Iron Workers St. Louis District Council Annuity Trust et al v. Arrow Fence, Inc.

Filing 32

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs' Motion for Contempt is DENIED as moot. (Doc. No. 14.) IT IS FURTHER ORDERED that Plaintiff's motion for Default Judgment as to damages is GRANTED. (Doc. No. 28.) IT IS FURTHER ORDER ED that Defendant shall pay to Plaintiffs those delinquent contributions due to the Plaintiff Funds for the period of March 1, 2006,through December 31, 2007, in the total amount of $40,244.91; estimated delinquent contributions for the period o f January 1, 2008 through December 31, 2012, in the amount of $112,691.24; the interest on such delinquent contributions in the amount of $86,840.25; and liquidated damages in the amount of $15,293.62. IT IS FURTHER ORDERED that Defendant shall pay to Plaintiffs attorney's fees in the amount of $13,790.00, and costs of $660.54. A separate Judgment of Default shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 3/13/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
IRON WORKERS ST. LOUIS DISTRICT, )
COUNCIL ANNUITY TRUST, et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
ARROW FENCE, INC.,
)
)
Defendant.
)

Case No. 4:11CV02019 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ motion for default judgment (Doc.
No. 29) against Defendant Arrow Fence, Inc. Plaintiffs filed this action on November 18,
2011, under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132
to recover delinquent fringe benefit contributions allegedly owed to the plaintiff
employee benefit funds. (“Plaintiff Funds”)
The complaint alleges that Defendant, a party to, and specifically bound by the
terms and provisions of the trust documents establishing the Plaintiff Funds, failed to
submit timely reports of hours or payments. Plaintiffs demanded an audit of Defendant’s
records as the collective bargaining agreements and trust documents authorize, but
Defendant refused. The complaint further asserts that in addition to the payments due,
Defendant is liable for the costs of the audit and collection of any delinquency, including
attorney’s fees, interest, and court costs; and liquidated damages in the amount of 10% of
the delinquency.

Defendant was served by special process server on December 4, 2011, and failed
to file an answer or otherwise respond to the complaint. On Plaintiffs’ motion, the Clerk
of the Court entered a default on December 29, 2011, and the Court granted Plaintiffs’
motion for a default judgment as to liability on January 26, 2102. Thereafter, the Court
ordered Defendant to submit its books and records for audit and inspection in order to
permit Plaintiffs to assess the damages owed them. Defendant failed to do so, and on
June 7, 2012, Plaintiffs moved for an order of contempt against Defendant. Defendant’s
corporate representative, Mr. Michael Blunt failed to appear at the hearing scheduled on
the motion for contempt, and a writ of body attachment issued. On November 13, 2012,
the United States Marshal’s Service executed the writ of body attachment to bring Mr.
Blunt before the Court. The Court ordered him to cooperate in the production of his
financial records for purposes of calculating damages owed in this suit. It appears that
thereafter the parties came to some accommodation with respect to disclosure of books
and records so as to permit Plaintiffs to prepare affidavits in support of this motion.
On December 31, 2012, Plaintiffs filed the present motion for entry of default
judgment as to damages against Defendant for the delinquent contributions and affidavits
in support thereof. The affidavits establish the following damages: delinquent
contributions due to the Plaintiff Funds for the period of March 1, 2006, through
December 31, 2007, in the total amount of $40,244.91; estimated delinquent
contributions for the period of January 1, 2008 through December 31, 2012, in the
amount of $112,691.24; interest on such delinquent contributions in the amount of
$86,840.25; and liquidated damages in the amount of $15,293.62. Plaintiffs further seek

$13,790.00 in attorney’s fees, and $660.54 in costs, consisting of the filing fee and cost of
service of the summons and complaint by a special process server. Defendant has not
filed a response to Plaintiffs’ motion for default judgment.
The liability of a defendant is established upon entry of default, and therefore
once default is entered, the plaintiff is not required to establish its right to recover.
Brown v. Kenron Aluminum & Glass Corp., 477 F.2d 526, 531 (8th Cir. 1973) (stating
that on establishment of default, “the defendant has no further standing to contest the
merits of plaintiff’s right to recover”); Trustees of the IBEW Local 405 Health & Welfare
Fund v. Tichy Elec. Co., 2008 WL 154641, at *4-5 (N.D. Iowa Jan. 15, 2008) (applying
the above principle to a case for delinquent contributions under ERISA and LMRA).
Thus, the only issue before the Court is the amount of damages owed by Defendant to
Plaintiffs. See Tichy Elec. Co., 2008 WL 154641, at *4; Flynn v. Williams Masonry, 233
F.R.D. 176, 177 (D.D.C. 2005), amended on other grounds, 444 F. Supp. 2d 221 (D.D.C.
2006).
In an ERISA case, a court has the discretion to determine damages based on
“detailed affidavits or documentary evidence.” Int’l Painters & Allied Trades Indus.
Pension Fund v. R.W. Amrine Drywall Co., 239 F. Supp. 2d 26, 30 (D.D.C. 2002)
(citation omitted). When a court enters judgment against a defendant for contributions
owed under a CBA, ERISA provides that the court shall award the plan (1) the unpaid
contributions, (2) the interest on the unpaid contributions, (3) the greater of the amount of
interest on the unpaid contributions or the amount of liquidated damages provided for
under the plan, not in excess of 20 percent of the amount of unpaid contributions, and (4)
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reasonable attorney’s fees and costs of the action. 29 U.S.C. § 1132(g)(2). Damages
must be proven by a preponderance of the evidence. Tichy Elec. Co., 2008 WL 154641,
at *5.
Upon review of the record, the Court concludes that Plaintiffs have provided
appropriate records and affidavits in support of awards for the delinquent contributions
due the Plaintiff Funds and Local No. 562 (Doc. No. 29-1), for interest on these
delinquent contributions through December 31, 2012, (Doc. No. 29-1), for liquidated
damages on the contributions due to the Plaintiff Funds (Doc. No. 29-1), and for
attorney’s fees and costs (Doc. No. 29-2).
Plaintiffs’ counsel has submitted an affidavit and exhibit in support of the request
for fees indicating the time expended as well as applicable hourly rates: 24.6 hours at
$200.00 per hour, 17.7 hours at $350.00 per hour, and 10.7 hours at $250.00 per hour.
The Court concludes that the fees requested are reasonable. Plaintiffs’ costs, consisting
of the court filing fee, cost of service of the summons and complaint by a special process
server, and the fees attributable to the writ of body attachment also are reasonable and
customary and will be awarded as well.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Contempt is DENIED
as moot. (Doc. No. 14.)
IT IS FURTHER ORDERED that Plaintiff’s motion for Default Judgment as to
damages is GRANTED. (Doc. No. 28.)

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IT IS FURTHER ORDERED that Defendant shall pay to Plaintiffs those
delinquent contributions due to the Plaintiff Funds for the period of March 1, 2006,
through December 31, 2007, in the total amount of $40,244.91; estimated delinquent
contributions for the period of January 1, 2008 through December 31, 2012, in the
amount of $112,691.24; the interest on such delinquent contributions in the amount of
$86,840.25; and liquidated damages in the amount of $15,293.62.
IT IS FURTHER ORDERED that Defendant shall pay to Plaintiffs attorney’s
fees in the amount of $13,790.00, and costs of $660.54.
A separate Judgment of Default shall accompany this Memorandum and Order.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 13th day of March, 2013.

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