International Brotherhood of Electrical Workers District 9 Pension Plan et al v. Metropolitan Netcomm, Inc.

Filing 17

ORDER Denying Without Prejudice 15 MOTION for Default Judgment. Signed by Judge Koh on 6/25/2011. (lhklc1, COURT STAFF) (Filed on 6/25/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS DISTRICT 9
PENSION PLAN, et al.,
Plaintiffs,

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v.
METROPOLITAN NETCOMM, INC.,

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Defendant.

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Case No.: 10-CV-05464-LHK
ORDER DENYING WITHOUT
PREJUDICE MOTION FOR DEFAULT
JUDGMENT

Plaintiffs have moved for entry of default judgment in this action. Having considered the

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materials submitted, the Court finds this matter appropriate for determination without oral

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argument and vacates the hearing scheduled for June 30, 2011. See Civ. L.R. 7-1(b). For the

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reasons set forth below, the Court DENIES without prejudice Plaintiffs’ motion for default

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judgment. Plaintiffs may submit a revised motion for default judgment within 30 days of this

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order.

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Plaintiffs filed this action on December 2, 2010 to collect unpaid contributions allegedly

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owed by Defendant Metropolitan Netcomm, Inc., under multi-employer benefit plans and a

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collective bargaining agreement. Compl. ¶ 1. Plaintiffs served Defendant Metropolitan Netcomm,

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Inc. on January 1, 2011.1 See ECF No. 1; ECF No. 5. Defendant did not timely answer the

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On December 22, 2010, Plaintiffs served a person authorized to accept service of process for
Defendant by substitute service pursuant to Cal. Code Civ. P. § 415.20. Under California law,
service was deemed complete on the tenth day after mailing, on January 1, 2011.
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Case No.: 10-CV-05464-LHK
ORDER DENYING WITHOUT PREJUDICE MOTION FOR DEFAULT JUDGMENT

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complaint, and Plaintiffs requested entry of default on February 9, 2011. See ECF No. 6. The

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Clerk entered default on March 1, 2011. See ECF No. 11. Plaintiffs now move for entry of default

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judgment. They seek to recover $26,433.36 in delinquent contributions, liquidated damages, and

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pre-judgment interest, as well as $3,082.00 in attorney’s fees.

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In support of their motion for default judgment, Plaintiffs submit a declaration of Sandy
Stephenson, Vice President of Administration for United Administrative Services, the third-party

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administrator that assists in the collection and disbursement of funds to the trusts at issue. Decl. of

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Sandy Stephenson ISO Mot. for Default Judgment (“Stephenson Decl.”), ECF No. 15-1. Attached

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to the declaration is a breakdown compiled by Ms. Stephenson’s office purportedly showing the

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United States District Court
For the Northern District of California

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benefit contributions Defendant owes to the Trust Funds. Stephenson Decl., Ex. A. However,

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neither the declaration nor the attached exhibit provides any indication of how the delinquent

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benefit contributions were calculated. Accordingly, the Court cannot determine whether the

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claimed damages for delinquent contributions are justified.

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Additionally, Plaintiffs state that pursuant to the Sound & Communications 9th District

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Agreement (the “Agreement”) and related Trust Agreements, Defendant is liable for liquidated

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damages equal to 10% of delinquent payments and for interest at the rate of 8% per annum on the

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sum of the unpaid principal and liquidated damages due. Decl. of Eileen M. Bissen ISO Mot. for

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Default Judgment (“Bissen Decl.”) ¶¶ 5-6, ECF No. 15-2. Attached to the Bissen Declaration is a

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copy of the Agreement, as well as a copy of Defendant’s Letter of Assent, signed in 2004, in which

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Defendant agreed to be bound by current and subsequent labor agreements. Bissen Decl. Exs. A-

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B. These submissions are not sufficient to support Plaintiffs’ motion for a number of reasons.

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First, the Agreement states that it is effective “December 1, 2003 through November 30, 2006.”

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Bissen Decl. Ex. A at 1. Although the Bissen Declaration states that the Agreement continues to be

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in effect today, Plaintiffs provide no evidentiary basis for this statement. If Ms. Bissen has

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personal knowledge of the duration of the agreement, she must indicate the basis for that

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knowledge. Otherwise, Plaintiffs must provide some evidence that the Agreement remains in

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effect. Second, the Court is unable to locate an entitlement to 10% liquidated damages or 8%

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interest in the Agreement provided. It may be that these entitlements are contained in the related
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Case No.: 10-CV-05464-LHK
ORDER DENYING WITHOUT PREJUDICE MOTION FOR DEFAULT JUDGMENT

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Trust Agreements, but as the Trust Agreements have not been submitted, the Court has no way of

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verifying the amount of liquidated damages and interest for which Defendant is liable. Plaintiffs

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must submit the agreements that contain the liquidated damages and interest rate provisions, and

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Ms. Bissen must cite to those provisions in any revised declaration.

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Finally, with regard to attorney’s fees, the Ninth Circuit “has adopted the hybrid

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lodestar/multiplier approach . . . as the proper method for determining the amount of attorney’s fees

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in ERISA actions.” Van Gerwen v. Guarantee Mut. Life Co., 214 F3d 1041, 1045 (9th Cir. 2000).

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Under this method the Court is to determine how many hours were reasonably expended on the

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litigation and multiply those hours by a reasonable hourly rate. Id. On a motion for attorney’s

United States District Court
For the Northern District of California

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fees, the “fee applicant has the burden of producing satisfactory evidence, in addition to the

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affidavits of its counsel, that the requested rates are in line with those prevailing in the community

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for similar services.” Intel Corp. v. Terabyte Intern., Inc., 6 F.3d 614, 622 (9th Cir. 1993) (quoting

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Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987)). The Bissen declaration states,

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“I bill the Plaintiffs for our services at the rate of $195.00 per hour plus actual reimbursement for

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certain out-of-pocket costs.” Bissen Decl. ¶¶ 13, 14. However, Plaintiffs provide no evidence

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from which the Court can determine whether the claimed rates are reasonable and in line with those

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prevailing in the community for similar services. Without this information, the Court cannot

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determine whether the fees sought are reasonable, and the request for attorney’s fees must be

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denied without prejudice.

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For the reasons discussed above, Plaintiff’s motion for default judgment is DENIED

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without prejudice. Plaintiff may submit a renewed motion addressing the issues raised above

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within 30 days of the date of this order. Failure to do so will result in dismissal of this action with

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prejudice.

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IT IS SO ORDERED.

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Dated: June 25, 2011

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 10-CV-05464-LHK
ORDER DENYING WITHOUT PREJUDICE MOTION FOR DEFAULT JUDGMENT