National Electrical Benefit Fund et al v. 3W Electric, LLC

Filing 12

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 3/20/2017. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
NATIONAL ELECTRICAL
BENEFIT FUND

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and

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NATIONAL ELECTRICAL
ANNUITY PLAN

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Plaintiffs,
v.
3W ELECTRIC LLC,

Civil Case No.: PWG-16-1580

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Defendant.

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Annuity

Plan

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MEMORANDUM OPINION
National

Electrical

Benefit Fund ("NEBF")

and National

Electrical

("NEAP") (referred to collectively as "Plaintiffs"), filed this civil enforcement action under the
Employee Retirement Income Security Act of 1974 ("ERISA"),
seeking delinquent pension contributions pursuant to
1132,1145.

CompI. ~~ 1, 8-10, ECF No.!.

SS

29 U.S.C.

S

1001 et seq.,

502 and 515 of ERISA, 29 U.S.c.

SS

I struck Defendant's Answer filed pro se by a

member of the LLC, ECF NO.5, for failure to comply with Local Rule 101.1(a), which requires
corporate defendants to be represented by counsel.
any further response to the pleadings.

Order, ECF NO.6.

Defendant did not file

Plaintiffs have since filed a Motion for Clerk's Entry of

Default, ECF No.8, which was granted, ECF No. 10, and a Motion for Default Judgment, PIs.'
Mot., ECF NO.9., to which Defendant has also not responded.

A Suggestion of Bankruptcy,

Def.'s Bankr. Sugg. ECF No. 11, was filed giving notice that the United States Bankruptcy Court
for the Western District of Arkansas ordered relief for a Mr. William Weems on October 25,
1

2016. Having reviewed the filings, I find that a hearing is unnecessary in this case. See Loc. R.
105.6 (D. Md.). Plaintiffs have demonstrated liability and established the damages they seek.
Accordingly, Plaintiffs' Motion for Default Judgment will be granted.
Backround
Plaintiffs are multi employer pension benefit plans subject to ERISA.

SS

I 002(3), 1003(a); CompI. ~~ 3-4.

contribution plan. 29 U.S.C.

SS

29 U.S.C.

NEBF is a defined benefit plan and NEAP is a defined

1002(34)-(35);

CompI. ~~ 3-4. Both plans were established

pursuant to an agreement between the International Brotherhood of Electrical Workers and the
National Electrical Contractors Association. Compl. ~~ 3-4.
Defendant, 3W Electric, LLC, is an Arkansas limited liability company ("Defendant" or
"the LLC"). Jd. ~ 6. Defendant is an employer who agreed to participate in NEBF and NEAP
pursuant to agreements with the International Brotherhood of Electrical Workers Local Union
222, the collective bargaining representative of the company's employees.

Jd. ~ 7. Plaintiffs'

complaint seeks a total of $178,535.61 in damages and attorney's fees and costs, as well as
injunctive relief directing Defendant to submit required payroll reporting forms for the months of
February 2016 until present, along with any corresponding contributions, interest, and liquidated
damages, or submit to an audit. Jd. at ~~ 8-10.
Mr. Weems, a member of the LLC, filed apro se Answer on August 29,2016.

ECF No.

5. The Answer stated that Defendant intended to file for bankruptcy under Title 13. Jd. I struck
the Answer from the record for failure to comply with Local Rule 101.1 (a), which requires
corporate defendants to be represented by counsel.

Order, ECF NO.6.

I did, however, advise

Mr. Weems to notify the court if Defendant did file for bankruptcy. Jd. On September 14, 2016,
Plaintiffs filed a Motion for Clerk's Entry of Default, ECF No.8,

2

and a Motion for Default

Judgment, ECF NO.9. The Office of the Clerk entered an Order of Default for want of answer or
other defense on October 6, 2016.

ECF No. 10.

Bankruptcy was filed with the Court.

On October 31, 2016, a Suggestion of

Def.'s Bankr. Sugg., ECF No. 11.

