National Electrical Benefit Fund v. Donald A. Pusey, Inc.

Filing 10

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 6/1/2016. (kw2s, Deputy Clerk)

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FILED U.S.DISTRICTCOURT IN THE UNITEI> STATES I>ISTRICT COURlETRICT OF,''1ARYLANO FOR THE I>ISTRICT OF MARYLANI> SOlllltel Dil'isioll lUlb JUN -( * NATIONAL FUND, ELECTRICAL P It: 2'1 CLERK'S OFTiC~ AT GiiEEIi8::U BENEFIT * Plaintiff, R.Y -----_._C.;; !)', * Case No.: G.III-] 5-2659 v. * I>ONALD A. PUSEY, INC., * * Defendant. * * * * * * * * * I\IEMORANI>UI\I * * * * * * OPINION Pending bel(1I'ethe Court is PlaintilTNationai Elcetricallknelit Fund's ("NEllF") Motion for Default .tudgment against Donald A, Pusey, Inc, ("Pusey"), Eel' 1"0. 6. In its Motion I()r Default .tudgment. NEBI' is seeking "$1.035,38 in delinquent contributions: interest in the amount of$679.72: liquidated damages in the amount of$-107.08: attorney's fees and costs in the amount 01'$991,80, audit fees in the amount 01'$366.93, plus any additional fees and eosts - incurred bv NEllI' in conneetion with the enl(1I'eement of a jud1!ment: and interest on all amounts ~ ' awarded:' ECF No. I ~;8. Pusey has not liled a response and the deadline f{", a response e1apscd on Oetober 14.1015. See Loc. R. 105.1(a) (D. Md.10J-l). A hearing is unnccessary. Loe. R. 105,6. For the reasons statcd belm,', Plaintilrs motion for del[luit judgmcnt is GRANTED. in part. and DENIED. in part. I. BACKGROUNI> PlaintilTNEBF is a multiemployer "employee pension benelit plan:' as deli ned by 19 U,S.c. ~ 1001(1). establishcd pursuant to an agreement between the International llrotherhood of Electrical Workers and the National Defendant Pusey is an "employer:' submit contrihutions Electrical Contractors Association. ECF No. I 1,4. as that term is dell ned hy ~'JU.S.c. ~ 100~(5). contracted to NEBI'. ECF No. 1 ~ 5. Pursuant to the collecti\'e bargaining ("Bargaining Agreements") contributions to the NEBI' on behalf of Pusey's Agreements. ECl' No. I 1i 6. Pusey is also bound to the terms and conditions Employees signed hy NEBF and Pusey. Pusey was obligated Benefit Agrcement authorizes the Trustces delinqucnt contrihutions 31. ~OI3. ECF No. I 1i 9. Thc Employecs to rccover delinqucnt On Septembcr contributions. Summons '11. Bcnellt Agrccmcnt including rccovcring was served on September on thc in an and all costs. including attorncys' undcr thc Employcc ("ERISA") to collcct delinqucnt the Court's rccs Rctircmcnt contributions 0\\ dockct rcllccts that thc Summons 4. ~O15. the artidavit of sen'ice ~3. 2015. which mcans Puscy's 14. 2015. Scc ECF NO.4. Puscy failed to answcr thc Complaint. Default on No\'Cmber 24. "intcrest damagcs this Complaint Although unti I Novcmbcr hctwecn ECF NO.1 1i 15. 9. ~015. NEBF lib! to NEBF hy Puscy. ECF No. I Rcstatcd ECF No. I 1i 7. thc delinqucncy." Income Security Act of 1974. as amcndcd. not returned cxecutcd ofthc at a ratc of tcn pcrccnt ( 10%) pCI' annum. liquidatcd incurrcd in collccting to submit fl)r work pcrllll'll1cd hy Puscy's cmployccs amount cqual to twenty perccnt (20%) of the delinquency. and audit cxpcnscs. agreements cll\'ercd hy the Bargaining and Trust Ill!' NEBF ("Trust AgrccmenC). Pusey failed to pay NEBI' 5~.035.38 March I. 2012 and Dcccmber employees 10 cd \\as indicatcs that thc answcr was due on Octobcr and thc Clcrk filcd an Entry of ~o15. lOCI' NO.7. In its Default Judgmcnt. NEBF is sccking "52.035.38 in thc amount of 5679. 72: liquidatcd costs in the amount ofS99~.80. damagcs in delinqucnt contributions: in thc amount of S407.08: attorncy's audit fees inthc amount 01'5366.93. 