ACOSTA v. ARLETT et al
MEMORANDUM OPINION granting 12 Plaintiff's Motion for Default Judgment. See document for details. Signed by Judge Rudolph Contreras on August 2, 2018. (lcrc2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
R. ALEXANDER ACOSTA,
U.S. Secretary of Labor,
RANDALL ARLETT, et al.
Civil Action No.:
Re Document No.:
GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
Plaintiff Alexander Acosta, the United States Secretary of Labor, filed suit against
Defendants Randall Arlett; American Hospital Management Company, LLC (“AHM”); and
American Hospital Management Company 401(k) Profit Sharing Plan (the “Plan”) 1 for failure to
remit employee participant contributions to the Plan and for remitting certain contributions late,
in violation of multiple provisions of the Employee Retirement Income Security Act of 1974
(“ERISA”). See Compl., ECF No. 1. Defendants have failed to respond to this action. Now
before the Court is Secretary Acosta’s motion for default judgment, which asks the Court to enter
judgment for $128,317.96 in damages and requests various equitable remedies. See id. ¶¶ 6–8;
Pl.’s Mem. Supp. Mot. Def. J. (“Pl.’s Mem”) at 8–12, ECF No. 12-2. For the reasons set forth
below, the Court grants Secretary Acosta’s motion.
Secretary Acosta added the Plan as a party defendant pursuant to Federal Rule of Civil
Procedure 19(a) to assure that the Court may grant complete relief. Compl. ¶ 8.
II. FACTUAL BACKGROUND
Mr. Arlett and AHM are fiduciaries of the Plan as those terms are defined under ERISA.
See Compl. ¶¶ 6–7 (citing 29 U.S.C. § 1002(21)). Mr. Arlett and AHM established the Plan to
provide retirement benefits to AHM’s participating employees. See Declaration of William
Jurgovan (“Jurgovan Decl.”) ¶ 3, Ex. A, ECF No. 12-2. The Plan allowed participants to
contribute a portion of their pay to the Plan as elective salary deferrals, or employee
contributions, through payroll deductions. Compl. ¶ 9.
On December 29, 2017, Secretary Acosta filed suit alleging that Defendants had failed to
remit employee contributions and had remitted certain contributions late without interest from
September 2012 to September 2015. Id. ¶ 10. Secretary Acosta also alleges that, since April
2016, Defendants have neglected their fiduciary duty to administer the Plan and its assets, failed
to respond to requests of former employees to distribute the Plan’s assets, and failed to make
reasonable efforts to remedy their fiduciary breaches. Id. ¶¶ 13–18. Secretary Acosta asks the
Court to award damages in the amount of $128,317.96 for unremitted contributions and interest
owed on unpaid and late contributions. Id. ¶ 21; Pl.’s Mem. At 2. He also seeks various
equitable remedies. Compl. ¶ 21.
Secretary Acosta served all Defendants with the complaint and summons, but neither
Defendant responded or otherwise defended this action. See Return of Service, ECF No. 4, 8.
Accordingly, Secretary Acosta asked the Clerk of Court to enter default against all Defendants.
See Request to Enter Default on Def. Arlett, ECF No. 5.; Request to Enter Default on Defs.
AHM and the Plan, ECF No. 9. The Clerk of Court entered default against all Defendants, and
Secretary Acosta now moves for default judgment. See Arlett Default, ECF No. 7; AHM & Plan
Default, ECF No. 10; Pl.’s Mot. Default J., ECF No. 12. The Court now addresses Secretary
Acosta’s motion and concludes that he is entitled to a monetary judgment of $128,317.96 and to
most of his requests for equitable relief.
III. LEGAL STANDARD
While courts prefer to resolve disputes on their merits, a default judgment is appropriate
when the adversarial process has been effectively halted by a party’s failure to respond. Jackson
v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980). Federal Rule of Civil Procedure 55 sets forth a
two-step process for the entry of a default judgment. First, the clerk of the court must enter
default. See Fed. R. Civ. P. 55(b)(2). Following the clerk’s entry of default, the plaintiff may
move for a default judgment. Id. When ruling on such a motion, a defendant’s liability for the
well-pleaded allegations of the complaint is established by the default. See Adkins v. Teseo, 180
F. Supp. 2d 15, 17 (D.D.C. 2001). Default does not, however, establish the amount of damages
owed. See id. Instead, the court must ascertain the sum to be awarded, which may be based on
the plaintiff’s affidavits and other documentary evidence. See Nat’l Shopmen Pension Fund v.
