BRICKLAYERS & TROWEL TRADES INTERNATIONAL PENSION FUND et al v. JOANN BARRON

Filing 11

MEMORANDUM OPINION re 10 Order granting Motion for Default Judgment. Signed by Judge Christopher R. Cooper on 6/29/2018. (lccrc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRICKLAYERS & TROWEL TRADES
INTERNATIONAL PENSION FUND et al.,
Plaintiffs,

Case No. 1:18-cv-0165-CRC

v.
JOANN BARRON d/b/a BARRON TILE COMPANY,
Defendant.
MEMORANDUM OPINION
Plaintiffs in this ERISA action—multiemployer employee benefit plans—seek to recover
unpaid contributions and associated damages from an Ohio-based tile company. Despite having
been properly served, the company has not responded to the complaint, the Clerk’s entry of
default, or the Court’s order to show cause why judgment should not be entered against it.
Plaintiffs now request a default judgment, monetary damages, and attorneys’ fees, as well as an
injunction requiring the company to submit to a payroll audit and make the required plan
contributions going forward. Because Plaintiffs have adequately established that the Defendant
is liable and that they are entitled to all of the requested relief, the Court will grant their motion
and enter judgment against the company.
I.

Background
Plaintiffs—the Bricklayers & Trowel Trades International Pension Fund (“IPF”) and the

International Masonry Institute (“IMI”)—are “employee benefit plans” and “multiemployer
plans” under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1002 et seq.
(“ERISA”). The plans are funded by contributions made by employers who are signatories to
collective bargaining agreements. Ohio-based Defendant Joann Barron is an individual doing

business under the trade name “Barron Tile Company” (“Barron”) and is one such employer. It
is required under its collection bargaining agreements and the plans’ written procedures
governing the collection of employer contributions (“Collection Procedures”) to submit monthly
reports and payments to the plans based on the number of hours worked by its employees in
covered job positions. David F. Stupar Supp. Pls.’ Mot. Default J. (“Stupar Decl.”) ¶ 7. If
Barron fails to make the required contributions, Plaintiffs are entitled to file suit to recover the
unpaid contributions; interest on the unpaid contributions; either an additional assessment of
interest on the unpaid contributions or liquidated damages provided for under the plan not in
excess of 20 percent, whichever is higher; reasonable attorneys’ fees and costs; and other legal or
equitable relief as the court deems appropriate. 29 U.S.C. § 1132(g)(2).
Plaintiffs allege that Barron failed to “report and pay all amounts owing to [them] as
required” by the applicable collective bargaining agreements and the plans’ Collection
Procedures. Compl. ¶ 10. Barron was properly served on January 31, 2018. Pls.’ Aff. Service.
It did not respond to the complaint, however, and the Clerk of the Court entered default on
February 26, 2018. Entry of Default. Plaintiffs now petition the Court to enter a default
judgment, seeking monetary judgement against Barron in the amount of $8,794.44, which
includes delinquent contributions, interest on delinquent payments, liquidated damages, process
server costs, filing fees, and attorneys’ fees. Stupar Decl. ¶¶ 9-13, 15-18.
Section 502(e)(2) of ERISA provides for federal jurisdiction “in the district where the
plan is administered.” 29 U.S.C. § 1132(e)(2). According to the complaint, both the IPF and the
IMI are administered in the District of Columbia. Compl. ¶¶ 1-2. The Court therefore has
jurisdiction over the case. Plaintiffs filed the complaint within ERISA’s three-year statute-oflimitations period. See 29 U.S.C. § 1113.

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II.

