TRUSTEES OF THE NEW JERSEY B.A.C. HEALTH FUND et al v. THURSTON F. RHODES, INC.

Filing 12

MEMORANDUM OPINION AND ORDER denying without prejudice 6 Motion for Default Judgment; Plaintiffs shall file a renewed motion for default judgment on or before 2/9/2017. Signed by Judge Renee Marie Bumb on 1/10/2017. (tf, )

NOT FOR PUBLICATION

[Docket No. 6]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

TRUSTEES OF THE NEW JERSEY
B.A.C. HEALTH FUND, et al.,

Civil No. 16-892 (RMB/AMD)

Plaintiffs,

MEMORANDUM OPINION AND ORDER

v.
THURSTON F. RHODES, INC.
d/b/a J & M CONCRETE & GENERAL
CONTRACTING,
Defendant.
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the Motion for
Default Judgment by Plaintiffs Trustees of the New Jersey B.A.C.
Health Fund, Trustees of the New Jersey B.A.C. Annuity Fund,
Trustees of the B.A.C. Local 5 Pension Fund, Trustees of the New
Jersey BM&P Apprentice and Education Fund, Trustees of the
Bricklayers & Trowel Trades International Pension Fund, Trustees
of the International Masonry Institute, and Richard Tolson, as
Administrator of B.A.C. Administrative District Council of New
Jersey (the “Plaintiffs”) [Docket No. 6], seeking the entry of a
default judgment against Defendant Thurston F. Rhodes, Inc.
d/b/a J & M Concrete & General Contracting (the “Defendant”),
pursuant to Federal Rule of Civil Procedure 55(b)(2).

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For the

following reasons, Plaintiffs’ motion will be denied without
prejudice.
I.

FACTUAL AND PROCEDURAL BACKGROUND

On February 18, 2016, Plaintiffs commenced the
above-captioned action against Defendant, seeking the recovery
of amounts owed to the Plaintiffs pursuant to a collective
bargaining agreement and Sections 502(a)(3) and 515 of the
Employee Retirement Income Security Act (“ERISA”) of 1974,
29 U.S.C. §§ 1132(a)(3), 1145, and Section 301 of the Labor
Management Relations Act (“LMRA”) of 1947, 29 U.S.C. § 185.
Compl. ¶¶ 1, 16-23 [Docket No. 1].

According to the Complaint,

Defendant did not pay certain required contributions and dues
check-offs owed to its employees for work performed on the Yard
House, Moorestown Mall in New Jersey from August 27, 2015
through October 16, 2015.

Compl. ¶ 14.

Plaintiffs request that

default judgment be entered in Plaintiffs’ favor and against
Defendant in the total amount of $11,362.31, representing
(1) $5,818.15 in delinquent contributions; (2) $382.50 in
delinquent dues check-offs; (3) $2,929.00 in reasonable
attorneys’ fees; (4) $563.75 in costs; (5) $505.28 in interest;
and (6) $1,163.63 in liquidated damages.

[Docket Nos. 7, 8].

Service of the Summons and Complaint were made upon the
Defendant on February 24, 2016 [Docket Nos. 3, 5-1].

The time

for Defendant to answer the Complaint or otherwise move expired

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on March 16, 2016.

To date, Defendant has neither answered nor

otherwise responded to the Complaint.

On July 5, 2016,

Plaintiffs requested an entry of default against Defendant,
which the Clerk of this Court entered the following day [Docket
No. 5].

Plaintiffs filed the instant motion on July 14, 2016

[Docket No. 6].

It is unclear whether, how, or when Defendant

was served with the instant motion, as Plaintiffs have not
provided the Court with a certificate of service or any other
proof of service upon Defendant.
On August 10, 2016, however, the Court received a
handwritten letter from Joseph Giletto, dated August 9, 2016,
which reads in its entirety:
I Joseph Giletto request an extension so I am able to
obtain counsel. Docket number 16 CV 0892 (RMB)(AMD).
I am a blind man that just received this paperwork
seven days ago. If you could please help me with this
situation I would greatly appreciate it since I am
blind and have major disabilities.
[Docket No. 9].
of Defendant.

It appears that Mr. Giletto is a representative

The Court granted Mr. Giletto thirty days to

obtain counsel for Defendant in this matter [Docket No. 10].
Thereafter, on November 3, 2016, Plaintiffs submitted a letter
[Docket No. 11] to this Court stating that:
Defendant has not retained counsel or otherwise
appeared in this case, save for his letter of August
10, 2016. In or around the third week of September,
Defendant called this firm to discuss the facts of
this case. No further contact has been initiated by
Defendant.

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II.

DISCUSSION

“Before granting a default judgment, the Court must
determine (1) whether there is sufficient proof of service,
(2) whether a sufficient cause of action was stated, and
(3) whether default judgment is proper.”

Teamsters Health &

Welfare Fund of Phila. & Vicinity v. Rock Canyon, Inc., 2015 WL
881694, at *1 (D.N.J. Mar. 2, 2015) amended on reconsideration,
2015 WL 1321722 (D.N.J. Mar. 24, 2015) (quoting Teamsters Health
& Welfare Fund of Phila. & Vicinity v. Dubin Paper Co., 2012 WL
3018062, at *2 (D.N.J. July 24, 2012)).

Whether default

judgment is proper depends on (1) whether a plaintiff will be
prejudiced if default is not granted, (2) whether a defendant
has a meritorious defense, and (3) whether the defendant’s delay
is the result of culpable misconduct.

Butler v. Pennsylvania

Bd. of Prob. & Parole, 613 F. App’x 119, 122 (3d Cir. 2015)
(quoting Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir.
2000)).
As a preliminary matter, it is unclear from the record
whether Plaintiffs have properly served Defendant with the
Motion for Default Judgment and the related documentation.
Additionally, Plaintiffs have not submitted a brief in support
of the Motion for Default Judgment.

Plaintiffs have not

provided the Court with any argument as to whether a sufficient
cause of action was stated and whether default judgment is

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proper, i.e. whether Plaintiffs will be prejudiced if default is
not granted, whether Defendant has any meritorious defenses, and
whether Defendant’s delay is the result of culpable misconduct.
Mr. Giletto’s letter suggests that Defendant wishes to
participate in the litigation but has encountered obstacles due
to Mr. Giletto’s disabilities.

Without these submissions from

Plaintiffs, the Court is unable to make the determinations
necessary in order to grant default judgment.
ACCORDINGLY, IT IS HEREBY on this 10th day of January 2017,
ORDERED that Plaintiffs’ Motion for Default Judgment
against Defendant [Docket No. 6] is DENIED WITHOUT PREJUDICE;
and it is further
ORDERED that, on or before February 9, 2017, Plaintiffs
shall file a renewed motion for default judgment addressing the
deficiencies identified herein, if they so choose.

In the event

no renewed motion is filed, the Court shall direct the Clerk of
the Court to close the file in this matter; and it is further
ORDERED that Plaintiffs shall serve Defendant with this
Order and submit proof of service to this Court via electronic
filing, on or before February 9, 2017.
s/Renée Marie Bumb_
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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