SERVICE EMPLOYEES INTERNATIONAL UNION NATIONAL INDUSTRY PENSION FUND et al v. BRISTOL MANOR HEALTHCARE CENTER

Filing 30

MEMORANDUM OPINION denying 20 Plaintiffs' Motion for Default Judgment and vacating 19 entry of default. See document for details. Signed by Judge Rudolph Contreras on 10/29/2014. (lcrc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SERVICE EMPLOYEES INTERNATIONAL :
UNION NATIONAL INDUSTRY PENSION :
FUND, et al.,
:
:
Plaintiffs,
:
:
v.
:
:
BRISTOL MANOR HEALTHCARE
:
CENTER, INC.,
:
:
Defendant.
:

Civil Action No.:

12-1904 (RC)

Re Document No.:

20

MEMORANDUM OPINION
DENYING PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT; AND
VACATING THE ENTRY OF DEFAULT
I. INTRODUCTION
The Service Employees International Union National Industry Pension Fund (the “Fund”)
is an “employee benefit plan” within the meaning of Section 3(2) of the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1002(2). The Fund and its Trustees
brought suit under ERISA and the Labor Management Relations Act of 1947 (“LMRA”) to
collect unpaid contributions, interest, liquidated damages, and audit documents allegedly owed
by Defendant, Bristol Manor Healthcare Center, Inc. (“Bristol Manor”), in violation of the
applicable collective bargaining and trust agreements. After Bristol Manor failed to respond to
the amended complaint, Plaintiffs filed for an entry of default, which the Clerk of the Court
entered the next day. Plaintiffs now have moved for default judgment, and Bristol Manor has
filed an opposition asking the Court to deny Plaintiffs’ motion and set aside the default. For the

reasons explained below, the Court will deny the motion for default judgment and vacate the
entry of default.

II. BACKGROUND
A. Bristol Manor’s Alleged Delinquencies
Bristol Manor, a New Jersey corporation, is a party to a Collective Bargaining Agreement
(“CBA”) with the 1199 SEIU United Healthcare Workers East, New Jersey (the “Union”). See
Joseph Decl. ¶ 4. The CBA requires Bristol Manor to make contributions to the Fund based on
the number of compensable hours its employees work. See Joseph Decl. ¶¶ 5-6; Am. Compl.,
Ex. 1. In addition, Bristol Manor is a party to the Fund’s Trust Agreement and Collections
Policy, under which it is required to submit monthly remittance reports reflecting the
contributions owed to the Fund. See Joseph Decl. ¶¶ 7-8; Am. Compl., Ex. 2. Also under the
Trust Agreement, Bristol Manor is liable to the Fund for interest on its delinquent contributions
at the rate of ten percent per year, liquidated damages at the rate of twenty percent after the
commencement of a lawsuit, and attorneys’ fees and costs. See Joseph Decl. ¶¶ 9-10; Am.
Compl., Ex. 3. Further, when the Fund was determined to be in critical status beginning in
January 2009, it established a rehabilitation plan that assessed surcharges to all employer
contributions in the amount of five percent starting in June 2009, and then ten percent effective
December 1, 2009. See Joseph Decl. ¶¶ 12-13.
According to Plaintiffs, Bristol Manor failed to remit certain reports and pay certain
contributions, interest, and liquidated damages for the period of February 2010 through February
2014. See Joseph Decl. ¶¶ 14-15. Specifically, Plaintiffs claim that Bristol Manor failed to
submit the following reports and contributions:

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•

Dietary and Housekeeping Employees: Bristol Manor owes $1,802.23 in
contributions, $208.46 in interest, and $1,781.05 in liquidated damages for certain
months from February 2010 through February 2014, along with reports for August
2013 and February 2014. See Joseph Decl. ¶¶ 18-20.

•

Recreational Employees: Bristol Manor owes $703.51 in contributions, $196.40 in
interest, and $550.00 in liquidated damages. See Joseph Decl. ¶¶ 9-10, 24-26.
Additionally, Bristol Manor failed to submit reports for February 2010, March 2010,
May 2012, August 2013, January 2014, and February 2014. See Joseph Decl. ¶¶ 2224.