Russell, 283 F.R.D. 16, 19–20 (D.D.C. 2012). A court has “considerable latitude in determining
the amount of damages.” Ventura v. L.A. Howard Constr. Co., 134 F. Supp. 3d 99, 103 (D.D.C.
2015). In ERISA actions involving delinquent employee contributions, plaintiffs may recover
damages for: (1) the unpaid contributions, see 29 U.S.C. § 1132(g)(2)(A); (2) interest on those
unpaid contributions, id. § 1132(g)(2)(B); (3) an amount equal to the greater of (i) interest on the
unpaid contributions or (ii) liquidated damages provided for under the plan, which must not
exceed 20 percent of the unpaid contributions, id. § 1132(g)(2)(C); (4) reasonable attorneys’ fees
and costs, id. § 1132(g)(2)(D); and (5) other legal or equitable relief the court deems
appropriate, id. § 1132(g)(2)(E).
The Court first addresses Defendants’ liability in the present action. Secretary Acosta
filed his complaint on December 29, 2017. See Compl., ECF No. 1. He then served Mr. Arlett
on February 10, 2018, and served AHM and the Plan on March 9, 2018. See Return of Service,
ECF Nos. 4, 8. On March 12, 2018, Secretary Acosta requested an entry of default on Mr. Arlett
on the ground that he had not timely filed an answer to the complaint. See Request to Enter
Default on Def. Arlett, ECF No. 5. The Clerk of Court thereby entered the default on March 13,
2018. See Arlett Default, ECF No. 7. Secretary Acosta subsequently requested a default entry
on both AHM and the Plan on the same grounds, see Request to Enter Default on Defs. AHM
and the Plan, ECF No. 9, and the Clerk of Court entered the default on April 6, 2018. See AHM
& Plan Default, ECF No. 10. On June 8, 2018, Secretary Acosta moved for default judgment,
and sent Defendants copies of the motion by first class mail. See Pl.’s Mot. Default J., ECF No.
12; Certificate of Service, ECF No. 12-3. To date, Defendants have not filed an answer, moved
to vacate the default entries, opposed the motion, or otherwise defended this action.
Defendants are liable for the well-pleaded allegations in Secretary Acosta’s complaint
because the Clerk has entered default. See Flynn v. Mastro Masonry Contractors, 237 F. Supp.
2d 66, 69 (D.D.C. 2002) (asserting that default entry establishes liability for every well-pleaded
allegation in the complaint). “ERISA requires that ‘[e]very employer who is obligated to make
contributions to a multiemployer plan . . . make such contributions in accordance with the terms
and conditions of such plan or such agreement.’” Flynn v. Extreme Granite, Inc., 671 F. Supp.
2d 157, 161 (D.D.C. 2009) (quoting 29 U.S.C. § 1145) (alteration in original). Secretary Acosta
alleges that Mr. Arlett and AHM breached their fiduciary duties because they “deducted money
from the participants’ pay as employee contributions to the Plan,” but “failed to remit those
contributions to the Plan,” and remitted certain contributions late without interest. Compl. ¶ 10.
Further, Secretary Acosta contends that, despite a former employee’s requests for distribution
from the Plan, Mr. Arlett has failed to respond, and AHM has yet to initiate “termination of the
Plan and distribution of the assets.” Id. ¶ 15. The Court deems these well-pleaded allegations
admitted and must now determine the appropriate relief.
The Court next addresses Secretary Acosta’s request for damages in the amount of
$128,317.96 for unremitted Plan contributions and interest. See Pl.’s Mem. Supp. Mot. Def. J.
(“Pl.’s Mem”) at 2, ECF No. 12-2. Secretary Acosta supports his motion for default judgment
and, specifically, his request for monetary damages, with a sworn statement by William
Jurgovan, Senior Investigator with the Washington District Office of the Employee Benefits
Security Administration (“EBSA”), which summarizes Defendants’ ERISA violations and Mr.