The Suggestion

explained that Mr. Weems filed a bankruptcy petition and that the United States Bankruptcy
Court for the Western District of Arkansas ordered relief for that petition on October 25, 2016.
Id.
Standard of Review
Rule 55 of the Federal Rules of Civil Procedure establishes a two-step process when a
party applies for default judgment.

First, the rule provides that "when a party ...

has failed to

plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
enter the party's default." Fed. R. Civ. P. 55(a).
plaintiff [then may] seek a default judgment."

Following the Clerk's entry of default, "the

Godlove v. Martinsburg Senior Towers, LP, No.

14-CV-132, 2015 WL 746934, at *1 (N.D.W. Va. Feb. 20, 2015); see also Fed. R. Civ. P. 55(b).
"The Fourth Circuit has a 'strong policy' that 'cases be decided on their merits.'" s.E.C v.
Lawbaugh, 359 F. Supp. 2d 418,420 (D. Md. 2005) (citing Dow v. Jones, 232 F. Supp. 2d 491,
494 (D. Md. 2002)). However, "default judgment may be appropriate when the adversary
process has been halted because of an essentially unresponsive party." Id. at 420-22.
In determining whether to grant a motion for default judgment, the Court takes as true the
well-pleaded factual allegations in the complaint, other than those pertaining to damages. Ryan
v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001).

If the Court finds that

"liability is established, [it] must then determine the appropriate amount of damages."
Fin., LLC v. Samler, 725 F. Supp. 2d 491,484 (citing Ryan, 253 F.3d at 780-81).

Agora

In order to do

so, "the court may conduct an evidentiary hearing, or may dispense with a hearing if there is an

3

adequate evidentiary basis in the record from which to calculate an award."

Mata v. G.0.

Contractors Grp., Ltd., No. TDC-14-3287, 2015 WL 6674650, at *3 (D. Md. Oct. 29, 2015); see
also Fed. R. Civ. P. 55(b).
Discussion
Mr. Weems's Automatic Stay
As an initial matter, Mr. Weems's Suggestion of Bankruptcy asks that this action be
stayed under 11 U.S.c.

9 362.

Id. The filing of a Chapter 13 bankruptcy petition automatically

stays "the commencement or continuation ...

of a judicial ...

action or proceeding against

the debtor that was or could have been commenced before the commencement of the case under
this title, or to recover a claim against the debtor that arose before the commencement of the case
under this title." 11 U.S.c.

9

362(a)(1) (emphasis added). "The purpose of the automatic stay,

in addition to protecting the relative position of creditors, is to shield the debtor from financial
pressure during the pendency of the bankruptcy proceeding."

Winters ex rei. McMahon v.

George Mason Bank, 94 F.3d 130, 133 (4th Cir. 1996). It is well settled that an automatic stay
only applies to the debtor, not co-defendants or related parties. See e.g., Kreisler v. Goldberg,
478 F.3d 209, 213 (4th Cir. 2007) (holding that the automatic stay did not apply to actions
against debtor's non-bankrupt subsidiary corporation); Willifordv. Armstrong World Indus., 715
F.2d 124, 126 (4th Cir. 1983) (holding that the automatic stay did not apply to codebtors, but
observing that such a stay can extend to codebtors of consumer debts). As I understand it, Mr.
Weems filed for bankruptcy relief, Def.'s Bankr. Sugg., but Mr. Weems is not a named party to
this case. See CompI. '11'111, The only named Defendant is the LLC. Id.
6.
A member or agent of an Arkansas LLC is not liable for the debts of the company. Ark.
Code Ann.

9

4-32-304 ("[A] person who is a member, manager, agent or employee of a limited

4

liability company is not liable for a debt, obligation, or liability of the limited liability company,
whether arising in contract, tort, or othenvise .... "). Furthermore, under Arkansas law, an LLC
is a separate legal entity from its members. See Anderson v. Stewart, 234 S.W.3d 295,298 (Ark.
2006) (applying the "nearly universal rule that a corporation and its stockholders are separate and
distinct entities, even though a stockholder may own the majority of the stock(]" to an LLC and
its sole member). Thus, a member's bankruptcy does not automatically stay proceedings against
an LLC.
An automatic stay further prevents "any act to obtain possession of property of the estate
or of property from the estate or to exercise control over property of the estate." 11 U.S.C.
362(a)(3).

