Cummings et al v. HCHC, Inc.
MEMORANDUM DECISION AND ORDER dated 9/19/17 granting plaintiff's 11 Motion for Default Judgment. ( Ordered by Judge Brian M. Cogan on 9/19/2017 )*forwarded for jgm. (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CYNTHIA CUMMINGS, CAROLYN COX, :
CHERYL WATKINS, GINA RUSCH,
ANDRE LAKE, CYNTHIA MCCRIGHT,
and KIMBERLY BERRY, as Trustees of
DISTRICT COUNCIL 1707, LOCAL 95
: DECISION AND ORDER
HEAD START EMPLOYEES WELFARE :
: CV-17-3907 (BMC)
- against :
HCHC, INC. D/B/A ACE INTEGRATION
COGAN, District Judge.
Before me is plaintiffs’ motion for default judgment. For the reasons set forth below, the
motion is granted.
Plaintiffs are fiduciaries of District Council 1707, Local 95 Head Start Employees
Welfare Fund (the “Fund”), an employee benefit welfare plan and a multiemployer plan.
Plaintiffs brought this action against defendant HCHC, Inc. d/b/a Ace Integration Head Start for
relief pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C.
§ 1001 et seq., to collect other sums due to the Fund pursuant to Section 301 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. §185, and for declaratory and injunctive relief
pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
Plaintiffs commenced this action by filing a Complaint and Summons on June 29, 2017,
and served the defendant with a copy on July 11, 2017. Plaintiff filed proof of service with the
Court on July 18, 2017. Defendant has not answered or otherwise appeared in this action, and
the time to do so has expired. On August 9, 2017, the Clerk of the Court entered default against
the defendant pursuant to Fed. R. Civ. P. 55.
In light of defendant’s default in this case, all of the well-pleaded allegations in plaintiffs’
complaint pertaining to liability are deemed true. However, “[e]ven when a default judgment is
warranted based on a party’s failure to defend, the allegations in the complaint with respect to
the amount of the damages are not deemed true.” Credit Lyonnais Sec., Inc. v. Alcantara, 183
F.3d 151, 155 (2d Cir. 1999). “Rule 55(b)(2) provides that when granting a default judgment, if
‘it is necessary to take account or to determine the amount of damages or to establish the truth of
any averment by evidence…the court may conduct such hearings or order such references as it
deems necessary and proper.’” Id. at 154 (quoting Fed. R. Civ. P. 55(b)(2)). The Second Circuit
has held that as long as a district court “ensured that there was a basis for the damages specified
in the default judgment,” such as by relying on detailed affidavits and documentary evidence, it
is not necessary for the court to hold a hearing. Transatlantic Marine Claims Agency, Inc. v. Ace
Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (internal citations omitted).
Plaintiffs’ counsel submitted an Affidavit in Support of this motion for Default Judgment.
That affidavit exhibits copies of the collective bargaining agreement; the trust agreement; an
audit report; documentation supporting plaintiffs’ request for costs and attorney’s fees; and a
statement summarizing the amounts due to plaintiffs. These submissions are sufficient evidence
to form the basis for an award of damages. The damages for the categories provided in
§1132(g)(2) of ERISA as follows:
$75,994.73 in unpaid contributions for the period April 1, 2014 through June 30,
$17,401.44 1 in interest on the late-paid and unpaid contributions due;
$15,198.95 in liquidated damages on the unpaid contributions;
$2,931.25 2 in attorney’s fees for the prosecution of this action; and
Costs of $490 in disbursements and $4,545 in auditing fees.
Plaintiffs’ requested attorney’s fees are reasonable considering the nature of this case and
the time expended.
The motion for a default judgment is granted. The Clerk is directed to enter judgment in
favor of plaintiffs in the amount of $116,561.37.
Digitally signed by Brian
Dated: Brooklyn, New York
September 19, 2017
Plaintiffs state that additional interest continues to accrue from August 25, 2017 to the date of entry of judgment at
the per diem rate of $14.01 per day.
Plaintiffs state in their affidavit that attorney’s fees amount to $2,931.25. Their attorney billing statement, annexed
to their affidavit as Exhibit F, repeats this figure. Their Statement of Damages, annexed to their affidavit as Exhibit
E, states that attorney’s fees amount to $2,531.25. However, the Statement of Damages adds together attorney’s
fees and costs ($490), and records a total of $3,421.25, suggesting that the figure of $2,531.25 is an error.
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