Trustees of the National Electrical Benefit Fund v. Boscar Electric Co., Inc.

Filing 10

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

:
:

v.

:

Civil Action No. DKC 23-1327

:

BOSCAR ELECTRIC CO., INC.

:

MEMORANDUM OPINION
Presently pending and ready for resolution in this action
arising under the Employee Retirement Security Act of 1974, 29
U.S.C.

§

1001,

et

default judgment.

seq.

(“ERISA”)

(ECF No. 9).

is

Plaintiffs’

motion

for

The relevant issues have been

briefed and the court now rules pursuant to Local Rule 105.6, no
hearing being deemed necessary.
Plaintiffs’

motion

will

be

For the reasons that follow,

granted,

and

Defendant

will

be

ordered to submit to an audit.
I.

Background
Plaintiffs are trustees of a multi-employer pension plan,

the National Electrical Benefit Fund (“NEBF”).

Plaintiffs are

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
industry

affecting

commerce

under

ERISA.

See

29

U.S.C.

§§

1002(5).
between

NEBF was established and is maintained by an agreement
the

(“IBEW”)

International

and

(“NECA”).

the

National

Defendant

Brotherhood
Electrical

entered

into

of

Electrical

Contractors
a

collective

Workers

Association
bargaining

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
audit

of

Defendant’s

books

and

records

for

the

years

2016

through 2019.
Plaintiffs served the summons and complaint on Defendant on
July 17, 2023.
requisite

time

default.

When Defendant failed to respond within the
period,

The

August 10, 2023.
motion

for

entry

clerk

Plaintiffs
entered

default

(ECF Nos. 6, 7).
of

default

moved

2

against

the

entry

of

Defendant

on

Plaintiffs filed the subject

judgment

(ECF No. 9).

for

on

September

26,

2023.

Plaintiffs seek default judgment in the amount of $5,414.38
which consists of $1,612.63 in contributions, liquidated damages
of

$322.54,

interest

at

the

time

the

motion

was

filed

of

$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.
II.

Standard of Review
Pursuant

to

Fed.R.Civ.P.

55(a),

“[w]hen

a

party

against

whom a judgment for affirmative relief is sought has failed to
plead

or

otherwise

affidavit

or

default.”

defend,

otherwise,

and

the

that

clerk

failure

must

enter

is

shown

the

by

party’s

Where a default has been previously entered by the

clerk and the complaint does not specify a certain amount of
damages,

the

plaintiff’s

court

may

application

enter
and

a

default

notice

pursuant to Fed.R.Civ.P. 55(b)(2).

to

judgment,

the

upon

defaulting

the

party,

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
court.

See Dow v. Jones, 232 F.Supp.2d 491, 494 (D.Md. 2002);

Lipenga v. Kambalame, 219 F. Supp. 3d 517 (D.Md. 2016).

The

Fourth Circuit has a “strong policy” that “cases be decided on
their merits,” id. (citing United States v. Shaffer Equip. Co.,
3

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)).
Upon

entry

of

default,

the

well-pled

allegations

in

a

complaint as to liability are taken as true, but the allegations
as to damages are not.
court

first

Lawbaugh, 359 F.Supp.2d at 422.

determines

whether

the

unchallenged

The

factual

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).

While the

court may hold a hearing to prove damages, it is not required to
do

so;

it

may

rely

instead

on

“detailed

affidavits

documentary evidence to determine the appropriate sum.”

or

Adkins,

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
damages requested”).

4

III. Analysis
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.

Section 502(a)(3)

authorizes Plaintiffs to enforce the provisions of the trust
agreements.

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.
undisputed

allegations,

Plaintiffs

claim for relief under ERISA.

have

Based on these

stated

a

sufficient

See La Barbera v. Fed. Metal &

Glass Corp., 666 F.Supp.2d 341, 348 (E.D.N.Y. 2009) (entering
default

judgment

alleged

that

being

an

in

favor

employer

contractually

bound

of

trustees

refused
to

do

to
so

where

submit
by

the

an
a

complaint

audit

CBA

and

despite
trust

agreement); see also National Elec. Ben. Fund v. AC-DC Elec.,

5

Inc.,

Civ.

No.

DKC

11-0893,

2011

WL

6153022

(D.Md.

Dec.

9,

2011).
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.”
Int’l

Painters

&

Allied

Trades

Indus.

Pension

Fund

Painting, Inc., 719 F.Supp.2d 45, 52 (D.D.C. 2010).
pursuant

to

ERISA,

benefit

plan

trustees

have

the

v.

Exec.

Indeed,
right

review the records of employers contributing to the plans.

to
Id.

(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
the

absence

of

an

adequate

legal

remedy.

La

Barbera,

666

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.
6

Specifically, if an

audit

is

not

permitted,

Plaintiffs

will

have

no

means

of

ensuring Defendant’s compliance with the terms of the Agreement,
nor will they be able to collect any amounts to which they may
be entitled.
audit

and

Defendant

requested
Should

Accordingly, Plaintiffs are entitled to conduct an

by

the

Plaintiffs

will

Plaintiffs’

audit
may

reveal

be

directed

auditor
unpaid

petition

the

to

produce

within

or

thirty

delinquent

court,

with

any
(30)

records
days.

contributions,

proper

evidentiary

support, requesting appropriate relief, including reimbursement
of the audit fee and attorneys’ fees and costs associated with
the litigation.
A.

Unpaid Contributions

The

complaint

and

motion

for

default

judgment

payment to Plaintiffs of $1,612.63 in contributions.

demands

Plaintiffs

support their request with a copy of the audit report finding
said

amount

as

due

December 31, 2019.

for

the

period

(ECF No. 9-7).

April

1,

2016,

through

Plaintiffs made demands for

the delinquent contributions found owing after the audit, but
Defendant has not responded.
supports

the

Plaintiffs’

(ECF No. 9-4, at 2).
demand

for

$1,612.63

The record
in

contributions.
B.

Liquidated Damages, Interest, and Cost of Audit

7

unpaid

Plaintiffs have attached a spreadsheet with calculations of
liquidated damages at twenty percent (20%) and interest at ten
percent

(10%)

Agreement.

compounded

monthly

as

provided

for

in

the

(ECF No. 9-8).

Plaintiffs seek $322.54 1 in liquidated damages and $1,200.01
in

interest

assessed

contributions.

through

September

30,

2023,

on

late

Plaintiffs also seek $928 for the cost of the

audit.
The Agreement between the parties obligates Defendant to
pay all costs of any audit, twenty percent (20%) as liquidated
damages,

and

ten

percent

(10%)

interest

throughout the period of delinquency.
Liquidated
assessed

damages

through

of

September

$322.53
30,

compounded

monthly

(ECF No. 9-6 at 7).
and

2023,

interest
on

late

of

$1,200.01

contributions,

along with the cost of the audit of $928 are supported by the
record and will be awarded.
C.

Attorneys’ Fees

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%).
8
1

damages

to

be

$322.53

hours

on

this

case

on

behalf

of

the

Plaintiffs.

Jennifer

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

by

will

the

record

and

Plaintiffs

be

awarded

$799.20

for

attorneys’ fees.
D.

Costs

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.
IV.

Conclusion
For the foregoing reasons, Plaintiffs’ motion for the entry

of

default

judgment

will

be

ordered to submit to an audit.

granted,

and

Defendant

will

be

A separate order will follow.

/s/
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.
9
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