FRYE, ET AL v. BARBER CONSTRUCTION CO.

Filing 20

ORDER - Presently pending before the Court is an unopposed Motion for Default Judgment and for Permanent Injunction, [Filing No. 17 ], filed by Plaintiff David Frye, Trustee of the Indiana Laborers Welfare, Pension, Training and Defined Contribut ion Trust Funds (the "Trustee"). Pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), the Trustee asks this Court to: (1) enter default judgment in his favor and against Defendant Barber Construction Compa ny ("Barber") in the amount of $11,021.32 in delinquent contributions, interest, and liquidated damages, [Filing No. 17 at 1]; (2) award him $2,305.00 in attorneys' fees, [Filing No. 17 at 1]; (3) order Barber to obtai n a bond in an amount stipulated by the collective bargaining agreement, [Filing No. 17 at 1]; and (4) permanently enjoin Barber "from failing[,] neglecting, and refusing to make its required contributions" to the Trustee as they fall due, [Filing No. 1 at 4.] The Court will consider each request, in turn. For the reasons stated herein, the Trustee's Motion for Default Judgment and for Permanent Injunction 17 is GRANTED. Final judgment shall enter accordingly. (SEE ORDER). Copy to defendant via US Mail. Signed by Judge Jane Magnus-Stinson on 12/29/2017. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DAVID FRYE TRUSTEE,
INDIANA LABORERS WELFARE, PENSION,
TRAINING AND DEFINED CONTRIBUTION
TRUST FUNDS,
Plaintiffs,
v.
BARBER CONSTRUCTION CO.,
Defendant.

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No. 1:17-cv-01165-JMS-MJD

ORDER
Presently pending before the Court is an unopposed Motion for Default Judgment and
for Permanent Injunction, [Filing No. 17], filed by Plaintiff David Frye, Trustee of the Indiana
Laborers Welfare, Pension, Training and Defined Contribution Trust Funds (the “Trustee”).
Pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), the Trustee asks
this Court to:

(1) enter default judgment in his favor and against Defendant Barber

Construction Company (“Barber”) in the amount of $11,021.32 in delinquent contributions,
interest, and liquidated damages, [Filing No. 17 at 1]; (2) award him $2,305.00 in attorneys’
fees, [Filing No. 17 at 1]; (3) order Barber to obtain a bond in an amount stipulated by the
collective bargaining agreement, [Filing No. 17 at 1]; and (4) permanently enjoin Barber
“from failing[,] neglecting, and refusing to make its required contributions” to the Trustee as
they fall due, [Filing No. 1 at 4.] The Court will consider each request, in turn.

