Painters District Council No. 58 et al v. Platinum Enterprises, LLC et al

Filing 26

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Myrian Baker's pro se Rule 60(b) Motion to Set Aside Default and Default Judgment (ECF No. 16 ) is DENIED. IT IS FURTHER ORDERED that Plaintiffs' Motion for Attorneys' Fees an d Costs (ECF No. 15 ) is GRANTED in the amount of $6,128.16 in attorneys' fees and $481.67 in costs, to be paid by Defendants Platinum Enterprises, LLC and Myrian Baker, jointly and severally. A separate judgment shall accompany th is Memorandum and Order. IT IS FINALLY ORDERED that the Clerk of the Court shall mail a copy of this order and accompanying judgment to the Defendants via U.S. Mail and UPS at the following address: [SEE ORDER FOR FURTHER DETAILS]. Signed by District Judge Ronnie L. White on October 30, 2018. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAINTERS DISTRICT COUNSEL NO. 58, et al., )
)
Plaintiffs,
)
)
v.
)
)
PLATINUM ENTERPRISES, LLC, et al.,
)
)
Defendant.
)

No. 4:16CV1218 RLW

MEMOBANDUM AND ORDER
Tbis matter is before the Court on Plaintiffs' Motion for Attorneys' Fees and Costs (ECF No.
15) and Defendant Myrian Baker's pro se Rule 60(b) Motion to Set Aside Default and Default
Judgment (ECF No. 16) filed on behalf of himself and Platinum Enterprises, LLC. Plaintiffs have
filed a response in opposition to Defendants' Rule 60(b) motion. (ECF No. 17) Prose Defendant
Myrian Baker ("Baker") also filed a Notice of Permissive Joinder of Defendants. (ECF No. 22)
Plaintiffs have filed a response in opposition to the notice, and Defendant Baker filed a reply brief.
(ECF Nos. 23, 25) Defendants have not filed a response to Plaintiffs' motion for attorneys' fees.
I. Background

Plaintiffs filed this cause of action on July 26, 2016 to recover delinquent fringe benefit
contributions and union dues, liquidated damages, payroll audit costs, attorneys' fees, and court
costs from Defendants Platinum Enterprises, LLC and Baker. 1 Defendants Platinum Enterprises,
LLC and Baker were served with the summons and complaint on September 4, 2016, and failed
to file an answer or other responsive pleading. On Plaintiffs' motion, the Clerk of the Court
entered default against Defendant on October 3, 2016. Plaintiffs also filed a Motion for Entry of
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The record reflects that Myrian Baker, the owner of Defendant Platinum Enterprises, LLC,
signed the collective bargaining agreement as a personal guarantor.

Partial Default Judgment -Accounting, which this Court granted. On June 8, 2018, the Court
granted Plaintiffs' Motion for Entry of Default Judgment and entered a Judgment against
Defendants Platinum Enterprises, LLC and Baker, jointly and severally, in the amount of $271,
294.22. (ECF Nos. 13, 14) The Court did not grant Plaintiffs' request for attorneys' fees and
costs because Plaintiffs failed to include an affidavit in support.
On June 21, 2018, Plaintiff filed the present motion for attorneys' fees and costs, along
with supporting affidavits. Plaintiffs seek $6,128.16 in attorneys' fees and $481.67 in costs to be
paid by Defendants, jointly and severally. Defendants have not filed any objection to these fees.
On July 6, 2018, Defendant Baker, prose and on behalf of himself and his company, filed a Rule
60(b) motion to set aside the default and default judgment. He also requested a stay of execution
of the judgment pending a hearing. In addition, on August 6, 2018, Baker filed a notice of
permissive joinder of Defendants presumably to join both Defendants in his Rule 60(b) motion.

II. Discussion
The Court will first address the pro se motion to set aside the default. The Court agrees
that Defendant Baker may not request that the Clerk's Entry of Default be set aside on behalf of
the corporation. See Carr Enters., Inc. v. United States, 698 F.2d 952, 953 (8th Cir. 1983) ("It is
settled law that a corporation may be represented only by licensed counsel."); JODA, LLC v. Ace

NC Sys., LLC, No. 4:09 CV 1197 CDP, 2014 WL 2217279, at *1 (E.D. Mo. May 29, 2014)
(same). As such, Baker may only represent himself in this matter. See E.D. Mo. L.R. 12.0l(A)
("Nothing in these rules is intended to prohibit any individual from appearing personally on
his or her own behalf."). Thus, the Court will disregard any argument made by Baker on behalf
of Platinum Enterprises LLC.

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With respect to Baker's argument that the Court should set aside the default judgment
and stay the execution of judgment pending a hearing, the Court will deny the motion. Under
Rule 60(b), a court may relieve a party from a court order for several reasons including mistake,
inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation,
misconduct by an opposing party, or any other reason that justifies relief. Fed. R. Civ. P.
60(b)(l)-(3), (6). "The district court has wide discretion in ruling on a Rule 60(b) motion .... "

Jones v. Swanson, 512 F.3d 1045, 1049 (8th Cir. 2008). Rule 60(b) "authorizes relief based on
certain enumerated circumstances (for example, fraud, changed conditions, and the like)."

