TRUSTEES OF THE NEW JERSEY B.A.C. HEALTH FUND et al v. BRYANT CAULKING AND WATERPROOFING, INC. et al

Filing 16

OPINION. Signed by Judge Robert B. Kugler on 3/1/2017. (TH, )

NOT FOR PUBLICATION

(Doc. No. 10)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

TRUSTEES OF THE NEW JERSEY B.A.C.
HEALTH FUND, et. al.,
Plaintiff(s),
v.
BRYANT CAULKING AND
WATERPROOFING, INC. and FLEMING
WATERPROOFING, LLC
Defendant(s).

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Civil. No. 15-8359 (RBK/KMW)
OPINION

Kugler, United States District Judge:
This matter comes before the Court upon the motion of Plaintiffs Trustees of the New
Jersey B.A.C. Health Fund (“Health Fund”), Trustees of the New Jersey B.A.C. Annuity Fund
(“Annuity Fund”), Trustees of the B.A.C. Local 4 Pension Fund (“Local 4 Pension Fund”),
Trustees of the B.A.C. Local 5 of New Jersey Pension Fund (“Local 5 Pension Fund”), Trustees
of the New Jersey BM&P Apprentice and Education Fund (“Apprentice Fund”), Trustees of the
Bricklayers & Towel Trades International Pension Fund (“International Pension Fund”),
Trustees of the International Masonry Institute (“IMI”), and Richard Tolson as Administrator of
the B.A.C. Administrative District Council of New Jersey (“Union”) (collectively “Plaintiffs”).
Plaintiffs have asserted claims against Defendants Bryant Caulking and Waterproofing, Inc.
(“Bryant”) and Fleming Waterproofing, LLC (“Fleming”), an alleged alter ego and/or successor
of Bryant, (collectively “Corporate Defendants” or “Defendants”) for unpaid contributions to

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employee benefit plans, unpaid union dues, and liquidated damages pursuant to Sections 502 and
515 of the Employee Retirement Income Security Act of 1974 (“ERISA”) and Section 301 of the
Labor-Management Relations Act of 1947 (“LMRA”). Plaintiffs now move for default
judgment, pursuant to Federal Rule of Civil Procedure 55(b)(2), and seek payment for unpaid
contributions, attorney’s fees, and costs. For the reasons set forth below, Plaintiff’s Motion is
DENIED IN PART regarding attorneys’ fees and otherwise GRANTED.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant Bryant was a party to a Collective Bargaining Agreement (“CBA”) that
established the terms and conditions of employment for Bryant’s employees. Compl. ¶ 14. The
employees worked within a specified geographical area as bricklayers, cement masons,
plasterers, pointer caulkers, cleaners, fire proofers, stone masons, brick pavers, and exterior
marble masons (“Covered Work”). Id. Under the CBA, Bryant was required to make specified
contributions for every hour worked by its employees within the trade and geographical
jurisdiction of the Union to the Health Fund, Annuity Fund, Local 4 Pension Fund, Local 5
Pension Fund, Apprentice Fund, International Pension Fund, and IMI (collectively, the “Funds”).
Id. at ¶ 15. The CBA also required Bryant to furnish its books and payroll records when
requested by the Funds for the purpose of conducting an audit to verify the number of hours of
Covered Work performed by Bryant’s employees. Id. at ¶ 16.
On January 2, 2012, an audit was conducted of Bryant’s books and records covering
January 2006 through December 2010. Id. at ¶ 17. (“Audit”) The Audit revealed delinquent
contributions and dues check-offs in the amount of $302,089.79 and audit fees of $5,000. Id. at
¶ 19. Bryant has failed to pay the audit fees and any of the contributions due and check-off
uncovered by the Audit. Id. at ¶ 20; Pls.’ Mot. Def. J. at 3 (Doc. No. 13). The principal findings,

