judge

28
2