Jurgovan’s calculation of the damages sought. See Jurgovan Decl. Mr. Jurgovan explains that
he “derived all amounts due to the Plan from payroll records reflecting participants’ salary
deferrals for all months during the period from September 2012 through and including
September 2015.” Id. ¶ 3. Through his investigation, Mr. Jurgovan concluded that AHM and
Mr. Arlett deferred $154,013.01 in elective employee contributions to the Plan, but only remitted
$45,551.18 to the Plan and did so belatedly and without interest. Id. Mr. Jurgovan further
concluded that AHM and Mr. Arlett failed to “ensure that the outstanding $108,461.83 was
remitted as required.” Id.
Mr. Jurgovan also determined that AHM and Mr. Arlett “failed to pay interest on the
untimely employee contributions” and calculated the interest owed in accordance with 29 U.S.C.
§ 1132(g)(2)(C)(i). Id. He established that AHM and Mr. Arlett owe $19,856.13 in interest
apart from the unremitted $108,461.83. Id. The Court finds that Mr. Jurgovan’s summary of his
calculations supports Secretary Acosta’s request for monetary damages. See, e.g., Teamsters
Local 639-Emplrs. Health Tr. v. Boiler & Furnace Cleaners, Inc., 571 F. Supp. 2d 101, 108
(D.D.C. 2008) (concluding that plaintiffs’ request for damages was sufficiently supported by
assistant accounting manager’s affidavit outlining calculation of losses). Accordingly, pursuant
to 29 U.S.C. § 1132(g)(2), the Court grants Secretary Acosta’s request for monetary damages of
in the amount of $128,317.96.
C. Attorney’s Fees and Costs
Secretary Acosta also requests that the Court grant him the costs of the present action.
Compl. at 7; Pl.’s Mem. at 12. The Court is obligated to exercise discretion in awarding
attorney’s fees and costs when cases are resolved by default judgment. Boland v. Yoccabel
Constr. Co., 293 F.R.D. 13, 20 (D.D.C. 2013). Here, Secretary Acosta provides the Court no
basis for calculating the costs incurred in this matter. Accordingly, the Court denies Secretary
Acosta’s request without prejudice. See Greene v. Brown, 104 F. Supp. 3d 12, 22 (D.D.C. 2015)
(denying plaintiff’s request for attorney’s fees without prejudice because attorney’s declaration
did not itemize “the activities in which each attorney engaged on [plaintiff’s] behalf”). However,
Secretary Acosta may provide the Court with an accounting of his costs and renew his request.
See Int’l Painters & Allied Trades Indus. Pension Fund v. Auxier Drywall, LLC, 531 F. Supp. 2d
56, 58 (D.D.C. 2008) (awarding attorney’s fees because plaintiff provided attorney’s declaration
outlining costs incurred); Int’l Painters & Allied Trades Indus. Pension Fund v. R.W. Amrine
Drywall Co., 239 F. Supp. 2d 26, 32 (D.D.C. 2002) (same).
D. Equitable Relief
Lastly, the Court addresses Secretary Acosta’s request for equitable relief. ERISA
permits a court to award “other legal or equitable relief as [it] deems appropriate.” 29 U.S.C. §
1132(g)(2)(E). Here, Secretary Acosta asks this Court to order the following: (1) Defendants’
removal as fiduciaries to the Plan; (2) Defendants’ preclusion from serving as fiduciaries or
exercising any custody, control, or decision-making authority with respect to any ERISAcovered benefit plans in the future; (3) appointment of an independent fiduciary to effectuate the
termination and distribution of the Plan’s assets; (4) Defendants’ payment of the costs of the
independent fiduciary; (5) that Defendants provide Secretary Acosta and the independent
fiduciary (a) “all books, documents, and records relating to the finances and administration of the
Plan,” and (b) “an accounting of all contributions to the Plan, including transfers, payments, or
expenses incurred;” (6) Defendants’ preclusion “from engaging in any future violations of
ERISA.” Mem. Supp. Pl.’s Mot. Default J. (“Pl.’s Mem.”) at 9–11, ECF No. 12-2.