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interest, and damages of $307,089.79 currently remain outstanding in full. Compl. ¶ 20. The
Audit identified John Fleming and Cynthia Fleming as the owners of both Bryant and Fleming.
Id. at ¶ 21.
The following are the allegations of the Complaint, which for the purpose of this motion
are accepted as true and construed in the light most favorable to the Plaintiffs. Phillips v. Cty. of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Plaintiffs allege that after the Audit findings,
Bryant ceased operations and Fleming took over the work usually performed by Bryant. Compl.
¶ 22. In October 2010, Bryant stopped contributing to the Funds, and Fleming began contributing
to the Funds in December 2011. Id. at ¶ 23. Plaintiffs allege that Bryant and Fleming have
substantially identical business purposes, operations, owners, officers, telephone numbers, and
operate out of the same property address, owned by John Fleming and Cynthia Fleming. Id.
¶¶ 24-27. Generally, Plaintiffs allege that the Corporate Defendants should be jointly and
severally liable for unpaid contributions to employee benefit plans, unpaid union dues, and
liquidated damages incurred by Bryant because the Corporate Defendants are actually a single
employer, as Fleming is the alter ego and/or successor of Bryant. Id. at ¶¶ 43-46.
On December 1, 2015, the Plaintiffs commenced this action seeking to hold both
Defendants jointly and severally liable for the unpaid contributions, attorney’s fees, and costs.
Pls.’ Mot. Def. J. at 3. On December 8, 2015, the Defendants were properly served with the
Summons and Complaint by personal service upon Cynthia Fleming, a person authorized to
accept service on behalf of Bryant and Fleming. Id. Defendants failed to properly respond or
otherwise defend this matter and the deadline to do so has expired. Id. On January 4, 2016, the
Court informed the Corporate Defendants that they could not represent themselves in federal

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court and that they needed proper representation. See January 4, 2016 QC Message. The Clerk
entered default against Defendants on January 7, 2016. Pls.’ Mot. Def. J. at 3.
II.

STANDARD
Federal Rule of Civil Procedure 55(b)(2) allows the Court, upon Plaintiff’s motion, to

enter default judgment against a defendant that has failed to plead or otherwise defend a claim
for affirmative relief. The Court should accept as true all well-pleaded factual allegations in the
complaint by virtue of the defendant’s default except for those allegations pertaining to damages.
Chanel, Inc. v. Gordashevsky, 448 F. Supp. 2d 532, 536 (D.N.J. 2008) (citing Comdyne I, Inc. v.
Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990)). The Court also does not adopt Plaintiff’s legal
conclusions because whether the facts set forth an actionable claim is for the Court to decide.
Doe v. Simone, No. 12-5825, 2013 WL 3772532, at *2 (D.N.J. July 17, 2013).
While the decision to enter default judgment is left principally to the discretion of the
district court, there is a well-established preference in the Third Circuit that cases be decided on
the merits rather than by default judgment whenever practicable. Hritz v. Woma Corp., 732 F.2d
1178, 1180-81 (3d Cir. 1984). Consequently, the Court must address a number of issues before
deciding whether a default judgment is warranted in the instant case. If the Court finds default
judgment to be appropriate, the next step is for the Court to determine a proper award of
damages.

