Trustees of the National Electrical Benefit Fund v. Boscar Electric Co., Inc.
MEMORANDUM OPINION (c/m to Defendant 11/14/23 sat). Signed by Judge Deborah K. Chasanow on 11/14/2023. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TRUSTEES OF THE NATIONAL
ELECTRICAL BENEFIT FUND
Civil Action No. DKC 23-1327
BOSCAR ELECTRIC CO., INC.
Presently pending and ready for resolution in this action
arising under the Employee Retirement Security Act of 1974, 29
(ECF No. 9).
The relevant issues have been
briefed and the court now rules pursuant to Local Rule 105.6, no
hearing being deemed necessary.
For the reasons that follow,
ordered to submit to an audit.
Plaintiffs are trustees of a multi-employer pension plan,
the National Electrical Benefit Fund (“NEBF”).
fiduciaries to NEBF and authorized to file this action under 29
U.S.C. § 1132(a)(3).
Plaintiffs are an employee benefit plan
within the meaning of § 3(2) of ERISA.
See 29 U.S.C. § 1002(2).
Defendant Boscar Electric Co., Inc. is an employer engaged in an
NEBF was established and is maintained by an agreement
agreement with the Finger Lakes New York Chapter NECA and is
obligated to submit contributions to NEBF on April 12, 2016.
(ECF No. 9-5).
Plaintiffs filed a complaint on behalf of NEBF on May 19,
2023, alleging that Defendant breached the collective bargaining
agreement by failing to contribute to NEBF three percent of the
gross payroll paid to employees in the bargaining unit, as well
as seeking liquidated damages and interest for late payments,
and attorneys’ fees and costs.
Plaintiffs state that they were
made aware that $1,612.63 in contributions were due after an
Plaintiffs served the summons and complaint on Defendant on
July 17, 2023.
When Defendant failed to respond within the
August 10, 2023.
(ECF Nos. 6, 7).
Plaintiffs filed the subject
(ECF No. 9).
Plaintiffs seek default judgment in the amount of $5,414.38
which consists of $1,612.63 in contributions, liquidated damages
$1,200.01, audit fees of $928, costs of $552, and attorneys’
fees of $799.20.
(ECF No. 9).
Additionally, Plaintiffs move
for an order directing Defendant to submit to an audit of its
wage and payroll records for the years 2020 and 2021.
Standard of Review
whom a judgment for affirmative relief is sought has failed to
Where a default has been previously entered by the
clerk and the complaint does not specify a certain amount of
pursuant to Fed.R.Civ.P. 55(b)(2).
A defendant’s default does
not automatically entitle the plaintiff to entry of a default
judgment; rather, that decision is left to the discretion of the
See Dow v. Jones, 232 F.Supp.2d 491, 494 (D.Md. 2002);
Lipenga v. Kambalame, 219 F. Supp. 3d 517 (D.Md. 2016).
Fourth Circuit has a “strong policy” that “cases be decided on
their merits,” id. (citing United States v. Shaffer Equip. Co.,
11 F.3d 450, 453 (4th Cir. 1993)), but default judgment may be
appropriate when the adversary process has been halted because
of an essentially unresponsive party, see S.E.C. v. Lawbaugh,
359 F.Supp.2d 418, 421 (D.Md. 2005) (citing Jackson v. Beech,
636 F.2d 831, 836 (D.C. Cir. 1980)).
complaint as to liability are taken as true, but the allegations
as to damages are not.
Lawbaugh, 359 F.Supp.2d at 422.
allegations constitute a legitimate cause of action, and, if
liability is established, the court then makes an independent
determination of damages.
Fed. R. Civ. P. 55(a).
court may hold a hearing to prove damages, it is not required to
documentary evidence to determine the appropriate sum.”
180 F.Supp.2d at 17 (citing United Artists Corp. v. Freeman, 605
F.2d 854, 857 (5th Cir. 1979)); see also Laborers’ Dist. Council
Pension v. E.G.S., Inc., Civ. No. WDQ-09-3174, 2010 WL 1568595,
at *3 (D.Md. Apr. 16, 2010) (“on default judgment, the Court may
only award damages without a hearing if the record supports the
Assuming the truth of the well-pleaded allegations of the
complaint, as the court must upon entry of default, Plaintiffs
have established a violation under ERISA.
authorizes Plaintiffs to enforce the provisions of the trust
See 29 U.S.C. § 1132(a)(3) (providing that a civil
action may be brought:
“(A) to enjoin any act or practice which
violates . . . the terms of the plan, or (B) to obtain other
appropriate equitable relief (i) to redress such violations or
(ii) to enforce any . . . terms of the plan”).