•

Certified Nursing Assistants: Bristol Manor owes $1,273.15 in liquidated damages,
and it failed to submit reports for February 2010, March 2010, August 2013,
December 2013, January 2014, and February 2014. See Joseph Decl. ¶¶ 16-17.

In total, Plaintiffs claim that Bristol Manor owes $5,505.94 to the Fund. See Joseph Decl. ¶ 29.
Further, pursuant to the Trust Agreement, as well as the CBA and ERISA, Bristol Manor
is obligated to provide information so that the Fund may complete an audit to verify that the
correct amount of contributions is being paid. See Joseph Decl. ¶ 11. According to the Fund, it
made repeated requests for this information, but Bristol Manor refused to provide the necessary
documents, including: copies of its W-3s and W-2s for 2009 and 2010; the second page of the
payroll register for 2009 for the periods of January 17, January 31, February 4, February 28,
March 14, and April 11; and a key for the payroll codes. See Joseph Decl. ¶¶ 27-28.
B. Procedural History
On November 26, 2012, Plaintiffs filed the original complaint against Bristol Manor. See
Compl., ECF No. 1. After four months of inaction by both parties, the Court issued an order on
March 29, 2013, requiring Plaintiffs to show cause for their failure to serve the complaint and
summons on Bristol Manor in a timely fashion under the Federal Rules of Civil Procedure. See
Show Cause Order, ECF No. 3. On April 5, 2013, Plaintiffs filed a response explaining their
difficulties in serving Bristol Manor, see Pls.’ Resp. Show Cause Order, ECF No. 4, and on June
4, Bristol Manor finally was served with the complaint. See Return of Serv., ECF No. 7. After

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two more months of inactivity, however, the Court issued a Minute Order on August 30, 2013,
requiring Plaintiffs to seek entry of default by September 13 and move for default judgment by
October 14.
On September 3, 2013, Plaintiffs moved for the entry of default against Bristol Manor,
see Pls.’ Aff. for Default, ECF No. 9, which the Clerk of the Court entered on September 12.
See Clerk’s Entry of Default, ECF No. 10. But after the October 14 deadline for moving for
default judgment passed without any action by Plaintiffs, the Court issued another order on
November 25, 2013, requiring Plaintiffs to show cause for their continued failure to move for
default judgment. See Show Cause Order, ECF No. 11. Plaintiffs responded on December 19 by
explaining that given their ongoing negotiations with Bristol Manor, they did not file a motion
for default judgment “because they believed it may be possible to resolve the matter without
further use of judicial resources.” Pls.’ Resp. Show Cause Order, ECF No. 12. Plaintiffs then
asked the Court for thirty days to file an amended complaint that would include new reports and
contributions allegedly owed by Bristol Manor. Id.
On January 13, 2014, Plaintiffs filed the amended complaint in order to obtain the
missing reports and to collect the unpaid contributions, interest, and liquidated damages owed by
Bristol Manor. See Am. Compl., ECF No. 13. The amended complaint was served on Bristol
Manor on January 17, 2014. See Return of Serv., ECF No. 17. After Bristol Manor failed to
respond within the twenty-one days of service as is required by Rule 12(a)(1)(A), Plaintiffs filed
for the entry of default on February 19, 2014, see Pls.’ Aff. for Default, ECF No. 18, which the
Clerk entered the next day. See Clerk’s Entry of Default, ECF No. 19. After nearly two more
months of inaction, however, the Court issued a Minute Order on April 10, 2014, requiring

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Plaintiffs to file their motion for default judgment by May 12, 2014, or risk having the case
dismissed for failure to prosecute.
On April 14, 2014, Plaintiffs filed a motion for partial default judgment in which they ask
that the Court enter judgment in the amount of $8,118.94 for owed contributions, interest,
liquidated damages, and attorneys’ fees and cost. See Pls.’ Mem. Supp. Mot. Def. J., ECF No.
20, at 13. Plaintiffs also ask that the Court retain jurisdiction over the matter pending Bristol
Manor’s full compliance with the requested judgment. See id. In response, Bristol Manor filed
an opposition in which it asks the Court to deny Plaintiffs’ motion and vacate the entry of
default. See generally Def.’s Mem. Opp’n Mot. Def. J., ECF No. 26.

