Trustees of the Indiana State Council of Roofers Health and Welfare Fund v. Browns Excavating, Inc.

Filing 8

OPINION AND ORDER: Court GRANTS 7 Motion for Default Judgment. Defendant Browns Excavating, Inc. is ORDERED to pay Plaintiff $34,294.57 in delinquent contributions, audit expenses, attorney's fees, and costs. FINAL JUDGMENT is entered in favor of the Plaintiff. Signed by Chief Judge Philip P Simon on 6/12/2015. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
LAFAYETTE DIVISION
TRUSTEES OF THE INDIANA STATE
COUNCIL OF ROOFERS
HEALTH AND WELFARE FUND,
Plaintiff,
v.
BROWNS EXCAVATING, INC.,
Defendant.

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No. 4:14 CV 82 PPS-PRC

OPINION AND ORDER
Before the Court is Plaintiff’s Motion for Default Judgment against Defendant
Browns Excavating, Inc. [DE 7.] Because Defendant has failed to respond to the
Complaint, Plaintiff’s Motion for Default Judgment is GRANTED.
I. BACKGROUND
Plaintiff filed the complaint in this matter on December 2, 2014. [DE 1.] Service of
the summons and complaint was made by certified mail on December 14, 2014. [DE 4.]
Defendant failed to appear, plead, or otherwise defend the lawsuit. Accordingly,
Plaintiff filed a motion for entry of default on January 6, 2015 [DE 5], which the clerk of
the court entered on January 12, 2015. [DE 6.] Plaintiff’s Motion for Default Judgment
[DE 7] is now before the Court.
Plaintiffs are the trustees of the Indiana State Council of Roofers Health and
Welfare Fund, which is a multi-employer employee benefit plan. [DE 1 ¶ 3.] Plaintiffs

assert they are fiduciaries within the meaning of ERISA as the fund is an employee
benefit fund within the meaning of ERISA. [Id.] The complaint alleges that Browns
Excavating, Inc. is a signatory to a collective bargaining agreement that requires
payments to Plaintiff’s fund. [Id. ¶ 5.] Plaintiffs allege Browns breached this agreement
by failing to make the necessary payments for the period between February 2014 and
September 2014. [Id. ¶ 13.] Plaintiffs seek an order directing Browns to pay the
delinquent contributions, along with interest , attorney fees, and damages.
II. DISCUSSION
Federal Rule of Civil Procedure 55 governs the entry of default and default
judgment. Prior to obtaining a default judgment under Rule 55(b)(2), there must be an
entry of default as provided by Rule 55(a). See Hill v. Barbour, 787 F. Supp. 146, 148 n.4
(N.D. Ill. 1992). Federal Rule of Civil Procedure 55(b)(1) dictates that the clerk shall
enter a default judgment against the defendant when the defendant has been defaulted
for failure to appear and is not an infant or incompetent person and when a plaintiff’s
claim against a defendant is for a sum that can be made certain through computation.
Under Rule 55 Courts may consider a number of factors when deciding a motion
for default judgment. These factors include the amount of money potentially involved,
whether material issues of fact or issues of substantial public importance are at issue,
whether the default is largely technical, whether plaintiff has been substantially
prejudiced by the delay involved, and whether the grounds for default are clearly
established or are in doubt. 10A C. Wright, A. Miller & M. Kane, Federal Practice and
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Procedure: Civil § 2685 (3d ed. 1998); see also Cameron v. Myers, 569 F. Supp. 2d 762, 764
(N.D. Ind. 2008) (citation omitted).
In this case, there are few material issues of fact, and the grounds for default are
clearly established. First, default is not simply a technicality. This case has been pending
since December, and Defendant has shown no intention of responding to the
Complaint. Moreover, Plaintiff seeks a relatively small amount of money, and the
lawsuit implicates no issues of public importance. Thus, all of the factors weigh in favor
of default judgment.
When a court determines that the defendant is in default, all well-pleaded
allegations of the complaint will be taken as true. Whers v. Wells, 688 F.3d 886, 892 (7th
Cir. 2012); O’Brien v. R.J. O’Brien & Assocs., Inc., 998 F.2d 1394, 1404 (7th Cir. 1993). Here,
this means that the Court must take as true Plaintiff’s assertion that Browns Excavating
is liable to the Fund for delinquent contributions.
“Although upon default the factual allegations of a complaint relating to liability
are taken as true, those allegations relating to the amount of damages suffered are
ordinarily not.” Dundee Cement Co. v. Howard Pipe & Concrete Prods. Inc., 722 F.2d 1319,
1323 (7th Cir. 1983) (citations omitted). Though Fed. R. Civ. P. 55(b)(2) provides that a
court may hold a hearing or conduct an investigation if necessary to determine the
amount of damages, no such inquiry is necessary if “the amount claimed is liquidated
or capable of ascertainment from definite figures contained in the documentary
evidence or in detailed affidavits.” Id.; see also Domanus v. Lewicki, 742 F.3d 290, 302 (7th
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Cir. 2014) (holding a district court did not abuse its discretion by refusing to hold a
hearing when the court possessed sufficient documentary evidence to ascertain
plaintiff’s damages).
When a benefit plan wins a judgment to enforce payment of delinquent
contributions it is entitled to:
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of –
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an amount not in
excess of 20 percent (or such higher percentage as may be permitted under
Federal or State law) of the amount determined by the court under
subparagraph (A),
(D) reasonable attorney’s fees and costs of the action to be paid by the defendant,
and
(E) such other legal or equitable relief as the court deems appropriate.
29 U.S.C. § 1132(g)(2).
In support of the Fund’s claims for delinquent contributions, Plaintiff submits the
affidavit of Ellen Densborn, an employee of the Fund who is responsible for
determining employee delinquencies. [DE 7-1 ¶ 6.] Densborn avers that the Fund is
owed $30,687.55 in delinquent contributions. [Id. ¶ 8.] She also states that the Fund
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incurred audit expenses of $2,298.02. [Id. ¶ 9.] Under ERISA, audit costs are part of the
relief due to a prevailing plaintiff under 29 U.S.C. § 1132(a)(2)(E) as “other legal or
equitable relief.” See Moriarty ex rel. Local Union No. 727 v. SVEC, 429 F.3d 710, 721 (7th
Cir. 2005). Finally, Densborn states that the Fund incurred a filing fee of $400 and
attorney’s fees of $918.00 in mounting this lawsuit. [Id.] An affidavit and accompanying
documentation from Fund attorney Charles Berger reflects that his hourly rate is $170,
which the Court finds reasonable. [DE 7-2.]
CONCLUSION
The Court, being duly advised, GRANTS the Motion for Default Judgment [DE
7]. Defendant Browns Excavating, Inc. is ORDERED to pay Plaintiff $34,294.57 in
delinquent contributions, audit expenses, attorney’s fees, and costs. The Clerk is
directed to enter FINAL JUDGMENT stating that Plaintiff is entitled to the relief
ordered herein. The Clerk is further directed to treat this matter as TERMINATED.
SO ORDERED.
ENTERED: June 12, 2015
s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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