Standard of Review
The standard for default judgment is a two-step procedure. See, e.g., Boland v. Cacper

Constr. Corp., 130 F. Supp. 3d 379, 382 (D.D.C. 2015). First, the plaintiff requests that the
Clerk of the Court enter default against a party who has “failed to plead or otherwise defend.”
Fed. R. Civ. P. 55(a). Second, the plaintiff must move for entry of default judgment. Fed. R.
Civ. P. 55(b). Default judgment is available when “the adversary process has been halted
because of an essentially unresponsive party.” Boland v. Elite Terrazzo Flooring, Inc., 763 F.
Supp. 2d 64, 67 (D.D.C. 2011) (internal citation omitted). “Default establishes a defaulting
party’s liability for the well-pleaded allegations of the complaint.” Id. After establishing
liability, the court must make an independent evaluation of the damages to be awarded and has
“considerable latitude in determining the amount of damages.” Id. The court may hold a hearing
or rely on “detailed affidavits or documentary evidence” submitted by plaintiffs in support of
their claims. Boland v. Providence Constr. Corp., 304 F.R.D. 31, 36 (D.D.C. 2014) (quoting
Fanning v. Permanent Sol. Indus., Inc., 257 F.R.D. 4, 7 (D.D.C. 2009)).
III. Analysis
The Court must determine whether entry of default judgment is appropriate and, if Barron
is liable, whether Plaintiffs are entitled to the manner and amount of relief they request. The
Court concludes that the company breached its duties under ERISA and the Collection
Procedures and that Plaintiffs are entitled to both the monetary and injunctive relief requested.
A. Liability
Plaintiffs filed suit in January 2018 to recover the damages prescribed by ERISA and the
Collection Procedures. Compl. ¶ 1. Barron was served with the summons and complaint on

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January 31, 2018. Pls.’ Mot. Default J. 1. The Clerk of the Court declared it to be in default on
February 26, 2018. Entry of Default. On June 12, 2018, the Court issued an Order to Show
Cause why judgment should not be entered for Plaintiffs and set June 28, 2018 as the deadline
for Barron to respond. Barron has not responded to either the complaint, the Clerk’s entry of
default, or the Court’s Order to Show Cause.
Because the Clerk of the Court has entered default and Barron has failed to respond, the
Court accepts Plaintiffs’ well-pleaded allegations and holds that it is liable and that entry of
default judgment is appropriate. See Elite Terrazzo Flooring, Inc., 763 F. Supp. 2d at 67.
ERISA requires employers to make contributions to multiemployer plans “in accordance with the
terms and conditions of” the relevant collective bargaining agreements. 29 U.S.C. § 1145. The
IPF and IMI’s Collection Procedures specify that contributions are due “on or before the 15th
day of the month” after the month in which work was performed. Stupar Decl. ¶ 5. They further
provide that Barron will “submit monthly fringe benefit remittance reports and pay monthly
fringe benefit contributions to the IPF and IMI for each hour of covered work performed by its
employees within the work and geographic jurisdictions of the Agreement.” Stupar Decl. ¶ 7.
By failing to submit required reports and pay the required contributions to IMI and IPF for
covered work, Barron is liable for contractual and statutory damages.
The Court may enter default judgment when a defendant makes no request “to set aside
the default” and gives no indication of a “meritorious defense.” Fanning, 257 F.R.D. at 7.
Barron, as noted above, has not responded to the complaint since being served in January 2018.
The Court thus concludes that entry of default judgment against the Defendant is appropriate.

