Trustees of the National Automatic Sprinkler Industry Welfare Fund et al v. First Responder Fire Protection Corp.

Filing 9

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 8/11/2017. (aos, Deputy Clerk)

FILED

-lJ S r'I~T"ICT crll~T
IN THE UNITED STATES DISTRICT COUI~-1~S'1
;1'r'T~ I.' • 0 ':I'-L'~")
r'~. I!"ai\
~I
r...\
FOR THE DISTRICT OF MARYLAND
j.

SOllthel'/l Dil'i.\'iol/

TRUSTEES OF TilE NATIONAL
AUTOMATIC SPRINKLER
INIHJST. WELFARE FUND, l'f :11.,

'"'

...,.

ZO11 A 'G I I

A II: 3 0

*
*
)

Plaintiffs,

*

v.
FIRST RESPONDER FIRE
PROTECTION CORPORATION

Casc Nn.: (;.111-16--ttlllll

*
*
*
Defcndant.

*
*

*

*

*

*

*

*

*

I\IEMORANDUI\I

The Trustees of the National Automatic
Automatic

Sprinkler

Local 669 UA Education

Pension Fund. Sprinkler
("PlaintiITs"
Protection

*

*

*

*

OPINION

Sprinkler

Industry Welfare Fund. National

Fund. National Automatic

Sprinkler

Pension Fund. and International

Industry

Training

or the "NASI Funds") hring this action against DeICndant First Responder
Corporation

197-t ("ERISA").
U.s.c.

Industry Supplemental

*

~*

1001

("DeICndant")

as amended
1!1.11!1f.

under the Employee

hy the Multiemploycr

Following

Defcndant's

Retirement

Fund

Fire

Income Security Act of

Pension Plan Amendments

I~\ilurc to answer or otherwise

Act of 19RO. 29

defend in this

action. the Clerk of the Court entered del~\lIlt against Defcndant on .June 7. 2017. ECF No. R.
Now pending hcli)re the Court is Plaintiffs'

Motion li)r Dclault .Judgment against DeICndant

pursuant to Fed. R. Civ. 1'. 55(b). ECF NO.7. No hearing is necessary. See Loc. R. 105.6 (D. Md.
20 J 6). For the reasons that lililow. Plainti It's' Motion Illr Del~\lIlt .Judgmcnt is granted . .Judgment
is entered against Dcfcndant

in the total amount of $241.609.95.

I.

BACKGROUND'
Thc NASI Funds arc multiemployer

ERISA. 29 U.S.c.
according

~ 1002(3}. ECF No. I

to thc provisions

thc NASI Funds ("Trust
Sprinkler

ofthc

Funds arc cstaolishcd

and the Collectivc

Bargaining

laws ofthc

at 8000 Corporate

First Rcspondcr

Statc ofCalitiJrnia.

as a contractor

Corporation

action \\'as and is an cmploycr

in thc sprinkler

Agreements

28 U.S.c.

Plaintiffs

as dctincd

Firc Sprinkler

Bargaining

Association.

Agrccmcnts

cxccutcd

Rclations

Act

ECF No. I ~ 4: ECF No. 7-3';'; 2-8: see ,,/so ECF Nos. 7-

and Local Union 483): and lOCI' Nos. 7-15-7-18

and Local Union 669): ECF Nos. 7-10-7-14

and Local Union 709). Pursuant

to the Collectivc

to pay to thc NASI Funds certain

woo werc covcred

in turn.

octwccn thc Unions and thc

between

was obligated

by ERISA. 29

with thc Unions. \\hich.

between

employces

Defcndant

cntcred into agrccmcnts

4-7 -9 (agreemcnts

Defendant

cxisting undcr thc

industry. and at all timcs rclc\'ant to thc

in an industry aftCcting commcrcc

allege that Dcfcndant

Dcfendant

Id Thc

~~ 142( 1). (3) and 152(2). See ill

oound thcm to thc Collectivc
National

betwcen

ECF No. 1'13. Defendant

~~ 1002(5}. (9). (11). (12) and (14) and by thc Labor-Managcmcnt

(LMRA).

,

20785. Id

Maryland

is a corporation

,,'ith oflices located in California.

or suocontractor

of Trust cstablishing

and thc Dcfcndant.

Drive. Landover.

Firc Protection

in Scction 3(3) of

and maintaincd

and Dcclarations

Fittcrs Local Unions No. 483. 669. 709 (..the "Unions")

DctCndant

U.S.c.