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III. DISCUSSION AND ANALYSIS
A. Appropriateness of Default Judgment
Defendant Bryant
i. The Court’s Jurisdiction
First, the Court must determine whether it has both subject matter jurisdiction over
Plaintiffs’ cause of action and personal jurisdiction over Defendant Bryant. See U.S. Life Ins. Co.
in N.Y.C. v. Romash, No. 09–3510, 2010 WL 2400163, at *1 (D.N.J. June 9, 2010). Verifying
the Court's jurisdiction is of particular concern where, as here, the defaulting party has failed to
make any sort of appearance or submit any responsive communication to the Court.
In this case, Plaintiffs allege the Defendant Bryant’s conduct violates ERISA and the
LMRA. Therefore, the Court has federal question subject matter jurisdiction over the Plaintiffs’
claims. See 28 U.S.C. § 1331; see also 29 U.S.C. § 1132(e) (granting federal district courts
exclusive jurisdiction over ERISA claims); 29 U.S.C. § 185 (granting jurisdiction in the federal
district where the labor organization maintains its principle office). Additionally, this Court has
personal jurisdiction over the Defendant in the form of general jurisdiction because Defendant is
a New Jersey corporation maintaining its principal place of businesses in New Jersey. Compl.
¶ 12.
ii. Entry of Default
Second, the Court must ensure that the entry of default under Rule 55(a) was appropriate.
Rule 55(a) directs the Clerk of the Court to enter a party’s default when that party “against whom
a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise.” In this case, Defendant Bryant was properly served
with a summons and complaint on December 8, 2015. Pls.’ Mot. Def. J. at 3; Marimon Decl., Ex.

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G (Doc. No. 11-7). The Court informed Defendant that it needed proper representation on
January 4, 2016. Thereafter, Corporate Defendant failed to respond to the Complaint within
twenty-one days of service as required under Rule 12(a). Accordingly, the Clerk’s entry of
default under Rule 55(a) was appropriate.
iii. Fitness of Defendants to be Subject to Default Judgment
Third, the Court will confirm that the defaulting parties are not infants or incompetent
persons, or persons in military service exempted from default judgment. See Fed. R. Civ. P.
55(b)(2); 50 U.S.C. App. § 501 et seq. (2006) (codification of the Servicemembers Civil Relief
Act of 2003). In this case, the defaulting Defendants are corporate entities and are therefore not
capable of being infants, incompetent persons, or persons in military service exempted from
default judgment. Thus, the Court finds that Defendant Bryant may be subject to default
judgment under Rule 55(b)(2).
iv. Plaintiffs’ Cause of Action
Fourth, the Court must determine whether Plaintiff’s Complaint states a proper cause of
action against Defendant Bryant. In performing the inquiry into a cause of action, the Court
accepts as true a plaintiff’s well-pleaded factual allegation while disregarding its mere legal
conclusions. See Directv, Inc. v. Asher, No. 03–1969, 2006 WL 680533, at *1 (D.N.J. Mar. 14,
2006) (citing 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2688, at 58-59 (3d ed. 1998)).
1. Breach of Collective Bargaining Agreement
Plaintiffs’ breach of collective bargaining agreement claim constitutes a proper breach of
contract action if it can satisfy three elements: (1) the existence of a valid contract; (2) a breach
of that contract; and (3) resulting damage to the plaintiff. See Ramada Worldwide, Inc. v. Steve

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Young Kim, No. 09-4534, 2010 WL 2879611 at *3 (D.N.J. July 15, 2010) (citing AT&T Credit
Corp. v. Zurich Data Corp., 37 F. Supp. 2d 367, 370 (D.N.J. 1999)). In this case, Plaintiffs have
alleged the existence of a valid and binding contract, namely the CBA. Compl. ¶ 14.
In addition, Plaintiffs claimed that Defendant breached the terms of the CBA by failing to make
adequate and timely contributions to the Funds on a monthly basis. Id. at ¶¶ 16-20. Finally,
Plaintiffs have established resulting harm from this breach in the amount of $321,798.79. See
Pls.’ Mot. Def. J. at 11; Pls.’ Mot. Def. J. Marimon Decl. at §§ 14-17. Thus, Plaintiffs have
sufficiently stated a cause of action for breach of contract against Defendant Bryant.
2. Violation of ERISA
Plaintiffs have adequately pled a violation of ERISA in the unchallenged factual
allegations in Plaintiffs’ Complaint. Section 515 of ERISA provides that any employer, who is
obligated to make contributions to a benefit plan under a collective bargaining agreement, must
make such contributions in accordance with the terms and conditions of that agreement. 29
U.S.C. § 1145. If an employer who is obligated to make contributions fails to do so in violation
of the CBA, then the Court may award the plan (1) the unpaid contributions; (2) interest on the
unpaid contributions; (3) an amount equal to the greater of the (a) interest on the unpaid
contributions, or (b) liquidated damages; (4) reasonable attorney’s fees and costs of the action;
and (5) such other legal or equitable relief as the court deems appropriate. 29 U.S.C. § 1132(g).
Plaintiffs have alleged that the CBA required Bryant to make contributions to the various
funds and forward dues check-offs on behalf of Bryant’s employees. Compl. ¶ 15. Plaintiffs also
allege that an audit of Bryant’s books revealed that Bryant failed to make all required
contributions and failed to forward dues check-offs for the period from January 2006 through