III. ANALYSIS
Federal Rule of Civil Procedure 55 sets forth a two-step process for a party seeking
default judgment: entry of default, followed by entry of default judgment. See Fed. R .Civ. P.
55. For the first step, Rule 55(a) provides for entry of default “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P.
55(a). As to the second step, Rule 55(b) authorizes a court, or the clerk of the court depending
on the circumstances, to enter a default judgment against the defendant for the amount claimed
and costs. See Fed. R. Civ. P. 55(b). Thus, just as a court is empowered to dismiss a case when
faced with dilatory tactics by a plaintiff, a district court has the discretion to enter default
judgment when a defendant fails to defend a case appropriately. See Keegel v. Key West &
Caribbean Trading Co., 627 F.2d 372, 375 n.5 (D.C. Cir. 1980). At the same time, district
courts must remain vigilant that “strong policies favor[] the resolution of genuine disputes on
their merits.” Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980).

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Before the Court might grant default judgment for Plaintiffs, however, Bristol Manor has
moved to set aside the Clerk’s entry of default. Under Federal Rule of Civil Procedure 55(c), a
district court has discretion to vacate the entry of default only for “good cause,” and courts in this
Circuit consider three criteria when determining whether such cause exists: (1) if the default was
willful; (2) if setting aside the default would prejudice the plaintiff; and (3) if the defendant has
presented a meritorious defense. See Mohamad v. Rajoub, 634 F.3d 604, 606 (D.C. Cir. 2011);
Jackson, 636 F.2d at 836. The Court addresses these three factors below.
A. Willfulness
As this Court has explained before, “[t]he boundary of willfulness lies somewhere
between a case involving a negligent filing error, which is normally considered an excusable
failure to respond, and a deliberate decision to default, which is generally not excusable.” Int’l
Painters & Allied Trades Union & Indus. Pension Fund v. H.W. Ellis Painting Co., 288 F. Supp.
2d 22, 26 (D.D.C. 2003) (citing Gucci Am., Inc. v. Gold Center Jewelry, 158 F.3d 631, 635 (2d
Cir. 1998)). A finding of bad faith is not a necessary predicate to the conclusion that a defendant
defaulted “willfully.” Id.
Bristol Manor argues that it received no advanced notice that Plaintiffs would seek
default judgment, that it responded immediately once it learned of Plaintiffs’ intentions, and that
it was reasonable not to file an answer or otherwise respond sooner due to the ongoing settlement
negotiations between the parties and Plaintiffs’ failure to seek default judgment following the
entry of default in the past. See Def.’s Mem. Opp’n Mot. Def. J., ECF No. 26, at 8-9. Indeed,
the procedural history in this case illustrates Plaintiffs’ previous failure to move for default
judgment in a timely manner following the entry of default, including Plaintiffs’ admission that
they delayed filing such a motion after the first default because of active settlement negotiations.

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See Pls.’ Resp. Show Cause Order, ECF No. 12, at 2 (“As a result of these ongoing discussion,
Plaintiffs did not file a Motion for Default Judgment on October 14, 2013 because they believed
it may be possible to resolve the matter without further use of judicial resources.”).
In addition, evidence provided by Plaintiffs suggests that they never gave Bristol Manor a
deadline on which a response was required or they would move for default judgment. Thus, on
March 25, 2014, Plaintiffs’ counsel emailed Bristol Manor’s counsel, “I am following up again
on the below matters [listing the delinquent contributions and audit documents]…. If I do not
hear anything soon, I will be forced to file our motion for default.” Ex. A, ECF No. 27-1, at 4.
Plaintiffs, however, did not provide a specific timeframe for seeking default judgment, and they
actually would delay for several more weeks by not acting until after the Court issued a Minute
Order on April 10, 2014, threatening to dismiss the case for failure to prosecute if a motion for
default judgment was not filed soon.
Further, on April 11, Plaintiffs’ counsel forwarded the Minute Order to Bristol Manor’s
counsel and wrote, “I just received the below notification from the court and because we have
not made any progress [we] will be filing a motion for default judgment either today or early
next week.” Id. at 6. It appears that this was the first time during the litigation that Plaintiffs
indicated their intention to move for default judgment by a certain date, and on April 14,
Plaintiffs finally filed the motion, after which Bristol Manor quickly responded with its New
Jersey counsel seeking admittance to this jurisdiction and then filing an opposition memorandum
after obtaining local counsel.
This Court has held that “[r]eliance upon representations made by opposing counsel may
mitigate an intentional failure to respond if the court is convinced that such reliance was made in
good faith.” Int’l Painters & Allied Trades Union, 288 F. Supp. 2d at 26 (citing Keegel v. Key

