Iron Workers District Council Of Southern Ohio & Vicinity Benefit Trust et al v. NCR Clark, LLC et al

Filing 11

ORDER GRANTING MOTION FOR DEFAULT JUDGMENT. Signed by Judge Thomas M Rose on 8/26/14. (ep)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
AT DAYTON, OHIO

IRON WORKERS DISTRICT COUNCIL
OF SOUTHERN OHIO & VICINITY
BENEFIT TRUST, et al.,
Plaintiffs,

CASE NO. 3:14-CV-00070

JUDGE THOMAS M. ROSE

v.
NCR CLARK, LLC, et al.,

ORDER

Defendants.

ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
This action came before the Court on Plaintiffs Iron Workers District Council of
Southern Ohio & Vicinity Benefit Trust, Iron Workers District Council of Southern Ohio &
Vicinity Pension Trust, Iron Workers District Council of Southern Ohio & Vicinity Annuity
Trust (collectively the “ERISA Trusts”), and International Association of Bridge Structural &
Ornamental Iron Workers, A.F.L., C.I.O. Local Union No. 70 (“Local 70”) (collectively the
ERISA Trusts and Local 70 are the “Plaintiffs”) Motion for Default Judgment against the
Defendants NCR Clark, LLC (“NCR Clark”) and Neita C. Williamson (“Williamson”). This
Court now grants the Plaintiffs’ Motion for Default Judgment against Defendants in its entirety.
I.

BACKGROUND FACTS
The ERISA Trusts are three employee benefit and pension plans. Aff. of Peggy Gotthardt

¶¶ 5-12. Defendant NCR Clark entered into agreements with the ERISA Trusts and Local 70 that
required it to remit wage assessments and contributions as stipulated in the agreements to the

ERISA Trusts and Local 70. ECF #5, Amended Complaint, ¶ 17; Aff. of Tom Carrier, ¶ 6-7. The
ERISA Trusts’ and Local 70’s allegations, which have now been adopted by the Court by virtue
of the entry of default judgment, are that Defendant NCR Clark is delinquent with its
contributions to the ERISA Trusts, in violation of the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”), that Defendant Williamson is personally liable for all amounts
that Defendant NCR Clark owes to the ERISA Trusts for her violations of ERISA, and that
Defendant NCR Clark is liable to Local 70 for all funds it failed to remit in wage assessments
and fringe benefit contributions for its violation of the Labor Management Relations Act of 1947
(“LMRA”).
II.

PROCEDURAL HISTORY
On February 28, 2014, Plaintiffs filed the instant action against Defendants NCR Clark

and Williamson. ECF #1, Complaint. Summonses to the Defendants were issued on the same
day. ECF # 2, Issuance. By March 5, 2014, service was executed on both Defendants. ECF # 3-4,
Return of Service. On June 18, 2014, Plaintiffs filed an Amended Complaint against the same
two Defendants. ECF #5, Amended Complaint. On July 8, 2014, Defendants were both served
with the Amended Complaint. ECF #6-7. Defendants had 24 days after service was executed to
answer the Amended Complaint pursuant to Rules 12(a)(1)(A) and 6(d) of the Federal Rules of
Civil Procedure, meaning responsive pleadings were due August 1, 2014.
As of August 4, 2104, no answer, motion, or responsive pleading was filed. ECF #8, Aff.
of Matthew T. Hurm, Esq., ¶ 7. As Defendants NCR Clark and Williamson failed to answer or
otherwise defend against the Plaintiffs’ Amended Complaint, the Plaintiffs applied for an entry
of default on August 4, 2014. ECF #8, Application. The Clerk made an entry of default against

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the Defendants on August 11, 2014. ECF #9, Entry of Default. As of this date, no answer,
motion, or responsive pleading has been filed. See Dkt.
III.

ANALYSIS
When a party against whom a judgment for affirmative relief is sought has failed to plead

or otherwise defend as provided in the Federal Rules of Civil Procedure, and that fact is made to
appear by affidavit or otherwise, the Clerk shall enter the party’s default. See Fed. R. Civ. P.
55(a). Once the default has been entered, the well-pleaded facts of the complaint relating to
liability must be accepted as true.