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December 2010. Id. at ¶¶ 17-18. The Court finds that the allegations set forth in the complaint
are sufficient to state a claim against Bryant for ERISA violations.
3. Violation of LMRA
Plaintiffs have also adequately stated a legitimate cause of action under the LMRA. The
LMRA allows district courts to hear “suits for violation of contracts between an employer and a
labor organization.” 29 U.S.C. § 185. Here, Plaintiffs, a union and a series of benefit funds,
alleged that Defendant employer failed to remit monthly contributions and submit required
monthly reports in a timely manner, as required by the CBA. Compl. ¶¶ 16-20. Therefore,
Plaintiffs have sufficiently stated a claim for LMRA violations against Defendant Bryant.
v. Emasco Factors
Finally, the Court must consider the so-called Emcasco factors when determining
whether to enter default judgment. The Court considers: (1) whether the defaulting party has a
meritorious defense; (2) the prejudice suffered by the plaintiff seeking default; and (3) the
defaulting party’s culpability in bringing about default. Bridges Fin. Grp., Inc. v. Beech Hill Co.,
Inc., No. 09-2686, 2011 WL 1485435, at *3 (D.N.J. Apr.18, 2011) (citing Doug Brady, Inc. v.
N.J. Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008) (citing Emcasco Ins.
Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987))). In this case, all three factors militate in favor
of granting a default judgment.
First, there is no indication that the Defendant Bryant has a cognizable defense to
Plaintiffs’ allegations of breach of collective bargaining agreement and violation of ERISA.
Thus, this factor is either inconclusive or weighs slightly in Plaintiffs’ favor. See Hill v.
Williamsport Police Dep’t, 69 Fed. App’x 49, 52 (3d Cir. 2003) (“Because the defendants had
not yet filed an answer, the District Court was unable to evaluate whether they had a litigable

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defense, [rendering this] factor ... inconclusive.”); Dish Network L.L.C. v. Rounds, No. 11-241,
2012 WL 1158798 at 3* (D.N.J. Apr. 6, 2012) (considering the Emasco factors and noting that in
light of the defendant's failure to “[respond in any manner to the Complaint [,] ... [t]here is
nothing to suggest that Defendant has a meritorious defense to liability.”).
Second, because the Defendant has failed to appear with proper representation as ordered
by this Court and has otherwise failed to defend this action, Plaintiffs suffer prejudice if they do
not receive a default judgment. Plaintiffs have no alternative means of vindicating their claim
against defaulting Defendant. See Directv v. Asher, 2006 WL 680533, at *2. Third, the
Defendant’s failure to respond with proper representation permits the Court to draw an inference
of culpability on their part. See Surdi v. Prudential Ins. Co. of Am., No. 08-225, 2008 WL
4280081 at *2 (D.N.J. Sept. 8, 2008) (citing Palmer v. Slaughter, No. 99-899, 2000 WL
1010261, at *2 (D. Del. July 13, 2000)). Therefore, the Emcasco factors weigh in favor of
entering default judgment. The Court holds that Plaintiffs are entitled to a default judgment
against Defendant Bryant.
Defendant Fleming
i. The Court’s Jurisdiction
The Court must determine whether it has both subject matter jurisdiction over Plaintiff’s
cause of action and personal jurisdiction over Defendant Fleming. See U.S. Life Ins. Co. in
N.Y.C., 2010 WL 2400163, at *1. Verifying the Court's jurisdiction is of particular concern
where, as here, the defaulting party has failed to make any sort of appearance or submit any
responsive communication to the Court.
Although neither the Plaintiffs nor the Defendants have addressed the issue, there is a
question of whether the Court has subject matter jurisdiction over the claims against Defendant

