Plasterers' and Cement Masons' Local 40 Pension Fund et al v. D & M Concrete Finishing

Filing 9

ORDER granting 8 Motion for Default Judgment. So Ordered by Judge William E. Smith on 6/4/13. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
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Plaintiffs,
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v.
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D & M CONCRETE FINISHING A/K/A,
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D & M CONCRETE FLOOR COMPANY,
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Defendant.
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PLASTERERS’ AND CEMENT MASONS’
LOCAL 40 PENSION FUND, through its
TRUSTEES; PLASTERERS’ AND CEMENT
MASONS’ LOCAL 40 ANNUITY FUND,
through its TRUSTEES; PLASTERERS’
AND CEMENT MASONS’ LOCAL 40 HEALTH
AND WELFARE FUND, through its
TRUSTEES; PLASTERERS’ AND CEMENT
MASONS’ LOCAL 40 APPRENTICESHIP
FUND, through its TRUSTEES;
PLASTERERS’ AND CEMENT MASONS’
LOCAL 40 INDUSTRY ADVANCEMENT
FUND, through its TRUSTEES;
PLASTERERS’ AND CEMENT MASONS’
LOCAL 40; and DONALD LAVIN, in his
official capacity as
Co-Administrator of the Funds,

C.A. No. 12-256 S

ORDER
WILLIAM E. SMITH, United States District Judge.
On April 5, 2012, Plaintiffs filed a three-count Complaint
alleging violations of the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. §§ 1132(a)(3) & 1145, the Labor Management
Relations Act (“LMRA”), 29 U.S.C. § 185, and the Rhode Island
Payment of Wages statute, R.I. Gen. Laws §§ 28-14-3 & 28-14-3.1.
(ECF No. 1.)

The next day, Plaintiffs sent a copy of the Summons

and

Complaint

to

Defendant’s

registered

agent

for

service

via

certified mail, return receipt requested, and Defendant signed for
the Summons and Complaint on April 9.

(Aff. in Supp. of Appl. to

Clerk for Entry of Default ¶ 2, ECF No. 3-1; see also Summons, ECF
No. 2.)

Defendant never filed an Answer or in any other way

responded to the Complaint (Aff. in Supp. of Appl. to Clerk for
Entry of Default ¶ 2), so Plaintiffs subsequently filed a motion
for

entry

of

default

on

May

2,

2012

(ECF

No.

3).

Because

Defendant still did not respond, the clerk entered the default on
June 6.

(ECF No. 5.)

Now before the Court is Plaintiffs’ Motion

for Entry of Judgment by Default.
other

stage

objected.

of

the

case,

(ECF No. 8.)

Defendant

has

neither

As with every
responded

nor

Therefore, for the reasons set forth below, the motion

is GRANTED.
I.

Facts
“On a motion for entry of default judgment, the facts alleged

in the complaint are taken as true.”

Queally v. Estate of Hoviss,

C.A. No. 10-002-S, 2011 WL 6026593, at *1 (D.R.I. Dec. 2, 2011)
(citing Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 62-63 (1st Cir.
2002)).
Pension

Plaintiffs
Fund;

Plasterers’

Plasterers’

and

and

Cement

Cement

Masons’

Masons’

Local

Local
40

40

Annuity

Fund; Plasterers’ and Cement Masons’ Local 40 Health and Welfare
Fund; Plasterers’ and Cement Masons’ Local 40 Apprenticeship Fund;
and Plasterers’ and Cement Masons’ Local 40 Industry Advancement

Fund (collectively, the “Funds”) are multi-employer pension plans
within the meaning of ERISA “established to provide various types
of

benefits,

including

retirement,

medical,

and

employment

training, to members of” Plasterers’ and Cement Masons’ Local 40
(“Local 40”), a labor union within the meaning of ERISA and the
LMRA.

(Compl. ¶¶ 2-6, 8, 12.)

These benefits are financed in

part by employer contributions set by the collective bargaining
agreements between Local 40 and each employer.

(Id. ¶ 13.)

Per

the collective bargaining agreements, each employer is required to
submit contributions to the Funds based on the number of hours of
covered employment worked by its employees.

(Id.)

The rights and

obligations of the Funds and each employer are set forth in the
various Agreement and Declaration of Trusts (“Trust Agreements”).
(Id. ¶ 14.)
Defendant, as a party to one of these collective bargaining
agreements (the “CBA”), is required to remit union dues to Local
40 for each hour worked by members of Local 40.

(Id. ¶¶ 15, 18.)

In addition, the CBA binds Defendant to the terms of the Trust
Agreements.

(Id. ¶ 15.)