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I.
DISCUSSION
A. Default Judgment
Default is a “two-step process” that is “clearly outlined” in Rule 55(a) and 55(b) of the
Federal Rules of Civil Procedure. VLM Food Trading Int’l, Inc. v. Illinois Trading Co., 811
F.3d 247, 255 (7th Cir. 2016). On June 8, 2017, after the time for answering the Trustee’s
Complaint had expired with no answer from Barber, the Court made an entry of default
pursuant to Federal Rule of Civil Procedure 55(a). [Filing No. 8.] The Trustee now requests
a default judgment pursuant to Federal Rule of Civil Procedure 55(b) in order to determine
his rights against Barber. VLM Food Trading, 811 F.3d at 255 (stating that an entry of default
“does not of itself determine rights” and that “[t]hat role is reserved for a default judgment”)
(citation and emphasis omitted).
Considering the Trustee’s Motion for Default Judgment and supporting evidence,
[Filing No. 17-1], the Court finds that a hearing is unnecessary and now GRANTS the Motion,
[Filing No. 17]. The Court will enter default judgment pursuant to Federal Rule of Civil
Procedure 55(b) in favor of the Trustee and against Barber in the amount of $11,021.32 in
delinquent contributions, interest, and liquidated damages.
B. Attorneys’ Fees
In actions arising under ERISA to enforce delinquent contributions under a plan, a
court shall award a fiduciary “reasonable attorney’s fees and costs of the action, to be paid by
the defendant.” 29 U.S.C. § 1132(g)(2)(D). Pursuant to the supporting evidence provided by
the Trustee, [Filing No. 17-2], the Court finds that the requested attorneys’ fees are reasonable
and, therefore, GRANTS the Motion as it relates to attorneys’ fees and awards the Trustee
$2,305.00.
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C. Bond
In his Complaint, the Trustee alleges that Barber entered into collective bargaining
agreements with the Laborers’ International Union of North America, Indiana State District
Council that required Barber to obtain and maintain a bond in an amount stipulated therein.
[Filing No. 1 at 2]. In his supporting affidavit, Timothy Patrick, the Collections Manager of
the Indiana Laborers Welfare, Pension, Training and Defined Contribution Trust Funds,
alleged that Barber has not, consistent with the terms of the collective bargaining agreements,
provided a bond issued by a surety approved by the U.S. Department of the Treasury in the
sum of $15,000.00 in order to secure Barber’s obligations to the Trustee. [Filing No. 17-1 at
2-3.]
A collective bargaining agreement that lends itself to only one reasonable
interpretation is considered to be unambiguous. Alexander v. City of Evansville, Indiana, 120
F.3d 723, 727 (7th Cir. 1997) (citation omitted). Given the Trustee’s Motion for Default
Judgment and supporting evidence, [Filing No. 17-1], the Court GRANTS the Motion as it
relates to the agreements’ bond requirements and directs Barber to obtain and maintain a
surety bond in accordance with the terms of the collective bargaining agreements.
D. Permanent Injunction
ERISA provides that a civil action may be brought “by a participant, beneficiary, or
fiduciary to enjoin any act or practice which violates any provision of [ERISA] or the terms
of the plan.” 29 U.S.C. § 1132(a)(3)(A). As a general matter, a permanent injunction requires
a showing of:
(1) whether the plaintiff has succeeded on the merits; (2) whether the plaintiff
will have an adequate remedy at law or will be irreparably harmed if the
injunction does not issue; (3) whether the threatened injury to the plaintiff
outweighs the threatened harm the injunction may inflict on the defendant; and
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(4) whether the granting of the injunction will harm the public interest.
Mantel v. Boren, 2014 WL 5018830, at *2 (S.D. Ind. Oct. 6, 2014) (citing Plummer v. Am.
Inst. of Certified Pub. Accountants, 97 F.3d 220, 229 (7th Cir. 1996) (quotation omitted)). In
the context of a plaintiff attempting to show harm due to an ERISA violation, the Seventh
Circuit has held that the “probability of irreparable harm is strong” given that the express
purpose of the statute is to “ensure the protection of millions of employees covered by pension
plans.” Gould v. Lambert Excavating, Inc., 870 F.2d 1214, 1221 (7th Cir. 1989) (quoting 29
U.S.C. § 1001(a) as follows: “Congress finds . . . that the continued well-being and security
of millions of employees and their dependents are directly affected by these plans; that they
are affected with a national public interest . . . .”).
Having considered the supporting documentation in this case, the Court finds that the
Trustee lacks an adequate remedy at law and is likely to suffer irreparable injury if Barber is
not enjoined from failing and/or refusing to make timely contributions and payments as
required by a collective bargaining agreement and ERISA.

The Motion is therefore

GRANTED as it relates to the Trustee’s request for a permanent injunction and Barber will
be PERMANENTLY ENJOINED as follows:
Defendant, its agents, servants, employees, and all persons in active counsel and in
participation with it, are permanently enjoined from failing and/or refusing to make timely
payment of monies due Plaintiff Funds on behalf of all of Defendant’s employees for whom
contributions are required under the aforementioned collective bargaining agreements,
beginning with the contributions for the month of October, 2017. All future contributions will
be paid on or before their due date on the basis specified in any collective bargaining
agreement between the Laborers’ International Union of North America, Indiana State District

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Council, and the Defendant.
II.
CONCLUSION
For the reasons stated herein, the Trustee’s Motion for Default Judgment and for
Permanent Injunction [17] is GRANTED. Final judgment shall enter accordingly.

Date: 12/29/2017

Electronic distribution to all counsel of record via ECF.
Distribution by US Mail:
Barber Construction Co.
c/o Jason Barber, Registered Agent
3114 N. Huber St.
Indianapolis, IN 46226

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