See Stooksbury v. Ross, Case No. 12–5739, 2013 WL

2665596, *3 (6th Cir. June 13, 2013) (treating the factual allegations of a complaint on liability
as true because defendant produced no timely responsive pleading). However, those allegations
relating to the amount of damages suffered are ordinarily not accepted as true unless the amount
claimed is capable of ascertainment from definite figures contained in detailed affidavits.
Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir.
1983).
Neither of the Defendants filed an answer or responded to the entry of default. This
failure to act makes clear that none of the Defendants have any intention of defending the current
action. Therefore, default judgment and damages on the default judgment are warranted.
The ERISA Trusts provided a sworn affidavit from an employee, Peggy Gotthardt, who
is responsible for monitoring employer contributions to the ERISA Trusts. Gotthardt indicated
that the Defendants owe the ERISA Trusts a total of $64,317.02 in known delinquent
contributions, interest, liquidated damages. Additionally, she states that the ERISA Trusts have
paid or owe $6,350.00 in attorneys’ fees and costs.

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Local 70 provided a sworn affidavit from an employee, Tom Carrier, who is responsible
for monitoring the remittance of wage assessments and fringe benefit contributions to Local 70.
Carrier indicated that the Defendant NCR Clark owes Local 70 a total of $4,098.70 in known
wages assessments and fringe benefit contributions.
The Court concludes that the specific monetary damages claimed are sums certain
supported by affidavits, and therefore a hearing on damages is not required. The Court adopts as
its own finding the sum certain of the monetary damages evidenced by Gotthardt’s and Carrier’s
affidavits.
IV.

CONCLUSION

Accordingly, based on the foregoing this Court GRANTS the following relief:
RELIEF FOR THE ERISA TRUSTS AS TO DEFENDANT NCR CLARK, LLC:
1.

A declaratory order finding NCR Clark, LLC is bound to the Iron Workers Labor

Agreement, the Trust Agreements, and the Participation Agreement.
2.

A monetary judgment in favor of Plaintiffs and against NCR Clark for $64,317.02, which

represents unpaid fringe benefit contributions, interest, and liquidated damages found to be due
and owing under the Iron Workers Labor Agreement and ERISA.
3.

A monetary judgment against NCR Clark in favor of Plaintiffs for all unpaid fringe

benefit contributions, interest, and liquidated damages, as such amounts are found to be due and
owing after the ERISA Trusts complete an audit of NCR Clark’s payroll records, in the event
that the ERISA Trusts’ Board of Trustees deem such an audit to be necessary.
4.

In the event that a payroll audit is deemed necessary, Plaintiffs shall be liable for the

costs of such audit.

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5.

A monetary judgment against NCR Clark and in the ERISA Trusts’ favor of the ERISA

Trusts’ for $5,950.00 in attorneys’ fees and $400.00 in other costs of this action pursuant to
Section 502(g)(2)(D) of ERISA, 29 U.S.C. § 1132(g)(2)(D).
6.

That a permanent injunction be issued against NCR Clark pursuant to Section

502(g)(2)(E) of ERISA prohibiting future violations of Section 515 of ERISA, 29 U.S.C. § 1145
with respect to the ERISA Trusts.
7.

A declaratory order from this Court requiring NCR Clark to timely submit all missing

contribution reports, and to timely submit all such reports in the future.
8.

A monetary judgment against NCR Clark for all unpaid contributions, interest, and

liquidated damages owed under all missing contribution reports.
9.

A declaratory order from this Court requiring NCR Clark to comply with the ERISA

Trusts’ auditor’s request to examine and review the documents necessary to complete a payroll
audit, should the ERISA Trusts’ Board of Trustees deem such an audit to be necessary.
10.

A declaratory order directing disgorgement of all ill-gotten gains by NCR Clark,

including employer contributions that have been wrongfully withheld from the ERISA Trusts.
11.

Post-judgment interest pursuant to 28 U.S.C. § 1961.

12.

Such other legal or equitable relief as this Court deems appropriate.
RELIEF FOR THE ERISA TRUSTS AS TO NEITA C. WILLIAMSON:

13.

