SERVICE EMPLOYEES INTERNATIONAL UNION NATIONAL INDUSTRY PENSION FUND et al v. D&M PROPERTY MAINTENANCE, INC.

Filing 10

MEMORANDUM AND OPINION. Signed by Judge Colleen Kollar-Kotelly on January 17, 2014. (lcckk1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SERVICE EMPLOYEES INTERNATIONAL
UNION NATIONAL INDUSTRY PENSION
FUND, et al.,
Plaintiff,
Civil Action No. 13-1518 (CKK)
v.
D&M PROPERTY MAINTENANCE, INC.,
Defendant.

MEMORANDUM OPINION
(January 17, 2014)
The Service Employees International Union National Industry Pension Fund (“the SEIU
Pension Fund”) and the Fund’s Trustees (collectively, “Plaintiffs”), filed suit against Defendant
D&M Property Maintenance, alleging that the Defendant failed to submit remittance reports and
contributions to the fund for the months of December 2011 through November 2012 and August
2013. See Compl., ECF No. [1].

The Plaintiffs further allege that the Defendant owes

supplemental contributions on these unpaid contributions as well as interest and liquidated
damages due to its failure to make the required payments. Presently before the Court is the
Plaintiff’s [8] Motion for Partial Default Judgment. The Plaintiffs seek an order from this Court
requiring Defendant to submit the delinquent reports for the months of December 2011 through
December 2012. The Plaintiffs also request that the Court retain jurisdiction to enter an Order
for all contributions, supplemental contributions, interest and liquidated damages due for the
months of December 2011 through November 2012. Upon consideration of the Plaintiffs’

submissions 1, including the attachments thereto, applicable case law, statutory authority, and the
record of the case as a whole, the Court GRANTS the Plaintiffs’ [8] Motion for Partial Default
Judgment. The Court shall order the Defendant to submit the delinquent remittance reports for
the months of December 2011 and November 2012. This Court shall retain jurisdiction to enter
an Order for any contributions, supplemental contributions, interest, and liquidated damages due
once the delinquent remittance reports have been received as well as to address any future
motion by the Plaintiffs for attorneys’ fees and costs.
I. BACKGROUND
The Defendant is a party to a Collective Bargaining Agreement (“CBA”) with the SEIU,
Local 1, and is bound by the SEIU Pension Fund’s Trust Agreement and Collections Policy.
Compl. ¶ 9-12. The CBA requires employers to make specific contributions to the SEIU Pension
Fund based on the number of compensable hours worked by the Defendant’s employees. Id. ¶
10-11.

Employers are also required to submit monthly remittance reports reflecting the

contributions owed to the fund. Id. ¶ 13. Under the Collections Policy, if an employer like the
Defendant fails to timely remit its monthly contributions, the employer is liable for 10% annual
interest on the late contribution. Id. ¶ 14. If the fund files suit to collect late payments, the
employer is further liable for liquidated damages in the amount of 20% of the late contributions,
as well as costs and reasonable attorney’s fees. Id.
The Plaintiffs filed suit alleging that the Defendant failed to submit remittance reports or
contributions for the months of December 2011 through November 2012 and August 2013. Id. ¶
24. The Plaintiffs also allege that the Defendant owes the fund supplemental contributions on

1

Compl., ECF No. [1]; Pls.’ Mot. for Partial Default J., ECF No. [8] (“Pls.’ Mot.”); Pls.’
Mem. in Supp. of Mot. for Default J., ECF No. [8] (“Pl.’s Mem.”).
2