Broadway v. Norris, 193 F.3d 987, 990 (8th Cir. 1999).
Here, Baker contends that Plaintiffs tricked Baker into failing to respond. He further
asserts that he signed the collective bargaining contract under duress and that said contract is not
legitimate. Finally, he argues that his failure to respond to the complaint and his delay in filing
the motion to vacate were not caused by bad faith, as he lacked knowledge of the law. Plaintiff
appears to primarily argue excusable neglect in seeking Rule 60(b) relief. "Rule 60(b)( 1),
among other things, permits a district court to set aside a judgment entered because of a party's
"excusable neglect."' Freeman v. Wyeth, 764 F.3d 806, 809 (8th Cir. 2014) (citation omitted).
"To determine whether conduct is excusable, courts consider several factors, including: '(1) the
danger of prejudice to the non-moving party; (2) the length of the delay and its potential impact
on judicial proceedings; (3) whether the movant acted in good faith; and (4) the reason for the
delay, including whether it was within the reasonable control of the movant.'" Id. (quoting In re

Guidant Corp. Implantable Defibrillators Prod. Liab. Litig., 496 F.3d 863, 866 (8th Cir. 2007)).
"The reason for the delay is a 'key factor in the analysis."' Id. (quoting In re Guidant Corp., 496
F.3d at 867). In addition, courts have found that the existence of a meritorious defense is also a

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relevant factor. Union Pac. R. Co. v. Progress Rail Servs. Corp., 256 F.3d 781, 783 (8th Cir.
2001). "In weighing these factors, the Court is mindful of the Eighth Circuit's 'frequently
endorsed [and] strong judicial policy against default judgments."' Marcum v. Ret. Plan for

Hourly-Rated Employees ofNoranda Aluminum, Inc., No. 4:10CV02217 JCH, 2011 WL
1533032, at *2 (E.D. Mo. Apr. 21, 2011) (quoting Oberstar v. FD.IC., 987 F.2d 494, 504 (8th
Cir.1993)).
Defendant Baker concedes in his motion that he was served with the summons and
complaint and was aware of the allegations contained in the July 26, 2016 complaint. (ECF No.
16 p. 2) The record shows that on December 27, 2016, the copy of the order granting partial
default and compelling an accounting was returned because Baker refused delivery. (ECF No.
10) In addition, the record reflects that Defendants submitted the requisite payroll records for the
time period of January 10, 2014 through June 10, 2017 for examination. (ECF Nos. 11-1, 11-11,
and 11-12) Baker now alleges two years after Plaintiffs filed their complaint, that he was
surprised to learn of the default judgment and that he moved to set aside the default as soon as
possible.
The Court finds that Baker's assertion does not satisfy the excusable neglect factors.
Baker had knowledge of the collective bargaining contract, knowledge of the complaint, and
knowledge of his defenses of alleged fraud and racketeering since the inception of the suit. (ECF
Nos. 16-2, 22 pp. 3-8) The case has been pending for over two years. Further his defenses are
merely conclusory and do not rise to the level of a meritorious defense. Instead, the Court finds
that Baker simply chose to ignore the law suit filed against him. Therefore, the Court will deny
the motion to set aside the default judgment with respect to Baker in his individual capacity.

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With regard to Baker's Rule 62(b) motion, the rule allows for the stay of execution of
judgment pending disposition of a motion under Rule 60. Fed. R. Civ. P. 62(b)(4). Because this
Order disposes of Bakers' Rule 60(b) motion, the request for a stay of execution is now moot.
Finally, the Court will grant Plaintiffs' Motion for Attorneys' Fees and Costs. Under 29
U.S.C. § 1132 pertaining to civil enforcement of an ERISA plan, "[i]n any action ... on behalf
of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded,
the court shall award the plan ... reasonable attorney's fees and costs of the action, to be paid by
the defendant." 29 U.S.C. § 1132(g)(2)(D). An award of attorney's fees and costs is mandatory,
and the Plaintiffs bear the burden to prove that such request is reasonable. Greater St. Louis

Const. Laborers Welfare Fundv. A.L.L. Const., LLC, No. 4:12-CV-1511CAS,2014 WL
1648731, at *6 (E.D. Mo. Apr. 23, 2014).
Here, Plaintiffs have submitted the affidavit of Matthew J. Gierse and billing records in
support of their request for $6,128.16 in attorneys' fees and $481.67 in costs. (ECF Nos. 15-2,
15-3) Mr. Gierse avers that the standard hourly billing rate for services performed on
delinquency matters in federal court was $180.00 until February 1, 2017, when it became
$220.00. (ECF No. 15-2 i! 3) Based on the evidence presented, the Court finds the services
performed by Plaintiffs' attorneys were reasonable and necessary to the litigation of this case, the
rates charged were reasonable, and the amount sought for attorneys' fees and costs is reasonable.
Therefore, the Court will grant Plaintiffs' motion for attorneys' fees and cost. See Greater St.

Louis Const. Laborers Welfare Fund v. LaBarge, No. 4:13CV01258 AGF, 2013 WL 6181808, at
*2 (E.D. Mo. Nov. 26, 2013).
Accordingly,

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IT IS HEREBY ORDERED that Defendant Myrian Baker's prose Rule 60(b) Motion to
Set Aside Default and Default Judgment (ECF No. 16) is DENIED.

IT IS FURTHER ORDERED that Plaintiffs' Motion for Attorneys' Fees and Costs (ECF
No. 15) is GRANTED in the amount of $6,128.16 in attorneys' fees and $481.67 in costs, to be paid
by Defendants Platinum Enterprises, LLC and Myrian Baker, jointly and severally. A separate
judgment shall accompany this Memorandum and Order.

IT IS FINALLY ORDERED that the Clerk of the Court shall mail a copy ofthis order and
accompanying judgment to the Defendants via U.S. Mail and UPS at the following address:
Myrian Baker
3954 Max Welch Place
St. Louis, Missouri 63033

Platinum Enterprises, LLC
3954 Max Welch Place
St. Louis, Missouri 63033

Dated this 30th day of October, 2018.

~/@!u

RONNIELWHITE
UNITED STATES DISTRICT JUDGE

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