Operating Engineers Local No. 101 Pension Fund et al v. Grisham Grading & Excavating Company, Inc.

Filing 7

MEMORANDUM AND ORDER granting 6 Motion for Default Judgment. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 7/31/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
OPERATING ENGINEERS LOCAL NO. 101
PENSION FUND, et al.,
Plaintiffs,
Vs.

No.

13-2166-SAC

GRISHAM GRADING & EXCAVATING,
COMPANY, INC.,
Defendant.
MEMORANDUM AND ORDER
The plaintiffs are employee benefit plans and multi-employer
plans, a co-chairman of these plans, and a labor organization suing to recover
fringe benefit contributions that the defendant owes to plaintiff plans under the
Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§
1132 and 1145, and to recover membership dues that the defendant owes to
the plaintiff union pursuant to Labor Management Relations Act (“LMRA”), 29
U.S.C. § 185. (Dk. 1).

On May 15, 2013, the clerk of the court entered default

against the defendant after it failed to appear or defend this action within the
required time period. (Dk. 5). On July 9, 2013, the plaintiffs filed their motion
for default judgment pursuant to Fed. R. Civ. P. 55(b)(2) submitting affidavits
establishing the amounts for judgment and making no request for an
evidentiary hearing or equitable relief in the form of an order requiring an

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audit. (Dk. 6). The defendant again has not filed any response to this pending
motion.
On an application for default judgment under Rule 55(b)(2), the
district “court may conduct hearings or make referrals . . . when, to enter or
effectuate judgment, it needs to: . . . determine the amount of damages.” The
need for a hearing is a decision committed “to the sound discretion of the
district court.” Finkel v. Romanowicz, 577 F.3d 79, 87 (2nd Cir. 2009). “Rule
55 . . ., does not require that the district court receive evidence on the claimed
damages amount before entering a default judgment; rather, the Rule simply
allows the district court to conduct a hearing if it believes that additional
investigation or evidence is necessary.” Marcus Food Co. v. DiPanfilo, 671 F.3d
1159, 1172 (10th Cir. 2011). The Tenth Circuit recognizes the need for a
hearing when the damages are not capable of mathematical calculation. Id.
The plaintiffs offer the affidavit from David Barry, who serves as
the administrator of the plaintiff plans. Barry avers that a worksheet has been
prepared that calculates the amounts owed by the defendant during the period
from October 2012 through February 2013. Barry describes the worksheet’s
calculations as being based upon the terms of the applicable trust agreements
as applied to the defendant’s reports of covered work during the relevant
period. Barry states that “[t]he worksheet is maintained in the routine course
of the Funds’ [plans] operation and is true and correct to the best of . . . [his]

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knowledge.” (Dk. 6-1 ¶ 5). Barry avers that the defendant’s liability, as
calculated, is delinquent contributions totaling $23,525.09, liquidated
damages totaling $2,034.88, and interest totaling $224.22. The plaintiffs also
submit the affidavit of their counsel which lays out in detail the hourly billing
rate, the total hours worked, the nature of the legal work, and the other costs
and fees. (Dk. 6-2). The total fee for legal services billed to the plaintiffs was
$674.50, and the total expenses and other fees billed was $475.00. Id. at ¶¶
3-4.
After reviewing the supporting affidavits and worksheet, the court
finds that the plaintiffs have provided sufficient documentary evidence and
details to sustain the amounts requested for past due contributions, liquidated
damages, interest, fees and costs. The court finds that the plaintiffs’ requested
amounts are reasonable under the circumstances.
IT IS THEREFORE ORDERED that the plaintiffs’ motion for default
judgment (Dk. 6) is granted;
IT IS FURTHER ORDERED that default judgment be hereby entered
against the defendant Grisham Grading & Excavating, Company, Inc. and in
favor of the plaintiffs in the amount of $26,934.69.
Dated this 31st day of July of 2013, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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