A declaratory order finding that Neita C. Williamson has breached her fiduciary duties

owed to the ERISA Trusts.
14.

A declaratory order finding that Williamson has engaged in prohibited transactions under

ERISA.

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15.

A declaratory order finding that Williamson is personally liable as well as jointly and

severally liable together with NCR Clark, to reimburse the ERISA Trusts for all losses resulting
from each such fiduciary breach pursuant to Section 409(a) of ERISA, 29 U.S.C. §1109(a),
including the $64,317.02 in known delinquent contributions, interest, liquidated damages, as well
as any additional amounts that may be owed.
16.

A declaratory order directing an accounting of all of NCR Clark’s delinquent

contributions that have not been paid to the ERISA Trusts due to Williamson’s orders or
direction, and an accounting of all losses suffered by the ERISA Trusts and their participants as a
result of Williamson’s fiduciary breaches and prohibited transactions, with the costs of such
accounting to be paid by Williamson, should the ERISA Trusts’ Board of Trustees deem such an
audit to be necessary.
17.

A monetary judgment against Williamson in favor of Plaintiffs for all unpaid fringe

benefit contributions, interest, and liquidated damages, as such amounts are found to be due and
owing after the ERISA Trusts complete an audit of NCR Clark’s payroll records, in the event
that the ERISA Trusts’ Board of Trustees deem such an audit to be necessary.
18.

A monetary judgment against Williamson for all unpaid contributions, interest, and

liquidated damages owed under all missing contribution reports.
19.

An award of all of the ERISA Trusts’ $5,950.00 in attorneys’ fees and $400.00 in costs

incurred in the investigation, initiation, and prosecution of the claims set forth in this action
pursuant to 29 U.S.C. § 1132(g)(2)(D).
20.

A monetary order directing Williamson to pay to the ERISA Trusts all amounts required

to recover the losses suffered by the ERISA Trusts and their participants, including all rights and

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benefits to which such participants were entitled to under the ERISA Trusts’ governing plan
documents, as a result of her breaches of fiduciary duty and prohibited transactions.
21.

A declaratory order directing disgorgement of all ill-gotten gains by Williamson,

including employer contributions that have been wrongfully withheld from the ERISA Trusts.
22.

Post-judgment interest pursuant to 28 U.S.C. § 1961.

23.

Such other relief as the Court may deem equitable and just under the circumstances.

24.

The ERISA Trusts would request that this Court retain jurisdiction over this Case

pending NCR Clark’s and Williamson’s compliance with its orders.
RELIEF FOR LOCAL 70 AS FOR NCR CLARK, LLC
1.

A monetary judgment in favor of Local 70 and against NCR Clark for $4,098.70, which

represents $2,711.10 in unpaid wage assessments and $1,387.69 in fringe benefit contributions
owed under NCR Clark’s collective bargaining agreement with Local 70.
2.

A monetary judgment in favor of Local 70 and against NCR Clark for all unpaid fringe

benefit contributions and wage assessments, as such amounts are found to be due and owing after
an audit of NCR Clark’s payroll records, in the event such an audit is deemed to be necessary.
3.

In the event that a payroll is deemed necessary, NCR Clark shall be liable for the costs of

such audit.
4.

A declaratory judgment finding that NCR Clark is bound to its collective bargaining

agreement with Local 70 and the requirements set forth therein.
5.

That Local 70 be awarded post-judgment interest on all monetary amounts in accordance

with 28 U.S.C. §1961.

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6.

A declaratory order finding that NCR Clark violated Section 301 of the LMRA, 29

U.S.C. §185 by failing to remit wage assessments and contributions owed under NCR Clark’s
collective bargaining agreement with Local 70.
7.

A permanent injunction prohibiting NCR Clark from committing any future violations of

Section 301 of the LMRA, 29 U.S.C. §185, with respect to Local 70.
8.

All other legal or equitable relief as the Court deems appropriate.

IT IS SO ORDERED

Date: August 26, 2014

s/Thomas M. Rose
Thomas M. Rose
United States District Judge

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