According to the
complaint, Defendant is a signatory to the Restated Employees
Benefit Agreement and Trust for the National Electrical Benefit
Fund and is, therefore, obligated to comply with the terms of
the Agreement, which includes the requirement to submit to an
audit at the request of the Funds’ trustees.
claim for relief under ERISA.
Based on these
See La Barbera v. Fed. Metal &
Glass Corp., 666 F.Supp.2d 341, 348 (E.D.N.Y. 2009) (entering
agreement); see also National Elec. Ben. Fund v. AC-DC Elec.,
ERISA authorizes courts to grant “equitable relief as . . .
appropriate” where a plaintiff brings a successful action to
enforce its requirements.
See 29 U.S.C. § 1132(g)(2)(E); see
also La Barbera, 666 F.Supp.2d at 350.
“Such relief may include
an injunction ordering the defendant to submit to an audit.”
Painting, Inc., 719 F.Supp.2d 45, 52 (D.D.C. 2010).
review the records of employers contributing to the plans.
(citing Central States, Southeast and Southwest Areas Pension
Fund v. Central Transport, Inc., 472 U.S. 559, 581 (1985)).
Because ERISA authorizes injunctive relief as a possible
remedy, an injunction requiring Defendant to submit to an audit
is warranted as long as Plaintiffs establish the prerequisites
for an injunction – namely, a showing of irreparable harm and
F.Supp.2d at 350-51.
Plaintiffs have not explicitly asserted that there is no
adequate remedy at law or that irreparable harm will result if
injunctive relief is not granted; however, the record clearly
reflects that these elements are present.
Specifically, if an
ensuring Defendant’s compliance with the terms of the Agreement,
nor will they be able to collect any amounts to which they may
Accordingly, Plaintiffs are entitled to conduct an
support, requesting appropriate relief, including reimbursement
of the audit fee and attorneys’ fees and costs associated with
payment to Plaintiffs of $1,612.63 in contributions.
support their request with a copy of the audit report finding
December 31, 2019.
(ECF No. 9-7).
Plaintiffs made demands for
the delinquent contributions found owing after the audit, but
Defendant has not responded.
(ECF No. 9-4, at 2).
Liquidated Damages, Interest, and Cost of Audit
Plaintiffs have attached a spreadsheet with calculations of
liquidated damages at twenty percent (20%) and interest at ten
(ECF No. 9-8).
Plaintiffs seek $322.54 1 in liquidated damages and $1,200.01
Plaintiffs also seek $928 for the cost of the
The Agreement between the parties obligates Defendant to
pay all costs of any audit, twenty percent (20%) as liquidated
throughout the period of delinquency.
(ECF No. 9-6 at 7).
along with the cost of the audit of $928 are supported by the
record and will be awarded.
Plaintiffs seek $799.20 in attorneys’ fees.
In support of
this request, Plaintiffs submit a Declaration of Attorney’s Fees
and a spreadsheet of the hours billed by Plaintiff’s counsel.
(ECF No. 9-1).
The spreadsheet shows that the firm spent 3.6
The court calculates liquidated
($1,612.63 unpaid contributions x 20%).
Hawkins, a licensed attorney since 1994, charged $392 per hour
and Peter Tkach, an member of this bar since May, 2023, charged
$188 an hour for attorney time.
The sum requested is supported
Plaintiffs seek $550 2 in costs.
In support of this request,
Plaintiffs recite that in addition to the $402 filing fee to
commence this action, $150 was spent for service of process on
Defendant (ECF No. 9-1 at 3, 9-3).
The record supports the
award of costs in the amount of $552.
For the foregoing reasons, Plaintiffs’ motion for the entry
ordered to submit to an audit.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
Although the motion for default judgment requests $550 in
costs, the court calculates the sum of the $402 filing fee and
$150 service fee to be $552 and will award that amount.
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