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West & Caribbean Trading Co., 627 F.2d 372, 374 (D.C. Cir. 1980)). At the same time, the
Court also has explained that “[b]y relying on the mere existence of settlement negotiations as an
excuse for failing to fulfill its responsibilities to the Court, [a] defendant has failed to protect its
own interests” and willfulness may exist. Id. (citing Simon v. Pay Tel Mgmt., Inc., 782 F. Supp.
1219, 1226 (N.D. Ill. 1991)).
Thus, in International Painters & Allied Trades Union & Industrial Pension Fund v.
H.W. Ellis Painting Co., the Court found willfulness because even though the parties were
engaged in settlement negotiations, defendant did not make “a good faith effort to adhere to the
rules of the court and to protect [its] rights” since “it had no basis to ignore its obligations to file
an answer, especially after plaintiff’s counsel made it abundantly clear that no further
continuances would be granted[.]” Id. at 27; see also Simon, 782 F. Supp. at 1226 (“Parties
engaged in litigation frequently discuss the possible settlement of their disputes, but the mere
existence of such negotiations, without more, does not excuse the parties from attending court
appearances and otherwise complying with the Court’s orders.”). On the other hand, in Delta
Sigma Theta Sorority, Inc. v. LaMith Designs, Inc., the Court found good faith reliance and no
willfulness when plaintiff had informed defendant that it would ask the Court to delay
proceedings so the parties could explore settlement, and defendant then failed to file a response
before plaintiff moved for default judgment. 275 F.R.D. 20, 25-26 (D.D.C. 2011).
Here, Plaintiffs’ past lack of diligence in pursuing default judgment while the parties
were engaged in negotiations created a reasonable basis for Bristol Manor to wait before filing a
response, even though doing so was clearly in violation of the Federal Rules of Civil Procedure.
Cf. id. at 25 (“Informal resolutions of disputes are certainly encouraged, but once a case is
initiated with the Court, the parties have an independent obligation to comply with the Federal

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Rules of Civil Procedure and the local rules of the Court.”). Plaintiffs, moreover, never provided
Bristol Manor with a specific deadline by which it had to respond, and when Plaintiffs eventually
did move for default judgment, Bristol Manor promptly took action to protect its rights by
retaining local counsel and presenting a defense. Compare Keegel v. Key West & Caribbean
Trading Co., 627 F.2d 372, 373 (D.C. Cir. 1980) (finding no willfulness when plaintiff wrote to
defendant reaffirming a willingness to settle, granting an informal extension to file an answer,
and agreeing not to seek default judgment before a specified date, but plaintiff sought default
before the extension expired), with Flynn v. Pulaski Constr. Co., No. 02-CV-2336, 2006 WL
47304, at *8 (D.D.C. Jan. 6, 2006) (finding willfulness when defendants were warned of
plaintiffs’ intention to move for entry of default by a specific date but failed to respond). As
such, the Court finds no “willfulness” because Bristol Manor acted in “good faith” when it failed
to file an answer in reliance on Plaintiffs’ past decision not to seek default judgment, as well as
the ongoing settlement negotiations between the parties.
B. Prejudice
“‘[D]elay in and of itself does not constitute prejudice[.]’” Serv. Employees Int’l Union
Nat’l Industry Pension Fund v. Hamilton Park Health Care Ctr., Ltd., No. CV 14-84, 2014 WL
2566086, at *4 (D.D.C. June 6, 2014) (quoting KPS & Assocs., Inc. v. Designs By FMC, Inc.,
318 F.3d 1, 15 (1st Cir. 2003)). Instead, in evaluating the prejudice to a plaintiff in setting aside
a default, a court should consider not the mere fact of delay but rather any effects the delay may
have on the plaintiff, such as the loss of evidence or increased difficulties in obtaining discovery.
See Essroc Cement Corp. v. CTI/D.C., Inc., 263 F.R.D. 17, 21 (D.D.C. 2009). Further, an
absence of prejudice to the plaintiff does not per se entitle a defendant to relief. See Capital
Yacht Club v. Vessel AVIVA, 228 F.R.D. 389, 393-94 (D.D.C. 2005) (citations omitted)); see also