S

But a member's ownership interest in an LCC does not give that member direct

ownership interest in the assets of the LCC. See Kreisler, 478 F.3d at 214 (holding that a parent
corporation's ownership interest in a subsidiary LLC "does not give the parent any direct interest
in the assets of the subsidiary.").

As the Fourth Circuit explained in Kreisler, the owner of an

LLC could have established ownership interest in the assets, but chose instead to create an LLC
and "(h]aving assumed whatever benefits flowed from that decision, it cannot now ignore the
existence of the LLC in order to escape its disadvantages."

Id.

Although Mr. Weems's

ownership interest in the LLC may be part of the bankruptcy estate, the property interests of the
LLC remain its own and are not protected by Mr. Weems's automatic stay.
Nor, does this case fall under the "unusual circumstances" exception which extends the
protection of an automatic stay to third parties. In A.H. Robins Co., Inc. v. Piccinin, the Fourth
Circuit explained that an
unusual situation ... arises when there is such identity between the debtor and the
third-pmiy defendant that the debtor may be said to be the real party defendant
and that a judgment against the third-party defendant will in effect be a judgment
or finding against the debtor. An illustration of such a situation would be a suit

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against a third-party who is entitled to absolute indemnity by the debtor on
account of any judgment that might result against them in the case.
788 F.2d 994, 999 (4th Cir. 1986).
Courts, however, have not recognized membership in or ownership of an
constitute such an "unusual situation."

LLC to

See e.g., In re McCormick, 381 B.R. 594, 602 (Bankr.

S.D.N.Y. 2008) (holding that actions against a bankruptcy debtor's wholly-owned LLC did not
violate the automatic stay because the LLC was a separate legal entity); In re Calhoun, 312 B.R.
380 (Bankr. N.D. Iowa 2004) (holding that a debtor's bankruptcy stay does not extend to a LLC
simply because the debtor held ownership interest in that LLC). As detailed above, the LLC is
the only Defendant and is a separate legal entity from Mr. Weems. Accordingly, I find that the
automatic stay does not prevent judicial action against 3W Electric, LLC.
Default Judgment
A. Liability
Plaintiffs' well-pleaded factual allegations, taken as true, establish liability under ERISA.
Section 515 of ERISA, states that:
Every employer who is obligated to make contributions to a multi employer plan
under the terms of the plan or under the terms of a collectively bargained
agreement shall, to the extent not inconsistent with law, make such contributions
in accordance with the terms and conditions of such plan or such agreement.
29 U.S.C.A.

S

1145.

Plaintiffs' further rely on section 502(g), which, in the event of a delinquent-contributions
judgment in favor of the plaintiff pension plan, requires the court to award: (l) the delinquent
contributions; (2) any interest on the delinquent contributions; (3) liquidated damages in "an
amount equal to the greater of ...

(i) interest on the [delinquent] contributions, or ...

(ii)

liquidated damages provided for under the plan not in excess of 20 percent" of the delinquent

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contributions; (4) reasonable attorney's fees and costs; and (5) "such other legal and equitable
relief as the court deems appropriate."

29 U.S.C.

S

1132(g)(2). "The Supreme Court has found

that these sections of ERISA 'provide trustees of multi employer benefit plans with an effective
Int'l Painters & Allied Trades Indus.

federal remedy to collect delinquent contributions.'"

