TRUSTEES OF THE IBEW LOCAL 351 PENSION FUND; IBEW LOCAL 351 SURETY FUND; IBEW LOCAL 351 WELFARE FUND; IBEW LOCAL 351 JOINT APPRENTICESHIP AND TRAINING COMMITTEE; SOUTH JERSEY ELECTRICAL WORKERS TEMPOR et al v. MERCHANT ELECTRIC, INC.

Filing 38

ORDER & Judgment granting 37 Motion for Default Judgment; the Plaintiffs recover of Defendant Merchant Electric, Inc. the sum of $158,646.35, which is inclusive of interest, liquidated damages, and attorneys' fees, as provided by law, and to include additional interest thereon; etc. Signed by Judge Kevin McNulty on 6/1/2021. (sm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TRUSTEES OF THE IBEW LOCAL 351
PENSION FUND, ET AL.,
Plaintiffs,
v.
MERCHANT ELECTRIC, INC., doing
business as MERCHANT ELECTRIC
AND LIGHTING SERVICES, INC.,

Civ. No. 19-12451 (KM)
ORDER & JUDGMENT

Defendant.
IT APPEARING that the court, by Steven C. Mannion, U.S. Magistrate
Judge, granted the motion of Ronald L. Tobia, Esq., to withdraw as counsel for
the defendant (DE 31); and
IT FURTHER APPEARING that defendant, a corporate party which
cannot appear pro se, thereafter failed to obtain substitute counsel, failed to
produce required discovery, including payroll audit records, and in general has
not substantively appeared or participated in the litigation any further; and
IT FURTHER APPEARING that the clerk entered default on August 4,
2020; and
IT FURTHER APPEARING that on December 16, 2020, the plaintiffs
moved for entry of a default judgment (DE 37); and
THE COURT HAVING CONSIDERED the usual factors for a default
judgment, and found that defendants were properly served; that plaintiffs have
established their entitlement to delinquent contributions, to which no
meritorious defense appears; that plaintiffs are prejudiced in that they have
been stymied from making their case; and that defendants are culpable for the
default; and

THE COURT HAVING FURTHER CONSIDERED, in the alternative, the
Poulis factors 1 for dismissal of an action for failure to prosecute, and found that
(1) defendant is responsible for its own default; (2) defendant has obstructed
the progress of the litigation, particularly by its failure to make discovery; (3)
that delay has resulted; (4) that no excuse, other than financial inability, is
made for the defendant’s purposeful failure to make discovery or procure new
counsel; (5) that no lesser sanction will suffice; and (6) that no defense to
plaintiffs’ demand for delinquent contributions appears;
AND THE COURT having reviewed the application for attorney’s fees,
pursuant to 29 U.S.C. § 1132(g), and found it reasonable;
IT IS, this 1st day of June, 2021,
ORDERED that the motion (DE 37) is GRANTED; and it is further
ORDERED and ADJUDGED that the Plaintiffs recover of Defendant
Merchant Electric, Inc. the sum of $158,646.35, which is inclusive of interest,
liquidated damages, and attorneys' fees, as provided by law, and to include
additional interest thereon; and
IT IS FURTHER ORDERED Defendant Merchant is to produce the
following documents to the Plaintiffs within fourteen (14) days of the date of
this Order: Time Cards/Time Sheets for all employees for the period of
January 1, 2011 through December 31, 2016; all Cash Disbursement Journals
for the period of January t 2011 through December 31, 2016; IRS Form 1099's
for years 2011, 2012 and 2013; a Complete Job Listing for the period of
January 1, 2011 through December 31, 2016; the 2011 General Ledger;
invoices for Integrity Electrical Staffing, Integrity Electrical Consulting, Genmar
Consulting; payments to Joseph Scaglione; and cash disbursements
adjustments listed under materials for the period of January 1, 2011 through
December 31, 2016; and

1

Poulis v. State Farm Fire & Cas. Corp., 747 F.2d 863, 868 (3d Cir. 1984).

IT IS FURTHER ORDERED that this Court will retain active jurisdiction
over the enforcement and continued litigation of this matter, if and as it may
become necessary.

/s/ Kevin McNulty

________________________________
KEVIN MCNULTY
United States District Judge