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Fleming. The United States Supreme Court has held that suits seeking to impose liability by
piercing the corporate veil of defendants not otherwise liable under ERISA do not state a federal
question. See Peacock v. Thomas, 516 U.S. 349 (1996).
In Peacock, the plaintiff sought to enforce against a different party a previously obtained
judgment against its statutory employer under ERISA. Id. at 351-52. The suit against the related
party asserted a cause of action for veil piercing under ERISA and applicable federal law. Id. at
352. The Supreme Court found that subject-matter jurisdiction did not exist under ERISA or the
federal court’s ancillary jurisdiction because “[p]iercing the corporate veil is not itself an
independent ERISA cause of action.” Id. at 354. The Court explained that without an
“underlying” violation of ERISA, neither ERISA’s jurisdictional provision, 29 U.S.C.
§ 1132(e)(1), nor 28 U.S.C. §1331 supplied jurisdiction. Id. However, several courts have
assessed whether claims of alter ego liability can support federal question jurisdiction under
Peacock, and they found that such claims support federal jurisdiction because alter ego claims
state a claim for direct liability under ERISA. Bd. of Trs., Sheet Metal Workers’ Nat’l Pension
Fund v. Elite Erectors, Inc., 212 F.3d 1031 (7th Cir. 2000); Cent. States, SE & SW Areas
Pension Fund v. Cent. Transp. Inc., 85 F.3d 1282 (7th Cir. 1996); Brown v. Holdings, 385 F.
Supp. 2d 519 (E.D. Pa. 2005); Hudson Cty. Carpenters Local Union No. 6 v. V.S.R. Constr.
Corp., 127 F. Supp. 2d 565 (D.N.J. 2000).
In Central Transport, the plaintiff previously prevailed in a suit under ERISA against a
statutorily liable party and brought a second suit seeking to collect that judgment from related
entities averring alter ego liability. 85 F.3d at 1285. In affirming subject-matter jurisdiction, the
United States Court of Appeals for the Seventh Circuit distinguished the claims at hand from
Peacock’s veil piercing claim seeking to impose liability solely on the defendant’s “capacity as

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an officer and shareholder of the liable corporation.” Central Transport’s court noted that the
present alter ego claim alleged that the defendants were the “true employers,” and thus posed a
“specific claim for relief under ERISA,” sufficient to create federal question jurisdiction. Id. at
1286. The reasoning of Central Transport was adopted by district courts in this circuit in Hudson
County Carpenters and Brown. Both courts held that the plaintiffs’ alter ego claims were
sufficient to confer subject-matter jurisdiction because the claims asserted direct liability for
ERISA violations. See Brown, 385 F. Supp. 2d at 525-26; Hudson Cty., 127 F. Supp. 2d at 56972.
The Court finds the reasoning of these cases persuasive. Plaintiffs’ alter ego claim alleges
that Defendants Bryant and Defendants Fleming are essentially the same entity. Therefore, the
Plaintiffs sufficiently allege a direct violation of ERISA by Defendant Fleming to state a federal
question and confer subject-matter jurisdiction.1 See 28 U.S.C. § 1331; 29 U.S.C. § 1132(e); 29
U.S.C. § 185. Additionally, the Court has personal jurisdiction over Defendant Fleming because
Defendant is a New Jersey corporation maintaining its principle place of business in New Jersey.
Thus, the Court may exercise personal jurisdiction over Defendant Fleming. Compl. ¶ 13.
ii. Entry of Default
Second, the Court must ensure that the entry of default under Rule 55(a) was appropriate.
Rule 55(a) directs the Clerk of the Court to enter a party’s default when that party “against whom
a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise.” In this case, Defendant Fleming was properly served
with a summons and complaint on December 8, 2015. Pls.’ Mot. Def. J. at 3. The Court informed