Accordingly, Defendant “shall submit

timely payroll reports indicating the number of hours worked by
its

covered

contributions

employers
owed,

and

promptly

[sic]
pay

well

said

penalties and interest when in default.”
default,

the

outstanding

contributions

as

the

amount

contributions,
(Id. ¶ 16.)
accrue

interest

and

of
pay

When in
at

one

percent (1%) per month.

(Id. ¶ 17.)

Since August 2011, Defendant

has failed to remit dues to Local 40, to make any contributions to
the

Funds,

and

to

“otherwise

[]

conditions of the Trust Agreements.”
II.

comply

with

the

terms

and

(Id. ¶ 19.)

Discussion
“Once

judgment

the

in

clerk

the

enters

plaintiff’s

default,

‘the

Court

favor

all

claims

on

may

grant

supported

'well-pleaded allegations in [the] . . . Complaint.'’”

a
by

Queally,

2011 WL 6026593, at *1 (quoting SEC v. Locke Capital Mgmt., Inc.,
726 F. Supp. 2d 105, 106 (D.R.I. 2010)) (alterations in original).
Here, Plaintiffs have adequately pleaded that Defendant’s failure
to contribute to the Funds and to remit dues to Local 40 are
violations

of

the

Trust

Agreements

and

the

CBA,

and

thus

violations of ERISA, the LMRA, and the Rhode Island Payment of
Wages

statute.

still

not

(See

responded

generally
to

the

Compl.)

default

Because

entered

on

Defendant
June

6,

has

2012,

judgment in the Plaintiffs’ favor is appropriate.
The only remaining issue, therefore, is the amount of the
judgment.

According to 29 U.S.C. § 1132(g)(2),

In any action under this subchapter by a fiduciary
for or on behalf of a plan to enforce section 1145 of
this title in which a judgment in favor of the plan is
awarded, the court shall award the plan -(A)
(B)
(C)

the unpaid contributions,
interest on the unpaid contributions,
an amount equal to the greater of –
(i)
interest on the unpaid contributions,
or

(ii)

(D)
(E)

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),
reasonable attorney’s fees and costs of the
action, to be paid by the defendant, and
such other legal or equitable relief as the
court deems appropriate.

Plaintiffs believe they are entitled to $48,170.33 and provide a
detailed accounting in support of their request.
the calculations, the Court agrees.

After reviewing

Accordingly, Plaintiffs are

due a total of $48,170.33, comprised of the following amounts:
(A)

The unpaid contributions from June 2011 through July

2012 totaling $28,100.58.

(See Aff. of Donald Lavin in Supp. of

J. by Default Ex. A-1, ECF No. 8-1.)
(B)

The interest on these unpaid contributions, calculated

per the Trust Agreements at one percent (1%) per month, amounting
to $4,979.03.
(C)

(See id.)

Liquidated damages, calculated per the Trust Agreements

as a twenty percent (20%) penalty on all unpaid contributions,
equaling $5,620.12.
(D)

Attorney’s

(See id.)
fees

and

costs

Elizabeth Wiens ¶ 8, ECF No. 8-2.)

of

$4,279.

(See

Aff.

of

From March 30, 2012 through

March 12, 2013, Plaintiffs’ attorneys spent fifteen hours on this
matter at a rate of $240 per hour, for a total fee of $3,600.
(See id. ¶¶ 5, 7 & Ex. B-1.)

They also incurred $679 in costs.

(See id. Ex. B-1.)

The Court finds these amounts to be reasonable

in these circumstances.
(E)

Finally, $4,421.25 in union dues that Defendant deducted

from its members’ paychecks from June 2011 through July 2012 but
failed to remit to Local 40, as well as an additional $770.35 in
interest

(calculated

those dues.
Ex. A-1.)

at

one

percent

(1%),

accrued

monthly)

on

(See Aff. of Donald Lavin in Supp. of J. by Default
Though payment of dues and interest on those dues are

not explicitly provided for in § 1132(g)(2) or any of the other
statutes at issue, the failure to remit due payments was a breach
of the CBA, and thus these amounts are effectively damages for a
breach

of

contract.

Alternatively,

the

Court

believes

they

appropriately qualify as “such other legal or equitable relief”
contemplated by 29 U.S.C. § 1132(g)(2)(E).
III. Conclusion
For the aforementioned reasons, Plaintiffs’ Motion for Entry
of Judgment by Default is GRANTED.

Judgment is hereby entered in

Plaintiffs’ favor in the amount of $48,170.33.
IT IS SO ORDERED.

/s/ William E. Smith
William E. Smith
United States District Judge
Date: June 4, 2013