'i 2. Thc

bcnetit plans as detincd

Rcstated Agrccmcnts

Agrccmcnts").

NASI Funds arc administcrcd

opcratcs

employee

oy the Collectivc

I The following l~lcts
arc taken from the Complainl.
urthe Motion for [)cl~1U1t Judgment. ECF NO.7.

SlllllS

Bargaining

bctwccn

Agrccmcnts.

DetCndant

of money for each hour workcd by its

Bargaining

Agreements.

ECF No. I. and Plaintitrs

2

(agrccmcnts

(agrccmcnts

lOCI' NO.1 '15: see ,,/so

IllCllll)randlllll

and c.\hibils

in SUPP0l1

ECF No. 7-3 'I'i 2-R. According
the Collective

Bargaining

Additionally.
Agreements.

to thc Complaint.

Agreements

covered by

from March 2015 through the present. lOCI' No. I

at all times relevant to the action. Dclendant

ECF Nos. 7-19-7-23.

(""Guidelincs").

Dcfcndant cmploycd individuals

and the Guidelines

was bound to the Trust

for Participation

in the t"ASI Funds

lOCI' No. 7-2.-1. lOCI' No. I ~ 7. Under the terms ofthc Trust Agreements.

an cmployer becomes two or morc months dclinquent

~i
6.

\\hen

in making the required contributions.

and

has not submitted the proper reporting !(mns. the NASI Funds are permitted to project the
amount of the employer's

delinquency

using the 1()llowing I(mnula:

[Tlhe greater of (a) the avcrage of the monthly payments or reports
submitted by the Employer i(H the last three (3) months I()r which
payments or reports were submitted. or (b) the average of the
monthly payments or reports submitted by the Employer !()r the
last twelve (12) months for which payments or reports were
submitted ...
ECF No. I

'i 10: sl'l' a/so ECl'

required contributions.

No. 7-3 ~I 16. Additionally.

when an employer lails to timdy pay

the employer is obligated to pay liquidated damages under the jt)llo\\ing

caleulation:
(I) If payment is not received ... by the 15th of the month. 10');(,
of the amount lowed J is assessed.
(2) An additional 5% is added ifpayment is not received ... by the
last working day of the month in which payment was duc.
(3) An additional 5'Yo is added if payment is not received by the
15th of the month 1()llowing the month in which payment was
due.
ECF No. I ~ 14: lOCI' No. 7-3'i 20.
Defendant allegedly I~liled to pay complete contributions

to the NASI Funds I()r thc

months of October 2015. Novcmber 2015. Dccember 2015. January 2016. August 2016. and
September

2016. Sl't' lOCI' No. I

'i R. Defendant

further lailed to pay complete contributions

I()r

thc months of July 2016 through November 2016 and did not submit reporting I(mns ItJr these

3

months. !d ~ 8. Using thc abovc-mcntioncd
amount of $90.446.20

in delinqucnt

2

1-3 at 1. Adding thc additional
Motion Illr Dclault Judgment.
NO.7-I

dclinqucncy

contributions

PlaintilTs c1aimcd a total

See id

from Dcfendant.

months of Novcmbcr
Plaintiffs

Ilmnula.

~I9.

II. 15: ECF No.

2016 through Fcbruary 2017. in thc

See ECF

now claim a re\'ised amount ofSI09.948.42.

at 2: ECF No. 7-25 at I J
In addition.

Dcfcndant's

contributions

Illr thc months of March 2015 through Scptcmbcr

2015. April 2016. May 2016. August 2016. and Septcmbcr

2016. and partial contributions

Octobcr 2015 through January 2016. August 2016. and Scptcmber
ECF No. I

~i2. Thc
1

partial contributions

2016 wcrc allcgcdly

Illl'
paid latc.

owcd Illr October 2015 through January 2016. August

2016. and Scptcmbcr

2016. and the contributions

2016 are also late.!d

,; 13. In the MotionllJr

owed Illr thc months oUuly

Del~llilt Judgmcnt.Plaintiffs

2016 and Octobcr

furtbcr claim that

contributions

owcd li'om N(J\'cmbcr 2016 through February 2017 arc latc. See ECF No. 7-3

Accordingly.

pursuant

$108.308.82

in liquidatcd

Plaintiffs

!

damagcs.

also scck 521.301.21

unpaid contributions
paymcnt.

to thc liquidated

attorncys'

damagcs

ECF

'0.7-1

Ilmnula dcscribcd

abovc. Plaintiffs

'i

19.

scck

at 2: ECF No. 7-3 ~ 21: ECF No. 7-25 at 1.

