United Association of the Plumbing and Pipe Fitting Industry of United States and Canada, Local No. 360 et al v. Ehret Plumbing and Heating Co., Inc.

Filing 16

ORDER granting 11 Motion for Default Judgment CONSTRUED as Motion to Compel Accounting: As explained in the attached Order, construing the motion as one seeking an accounting/audit (not one for default judgment), the Court GRANTS the motion (Doc. 11) and ORDERS Defendant Ehret to submit to a payroll audit. Specifically, Defendant Ehret shall provide Plaintiffs no later than September 16, 2013 all payroll records and related documents needed to perform an audit for the period of January 1, 2012 to the present. See Order for details. Signed by Judge Michael J. Reagan on 8/16/13. (soh )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED ASSOC. OF THE PLUMBING
and PIPE FITTING INDUSTRY of U.S.
and CANADA, LOCAL NO. 360, et al.,
Plaintiffs,
vs.
EHRET PLUMBING AND
HEATING CO., INC.,
Defendant.

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Case No. 13-cv-0541 MJR-DGW

ORDER COMPELLING AN ACCOUNTING
REAGAN, District Judge:
This is an action pursuant to Section 301 of the Labor Management Relations Act of
1947, as amended, 29 U.S.C. 185, and Section 502 of the Employee Retirement Income
Security Act of 1974, as amended, 29 U.S.C. 1132.

The Court enjoys subject matter

jurisdiction under the federal question statute, 28 U.S.C. 1331. Plaintiffs are a labor union
(Local 360 of the Plumbing and Pipefitting Industry), trust funds (employee benefit plans
established under various written agreements and administered in this District), and the
trustees of those funds. Defendant Ehret is an employer (as defined in the LMRA and
ERISA) “located within this judicial district” (Doc. 2, p. 4), and a party to various collective
bargaining agreements (CBAs) with Local 360.
The complaint alleges that Ehret has refused to submit fringe benefit contributions
on behalf of employees for the period of February 2013 through May 2013 (Doc. 2, p. 5), as
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required under applicable collective bargaining agreements and trust agreements. The
complaint further alleges that those agreements authorize Plaintiffs to conduct a financial
examination of Ehret’s books and records to determine the exact amount owed by Ehret.
The complaint requests an order requiring Ehret to submit to an audit of its records to
determine the amounts owed to Plaintiffs, plus judgment (based upon the findings of the
financial examination) for the delinquent contributions along with interest, liquidated
damages, accounting fees, costs and reasonable attorney’s fees under 29 U.S.C. 1132(g),
and an order requiring Ehret to make payments in the future according to terms of the
existing CBAs and those CBAs which may be negotiated in the future (Doc. 2, p. 5).
Plaintiffs served Ehret on July 18, 2013. An answer or other responsive pleading
was due August 8, 2013. Ehret did not move, answer, or otherwise respond to the
complaint by that date or since then. On August 9, 2013, Plaintiffs secured a clerk’s entry
of default against Ehret, pursuant to Federal Rule of Civil Procedure 55(a). Now before
the Court is Plaintiffs’ August 9, 2013 “Motion for Default Order to Compel an
Accounting” (Doc. 11).
Having carefully reviewed the motion, supporting memorandum and proposed
order, the Court concludes that an accounting is warranted, but the terminology of the
motion and supporting brief is somewhat confusing. The Court CONSTRUES Doc. 11 as
a Motion to Compel Accounting (not a motion for “default”).

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ERISA authorizes federal district courts to grant equitable relief, such as compelling
an accounting, in actions for delinquent contributions. See 29 U.S.C. 1132(g)(2)(E). The
undersigned Judge need not rely on Federal Rule of Civil Procedure 55(b)(2) relating to
default judgments to grant the requested relief.1
Accordingly, the Court GRANTS the motion (Doc. 11) and ORDERS Defendant
Ehret to submit to a payroll audit. Specifically, Defendant Ehret shall provide Plaintiffs –
no later than September 16, 2013 – all payroll records and related documents needed to
perform an audit for the period of January 1, 2012 to the present.2
IT IS SO ORDERED.
DATED August 16, 2013.
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

A hearing under Rule 55(b)(2) may be appropriate at a later date to
“determine the amount of damages” supporting default judgment, but we
are not yet at that stage in the instant case. No motion for default judgment
has been filed yet; and it makes more sense to cross that bridge – only if
necessary – after an accounting has revealed whether required contributions
were made and, if not, how much is owed by Ehret.
1

Apparently, Ehret’s payroll records were last audited by
accountants for the Local 360 Funds for the period ending December 31,
2011. This explains why an audit starting January 1, 2012 is needed. See
Affidavit of Don Degonia, Local 360’s Business Manager, Doc. 11-1, p. 3.
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