1. The Court does not analyze whether subject-matter jurisdiction is supplied by the claim that
Defendant Fleming is the successor of Defendant Bryant, due to the Court’s finding that subjectmatter jurisdiction exists under the Plaintiffs’ alter ego claim.
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Defendant that it needed proper representation on January 4, 2016. Thereafter, the Corporate
Defendant failed to respond to the Complaint within twenty-one days of service as required
under Rule 12(a). Accordingly, the Clerk’s entry of default under Rule 55(a) was appropriate.
iii. Fitness of Defendants to be Subject to Default Judgment
Third, the Court will confirm that the defaulting parties are not infants or incompetent
persons, or persons in military service exempted from default judgment. See Fed. R. Civ. P.
55(b)(2); 50 U.S.C. App. § 501. In this case, the defaulting Defendants are corporate entities and
are therefore not capable of being infants, incompetent persons, or persons in military service
exempted from default judgment. Thus, the Court finds that Defendant Fleming may be subject
to default judgment under Rule 55(b)(2).
iv. Plaintiffs’ Cause of Action
Fourth, the Court must determine whether Plaintiff’s Complaint states a proper cause of
action against Defendant Fleming. In performing the inquiry into a cause of action, the Court
accepts as true a plaintiff’s well-pleaded factual allegation while disregarding its mere legal
conclusions. See Directv, 2006 WL 680533, at *1. The Plaintiffs aver that Defendant Fleming is
an alter ego of Defendant Bryant, and thus liable for the ERISA and LMRA claims brought
against Defendant Bryant. Compl. ¶ 44. It is established that, “if two entities are found to be alter
egos, a collective bargaining agreement covering one entity is automatically deemed to cover the
other.” Stardyne, Inc. v. NLRB, 41 F.3d 141, 145 (3d. Cir. 1994) (citing Howard Johnson Co.
Inc. v. Detroit Local Joint Exec. Bd. Hotel & Rest. Emp. & Bartenders Int’l Union, AFL-CIO,
417 U.S. 249, 259 n.5 (1974)). As the Court has already found that the ERISA and LMRA
claims against Defendant Bryant are proper causes of action, the Court must determine whether
Defendant Fleming can be held liable for the claims under alter ego liability.

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The alter ego doctrine maintains, “that the successor [entity] is in reality the same
employer and is subject to all the legal and contractual obligations of its predecessor.” Stardyne,
41 F.3d at 146 (citing Howard Johnson, 417 U.S. at 259 n.5). The doctrine is applied when an
entity makes “a mere technical change in the structure of identity of the employing entity,
frequently to avoid the effect of the labor laws, without any substantial change in its ownership
or management.” Id. at 146 (citing Howard Johnson, 417 U.S. at 259 n.5). “[T]he focus of the
alter ego doctrine . . . is on the existence of a disguised continuance or an attempt to avoid the
obligations of a collective bargaining agreement through a sham transaction or a technical
change in operations.” NLRB v. Al Bryant, Inc., 711 F.2d 543, 553 (3d Cir. 1983) (citing
Carpenters Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 508 (5th Cir. 1982)).
To determine whether application of the alter ego doctrine is proper, courts must ask if
the new and old employers share “substantially identical management, business purpose,
operation, equipment, customers, and supervision, as well as ownership.” Stardyne, 41 F.3d at
151 (citations omitted). The plaintiff need not establish all of these factors for the alter ego
doctrine to apply, and “an intent to evade the Act is important, but not an essential, factor.” Id.
(citation omitted). “The main focus of the inquiry is to determine whether the two employers are
in the same business in the same market.” Id.
Here, Plaintiffs’ factual allegations, taken as true, satisfy a sufficient number of the alter
ego factors. First, it may be reasonably inferred from the complaint that Bryant and Fleming
share the same officers and ownership, John Fleming and Cynthia Fleming. See Compl. ¶ 21;
Stardyne, 41 F.3d at 151 (invoking the alter ego doctrine where the two companies shared
management and supervision). Next, Plaintiffs contend that Bryant and Fleming share the
business purpose of performing Covered Work in the same geographic area. Compl. ¶ 24.