2 intcrest fccs and plus any additional fccs and costs incurred by NEBF in conncction amounts awardcd'" "ith the enltlrccmcnt ECF No. 1 ~ S. NEBI' submittcd ofajudgmcnt: an affidavit and intcrcst on all in support of its Complaint. ECF No. 6-2. On April 7. 2016. the Court ordcred I'lainti ITto supplcmcnt Judgmcnt with the relevant portions of the Bargaining as well as an affidavit dcmonstrating that Ms. Illmlins Local Rules. ECF NO.8. I'laintilTcomplied documents. Ms. Hawkins. who has bccn a liccnscd attorncy on January 6. 1997. chargcd a ratc of$369 II. Agrccmcnt. Trust Agrccmcnt. and Audit. attorney's rccs arc consistcnt \,ith thc with thc Court's ECF Nos. 9-1 to 9-6. and liling an Artidavit its Motion Itll' Dchlllit Ordcr by providing thc rcqucstcd of Counsel that informs thc Court that It))"twcntY-lml ycars and admittcd pcr hour in this litigation. to this Court ECF No. 91,1, 6-8. DISCUSSION Undcr Fcderal Rule of Civil Procedurc default upon "a showing ("Rule") 55(a). thc Clcrk must cntcr a party's that a party against whom judgmcnt otherwise defend'" defendant who is "neithcr a minor nor an incompetent is sought has Itlilcd to plead or Fed. R. Civ. P. 55(a). Thc Clerk may cntcr a dclaultjudgmcnt sum certain or a slllllthat pcrson" if the plaintilrs can be madc certain by computation'" the Clerk has entered a dc/(llIlt.the I'laintiffmay 55(b): Ball. LiI1!! Hal1dlil1)!. Co. ". Brophy. against a claim is "Itlr a Fed. R. Civ. P. 55(b)( I). Artcr seck a dc!(uiltjudgmcnt. S!!!! Fcd. R. Ci\'. 1'. 771 F. Supp. 2d 531. 5~O (D. Md. 2(11). Thc Fourth Circuit has a strong policy that cascs bc dccided on thc mcrits. but "dc/tlllit judgment when the adversary Disn!!y process has bccn halted becausc of an cssentially unrcsponsi\"c Em!!/"s .. 111<'. \'. D!!lal1!!. 446 F. Supp. 2d ~02. 405 (D. Md. 2(06) marks omittcd). discretion Dist. LEXIS 123162. at *2 (D. Md. Oct. 25. 20 II ). 3 Sili/kii party'" (citation and quotation Whcther a plainti ff is cntitlcd to cntry of a dc/ault judgmcnt of the Court. Choic!! HOI!!ls 1111'1 Sm'al1lli/h \'. is a\ailable is leli to thc COIf' .. DKC-II-O~3S. 20 II U.S. In considering a motion for default judgment. factual allegations in the complaint. /nc, No. PWG-13-20n. 1', Vis/w/, 2014) (citing /IIC,. other than those pertaining Ryan \', f{oJII£'clJlllill)!,s Court linds that 'Iiability 253 FJd Fin. N£'/Il'ol'k. or exceed in amount. \\hat is demanded who is obligated in the pleadings:' based on Defendant such agreement:').Whcn multiemployer Agreements provision bargaincd through a civil action. 29 U,S,c. beneficiary. amount of agreement under 29 U.S.c. ~ to NEBF in accordance ~ 1145 (2012) ("Even' ~ .. plan under the terms of the shall. to thc e~tcnt not inconsistcnt with the terms and conditions contributions. of sueh plan or a fiduciary 01''1 of ERISA and the terms of the Bargaining ~ 1132('1)(3) ("A civil action may be brought", or fiduciary (A) to enjoin any act or practice \\hich violates any of this title or the terms of the plan. or (Il) to obtain other appropriate (i) to redress such violations or (ii) to enf()I'Ce any pro\'isions ... "). In any action by a fiduciary on behalfofa judgment 29 U.s.C. fails to make the obligated plan may enf(lrCe the provisions (3) by a participant. being delinquent to a multiemployer in accordance an employer /111'/. must not difTer in kind from. to make contributions to make contributions with law. make such contributions //0/£'/" Fed, R. Civ. P, 54(c). of the