TRUSTEES OF THE NEW JERSEY B.A.C. HEALTH FUND et al v. APG INTERNATIONAL, INC.

Filing 16

MEMORANDUM OPINION & ORDER granting 11 Motion for Default Judgment. Signed by Judge Noel L. Hillman on 10/23/2017. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TRUSTEES OF THE NEW JERSEY
B.A.C. HEALTH FUND, et al.,
Plaintiffs,
v.

1:16-cv-09060-NLH-JS
MEMORANDUM
OPINION & ORDER

APG INTERNATIONAL, INC.,
Defendant.

APPEARANCES:
NICOLE MARIE MARIMON
VIRGINIA & AMBINDER LLP
40 BROAD STREET
7TH FLOOR
NEW YORK, NY 10004
On behalf of Plaintiffs
HILLMAN, District Judge
WHEREAS, pending before the Court is the motion of Trustees
of the New Jersey B.A.C. Health Fund, Trustees of the B.A.C.
Local 5 Pension Fund, Trustees of the New Jersey BM&P Apprentice
and Education Fund (“Local Funds”), Trustees of the Bricklayers
& Trowel Trades International Pension Fund, Trustees of the
International Masonry Institute (“International Funds,” together
with the Local Funds,, the “Funds”) and Richard Tolson, as
Administrator of B.A.C. Administrative District Council of New
Jersey (the “Union”, together with the Funds, the “Plaintiffs”),
for default judgment against APG International, Inc. (“APG”),
for unpaid contributions, contractual liquidated damages,

statutory interest and attorneys' fees and costs incurred by
Plaintiffs pursuant to 29 U.S.C. §§ 185(a) and 1132(g)(2); and
WHEREAS, Section 515 of the Employee Retirement Income
Security Act, 29 U.S.C. § 1145, provides that "[e]very Employer
who is obligated to make contributions to a multiemployer plan .
. . under the terms of a collectively bargained agreement shall
. . . make such contributions in accordance with . . . such
agreement"; and
WHEREAS, Plaintiffs claim that Defendant has failed to pay
contributions in the amount of $5,304.88 to the Fund for covered
work on the Hudson Lights Project from August 1, 2016 through
August 12, 2016, and Defendant has failed to remit $586.16 in
required dues check-offs, totaling $5,891.04; and
WHEREAS, Plaintiffs further claim that under the parties’
agreements, Plaintiffs are owed: calculated interest at the
prescribed rate of 10% per annum from the date that each
contribution was due to the Local Benefit Funds up to April 3,
2017, which yielded the amount of $264.12; interest calculated
at the prescribed rate of 15% per annum from the date that each
contribution was due to the Bricklayers & Trowel Trades
International Pension Fund up to April 3, 2017, which yielded
the amount of $42.50; twenty percent of the principal amount due
in liquidated damages, which amounts to $1,060.98; $2,928.00 in
attorneys’ fees; and $475.90 in costs; and
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WHEREAS, Defendant was served with Plaintiffs’ complaint on
December 14, 2016; but
WHEREAS, Defendant failed to file an answer or otherwise
appear, and on April 7, 2017, the Clerk granted Plaintiffs’
request for the entry of default against Defendant pursuant to
Fed. R. Civ. P. 55(a); and
WHEREAS, because Defendant still has not appeared in this
action, Plaintiffs have filed the instant motion for default
judgment against Defendant pursuant to Fed. R. Civ. P. 55(b);
and
WHEREAS, although every “well-pled allegation” of the
complaint, except those relating to damages, are deemed
admitted, Comdyne I. Inc. v. Corbin, 908 F.2d 1142, 1149 (3d
Cir. 1990), before entering a default judgment the Court must
decide whether “the unchallenged facts constitute a legitimate
cause of action, since a party in default does not admit mere
conclusions of law,” Chanel, 558 F. Supp. 2d at 535 (citation
omitted); and
WHEREAS, the decision to enter a default judgment is left
to the Court's discretion, but “‘in exercising its discretion,
the trial court must consider three factors: 1) whether the
plaintiff will be prejudiced if the default is lifted; 2)
whether the defendant has a meritorious defense; and 3) whether
the default was the result of the defendant's culpable
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misconduct.’”

International Union of Operating Engineers of

Eastern Pennsylvania and Delaware Benefit Pension Fund v. N.
Abbonizio Contractors, Inc., 134 F. Supp. 3d 862, 865 (E.D. Pa.
2015) (quoting Hritz v. Woma Corp., 732 F.2d 1178, 1182 (3d Cir.
1984)); and
WHEREAS, with regard to the second two factors, the Court
finds that because Defendant was properly served but has failed
to appear in this action, it is unknown whether Defendant has a
meritorious defense to Plaintiffs’ claims, and the inference is
that Defendant’s default was the result of its own culpable
misconduct; and
WHEREAS, with regard to the first factor, the Court finds
that Plaintiffs will be prejudiced if default judgment is not
entered against Defendant, because under ERISA, a plan is still
required to pay benefits to participants regardless of whether
an employer makes its contributions to the plan, and “[i]f the
plan at issue is part of a multi-employer contribution system,
as here, any delinquent contributions owed by a covered employer
impairs the plan's ability to pay both the beneficiaries of the
delinquent employer as well as employees of companies who have
made their contributions.”

Id. (citing 29 C.F.R. § 2530.200b–2)

(other citation omitted); and
WHEREAS, if an employer fails to make the contributions as
required by the collective bargaining agreement and Section 515,
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then the employer is subject to the provisions of Section
502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2), which provides for
the mandatory award of the following if a judgment under Section
515 is entered in the Fund's favor:
(A)

the unpaid contributions,

(B)

interest on the unpaid contributions,

(C)

an amount equal to the greater of:
(i)

interest on the unpaid contributions; or

(ii) liquidated damages provided for under the plan in
an amount not in excess of 20 percent (or such higher
percentage as may be permitted under Federal or State
law) of the amount determined by the Court under
Subparagraph (a),
(D)

reasonable attorney's fees and costs of the action, to

be paid by the Defendant, and
(E)

such other legal or equitable relief as the court

deems appropriate; and
WHEREAS, the Court finds that Plaintiffs have provided
competent documentation to support their demand under 29 U.S.C.
§§ 185(a) and 1132(g)(2) for unpaid contributions, contractual
liquidated damages, statutory interest and attorneys' fees and
costs;
THEREFORE,
IT IS on this

23RD

day of
5

October

, 2017

ORDERED that Plaintiffs’ Motion for Default Judgment [11]
be, and the same hereby is, GRANTED.

An Order of Judgment will

be entered separately.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

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