Pension Fund v. Capital Restoration & Painting Co., 919 F. Supp. 2d 680, 685-86 (D. Md.
2013) (quoting Laborers

Health & Welfare Trust Fund for Northern

Lightweight Concrete Co., 484 U.S. 539, 541 (1988)).
delinquent

contributions,

"a multiemployer

Cal. v. Advanced

Furthermore, in an action to collect

plan can enforce, as written, the contribution

requirements found in the controlling documents." Bakery & Confectionery Union & Indus. Int'l
Pension Fundv. Ralph's Grocery Co., 118F.3d 1018,1021 (4thCir.1997).
Plaintiffs provide a Letter of Assent, ECF No. 9-3, the Collective Bargaining Agreement,
ECF No. 9-4, the NEBF Trust Agreement, ECF No. 9-5, and the NEAP Trust Agreement, ECF
No. 9-6, as proof that Defendant agreed to make full and timely monthly payments to Plaintiffs.
Defendant further agreed to pay liquidated damages, interest, audit costs, and any additional
costs incurred collecting the delinquent contributions.
Trust Agreement

S

See NEBF Trust Agreement

S 6.9; NEAP

6.8. Plaintiffs also filed the Affidavit of Angel Losquadro, Director of the

Plaintiffs' Audit and Delinquency Department in support of the claim that Defendant violated the
terms of the Trust Agreements.

Losquadro Aff. ~ 9, ECF No. 9-2. Losquadro attests to being

familiar with the Trust Agreements and the issues at hand. See id. ~ 1. Losquadro states that
Defendant owes NEBF $20,543.55 and NEAP $121,678.39 in unpaid contributions

for the

period of August 2015 to January 2016. Id. ~ 9. Losquadro further states that Defendant owes
interest on those delinquent contributions, liquidated damages, and legal costs and fees. Id. ~~ 8,
12, 15. The amount of delinquent contributions cited by Losquadro is based on Defendant's

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self-reported failure and refusal to submit contributions.

Id. ~ 9. Lastly, Losquadro attests that

Defendant has not submitted payroll reports or the corresponding contributions for any periods
since January 2016. Id. ~ 10. Thus, Plaintiffs' well-plead factual allegations establish liability.
B. Damages
Having established ERISA liability, I must now determine the appropriate amount of
damages. Plaintiffs are entitled to: the amount of delinquent contributions; interest; an amount
"equal to the greater of (l) the interest on the [delinquent] contributions

or (2) liquidated

damages provided for under the plan and not in excess of 20 percent of the [delinquent]
contributions; reasonable attorneys' fees and costs; and other legal and equitable relief this Court
deems appropriate." Int'[ Painters, 919 F. Supp. 2d at 686 (citing 29 U.S.C.

S

1132(g)(2)).

In

support of the Plaintiffs' request for delinquent contributions, interest, liquidated damages, and
injunctive relief ordering Defendant to report payroll for all periods since January 2016 or submit
to an audit, Plaintiffs submit a NEBF Delinquency Report, ECF No. 9-7, a NEAP Delinquency
Report, ECF No. 9-8, as well as Lasquadro's Affidavit and the Trust Agreements.
Hawkins, Plaintiffs'

Jennifer Bush

attorney of record, also submitted an affidavit in support of entry of

judgment and demand for attorney's fees. See Hawkins Aff., ECF No. 9-1.
Plaintiffs'

Motion

for Default Judgment

asserts that the Defendant

owes NEBF:

$20,543.55 for delinquent contributions; $1,883.09 in interest; $4,108.71 in liquidated damages;
and $1,221.70 in attorney's fees and costs, for a total of $27,658.05 in damages.1

Pis.' Mot. ~ 8.

Plaintiffs' Motion requests specific amounts in damages for delinquent contributions, interest,
liquidated damages, and in attorney's fees and costs. Following the categorical breakdowns of
damages, Plaintiffs' Motion motion provides a total of all damages and attorney's fees and costs
equaling $27,658.05 for NEBF and $158,186.83 for NEAP. Pis.' Mot. ~~ 8-9. These stated
totals, however are both $99.00 less than the actual sums of the requested delinquent
contributions, interest, liquidated damages, and attorney's fees and costs. See id. The cause of
this error is unknown. Since I evaluate the appropriate amount of each separate request for
1

8

Plaintiffs

further

contributions;

assert

that the

Defendant

owes NEAP:

$121,678.39

for delinquent

$11,050.06 in interest; $24,335.68 in liquidated damages; and $1,221.70 in

attorney's fees and costs, for a total of$158,186.83

in damages. Id. ~ 9. I note that the amount

of requested interest increased from a combined $9,752.37 in the Complaint, ~~ 8-9, to a
combined $12,933.15.