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Int’l Painters & Allied Trades Union, 288 F. Supp. 2d at 31 (“The court has discretion to deny a
motion to vacate if it is persuaded that the default was willful and that the defaulting party has no
meritorious defenses.” (citations omitted)).
Plaintiffs argue that they will suffer prejudice in the form of being forced to spend more
time and money on collecting the contributions and reports from Bristol Manor if default
judgment is not entered. Plaintiffs, however, bear responsibility for much of the time and money
they already spent in this case given their failure to seek default judgment after the first entry of
default, as well as their failure to move for default judgment in a timely manner following the
second entry of default. Further, this Court has held that “delay and legal costs are part and
parcel of litigation and typically do not constitute prejudice for the purposes of Rule 55(c).”
Capital Yacht Club, 228 F.R.D. at 394; see also Essroc Cement, 263 F.R.D. at 21 (finding no
prejudice when plaintiff merely asserted “that it will be ‘force[d] to expend additional time and
money to collect on [its] claim’” if the Court vacated the entry of default); E.&J. Gallo Winery v.
Cantine Rallo, S.p.A., 430 F. Supp. 2d 1064, 1091 (E.D. Cal. 2005) (“Having to try a case on the
merits is not, without more, sufficient prejudice” when plaintiff’s ability to pursue the claim is
not otherwise hindered by the delay). Accordingly, the Court finds that Plaintiffs have failed to
demonstrate that they will suffer any cognizable form of prejudice if the entry of default is set
aside.
C. Meritorious Defense
In determining whether a defendant has a meritorious defense, “[l]ikelihood of success is
not the measure.” Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372, 374 (D.C.
Cir. 1980). Instead, “allegations are meritorious if they contain even a hint of a suggestion
which, proven at trial, would constitute a complete defense.” Mohamad v. Rajoub, 634 F.3d 604,

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606 (D.C. Cir. 2011) (internal citations and quotation marks omitted); see also Whelan v. Abell,
48 F.3d 1247, 1259 (D.C. Cir. 1995) (noting that “the movant is not required to prove a defense,
but only to assert a defense that it may prove at trial”); Keegel, 627 F.2d at 374 (accepting
defendant’s “somewhat broad and conclusory defenses” as meritorious).
To demonstrate a meritorious defense, Bristol Manor partially relies on a 2010 Settlement
Agreement, see Def.’s Mem. Opp’n Mot. Def. J., ECF No. 26, at 11, but this agreement was
between Bristol Manor and the Union, not the Fund. See Settlement Agreement, ECF No. 27-2.
In addition, nowhere does the agreement provide that Bristol Manor has made the delinquent
payments to the Fund, and even if it did, the agreement covered only through March 2010,
whereas Plaintiffs seek contributions and reports owed from February 2010 through February
2014. See id. at 4.
Nonetheless, Bristol Manor also asserts that separate from the Settlement Agreement, it
has made regular monthly contributions and submitted the appropriate documents such that it
does not owe the money and reports that Plaintiffs seek through the amended complaint. See
Def.’s Mem. Opp’n Mot. Def. J., ECF No. 26, at 11-12. If Bristol Manor ultimately can prove
that it has paid the missing contributions and supplied all the necessary paperwork, that would
constitute a complete and meritorious defense to Plaintiffs’ claim.
*

*

*

Having found that all three criteria for setting aside the default weigh in favor of Bristol
Manor, the Court will exercise its discretion to vacate the entry of default for “good cause
shown.” Keegel, 627 F.2d at 373. As such, the Court also will deny Plaintiffs’ motion for
default judgment and allow the case to proceed to resolution on the merits. Finally, the Court
notes that practically zero progress has been made in this case since it was filed in 2012, and

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both parties share responsibility for the unnecessary and unjustified delays that have occurred.
Further delays will not be tolerated by the Court moving forward.

IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for default judgment is denied, and the
February 20, 2014, entry of default is vacated. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued.
Dated: October 29, 2014

RUDOLPH CONTRERAS
United States District Judge

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