Indiana State Council of Roofers Health and Welfare Fund v. Embry's Roofing, Inc.

Filing 8

OPINION AND ORDER Defendant Embrys Roofing motion is GRANTED. (DE 7.) Embrys Roofing is ORDERED to pay: (1) $22,795.20 in delinquent contributions for the period January 1 to April 30, 2014, to Plaintiff Trustees of the Indiana State Council of Roofers Health and Welfare Fund; (2) $63,770.40 in delinquent contributions for the period May 1 to December 31, 2014, to Plaintiff Trustees of the Indiana State Council of Roofers Health and Welfare Fund; (3) Statutory post-judgment interest at the current legal rate on all monies owed pursuant to (1)-(2) supra; and (4) $1,122.00 and $400.00 to Plaintiff Trustees of the Indiana State Council of Roofers Health and Welfare Fund for attorneys fees and court costs, respectively. 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. Signed by Chief Judge Philip P Simon on 5/18/2015. (kds)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
LAFAYETTE DIVISION
TRUSTEES OF THE INDIANA STATE )
COUNCIL OF ROOFERS HEALTH
)
AND WELFARE FUND,
)
)
Plaintiff,
)
)
vs.
)
)
EMBRY’S ROOFING, INC.,
)
)
Defendant.
)

4:14-cv-00084-PPS-PRC

OPINION AND ORDER
The Trustees of the Indiana State Council of Roofers Health and Welfare Fund
(the “Fund”) sued Embry’s Roofing in December 2014. The Fund claimed that Embry’s
was a party to a collective bargaining agreement that required it to pay into the Fund,
which provides employment benefits to employees of contributing employers. The
Fund alleges that Embry’s didn’t pay as agreed. Defendant Embry’s has not appeared,
pled or otherwise defended this case as required by the Federal Rules of Civil
Procedure. So the Fund seeks a default judgment. Because analysis of the factors for
deciding a motion for default weigh in favor of default judgment here, the Fund’s
motion will be granted.
BACKGROUND
The Plaintiffs are the Trustees of the Fund, suing on behalf of the Fund to collect
delinquent employment contributions owed by Embry’s Roofing under a collective
bargaining agreement. (Docket Entry 1 at ¶¶ 3, 5, 11.) In its single-count complaint the