Ban!aininl! ~Al!reements, ~ ~ plan or under the terms 01''1 collcctively the appropriate that a "defaultjudgmcnt 1145. Under 29 U.S.C. ~ 1145. Pusey is obligated employcr ('/wiC(' 77R. 780 (4th Cir. 2001 )). "If the it must thcn detcrmine damages .... !d at *7. Rule 54(e) pnn'ides Here. Plaintiff seeks damages to damages:' 2014 U,S, Dist. LEXIS 160347. at * (, (D. Md, Nov, 14. is cstablished. with the terms and conditions the Court ..takes as true the \\dl-pleaded in favor of the plan is awarded. the Court shall ammlthe 4 or relief of this title or the terms of the plan, plan to eni()rce 29 U.s.c. (A) the unpaid contributions. (B) interest on the unpaid contributions. (C) an amount equal to the greater 01'-(i) interest on the unpaid contributions. equitable plan: ~ 1145 in \\hich a (ii) liquidated damages provided for under the plan in an amount not in excess 01'20 percent (or such higher percentage as may be pcrmitted under Federal or State law) of the amount determincd 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 relicI' as the court decms appropriatc. 29 U.S.c. ~ 1132(g)(2). documents. obligated Accepting the Court tinds that PlaintilThas to make contributions liquidated 01'$992.80.1 damages that Delcndant in delinqucnt in thc amount 01'$407.08: by an affidavit as is the request It,r intercst. liquidatcd of $366.93. Court's guidelincs ECF No. I contributions thc Plaintiff. "rliquidatcd ~ 1132(g)(2). damagcs. Ices and costs incurred by is consistent \\ith thc Complaint. attorncy's ICcs. and thc audit The Court linds that thc legal Icc is consistent in thc Local Rules. ~ Howe\'er. be denied. Under 29 V.S.c. fees and costs in the amount thc amounts m\ed. ECF No. 6-2 at I. damagcs 01'$407.08. n 15-18. interest in the amount of and interest on all amounts awarded." contributions establishing and supporting was legally and contractually plus any additional ECF No. I ~ 8. Thc amount sought for delinqucnt expense attorncy's with the cnli.)J"cement of ajudgment: ECF No. I ~ 9. and supportcd allegations failed to do so. contributions: audit fees in thc amount 01'$366.93. NEBI' in connection well-pleadcd proven that Dcfcndant to PlaintilTand NEBI' is seeking "$2.035.38 $679.72; as truc Plaintilrs I'laintitrs requcst Itlr liquidated with the damages will the Court shall award the greater of intcrest on unpaid 29 LJ.S.c. ~ 1145(g)(2). the interest on the unpaid contributions thc payment of intercst instead of liquidatcd Based on calculations is greater. Accordingly. provided by thc Court will ordcr damagcs. I This total includes $4"'~.80due to Jennifer Bush Hawkins at a rate orS369 per hour. a S"'OO.OO tiling fl'c. and a $150.00 fce for process scrvcr. Eel' NO.6-I at 2. 2 In the Complaint. the interest was lower and the altorncy's reasonable given the passage oftimc and additional work. 5 fees \\('rc ullspecilicd. but the Court finds that this is III. CONCLUSION For the reasons discussed. Plaintiffs Request for Judgment by Default (ECF No.6) is GRANTED, in part, and DENIED, in part. Defendant is ORDERED to pay Plaintiff: $2.035.38 in delinquent contributions; interest in the amount 01'$679.72; attorney's fees and costs in the amount 01'$992.80; audit fees in the amount 01'$366.93: any additional fees and costs incurred by NEBF in connection with the enfllrcement of ajudgment; interest on all amounts U\\'arded; and, post-judgment interest until paid. A separate Order !{lllows. Date: June &;L-- I . 20 I6 *' I GEORGE J. HAZEL United States District Judge 6

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