PIs.' Mot. ~~ 8-9.

Generally, "(a] default judgment must not differ in

kind from, or exceed in amount, what i~ demanded in the pleadings."

Fed. R. Civ. P. 54(c). If,

however, the complaint provides notice to the defendant "that additional unspecified damages
may be awarded if the case proceeds to judgment," the amount of damages awarded may exceed
the amount of damages specifically pleaded without violating Federal Rule of Civil Procedure
54(c). Nat 'I Automatic Sprinkler Indus. Welfare Fund v. Harvey, No. GJH-15-521, 2016 WL
297425, at *5 (D. Md. Jan. 21, 2016). I will allow the increase because the Complaint provided
notice that the amount of interest may increase. See CompI. 7.
All told, Plaintiffs seek: (1) $183,559.48 in damages; (2) $2,443.40 in attorney's fees and
costs; (3) any additional costs incurred in connection with enforcement of any judgment; (3)
interest on all amounts awarded; and (4) injunctive relief ordering Defendant to remit payroll
reporting and any corresponding contribution, interest, and liquidated damages for the periods
since January 2016 or, in the alternative, submit to an audit. Id. ~~ 8-10.
1. Delinquent Contributions
Angel Losquadro, Director of Plaintiffs' Audit and Delinquency Department, attests that
3W Electric, LLC owes NEBF $20,543.55 and NEAP $121,678.39 in delinquent contributions
for the periods from August 2015 to January 2016. Losquado Aff. ~~ 1, 9. These amounts are
based on Defendant's

self-reported failure and refusal to submit contributions.

damages, I will disregard the incon-ect total sums offered by Plaintiffs'
damages accordingly.
9

See id. ~ 9;

Motion and award

NEBF Delinquency Report; NEAP Delinquency Report.

I find the evidentiary basis in the

record adequate and the amounts appropriate. Accordingly, I award NEBF $20,543.55 in
delinquent contributions and NEAP $121,678.39 in delinquent contributions.
2. Interest
ERISA provides for interest on delinquent contributions "using the rate provided under
the plan, or, if none, the rate prescribed under section 6621 of Title 26." 29 U.S.C.

S

1132(g)(2).

Both Trust Agreements provide that interest on delinquent contributions will be assessed "at a
ten percent (l 0%) annual rate compounded monthly throughout the period of delinquency[.]"
NEBF Trust Agreement

S

6.9.3; NEAP Trust Agreement

S

6.8.3.

Applying this interest rate,

NEBF claims $1,883.09 in interest and NEAP claims $11,050.06 in interest. PIs.' Mot. ~~ 8-9. I
find the evidentiary basis in the record adequate and the amounts appropriate.

Accordingly, I

award NEBF $1,883.09 in interest and NEAP $11,050.06 in interest.
3. Liquidated Damages
Liquidated damages can be awarded at the greater amount of either: (l) the interest on
delinquent contributions; or (2) the "liquidated damages provided for under the plan and not in
excess of 20 percent" of the delinquent contributions.

29 U.S.c.

S

1132(g)(2)(C)(i)-(ii).

Both

Trust Agreements authorize the assessment of "an amount up to twenty percent (20%) of the
amount found to be delinquent ... " as liquidated damages.
NEAP Trust Agreement

S 6.8.2.

NEBF Trust Agreement

S

6.9.2;

Applying this liquidated-damages rate, NEBF claims $4,108.71

in liquidated damages and NEAP claims $24,335.68 in liquidated damages. PIs.' Mot. ~~ 8-9. I
find the evidentiary basis in the record adequate and the amounts appropriate.

