Masonry Industry Trust Administration Inc v. D/J Masonry LLC

Filing 113

ORDER AWARDING SANCTIONS AND DIRECTING ENTRY OF DEFAULT JUDGMENT in favor of Masonry Industry Trust Administration Inc against D/J Masonry LLC. Case closed. Signed by Judge Salvador Mendoza, Jr. (SK, Case Administrator)

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1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Nov 09, 2017 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 SEAN F. MCAVOY, CLERK 4 5 MASONRY INDUSTRY TRUST ADMINISTRATION, INC., an Oregon corporation, 6 Plaintiff, 7 No. 2:15-CV-00185-SMJ ORDER AWARDING SANCTIONS AND DIRECTING ENTRY OF DEFAULT JUDGMENT v. 8 9 D/J MASONRY LLC, a Washington limited liability company, 10 Defendant. 11 12 On August 11, the Court granted Plaintiff Masonry Trust Administration, 13 Inc.’s motion for sanctions. ECF No. 107. The Court stated its intent to enter default 14 judgment in favor of Masonry Industry Trust and set a briefing schedule for the 15 parties to brief the amount of damages. Id. at 3. The order directed Plaintiff to file 16 a memorandum no later than September 11, 2017, setting forth the detailed legal 17 and factual basis for its claimed damages, fees, and costs and permitted Defendant 18 to file a response no later than September 25, 2017. Id. 19 20 ORDER - 1 Plaintiff filed its 1 memorandum and supporting declarations on September 11, 2017. ECF Nos. 110– 2 112. Defendant has filed no response.1 3 The Court has reviewed Plaintiff’s filings and the relevant law and finds the 4 requested damages are appropriate. Because Defendant refused to provide business 5 and payroll records necessary to verify the amount of ERISA contributions owed 6 by Defendant, Plaintiff is entitled to a reasonable estimate of the contributions 7 owed. See Brick Masons Pension Tr. v. Indus. Fence & Supply, Inc., 839 F. 2d 1333, 8 1338 (9th Cir. 1998) (“[W]hen an employer fails to keep adequate records of hours 9 worked as required by the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et 10 seq., the employee carries his burden of proving damages ‘if he proves that he has 11 in fact performed work for which he was improperly compensated and if he 12 produces sufficient evidence to show the amount and extent of that work as a matter 13 of just and reasonable inference.’” (quoting Anderson v. Mt. Clemens Pottery Co., 14 328 U.S. 680, 687 (1946)). The Court is satisfied that the estimate prepared by 15 Plaintiff’s auditor Steven Middleton, ECF No. 111, is reasonable and well 16 supported. The Court adopts Mr. Middleton’s estimate of ERISA and ancillary 17 1 18 19 20 Defendant never filed a motion to request to extend its deadline to respond, but D/J Masonry LLC’s owner David Petroske contacted opposing counsel on September 24, 2017, to request a 30-day extension, and contacted opposing counsel and the Court by phone and email on October 25, 2017, to request an additional 20day extension. In both instances, the Clerk’s Office contacted Mr. Petroske to explain that he would need to file a motion to request an extension of his filing deadline and the process for doing so. ORDER - 2 1 contributions, interest, and liquidated damages, as the amount of default damages 2 owed by Defendant in this case. 3 Accordingly, IT IS HEREBY ORDERED: 4 1. The Clerk’s Office shall ENTER JUDGMENT against Defendant 5 D/J Masonry, LLC, and in favor of Plaintiff Masonry Industry Trust 6 Administration, Inc., in the following amounts: 7 A. $460,736.21 in ERISA and Ancillary Contributions; 8 B. $260,063.02 in interest calculated through September 25, 2017, with interest continuing to accrue at the rate of $210.12 per day 9 until paid; and 10 C. 11 12 2. $41,877.00 in liquidated damages on ERISA Contributions. Plaintiff may file a motion for attorney’s fees and costs pursuant to Rule 54(d). 13 14 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order, 15 enter Judgment, and provide copies to all counsel and pro se Defendant, and 16 CLOSE this case. 17 DATED this 9th day of November 2017. 18 __________________________ SALVADOR MENDOZA, JR. United States District Judge 19 20 ORDER - 3

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