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B. Damages
The next issue before the Court is the amount of damages due: “[P]laintiffs must prove
these damages to a reasonable certainty.” Elite Terrazzo Flooring, Inc., 763 F. Supp. 2d at 68.
Under ERISA, employers are required to pay any delinquent contributions, interest on unpaid
contributions, liquidated damages at a rate of up to 20 percent or an additional interest
assessment at the rate provided under the plan (whichever is higher), and legal fees. 29 U.S.C. §
1132(g)(2). When a defendant has failed to respond, the Court must make an independent
determination—by relying on affidavits, documentation, or an evidentiary hearing—of the sum
to be awarded as damages.
As support for their requested damages, Plaintiffs have submitted declarations from
David F. Stupar, the Executive Director of the IPF and an authorized representative of the IMI,
and Richard Hopp, Plaintiffs’ attorney of record and counsel at O’Donoghue & O’Donoghue
LLP. Both attest to having personal knowledge of the facts regarding the assessment of
contributions owed by Joann Barron, as well as the costs incurred in the current suit. Stupar
Decl. ¶ 1; Hopp Decl. ¶ 1. Courts in this district, including this one, have accepted similar
declarations in support of motions for default judgment regarding monetary damages owed to
IPF and IMI. See Cacper Constr. Corp., 130 F. Supp. 3d at 383; Providence Constr., 304 F.R.D.
at 37; Elite Terrazzo Flooring, 763 F. Supp. 2d at 69. Mr. Stupar’s declaration details the
amounts owed for delinquent contributions, interest on late paid payments, liquidated damages,
court fees, and the process server’s fee. Stupar Decl. ¶¶ 9-13, 15-18.
1. Cover Group 2
First, Mr. Stupar affirms that Barron reported but failed to pay all the contributions due to
IPF and IMI for covered work performed in Local Union No. 8 – Ohio, cover group 2, in August,

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October and December 2016, and February, March, April, May, June, and September 2017.
Stupar Decl. ¶ 9. Barron owes the IPF contributions in the amount of $1,252.21, and the IMI
contributions in the amount of $780.68, interest on the delinquent contributions due to the funds
in the amount of $284.17, and liquidated damages in the amount of $406.64. Id. Barron also
failed to timely pay contribution dues to the IPF and IMI for covered work performed by cover
group 2 during the months of May, July, August, November and December 2016 and January,
April and December 2017 and January 2018. Stupar Decl. ¶ 16. Barron owes liquidated
damages in the amount of $933.60 to the IPF and IMI. Id.
Second, Barron failed to report and pay all the contributions to the IPF and IMI for
covered work performed in Local Union No. 8 – Ohio, cover group 2, in July and August 2017,
and February and March 2018. Stupar Decl. ¶ 10. Without the reports, Plaintiffs are entitled to
judgment based on reasonable estimates of hours worked by employees in covered employment.
See, e.g., Nat’l Shopmen Pension Fund v. Builders Metal Supply Inc., 304 F.R.D. 47, 50 (D.D.C.
2014). Plaintiffs estimate that $245.98 is owed each month to the IPF (for a total of $983.92)
and $148.98 is owed each month to the IMI (for a total of $595.92) based on the average hours
reported by Barron. The interest on these delinquent contributions is $44.59 to the IPF and
$27.01 to the IMI; liquidated damages are $147.60 to the IPF and $89.40 to the IMI. Stupar Decl.
¶ 11-12.
2. Cover Group 29
First, during March and May 2017, Barron reported but failed to pay to the IMI all
contributions owed for covered work performed in Local Union No. 8 – Ohio, cover group 29.
Stupar Decl. ¶ 13. Barron owes the IMI contributions in the amount of $7.54, interest on the

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delinquent contributions in the amount of $1.05, and liquidated damages in the amount of $1.51.
Id.
Second, Barron failed to report and pay all contributions to the IPF and IMI for covered
work performed in Local Union No. 8 – Ohio, cover group 29, in December 2016 and June,
August, September, October, November and December 2017, and January, February and March
2018. Stupar Decl. ¶ 14. Plaintiffs estimate that $6.82 is owed each month for December 2016
and $7.05 per month for June, August, September, October, November and December 2017, and
January, February and March 2018 to the IMI (for a total of $70.27) based on the average
monthly hours reported by Barron. Stupar Decl. ¶ 15. The interest on these delinquent payments
is $4.18 to the IMI; liquidated damages are $12.65 to the IMI. Id.
3. Court Fees
Additionally, Plaintiffs are entitled to recover court fees under ERISA Section
502(g)(2)(D). Here, Plaintiffs incurred a $400 court filing fee and a $185 process server fee.
Stupar Decl. ¶¶ 17-18.
The costs detailed above total $6,227.94.
C. Attorneys’ Fees
Aside from contractual damages, ERISA also requires defendants to pay plaintiffs’
reasonable attorney’s fees. 29 U.S.C. § 1132(g)(2)(D). O’Donoghue & O’Donoghue charged
Plaintiffs $295 an hour for 8.7 hours of work, totaling $2,566.50 in attorney’s fees for this case.
Hopp Decl. ¶ 2, 4. In support of the requested attorney’s fees, Mr. Hopp’s declaration details the
services provided to Plaintiffs. He attests that he has over 27 years of experience practicing
exclusively in the field of labor and employee benefits. Id. ¶ 1. He also notes that the firm has