Accordingly, I

award NEBF $4,108.71 in liquidated damages and NEAP $24,335.68 in liquidated damages.
4. Attorney's Fees and Costs

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Plaintiffs claim attorney's fees and costs totaling $1,221.70 for NEBF and $1,221.70 for
NEAP. PIs.' Mot. ~~ 8-9. If a delinquent-contributions

judgment is made in favor of a plaintiff

plan, I must award reasonable attorney's fees and costs, to be paid by the defendant.
U.S.c.

S

1132(g)(2)(D).

The Trust Agreements also provide for the payment of attorney's fees

and costs incurred in collecting delinquent contributions.
NEAP Trust Agreement

See 29

S 6.8.5.

See NEBF Trust Agreement

S 6.9.5;

A more detailed accounting of the attorney's fees and costs are

provided in Hawkins's Affidavit. Hawkins Aff. ~~ 9-10.2
"The most useful starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied by a reasonable hourly
rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This approach is commonly known as the
"lodestar" method. Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008). In assessing
reasonableness,

the Fourth Circuit has instructed district courts to consider certain factors,

including:
(1) the time and labor expended; (2) the novelty and difficulty of the questions
raised; (3) the skill required to properly perform the legal services rendered; (4)
the attorney's opportunity costs in pressing the instant litigation; (5) the customary
fee for like work; (6) the attorney's expectations at the outset of the litigation; (7)
the time limitations imposed by the client or circumstances; (8) the amount in
controversy and the results obtained; (9) the experience, reputation and ability of
the attorney; (10) the undesirability of the case within the legal community in
which the suit arose; (11) the nature and length of the professional relationship
between attorney and client; and (12) attorney's fees awards in similar cases.
Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978).
Applying the lodestar method, I find that Plaintiffs' attorney billed at a reasonable hourly
rate. Plaintiffs' attorney billed an hourly rate of $379.00 and has practiced law for twenty-two
years. Hawkins Aff. ~~ 7-8. This falls within the range of reasonable hourly rates provided in

2

Hawkins' Affidavit mislabels paragraphs 10 and 11 as paragraphs 7 and 8.
11

Appendix B of the Local Rules -

"Rules and Guidelines Determining Lodestar Attorneys'

Fees." Loc. R. App. B. Accordingly, I find the hourly rate reasonable.
Hawkins' Affidavit also includes a summary chart record of the fees and costs. See
Hawkins Aff. ~~ 9-10 and attached.

Although contemporaneous time records are preferred, a

summary

if it includes

chart can be sufficient

enough

information

to determine

the

reasonableness of the fees. Beyond Sys., Inc. v. World Ave. USA, LLC, No. CIV.A. PJM-08-921,
2011 WL 3419565, at *6 (D. Md. Aug. 1,2011) (citing CoStar Grp., Inc. v. LoopNet, Inc., 106
F. Supp. 2d 780, 788 (D. Md. 2000)).
hours -

The affidavit indicates that Hawkins billed a total of 4.6

2.4 hours preparing the pleadings and 2.2 hours on motions practice. See id. After

reviewing the filings, this time record does not reflect any overly redundant, excessive, or
unnecessary work. Accordingly, the fee is reasonable and approved.
Plaintiffs also seek the $400 statutory filing fee and $300 process service fee in costs. Id.
"Costs that may be charged include 'those reasonable out-of-pocket expenses incurred by the
attorney which are normally charged to a fee-paying client, in the course of providing legal
services.' " Trs. of the Nat'l Automatic Sprinkler Indus. Welfare Fund v. Westland Fire Prot.,
Inc., No. DKC 12-1421, 2014 WL 824121, at *3 (D. Md. Feb. 28, 2014) (citing Spell v.
McDaniel, 852 F.2d 762, 771 (4th Cir. 1988)).

The docket reflects that Plaintiffs paid the

$400.00 filing fee, therefore; Plaintiffs are entitled to recover the fee. See Nat 'I Elec. Ben. Fund
v. AC-DC Elec., Inc., No. CIV.A. DKC 11-0893, 2011 WL 6153022, at *4 (D. Md. Dec. 9,
2011).

Plaintiffs also provide documentation to support the $300 process service fee.