in intercst assessed at thc rate of twelvc perccnt pcr annum on

through March 31. 2017 and continuing
fecs of51.466.50

and costs 01'5585.00.

to accruc through thc datc of

See ECF NO.7 at I: Eel' NO.7-I at

Pin ciles 10 documents liIed on the COUI1"S electronic filing system (CMlECF)

refer

to the page numbers generated

bv that system.
J ~Althollgh the requested amounts in the Motion for DeHllIlt Judgment differ fromlhe amounts ~laled ill the
Complaint. in the Complaint. Plaintirrrcqueslcd as relief"all contributions and liquidated damages \\hich become

due subsequent to the tiling orthis action through the date ofjudglllcnt.
attorneys'

fees .. :' ECF No.

Aulomalic

I at 6. Accordingly,

plus costs, interest. and

and as the Court previously

reasonable

reasollt.:d in li-Jlsle£'s

(~rlhe Xal?

",wink/a

Indus. lI'e(tilJ"l! f.-und \'. Aliilud!! Fire I'rol.. LI.(', No. (jJ 11-15-2662,2016
\VI. 4082622,
at *4
(D. [\'1d. July 2<). 2016) and Trust!!!!s (~rth£' A'at '/ A 1Ifomalic ";willkla
Indus. 1I'1.'(I,w£'FUlld I'. IlcilT£'Y. No. GJ 11.15521. 2016 WI. 297425. at *5 (D. Md. Jan. 2 J. 2016). Defendant is fairly regarded to be on notice oCthe subsequent
increase due to the continuing
bargaining

agreclllt:'nts.

obligations

to make contributions

to the Funds under the <lpplicable

collective

Plaintiffs
Corporation
December

iniliateu the action against Dclenuant

on December

First Responder

15. 20 I6. ECF NO.1. Summons

\\'ere returncu as cxeeuted

29. 20 I6. ECF NO.4. An Ans\\'cr li'om Defenuant

With no Ans\\'cr hm'ing beenlilcd.

Plaintiffs

Fire Protection

\\'as due on January

on

11. 2017. Id

moveu for an entry ofucf~IUIt against DelCnuant on

March 16. 2017. ECF NO.6. and the Clcrk entereu ucf~llIlt against Dc fend ant on June 7. 2017.
ECr: No. S. Plaintiffs'
eonsiuereu

Motion for Dclault Judgment.

the \\'ell-pleadeu

and supporting

allegations

documentation.

ECF NO.7. is nO\\' ripe lilr re\'ie\\'. Ilm'ing

of the Complaint.

the Court no\\' grants deiliultjudgment

Il\\'or of Plainti ffs. in the total amount of $241.609.95.
delinquent

contributions.

ICes of $1.466.50.
II.

and the Motion fill' Delault Juugment

$1 08.30S.S2

in liquidated

against DelCnuant anu in

broken dO\\I1 as lilllo\\'s: $109.948.42

damages.

$21.301.21

in

in interest. attorneys'

and costs of $585.00.

STANDARD OF RF.VIF:\V
"When a party against \\'hom a judgment

plead or otherwise
enter the party's

fill' affirmati ve rei ief is sought has flliled to

defend. and that lailure is shlmn
delllult,'.

Fed. R. Civ. 1'. 55(a). "A defendant's

entitle the plaintiff to entry ofa dclaultjudgmenl:
the court," Edllc. Credit ,lIgmf. Corp,
Although

by artida\'it

I'.

or other\\'ise.

the elerk must

def~llIlt uoes not automatically

rather. that decision

is leli to the discretion

of

Op/imllm Weldillg. 285 F.R.D. 371. 373 (D. Md. 2(12).

"[tJhe Fourth Circuit has a 'strong policy'

that 'eases be decided on their merits:"

Choice Ilo/els II/Ierll .. 11Ic'\'. Sl/I'lIIIIIl/h SlltIk/i Cl/rp .. No. DKC-ll-043S.

2011 WI. 51 18328 at

*2 (D. Md. Oct. 25. 2(11) (citing Ulli/ed S/l//cs \'. Shl//fer I"lfllip, Co.. 11 F.3d 450. 453 (4th Cir.
1993)). "def~\lilt juugment
because of an esscntially
418.421

may be appropriatc
unresponsi\'e

\\'hen the adversary

process has been halted

party[,J" Id (citing S.f.e. \'. l.l/Il'hl/lIgh.

(D. Md. 2(05)).

