Solis v. Global System Enterprises Inc. et al

Filing 20

ORDER the plaintiff's Motion to Enter Default Judgment 16 is GRANTED, and it is hereby ORDERED that the plaintiff's proposed Order of Default Judgment be and is entered. To appeal this decision, the defendant must file a Notice of Appeal in writing with the Clerk of this court within sixty (60) days of receipt of this Order. Failure to file a timely Notice of Appeal waives the right to appeal this decision. Signed by District Judge Leonie M. Brinkema on 8/11/10. certified copies mailed; yes(tfitz, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA Alexandria Division

HILDA SOLIS, Secretary of Labor, United States Department of Labor,
Plaintiff,
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AUG

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Clerk, u.s. district court ALEXANDRIA, VIRGINIA
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l:09cvl351 (LMB/IDD)

GLOBAL SYSTEM ENTERPRISES

INC., et al..

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Defendants.

ORDER

On July 19, 2010, a magistrate judge issued a Report and

Recommendation (-Report") in which he recommended that a default
judgment be entered in the plaintiff's favor against the

defendants. Global system Enterprises (-Global System", and state Street Bank and Trust Co. (-state street Bank") for violations of the Employee Retirement Income Security Act of 1974 (-ERISA"), 29
O.S.C. s 1001, et seq. The plaintiff filed this action under

sections 409 and 502 of ERISA, 29 D.s.c. SS H09 and 1132, which

provide the Secretary the power to enforce Title I of ER!SA.
Report advised the parties that any objection to either its

The

findings or its recommendations had to be filed within fourteen

(14) days and that failure to file timely objections would waive
appellate review of any judgment based on it. As of August 11,
2010, neither party has filed an objection.

The magistrate judge correctly found that this court has

subject .natter jurisdiction over this civil action and venue is
proper in this district under Section 502(e,(l, and ,2) of erisa

29 U.s.c. §§ li32(.),i, and ,,,, because the 401<k> plan at issue

(the "Plan") is administered from the defendant Global System's
principal place of business within this district. This Court has
personal jurisdiction over defendant Global System because the

defendant is a Virginia corporation with its principal place of

business in this district and because a substantial part of the
conduct giving rise to the plaintiffs claim occurred in this

district. This court has personal jurisdiction over defendant
State street Bank because it is a trustee of the Plan, which is

administered in this district, through a Virginia corporation.
Defendant Global System is no longer in business and could not be located at its last known address, but the plaintiff
properly effectuated service of process on Global System by

substituted service. The plaintiff served the Clerk of the State
Corporation Commission, under Va. Code Ann. §S 13.1-637(3) and
12.1-19.1. (Dkt. No. 3 at 2). on December 30, 2009, the clerk of

the commission mailed a copy of the complaint to Global System's
address of record with the State Corporation Commission and on
December 31, 2009, the Clerk of the Commission filed a

Certificate of Compliance. (Dkt. No. 3). Defendant state street
Bank filed a Waiver of Service of Summons on February 22, 2010,

through its Vice President and Senior Litigation counsel. As of

August 11, 2010, neither defendant has filed any responsive

Pleadings or otherwise responded to the plaintiffs Complaint or
Motion for Entry of Default Judgment.
Having fuliy reviewed the Rsport( ^^ f.ie_ ^ piaint.ffs

Motion for Entry of Default Judgment with its attachments, the
Court adopts the findings of fact and conclusions of law

contained in the Report as its own. On April l, 2003, defendant

Global system, a now-dissolved Virginia Corporation, created the
Plan, a 401,k> employee benefit plan within the meaning of
section 3(3, of ERISA. state street Bank, the trustee and

custodian of the plan, and Global system are fiduciaries to the
Plan under ERiSA , 3 (21) and are alsQ parties ^ ^^ ^

respect to the Plan under ERISA , 3(14,<A,. Global system stopped

operating its business in May 2005, but afterwards failed to taKe

fiduciary responsibility for the operation and administration of the Plan and failed to appoint a successor to its operation. As
of September 4, 2009, the Plan had $60,257.07 in assets and

eight participants, who are still entitled to a distribution of
the Plan's funds. Global Systems' has violated Sections 402,a,
«4,a, ,1, (A), (a) (1) (B) and (a) (1) (D) o£ ERisA< ^

manage and administer the Plan, to provide benefits to

participants and beneficiaries of the Plan, and to discharge its
duties -with care, skill, prudence, and diligence" and -in
accordance with the documents and instruments governing the

plan." 29 u.S.C. §§ 1102(a) and 1104(a)(l)(b) and (a)(l)(D). The
Court agrees with the magistrate judge that there is good cause to grant the relief requested, which is removal of the defendants
as fiduciaries to the Plan, appointment of an independent

fiduciary of the Plan, and an award of costs from the Plan's
assets to the independent fiduciary to administer the Plan.
Accordingly, the plaintiff's Motion to Enter Default
Judgment [16] is GRANTED, and it is hereby

ORDERED that the plaintiff's proposed Order of Default
Judgment be and is entered.

To appeal this decision, the defendant must file a Notice of

Appeal in writing with the Clerk of this court within sixty (60)

days of receipt of this Order. Failure to file a timely Notice of
Appeal waives the right to appeal this decision.

The Clerk is directed to enter judgment pursuant to Fed. R.

Civ. P. 55 in favor of the plaintiff and to forward copies of this Order to counsel of record for the plaintiff and to the

defendants at their addresses of record, by certified mail,
return receipt requested.

Entered this J±_ day of August, 2010.
Alexandria, Virginia

United States District Judge

. Brinkenia