Painters District Council No. 58 et al v. Diversified Painting Services, LLC

Filing 22

MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR ENTRY OF DEFAULT JUDGMENT - ACCOUNTING. (See Full Order.) IT IS HEREBY ORDERED that Plaintiffs' motion for default judgment against the Defendant is GRANTED. Plaintiffs are awarded delinque nt fringe benefit contributions, dues and deductions, liquidated damages and attorney's fees and costs against the Defendant in the amount of $78,645.65 in delinquent fringe benefit contributions, dues and deductions and liquidated dama ges thereon for a period of the weeks ending April 5, 2016 through week ending August 2, 2016 (related to employee hours), and weeks ending April 12, 2016 through April 26, 2016 and again for weeks ending June 21, 2016 through August 2, 2016 (relat ed to owner operator hours). [Sucharski Affidavit, 10]. (Doc. 17). Plaintiffs are further granted their requested accounting of Defendant's records for the period of November 9, 2015 to November 8, 2016. Defendant shall submit to the requested financial examination within thirty (30) days of this Court's Order. The Plaintiffs shall enjoy the right to immediately execute upon this judgment. Signed by District Judge Catherine D. Perry on 4/4/2017. (Certified Order sent to Diversified Painting Services, LLC at address used for service this date.) (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAINTERS DISTRICT COUNCIL NO. 58,
et al.,
Plaintiffs,
v.
DIVERSIFIED PAINTING SERVICES, LLC,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 4:16 CV 513 CDP

MEMORANDUM AND ORDER ON PLAINTIFFS’
MOTION FOR ENTRY OF DEFAULT JUDGMENT – ACCOUNTING
This matter is before the Court on Plaintiffs’ motion for default judgment
against Diversified Painting Services, LLC (hereinafter, “Defendant”). Plaintiffs
filed this action on April 13, 2016 under the Employee Retirement Security Act,
29 U.S.C. §§ 1132 and 1145, and the Labor Management Relations Act, 29 U.S.C.
§ 185. The Complaint alleges the Defendant to have failed to make accounting and
fully pay several employee benefit funds and contributions due under the collective
bargaining agreement between the Defendant and its employees’ union. Plaintiffs
are the union and the trustees, sponsors and/or fiduciaries of the various funds.
The Clerk of Court entered an order of default against the Defendant on
October 25, 2016. [Doc. #12].
Plaintiffs have filed a motion seeking an accounting under the parties’ trust

documents, collective bargaining agreement and common law under ERISA.
When the Clerk of Court has entered default against a defendant, the
“allegations of the complaint except as to the amount of damages are taken as
true.” Mueller v. Jones, No. 2:08CV16 JCH, 2009 WL 500837, at *1 n.2 (E.D.
Mo. Feb. 27, 2009) (quoting Brown v. Kenron Aluminum & Glass Corp., 477 F.2d
526, 531 (8th Cir. 1973)). Accordingly, in deciding the present motion for default
judgment, the Court accepts as true the factual allegations contained in the
Plaintiffs’ Complaint together with those affidavits presented in the Plaintiffs’
motion and memorandum in support as they relate to the Plaintiffs’ damages and
prayer for relief.
Based on those allegations and affidavits, Plaintiffs are entitled to the relief
requested.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion for default judgment
against the Defendant is GRANTED. Plaintiffs are awarded delinquent fringe
benefit contributions, dues and deductions, liquidated damages and attorney’s fees
and costs against the Defendant in the amount of $78,645.65 in delinquent fringe
benefit contributions, dues and deductions and liquidated damages thereon for a
period of the weeks ending April 5, 2016 through week ending August 2, 2016
(related to employee hours), and weeks ending April 12, 2016 through April 26,
-2-

2016 and again for weeks ending June 21, 2016 through August 2, 2016 (related
to owner operator hours). [Sucharski Affidavit, ¶ 10]. (Doc. 17).
Plaintiffs are further granted their requested accounting of Defendant’s
records for the period of November 9, 2015 to November 8, 2016. Defendant
shall submit to the requested financial examination within thirty (30) days of this
Court’s Order.
The Plaintiffs shall enjoy the right to immediately execute upon this
judgment.

______________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 4th day of April, 2017.

-3-