5

359 F. Supp. 2u

"Upon del~llIlt. the wcll-pled allegations in a complaint as to liability arc takcn as truc.
although thc allcgations as to damagcs are not:' L({ll'hallgh. 359 F. Supp, 2d at 422: sec al\()
Ryan \', HO/llecol/lings

Fin, Network.

253 F.3d 778. 7S0 (4th Cir. 200!) (noling that ..[tlhe

delendant. by [its) delilliit. admits the plaintiffs
the basis forjudgmcnl).

wcll-pleaded allcgations of lilet:' which pro\'ide

Upon a finding of liability. "ltlhe court must make an independent

determination rcgarding damages. , :. Int 'I Painters & Alliet/7i'(/(les
Capital Restomtion

& Paiming

Int/lls, PellSion FII",I

I',

Co .. 919 F. Supp. 2d 680. 684 (0, Md. 2(13), Fcd. R. Civ. 1'.

54(c) limits thc typc ofjudgmcnl that may bc cntered bascd on a party's delilult: "1\ dcl~lult
judgmcnt must not diner in kind li'om. or cxcced in amount. what is demandcd in the pleadings:'
While thc Coul1may hold a hearing to prove damagcs. it is not rcquircd to do so: it may rely
instcad on "dctailed aflidavits or documcntary cvidcncc to dctcrminc thc appropriatc sum:'
At/kins \' Te.leo. 180 F. Supp. 2d 15. 17 (D.D.C. 20(1) (citing United Artists

('011"

\'.

Fr('('I//(/I/.

605 F.2d 854. 857 (5th Cir. 1979»,
III.

ANAL YSIS
Thc Coul1 has subject matter jurisdiction ovcr this action pursuant to Section 502 of

ERISI\. 29 U.S,c. ~ 1132 and 1451(c). Venuc is proper undcr 29 U.S.c. ~~ 1132(c)(2). 1451(d).
as NASI Funds are administered in Landover. Maryland, See 1M oj'/i-s .. Sheet ,l/ewl Workers'
Nat 'I Pension FII",I
Allto/lllltic Sprinkler

I'.

,lIeD ,l/ewls,

Inc .. 964 F. Supp. 1040 (E.D. Va. 1997): 7i'II.llees oj'Nlil.

Indlls. Pension Flint/

I'.

Best Allto/lllltic Fire Prot .. Inc .. 578 F. Supp. 94. 95

(D, Md. 1983),
Under ERISI\. "[clvery employer who is obligatcd to make contributions to a
multiemploycr plan under the terms of the plan or under the terms ofa collectively bargained
agreement shall ... make such contributions in accordance with the terms and conditions of such

6

29 LJ.S.c. ~ 1145: see 1M. on;'/I.\/ees.

plan or such agrccmenl."

Sheet lIe/a/Workers'

Na/'/

l'ensio/l F/ll1d \'. Call1e/o/ CO/1.\/r.. 111(' No. I: 14-CV -161-LM 13-TRJ. 2015 WL 1305003 I. at *3
..
(E.D. Va. Apr. 14.2015).
thc tcrms ofthc

Inthc Complainl.

Collective

Bargaining

Plaintiffs allegc that Dcfendant

Agreemcnts

and Trust Agrccments

to the NASI Funds. but failcd to make timely and complete
Plainti~Ts attach the Declaration
Automatic

Sprinkler

contributions
its sprinkler

for the months of December
fitters employees

performed

in the jurisdiction

of Local 4R3. id

fillers employees

complete

contributions

assuming

the truth of the well-pleaded

awarded.

allegations

of the National

February 2017 for work per!tmned

'i 13. and

Itlr the

by its sprinkler

by

fillers

Eger further attests that DeICndant Itliled to
2016. and t\ovember

in the jurisdiction

lor the months of December

12-13.

2016 Itlr work

of Local 709. and Itliled to pay

2016 through February 2017. Id.
in the Complainl.

Plaintifls

~i 5. Thus.
1

hm'e established

liability under ERISA and tbe relevant Agrecments.

Regarding
enloree

'i 14.

~,~I
R-9.