“Injunctive relief is appropriate when ‘the defendant has demonstrated no willingness to
comply with either its contractual or statutory obligations or to participate in the judicial process
. . . .’” Boland, 293 F.R.D. at 20 (quoting Carpenters Labor-Mgmt. Pension Fund v. FreemanCarder LLC, 498 F. Supp. 2d 237, 242 (D.D.C. 2007)). Defendants have failed to comply with
their obligations under ERISA—as established by the Clerk’s entry of default—and have failed
to participate in the judicial process in this case. See supra IV.A. The Court finds injunctive
relief appropriate because Defendants breached their fiduciary duties and because they continue
“to refuse to actively administer the fund, leaving the Plan’s assets inaccessible to their owners.”
Perez v. Sajovic, No. 14 CV 1922 (NGG)(RML), 2014 U.S. Dist. LEXIS 171185, at *7
(E.D.N.Y. Oct. 20, 2014); see Jurgovan Decl. ¶ 3 (stating that Defendants “have not taken any
steps to terminate the plan and distribute [its] assets”); Compl. ¶ 15 (alleging that Defendants
have failed to respond to a former employee’s request to distribute her contributions to the Plan).
The Court grants Secretary Acosta’s request to remove Defendants as fiduciaries to the Plan and
to permanently enjoin them from serving as fiduciaries or exercising any custody, control, or
decision-making authority with respect to ERISA-covered benefit plans in the future. See 29
U.S.C. § 1109 (providing for removal of fiduciary as remedy for breach of ERISA obligations);
Perez, 2014 LEXIS 171185, at *7 (removing and permanently enjoining defendant from “serving
as a fiduciary or service provider to any employee benefit plan” because he violated several
provisions of ERISA and did not cooperate with judicial process); Solis v. Smart Tech., Inc., No.
1:12-cv-284 (TSE/IDD), 2012 U.S. Dist. LEXIS 147420, at *11–13 (E.D. Va. Aug. 27, 2012)
The Court also grants Secretary Acosta’s request for an order requiring Defendants to
produce all documents relating to the management of the Plan. See, e.g., Int’l Painters & Allied
Trades Indus. Pension Fund, 239 F. Supp. 2d at 33 (ordering defendant to produce “all records
and books” relating to delinquent contributions owed to the pension plan). Moreover, the Court
appoints AMI Benefit Plan Administrators, Inc. to administer and terminate the Plan and
distribute its assets to its participants, and orders Defendants to pay for those services per
Secretary Acosta’s request. 2 See, e.g., Solis v. Bosniak, No. CV 12-1621 (ADS)(ARL), 2013
As Secretary Acosta also requests, see Proposed Order ¶¶ 4–7, ECF No. 12-1, any
funds held in Mr. Arlett’s Plan account are hereby forfeited to the extent that there are
insufficient funds available to reimburse the Plan participants and to pay the costs and expenses
of AMI. Consistent with 29 U.S.C. § 1056(d)(4), no amount of the restitution shall be
redistributed to Mr. Arlett’s individual Plan balance, other than what would be required to satisfy
any right of Mr. Arlett’s spouse, until the amounts due to the other Plan participants, and the
costs and expenses of AMI have been paid in full. Mr. Arlett’s spouse retains any right she may
have to receive the survivor annuity under 29 U.S.C. § 1055(a), unless she waives those rights
pursuant to 29 U.S.C. § 1056(d)(4)(C).
U.S. Dist. LEXIS 111382, at *9 (E.D.N.Y. May 8, 2013) (“[T]he Secretary has standing to seek
and the court has the power to grant appropriate equitable relief under [ERISA], including the
appointment of an independent fiduciary.”). However, the Court denies Secretary Acosta’s
request to permanently enjoin Defendants from violating ERISA in the future because such a
request is overbroad and would invite unwarranted contempt proceedings. See, e.g., Perez v.
Stratton, No. 14-cv-95-wmc, 2015 U.S. Dist. LEXIS 90319, at *8–9 (W.D. Wis. July 13, 2015)
(denying plaintiff’s request to permanently enjoin defendant from violating Title I of ERISA for
overbreadth and because “[i]njunctions that merely instruct the enjoined party not to violate a
statute” increase the likelihood of unwarranted contempt proceedings).
For the foregoing reasons, Secretary Acosta’s motion for default judgment is
GRANTED. An order consistent with this Memorandum Opinion is separately and
Dated: August 2, 2018
United States District Judge
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