these unpaid contributions, interest, and liquidated damages. Id. The Defendant was served with
process but failed to file a timely response to the Complaint. The Clerk of the Court entered a
default against the Defendant on November 15, 2013. The Plaintiffs subsequently filed the
present motion, seeking an order requiring the Defendant to submit these outstanding reports and
conduct an accounting of the outstanding amounts due for the unreported months of December
2011 through November 2012. 2 The Plaintiffs also request that the Court retain jurisdiction to
enter judgment for any contributions, supplemental contributions, interest, and liquidated
damages due once the delinquent remittance reports have been received as well as to address any
future motion by the Plaintiffs for attorneys’ fees and costs.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 55(a) provides that the Clerk of the Court must enter a
party’s request for a default “[w]hen a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise.” Fed. R. Civ. P. 55(a). After a default has been entered by the Clerk, a party may
move the court for a default judgment. Fed. R. Civ. P. 55(b)(2). “The determination of whether
default judgment is appropriate is committed to the discretion of the trial court.” Int’l Painters &
Allied Trades Indus. Pension Fund v. Auxier Drywall, LLC, 531 F. Supp. 2d 56, 57 (D.D.C.
2008) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)).
Where, as here, there is a complete “absence of any request to set aside the default or
suggestion by the defendant that it has a meritorious defense, it is clear that the standard for
default judgment has been satisfied.” Auxier Drywall, 531 F.Supp.2d at 57 (citation omitted).

2

The Plaintiff’s motion does not mention the August 2013 remittance report referred to in
the Complaint.
3

The Clerk of the Court entered a default as to the Defendant on November 15, 2013, therefore
the factual allegations in the Complaint are taken as true. Int'l Painters & Allied Trades Indus.
Pension Fund v. R.W. Amrine Drywall Co., Inc., 239 F.Supp.2d 26, 30 (D.D.C. 2002). The Court
finds that the Plaintiff’s Complaint sufficiently alleges facts to support their claims. The
Plaintiffs are thus entitled to default judgment as to the Defendant’s liability for its failure to pay
certain charges in connection with late contributions, and for its failure to submit remittance
reports and contributions for December 2011 through November 2012.
III. DISCUSSION
While the entry of default establishes the Defendant's liability, the Court is required to
make an independent determination of the amount of damages to be awarded, unless the amount
of damages is certain. Int’l Painters & Allied Trades Indus. Pension Fund v. Davanc
Contracting, Inc., 808 F.Supp.2d 89, 94 (D.D.C. 2011). In this case, because the Defendant
failed to submit remittance reports for December 2011 through November 2012, the specific
amount of damages owed to the SEIU Pension Fund cannot be determined for those months.
Pursuant to the CBA, the Defendant was obligated to submit the monthly reports indicating the
contributions owed to the fund. As of the date of the Plaintiffs’ motion, the Defendant has yet to
submit the remittance reports for December 2011 through November 2012. Anderson Decl.,
ECF No. [8-5], ¶ 17 (“Defendant has failed to submit the required remittance reports for the
period December 2011 through November 2012 . . . . Without these remittance reports, the Fund
is unable to calculate the amount owed by Defendant for December 2011 through November
2012.”). The Court is satisfied that the Plaintiffs are entitled to the requested records. Therefore
the Court shall order the Defendant to submit the reports to the fund and conduct an accounting
for all past-due contributions.
4

At the request of the Plaintiffs, the Court retains jurisdiction over this matter in order to
enter an Order for all contributions, supplemental contributions, interest, and liquidated damages
due for the months of December 2011 through November 2012 once these delinquent reports are
received, as well as to address any future motion by the Plaintiffs for attorneys’ fees and costs.
Pl.’s Mem. at 6.
IV. CONCLUSION
For the foregoing reasons, the Court shall GRANT Plaintiff’s [8] Motion for Partial
Default Judgment. The Plaintiffs are entitled to remittance reports for the months of December
2011 through November 2012.

The Court retains jurisdiction to enter an Order for all

contributions, supplemental contributions, interest, and liquidated damages due for the months of
December 2011 through November 2012 as well as to address any future motion by the Plaintiffs
for attorneys’ fees and costs. An appropriate Order accompanies this Memorandum Opinion.

/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE

5