Hawkins Aff. ~~ 9-10 & attach.

See

Accordingly, I find the requested attorney's fees and costs

reasonable and will award them in full.
5. Other Legal or Equitable Relief as the Court Deems Appropriate

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I may further authorize "such legal and equitable relief as the court deems appropriate."
29 U.S.C.

9

1132(g)(2)(E).

One such form of relief, deemed appropriate in similar cases, is a

permanent injunction ordering compliance with reporting provisions or cooperation with an
audit.

See e.g., Int'l Painters & Allied Trades Indus. Pension Fund v. DLC Corp., No.

WDQ-ll-1938,

2012 WL 1229491, at *7 (D. Md. Apr. 11,2012) (ordering employer to submit

to audit provisions of labor contracts). To obtain a permanent injunction, "a plaintiff must show
(l) ilTeparable injury, (2) remedies at law are inadequate to compensate for that injury, (3) the
balance

of hardships

between

the plaintiff

and defendant

walTants a remedy,

and (4)

an injunction would not disserve the public interest." Raub v. Campbell, 785 F.3d 876, 885 (4th
Cir. 2015) (quoting Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139, 156-57 (2010)).
Plaintiffs ask that I order Defendant to:
remit its required payroll reporting forms to Plaintiffs along with corresponding
contributions, interest, .and liquidated damages for the period February 2016
through the present, or that it submit its payroll records for an audit within 30
days of this Judgment, and that it thereafter remit to NEBF and NEAP the amount
of contributions found to be due and owing, plus the cOlTesponding interest,
liquidated damages, and audit fees ....
Proposed Order 2, ECF No. 9-9.
I find that Plaintiffs established each of the four elements. The monetary damages
requested alone cannot make Plaintiffs whole. There is more than a year's worth of outstanding
payroll reports. See Losquadro Aff. ~ 10. This failure to report compounds Plaintiffs' injuries,
particularly because without this information Plaintiffs'

cannot accurately calculate the full

extent of contributions Defendant has failed to make to the pension plans. Id. ~~ 10, 11. Thus,
Plaintiffs have demonstrated

ilTeparable injury and the inadequacy

of remedies

at law.

Moreover, the balance of hardship favors Plaintiffs because Defendant agreed in the Trust
Agreements to comply with payroll reporting and any necessary audits.
13

See NEBF Trust

Agreement

SS

6.6.2, 6.7.7; NEAP Trust Agreement

merely enforce Defendant's

preexisting obligations.

SS

6.5.2, 6.6.1.

Thus, any order would

Finally, the enforcement

of employee

pension agreements under ERISA serves the public interest by ensuring that employees receive
the pensions they are owed. Accordingly, I will grant Plaintiffs' request for injunctive relief and
will order Defendant to, within 30 days of this judgment, either submit payroll reports for the
periods of February 2016 through the present along with corresponding contributions, interest,
and liquidated damages or to submit to an audit. Should Defendant submit to an audit, which
subsequently reveals delinquent contributions, Plaintiffs may petition the court, with proper
evidentiary support, for relief. See Nat'l Elec. Ben. Fund, No. CIV.A. DKC 11-0893,2011

WL

6153022, at *3.
Conclusion
For the foregoing reasons, Mr. Weems's automatic bankruptcy stay does not extend to
the Defendant.

Accordingly, Plaintiffs' Motion for Default Judgment is granted. Judgment will

be entered for NEBF in the amount of $26,535.35 in damages and $1,221.70 in attorney's fees
and costs.

Judgment is entered for NEAP in the amount of $157,064.13

in damages and

$1,221.70 in attorney's fees and costs. In accordance with the Trust Agreements, Defendant is
ordered to, within 30 days of this judgment, either comply with the reporting and remitting
requirements for the February 2016 period through the present or submit to an audit. Lastly, this
Judgment is entered without prejudice to any claims that may arise out of the audit, should it
occur.
A separate Order follows.

/S/
Paul W. Grimm
United States District Judge

Dated: March 20, 2017

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