St. Louis - Kansas City Carpenters Regional Council et al v. ILMO Contracting, LLC, et al.

Filing 16

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that plaintiffs' Motion for Default Judgment 12 is denied without prejudice. IT IS FURTHER ORDERED that no later than September 9, 2016, plaintiffs shall resubmit their motion for def ault judgment, with appropriate evidence and affidavits in support, as well as a proposed judgment for my consideration. After review of this resubmitted evidence, I will determine whether a hearing is necessary on the motion. Signed by District Judge Catherine D. Perry on 8/30/16. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ST. LOUIS – KANSAS CITY
CARPENTERS REGIONAL COUNCIL,
et al.,
Plaintiffs,
v.
ILMO CONTRACTING, LLC, et al.,
Defendants.

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No. 4:16 CV 751 CDP

MEMORANDUM AND ORDER
After being served with process in this ERISA employer-contributions case,
defendants ILMO Contracting, LLC, and Corey Rogers failed to timely answer or
otherwise respond to plaintiffs’ amended complaint, and the clerk of court entered
default against them. Plaintiffs now ask me to enter default judgment against the
defendants and have submitted affidavits and other evidence in support of their
request, as well as a proposed judgment. For the following reasons, the evidence
offered is not sufficient to support the requested judgment. I will, however, provide
plaintiffs an opportunity to cure the deficiencies in their evidence.
As previously stated, this is an employer-contributions case brought under
ERISA in which plaintiffs – various trust funds of the Carpenters Regional Council
(the “Union”) and their trustees – claim that defendant ILMO Contracting, LLC,
failed to make contributions to the various funds as it was obligated to do under its

Collective Bargaining Agreement with the Union. Plaintiffs also bring a
supplemental state law breach of contract claim against defendants ILMO and
Rogers, claiming that they defaulted on two promissory notes held by the Union.
With respect to the ERISA claim, the amended complaint alleges that the
Collective Bargaining Agreement required ILMO to submit monthly statements
showing the hours worked by each covered employee and to make its contribution
payments to the funds through a stamp purchase plan. In an affidavit submitted in
support of default judgment, the Union’s accountant and controller, Juli Laramie,
attests to these same statements and refers to the Collective Bargaining Agreement as
evidence to support them. The Agreement submitted with Laramie’s affidavit,
however, contains no such terms.
In addition, plaintiffs’ memorandum in support of their request for default
judgment avers that ILMO failed to pay the required contributions for the period of
June 30, 2015, through April 30, 2016, and requests the entry of judgment for such
contributions – and related liquidated damages and interest – in sums that total
$15,686.43. Plaintiffs cite Laramie’s affidavit and her recorded calculations as
evidence supporting this averment and request. In her affidavit, however, Laramie
attests that records show contributions to be owed for the period of June 13, 2015
(not June 30) through April 30, 2016; and that the total contributions, liquidated
damages, and interest owed for this period is $15,686.44 (not $15,686.43). The
period of alleged delinquent contributions reflected in the record of calculations to
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which Laramie refers (ECF #12-5) is the period of June 13, 2015, through April 30,
2016; and the math in this record does not appear to add up. In short, the period of
delinquent contributions and their amount as averred in plaintiffs’ request for
judgment is inconsistent with the evidence submitted in support of their request.
With the breach of contract claim, the amended complaint sets out the
circumstances surrounding the default of each promissory note and specifies the
amount owed on each separate note. In seeking judgment on this claim, plaintiffs do
not provide any evidence as to what is owed on each note but instead rely on
Laramie’s attestation to the total amount owed. In her affidavit, Laramie again cites
to the record of calculations (ECF #12-5) and attests that the balance due on both
promissory notes totals $41,421.36. This cited record, however, contains only a oneline, non-descriptive entry for “Market Recovery Loan” with an associated amount of
$41,421.36 – the same amount that Laramie attests is owing on both notes. Laramie
does not attest, nor is there any evidence demonstrating, that this reference to a
“Market Recovery Loan” represents the promissory notes that plaintiffs have sued
upon in their amended complaint; and, if so, whether it pertains to one or both of
these notes.1 In short, plaintiffs have presented no evidence demonstrating what
amount is owed on each note as averred in the amended complaint.

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I also note that the amount reflected in the record of calculations and in Laramie’s affidavit is
different from the amount(s) allegedly owed on the notes set out in the amended complaint.
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With these deficiencies in the evidence and the discrepancies between the
evidence and the relief sought, I cannot enter judgment against the defendants as
requested. I will therefore deny plaintiffs’ motion for default judgment. This denial
is without prejudice, however, for I will give the plaintiffs an opportunity to cure any
deficiencies in their evidence and requested relief and to resubmit their motion.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ Motion for Default Judgment [12]
is denied without prejudice.
IT IS FURTHER ORDERED that no later than September 9, 2016, plaintiffs
shall resubmit their motion for default judgment, with appropriate evidence and
affidavits in support, as well as a proposed judgment for my consideration.
After review of this resubmitted evidence, I will determine whether a hearing is
necessary on the motion.

___________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 30th day of August, 2016.

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