Itliled to pay complete

of Local 669. ECF No. 7-3

for the months of July 2016. September

by its sprinkler

Delcndant"s

Fund Administrator

2016 through February 2017 Itlr work perltmned

in thc jurisdiction

pay contributions

2016 through

under

to make contributions

ECF No. I

Industry Pcnsion Fund. who attests that Dclendant

months of December
employees

of John 1'. Eger. Assistant

paymcnts.

was obligated

damages.

the payment

29 LJ.S.c. ~ 1132(g)(2)

of delinquent

contributions.

provides that in any action brought to

and in which ajudgment

inl~l\'or of the plan is

the court shall award the plan:
(Al
(13)
(C)
I.
II.

the unpaid contributions.
interest on the unpaid contributions.
an amount equal to the greater 01'interest on the unpaid contributions. or
liquidated
damages provided Itlr under the plan in an
amount not in excess of 20 percent (or such higher
percentage as may be pcrmitted under Fedcral or State law)

7

of the amount determined

by the court under subparagraph

(A).

(D)

reasonable attorney's fees and costs of the action. to be paid
by the dclcndant. and
such other legal or equitable rclief as the court deems
appropriate.

(E)

*

29 U .S.C.

1 132(g)(2): see also Co/zm/hlls Shill" Case Co,. 2014 WL 381 1252. at *4 (E. D. Va.

Aug. 1.2(14):

1111'1

Pailllas & Allied hades IlIdm. Pellsioll Flilld \'. Capi/al Res/ora/ioll &
& Pipe/illa,1 Na/.

Pailllillg Co,. 919 F. Supp. 2d 680. 686 (D. Md. 2013): li'II,INes oj1'llImhas
PelJsiolJ Flilld
620300J.

I'.

Lake Side Plllmhillg & Ilea/illg. IlIc.. No. I:12-CV -00298 LOll DD. 2012 WL

at *4 (E.D. Va. Nov. 20. 2(12).

In support of the request liJr damages.
who attests to a projected

delinquency

Plainti ffs retCr to the Declaration

for the months of July 2016 through Fcbruary 2017 in the

amount 01'$103.614.03.

using the projection

This figure is supported

by the attached calculation

$4.055.43

for "contributions

shortages:'
U.S.c.

*

II32(g)(2)(A).

formula described

contribution

Pursuant

Eger attcsts in his Declaration.

and accruing

to 29 U.S.c.

attached documcntation.

* II

formula described

* II 32(g)(2)(C)(ii).

32(g)(2)(B)

totaling $21.301.21.

earlier. and as

in liquidated

damages.

ECF

Additionally.

Plaintiffs

seck

through March 31. 2017.

ECF NO.7

and the Trust Agreements.

'i 3. The

intercst is

and is supported

by the

see ECF No. 7-25 at 2.

Finally. in support ofthcir
declarations

damages

in "contribution

ECF No. 7-25 at I: see 29

at twclve percent per annum on unpaid contributions

through the date of payment.

owed pursuant

and $2.278.96

further owes $108.308.82

No. 7-3'; 21: ECF No. 7-25 at I:.Iee 29 U.S.c.
interest assessed

I\'hich further includes

balance of $ 109.948.42.

to the liquidated

Dclcndant

sllpra. ECF No. 7-3 ,,'; 16-17.

documentation.

owed on behal f of apprentice:'

f()r a total delinquent

of John 1'. Eger.

of their attorncy.

claim tor attorneys'

Charles W. Gilligan.

fees and costs. Plaintiffs submit the

ECF No. 7-26. a spreadsheet

specifYing the

hourly billing by Gilligan and his paralegal with respect to the instant lawsuit. ECF No. 7-'27.
and invoices for costs spent on out-of~state process service. ECF No. 7-28. These materials
indicate that Gilligan's

finn spent 11.25 hours on this case on behalfofPlaintifTs.

at a rate of

$122.00 per hour fi.)f paralegal time and $310.00 per hour Ii.)rattorncy time. ECF No. 7-26'i 3.
These rates are within the local guidelines and are reasonable. See Loc. R. App. B (D. Md. July
I. 2016). Plaintiffs are thereli.)re awarded $1.466.50 in attorneys'
substantiates

fees. The record also

the fi.)lIowing expenses: $185.00 fi.)rscrvice of process and $400.00 Ii.)r Iiling Ices.

ECF No. 7-26'i 6: ECF No. 7-28. Thus. Plaintiffs arc awarded $585.00 in costs.
IV.

CONCLUSION
For the fi.)regoing reasons. Plaintiffs'

Motion fi.)r Defilllit Judgment

is grantcd. Judgmcnt

is cntered against Defendant

and in tilvor of PlaintifT in the total amount of $241.609.95.

Additionally.

intcrcst shall accrue until thc judgmcnt

post-judgmcnt

is satisficd pursuant to 28

U.S.c. ~ 1961. A separate Order shall issue.

Date: August

&/L

1/ . 2017

GEORGE .I. HAZEL
United States District Judge

9