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)

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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

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