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Plaintiffs allege in their complaint that after the Audit was performed, Bryant ceased operations
and Fleming began undertaking the work usually performed by Bryant. Id. at ¶ 22. Lastly, Bryant
and Fleming operate out of the same property address and use the same telephone numbers,
which are owned by John Fleming and Cynthia Fleming. Compl. ¶¶ 26-27. Therefore, since
Plaintiffs’ complaint alleges identical management, business purpose, operation, and ownership,
the Court finds that the allegations set forth in the complaint for the alter ego doctrine are
sufficient to state a claim against Defendant Fleming.2
v. Emcasco Factors
Finally, the Court must consider the so-called Emcasco factors when determining
whether to enter default judgment. The Court considers: (1) whether the defaulting party has a
meritorious defense; (2) the prejudice suffered by the plaintiff seeking default; and (3) the
defaulting party’s culpability in bringing about default. Bridges Fin. Grp., 2011 WL 1485435, at
*3 (citing Doug Brady, 250 F.R.D. at 177 (citing Emcasco 834 F.2d at 74)). Because the Court
has already established that Plaintiffs have stated a proper cause of action against Defendant
Fleming as an alter ego of Defendant Bryant, the Court adopts the Emcasco analysis determining
an entry of default judgment against Defendant Bryant as the same analysis needed for
Defendant Fleming. Therefore, the Emcasco factors weigh in favor of entering default judgment.
The Court holds that Plaintiff are entitled to a default judgment against Defendant Fleming.
B. Damages
Plaintiffs seek $307,089.79 for delinquent contributions, audit costs, CBA liquidated
damages, and interest on contributions. Mercadante Decl. ¶¶ 12-17 (Doc. No. 12). The Court is

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The Court does not analyze whether Defendant Fleming can be held liable as a successor to
Defendant Fleming, due to the Court’s finding that the allegations set forth in the Plaintiffs’
complaint for the alter ego doctrine are sufficient to state a claim against Defendant Fleming.
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not bound to accept as true Plaintiffs’ mere allegations concerning damages. See Comdyne I, 908
F.2d at 1149. Plaintiffs have submitted an audit report and interest calculations supporting the
delinquent contributions, audit costs, liquidated damages, and interest owed. Mercadante Decl.
¶¶ 12-17; Ex. C. Accordingly, the Court awards Plaintiffs $307,089.79.
Plaintiffs also request reasonable attorney’s fees and costs pursuant to 29 U.S.C.
§ 1132(g)(2)(D). Plaintiffs’ counsel has claimed $14,709 in fees. Marimon Decl. ¶ 26. Plaintiffs’
counsel has provided computer print outs of hours and costs to confirm these fees and costs.
Marimon Decl., Ex. F. The Court is concerned that the hours and fees documented in Plaintiffs’
documentation may be unreasonable. Therefore, the Plaintiffs’ request for attorneys’ fees is
denied without prejudice. The Court will issue a letter directing Plaintiffs’ counsel to address the
reasonableness of their fees.
III.

CONCLUSION
For the reasons stated above, Plaintiffs’ Motion for Default Judgment against Defendants

Bryant and Fleming is DENIED IN PART regarding attorneys’ fees and otherwise GRANTED.
The Court awards damages in the amount of $307,089.79. An appropriate order shall issue.

Dated:

03/01/2017

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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