Fund alleges a claim under Section 301 of the Labor Management Relations Act of 1947,
29 U.S.C. § 185, and Section 502 of ERISA, 29 U.S.C. § 1332.
The Fund served the complaint and summons by certified mail on December 6,
2014. (DE 4.) The attached delivery receipt shows that the package was signed for by the
eponymous Robert Embry. Embry’s has failed to appear, plead, or otherwise defend the
lawsuit as required by the Federal Rules of Civil Procedure. Accordingly, on December
31, 2014, the clerk entered default under Rule 55(a). (DE 6.) Plaintiff waited nearly three
months, allowing Embry’s ample time to respond, but Embry’s has remained mum as
far as the docket reflects. Then the Fund moved for default judgment on March 25, 2015.
(DE 7.) The Fund seeks a judgment against Embry’s for (1) $22,795.20 in delinquent
contributions for the period of January 1, 2014 to April 30, 2014; (2) $63,770.40 in
delinquent contributions for the period of May 1, 2014 to December 31, 2014; (3)
$1,122.00 in attorney’s fees; and (4) $400.00 in court costs.
DISCUSSION
A default judgment establishes, as a matter of law, that the defendant is liable to
the plaintiff for each cause of action in the complaint. E360 Insight v. The Spamhaus
Project, 500 F.3d 594, 602 (7th Cir. 2007). Moreover, all well pleaded allegations of the
complaint will be taken as true. Id. at 605. Federal Rule of Civil Procedure 55(b) governs
default judgments, and the Court must exercise sound judicial discretion in entering a
default judgment. See Lowe v. McGraw-Hill Cos., Inc., 361 F.3d 335, 339-40 (7th Cir. 2004);
O’Brien v. R.J. O’Brien & Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993). Prior to
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obtaining a default judgment under Rule 55(b)(2), there must be an entry of default as
provided by Rule 55(a). See Wolf Lake Terminals, Inc. v. Mut. Marine Ins. Co., 433 F. Supp.
2d 933, 941 (N.D. Ind. 2005). Under Rule 55(a), the clerk is to enter the default of a party
against whom a judgment is sought when that party has failed to plead or otherwise
defend. Fed. R. Civ. P. 55(a).
In considering a motion for default judgment a court may look to a number of
factors, including “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 . . . .” C. Wright &
A. Miller, 10A Federal Practice and Procedure: Civil § 2685 (3d ed. 1998).
Here, I find that a default judgment against Embry’s Roofing, Inc. is proper. No
material issues of fact are at issue and the grounds for default are clearly established.
The issue of nonadherence to a contract is a commonplace one, but important
nonetheless. This is especially true in the present context, where nonpayment under the
collective bargaining agreement affects the Fund as well as Embry’s employees for
whom contributions should have been made. For the purpose of this case, and without
information to the contrary, I assume the Fund is upholding its end of the bargain and
providing the services it is obligated to provide, so Embry’s is reaping the benefits of
the deal without paying, which prejudices the plaintiff Fund. The public also has an
interest in the enforcement of collective bargaining agreements. The default here goes
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beyond a mere technicality, as Embry’s has not filed any responsive pleading despite
being served with the Complaint and Summons over five months ago. A defendant
cannot be allowed to completely ignore a lawsuit against it. “While the entry of a
default judgment should be used sparingly, [the Seventh Circuit sees] no need to
impose a requirement that prevents a district court from imposing that sanction if,
under the circumstances, it is warranted. The Federal Rules of Civil Procedure, as well
as local rules of court, give ample notice to litigants of how to properly conduct
themselves. A district court is not required to fire a warning shot . . . .” United States v.
Di Mucci, 879 F.2d 1488, 1493 (7th Cir. 1989). “A trial court is entitled to say, under
proper circumstances, that enough is enough.” Pyramid Energy, Ltd. v. Heyl & Patterson,
Inc., 869 F.2d 1058, 1062 (7th Cir.1989) (internal citation omitted).
The only matter that remains to be considered is damages. In considering a
motion for default judgment the court will have a hearing if necessary. One possible
subject of such a hearing could be the determination of damages. See Dundee Cement Co.
v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir. 1983); see also, Lowe v.
McGraw-Hill Cos., 361 F.3d 335, 339-40 (7th Cir. 2004) (citing Fed. R. Civ. P. 55(b)(2)). In
cases where damages are “capable of ascertainment from definite figures contained in
the documentary evidence or in detailed affidavits,” however, such a hearing is
unnecessary. Dundee, 722 F.2d at 1323.
In this case, I have the information necessary to calculate the damages without a
hearing. The Plaintiffs have attached the affidavits of Ellen Densborn (DE 7-2) and
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Charles Berger (DE 7-1) to establish the amount of damages, in the form of unpaid
contributions and attorney’s fees, owed by Defendant Embry’s Roofing. The affidavits
are detailed, and the affidavit stating unpaid contributions is supported by
documentary evidence in the form of a report by a certified public accountant.
Ellen Densborn works for the Fund keeping track of delinquent contractors. She
attests that she reviewed the accountant’s audits covering the relevant periods (attached
to Densborn’s affidavit as Exhibits A and B), and therefore knows that Embry’s owes
the Fund $22,795.20 for the period January 1 to April 30, 2014, and $63,770.40 for the
period May 1 to December 31, 2014, for a total of $86,565.60. Densborn also attests to the
fact that the Fund paid $400.00 in court costs to file this case. (DE 7-2.)
Under 29 U.S.C. § 1132(g)(2)(D) (ERISA civil enforcement), the Fund is entitled to
reasonable attorney’s fees and court costs to be paid by Defendant Embry’s. The Fund
has attached the affidavit of attorney Charles Berger, the attorney representing the Fund
in this case. He attests that he has worked on this case for 6.6 hours at a rate of $170.00
per hour, for a total of $1,122.00 in attorney’s fees. (DE 7-1 at 1.)
CONCLUSION
For the foregoing reasons, Plaintiff Fund’s Motion for Default Judgment against
Defendant Embry’s Roofing is GRANTED. (DE 7.) Embry’s Roofing is ORDERED to
pay:
(1) $22,795.20 in delinquent contributions for the period January 1 to April 30,
2014, to Plaintiff Trustees of the Indiana State Council of Roofers Health and Welfare
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Fund;
(2) $63,770.40 in delinquent contributions for the period May 1 to December 31,
2014, to Plaintiff Trustees of the Indiana State Council of Roofers Health and Welfare
Fund;
(3) Statutory post-judgment interest at the current legal rate on all monies owed
pursuant to (1)-(2) supra; and
(4) $1,122.00 and $400.00 to Plaintiff Trustees of the Indiana State Council of
Roofers Health and Welfare Fund for attorney’s fees and court costs, respectively.
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: May 18, 2015
/s/ Philip P. Simon
PHILLIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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