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charged reduced hourly rates in this case that fall “substantially below” the rate in the current
Laffey matrix. Id. ¶ 4.
Mr. Hopp’s declaration outlines the individual tasks he performed, from preparing the
complaint to drafting the motion for default judgment. Hopp Decl. Ex. 1. Because this
declaration constitutes the type of “detailed . . . documentary evidence” on which the Court may
rely, see Fanning, 257 F.R.D. at 7, the Court concludes that Plaintiffs have justified the hours
expended in this case.
The Court likewise finds the requested rates to be reasonable. Mr. Hopp states that the
negotiated fee of $295 an hour is “below the usual and customary fee charged for this type of
work.” Hopp Decl. ¶ 4. Given that the firm charged below-market rates, the Court finds the
request to be reasonable. See, e.g., Providence Constr. Corp., 304 F.R.D. at 37 (holding that
“Funds are entitled to an attorneys-fee award calculated at market rates . . .”). The Court
therefore determines that Plaintiffs are entitled to $2,566.50 in attorney’s fees.
D. Equitable Relief
The final issue before the Court is whether Plaintiffs are entitled to their requested
equitable relief: an order directing Barron to submit an audit of its payroll records and an
injunction requiring Barron to 1) submit all remittance reports accurately to Plaintiffs no later
than the fifteenth day of the month following the month in which the Defendant’s employees
performed their work, and 2) pay the Plaintiffs all contributions owed no later than the fifteenth
day of the month following the month in which the Defendant’s employees performed their
work. Pls.’ Mot. Default J. 9–10.
ERISA permits courts to grant “other legal or equitable relief as [it] deems appropriate.”
29 U.S.C. § 1132(g)(2)(E). This may include “an injunction requiring a defendant to permit, and

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cooperate with, an audit of its books and records.” Fanning v. AMF Mechanical Corporation,
No. CV 17-1514 (TJK), 2018 WL 2389727, at *4 (D.D.C. May 24, 2018) (quoting Flynn v.
Mastro Masonry Contractors, 237 F. Supp. 2d 66, 70 (D.D.C. 2002)). In similar situations with
non-responsive defendants, courts have awarded injunctions requiring an employer to comply
with its obligations under ERISA and collective bargaining agreements. See Boland v. Yoccabel
Constr. Co., Inc., 293 F.R.D. 13, 20-21 (D.D.C. 2013); Int’l Painters & Allied Trades Industry
Pension Fund v. ZAK Architectural Metal & Glass, LLC, 635 F. Supp. 2d 21, 26 (D.D.C. 2009);
Carpenters Labor-Mgmt. Pension Fund v. Freeman-Carder, LLC, 498 F. Supp. 2d 237, 242
(D.D.C. 2007).
Guided by these prior cases, the Court grants Plaintiffs’ petition for an injunction
“because the defendant has demonstrated no willingness to comply with either its contractual or
statutory obligations or to participate in the judicial process.” ZAK Architectural Metal & Glass,
LLC, 635 F. Supp. 2d at 26 (internal citation omitted). The Court directs Barron to submit to an
audit of its payroll records, file the reports required under the applicable collective bargaining
agreement, and pay all contributions to IPF and IMI that may become due after the entry of
judgment.
IV. Conclusion
For the foregoing reasons, the Court will grant Plaintiffs’ Motion for Entry of Default
Judgment. The Court will issue an order consistent with this opinion.

CHRISTOPHER R. COOPER
United States District Judge
Date: June 29, 2018

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