Greater St. Louis Construction Laborers Welfare Fund et al

Filing 22

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion for default judgment [Doc. # 12 ] is GRANTED. A separate judgment in accordance with this Memorandum and Order shall be entered this same date. Signed by District Judge Carol E. Jackson on 1/25/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREATER ST. LOUIS CONSTRUCTION
LABORERS WELFARE FUND, et al.,
Plaintiffs,
vs.
INTERSTATE TRENCHING AND
EXCAVATING, LLC.,
Defendant.

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No. 4:11-CV-1244 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion for default judgment against
defendant Interstate Trenching and Excavating, LLC, pursuant to Rule 55(b)(2),
Fed.R.Civ.P.
Plaintiffs bring this action to collect delinquent fringe benefit contributions
pursuant to Section 301 of the Labor Management Relations Act of 1974 (LMRA), as
amended, 29 U.S.C. § 185, and pursuant to Section 502 of the Employee Retirement
Income Security Act of 1974 (ERISA), as amended, 29 U.S.C. § 1132. Plaintiffs are
four employee benefit plans (the Pension, Welfare, Vacation and Training funds), their
trustees (collectively, the plans), and Local Union Nos. 42, 53 and 110 of the Laborers
International Union of North America (the Union). Defendant Interstate Trenching and
Excavating, LLC is an employer in an industry affecting commerce within the meaning
of the LMRA and ERISA.

Plaintiffs allege that defendant failed to make timely

contributions to the plans as required under the terms of a collective bargaining
agreement. In their motion, plaintiffs seek $40,828.72 in delinquent contributions,
$8,119.17 in liquidated damages, and $992.33 in interest. Plaintiffs additionally seek

$375.00 for the cost of a payroll examination, $3,352.00 in attorneys’ fees, and
$426.35 in court costs.
The summons and a copy of the complaint were served on defendant on July 19,
2011.

Defendant did not file an answer or other responsive pleading and, on

September 13, 2011, the Clerk of Court entered default against defendant.

On

October 7, 2011, the Court issued a default order to compel accounting, and defendant
submitted to an audit. Plaintiff moved for default judgment on October 9, 2012. On
October 11, 2012, defendant appeared through counsel and filed a motion for leave
to file an answer out of time, which the Court denied.
Discussion
ERISA provides that employers shall make contributions when required by the
terms of a collective bargaining agreement. 29 U.S.C. § 1145. Employers who fail to
make the required contributions may be liable for the unpaid contributions, liquidated
damages, interest, attorney’s fees, and costs. 29 U.S.C. § 1132(g)(2).
On August 11, 2009, defendant entered into an agreement to be bound by the
terms of a collective bargaining agreement between the Site Improvement Association
and the Union (the Site Agreement), from March 1, 2009 through February 28, 2014.
[Doc. #13-6].

The collective bargaining agreement requires defendant to make

contributions to the funds for each hour worked by employees covered by the
agreement, and to submit monthly contribution forms. Id. at §§ 5.03 - 5.06. Failure
to make timely contributions subjects defendant to liquidated damages equal to 20%
of the unpaid contribution, interest, accounting costs, court costs, and attorney’s fees.
Id. at §§ 5.10 - 5.11.

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Plaintiffs submit the affidavit of John Massa, an auditor with the accounting firm
of Wolfe Nilges Nahorski, and an exhibit showing the results of a payroll audit for the
period of August 10, 2009, through November 30, 2011. This exhibit establishes that,
for this period, defendant owes $21,813.26 in unreported contributions, $4,541.82 in
liquidated damages, and $992.33 in interest. Plaintiffs also submit the affidavit of
Kevin Schell, the Administrative Manager of the Benefit Funds. Mr. Schell states that,
since the period covered by the audit, defendant failed to pay $19,015.46 in
contributions and incurred $3,577.35 in additional liquidated damages. These amounts
are set forth in a discrepancy report attached to Mr. Schell’s affidavit.
Based on the documentation and affidavits submitted by the plaintiffs, the Court
finds that defendant Interstate Trenching and Excavating, LLC, was bound at all
relevant times by a valid CBA and that it breached its obligations by failing to timely
pay or report the required contributions. Plaintiffs have established that Interstate
Trenching and Excavating, LLC, is liable to them for a total of $40,828.72 in delinquent
contributions, $8,119.17 in liquidated damages, and $992.33 in interest, for a total of
$49,940.22.
Plaintiffs also submit the affidavit of attorney Matthew J. Gierse. Mr. Gierse
attests that his firm’s standard hourly billing rates are $175.00 for partners’ services,
$165.00 for associates’ services, $85.00 for paralegal services, and $65.00 for law
clerk services. In this case, a total of 21 hours was expended in connection with this
matter for a total of $3,352.00 for legal services. The Court finds that the hourly rates
and hours expended are reasonable. In addition, the firm paid $350.00 for the filing
fee and $76.35 for service of process, for a total of $426.35.
Accordingly,

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IT IS HEREBY ORDERED that plaintiffs’ motion for default judgment [Doc.
#12] is GRANTED.

A separate judgment in accordance with this Memorandum and Order shall be
entered this same date.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 25th day of January, 2013.

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