Sheet Metal Workers International Association Local 18 v. Star Fire Fireplace Installation Inc

Filing 28

ORDER signed by Judge J P Stadtmueller on 6/25/09 as follows: granting in part and denying in part 24 plaintiff's Motion for Default Judgment; confirming the National Joint Adjustment Board Panel's 3/24/08 award in favor of plaintiff and against defendant; taxing costs in the amount of $405.65 against the defendant; denying 11 Anne Rhoades' motion to represent defendant pro se. (cc: defendant, all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ S H E E T METAL W O R K E R S ' INTERNATIONAL A S S O C IA T IO N LOCAL 18, Plaintiff, v. S T A R FIRE FIREPLACE INSTALLATION INC, D e fe n d a n t. ____________________________________________ C a s e No. 09-CV-46

ORDER
O n January 1, 2009, plaintiff Sheet Metal W o rk e rs ' International Association L o c a l 18 filed a complaint against Star Fire Fireplace Installation Inc. ("Star Fire") s e e k in g to confirm an arbitration award pursuant to § 301 of the Labor Management R e la tio n s Act of 1947 ("LMRA"), as amended, 29 U.S.C. § 185. (Docket #1). A s u m m o n s was returned executed on January 15, 2009. (Docket #3). Therefore, S ta r Fire's responsive pleading was due on February 4, 2009. See Fed. R. Civ. P. 1 2 (a )(1 )(A ) (I). On February 17, 2009, plaintiff amended its complaint to include a c o p y of the unanimous decision of a panel from the National Joint Adjustment Board fin d in g that Star Fire was bound by a labor agreement between Star Fire and p la in t i f f. (Docket #5). On February 23, 2009, Star Fire's president Anne M.

R h o a d e s purported to appear on behalf of Star Fire and filed an answer. (Docket # # 's 8-9). However, because corporations cannot be represented pro se or by nonlic e n s e d counsel, the court ordered that the answer and notice of appearance be

s tric k e n . (Docket #10). Since then, Star Fire has neither properly responded to the a m e n d e d complaint, or otherwise appeared. On March 26, 2009, Anne Rhoades ("Rhoades") filed a motion seeking the c o u rt's permission to file an answer and appear pro se on behalf of Star Fire in this c a s e . (Docket #11). In support of her motion, Rhoades states that Star Fire is a s tru g g lin g family owned business and it cannot afford legal counsel. Plaintiff

o p p o s e s Rhoades's motion, arguing that the time to respond to the amended c o m p la in t has passed and that Star Fire should not be allowed to proceed pro se th ro u g h Rhoades. As the court made clear in its February 27, 2009 order,

c o rp o ra tio n s may only appear through licensed counsel. This rule has no exception fo r the economic circumstances of the corporation. As a result, the court is obliged to deny Rhoades' motion to proceed pro se. O n April 8, 2009, plaintiff filed a request seeking an entry of default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, and a motion for default ju d g m e n t pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. (Docket # # 's 22, 24). Plaintiff certified that it mailed a copy of its motion papers to Star Fire o n the same day. (Docket #27). The clerk entered Star Fire's default on April 9, 2 0 0 9 . Under Rule 55(b)(2), the court may enter a default judgment when a party a g a in s t whom affirmative relief is sought fails to plead or otherwise defend. The d e c isio n to enter default judgment lies within the district court's discretion. O'Brien v . R.J. O'Brien & Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993) (citation o m itte d ) . Upon entry of default by the clerk, the court takes all well-pleaded -2-

a lle g a tio n s in plaintiffs' complaint relating to liability as true. Graham v. Satkoski, 51 F .3d 710, 713 (7th Cir. 1995). B a s e d on the allegations contained in the amended complaint, the court finds th a t, pursuant to the parties' labor agreement, the parties agreed to submit any u n r e s o lve d grievances to the National Joint Adjustment Board ("Board"). On March 2 4 , 2008, a panel of the Board unanimously decided that Star Fire is bound to all of th e terms of the parties' labor agreement and by the audit provisions of separate tru s t agreements for contributions made or due on behalf of Star Fire's workers. W h ile plaintiff does not seek any damages, it does seek an order confirming th e panel's decision, and stating that Star Fire is required to submit to audits c o n c e rn in g contributions made or due on behalf of its workers under certain trust a g re e m e n ts cited in the panel's decision. The court is authorized to confirm

a rb itra tio n awards pursuant to the LMRA, as well as 9 U.S.C. § 9. Since Star Fire h a s not sought to vacate, modify or otherwise correct the panel's award, the court is obliged to confirm it. See Int'l Union of Operating Eng'rs, Local No. 841 v. Murphy C o ., 82 F.3d 185, 188 (7th Cir. 1996). However, plaintiff has provided the court with n o basis on which to make any declaratory order on the audit provisions cited in the p a n e l's decision. Accordingly, the court declines to issue such an order. See Newell O p e ra tin g Co. v. Int'l Union of United Auto., Aerospace & Agric. Implement Workers o f Am., 532 F.3d 583, 590-91 (7th Cir. 2008) (noting the district court's wide d is c re tio n to decline to issue declaratory relief under the LMRA). Moreover, the p a n e l's decision which the court confirms today speaks for itself. -3-

P la in tiff seeks costs in the amount of $405.65. Under Rule 54(d)(1) of the F e d e ra l Rules of Civil Procedure, costs should be allowed to the prevailing party u n le s s otherwise directed by statute. Plaintiff is the prevailing party in this suit, and th e LMRA does not alter Rule 54(d)'s presumption of awarding cost. See generally R e e d v. Int'l Union of Auto., Aerospace & Agric. Implement Workers of Am., 945 F .2 d 198, 204 (7th Cir. 1991). Therefore, the court will award plaintiff its costs. P la in tiff also seeks attorneys' fees in the amount of $2,363.00. (Docket #26). W h ile LMRA does not explicitly authorize awarding of attorneys' fees, the Seventh C irc u it has held that a prevailing party in an LMRA suit "is entitled to such fees if the o p p o n e n t's suit has no merit or is `frivolous,' that is, brought in bad faith to harass ra the r than win." Chrysler Motors Corp. v. Int'l Union, Allied Indus. Workers of Am., A F L -C IO , 959 F.2d 685, 689-90 (7th Cir. 1992) (citations omitted). Plaintiff asserts th a t an award of attorneys' fees is appropriate in this case because Star Fire had no re a s o n a b le basis for refusing to comply with the panel's decision. But this misses th e point. W h ile plaintiff is the prevailing party in this case, Star Fire never properly a p p e a re d or responded to plaintiff's complaint. Therefore, Star Fire did not assert a n y frivolous defense or make any arguments other than its president's attempt to re p re s e n t the corporation pro se. Star Fire's failure to adequately respond to the p a n e l's arbitration decision or abide by the parties' underlying labor agreement, both o f which ultimately led to the filing of this case, does not demonstrate bad faith, h a ra s s m e n t or frivolity on the part of Star Fire. Because plaintiff has failed to show

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its entitlement to attorneys' fees, the court is obliged to deny plaintiff's request for an a w a r d of such fees. F in a l l y , the parties are reminded that either party may move in a timely m a n n e r to set aside a default judgment pursuant to Rules 55(c) and 60(b) of the F e d e ra l Rules of Civil Procedure. Accordingly, IT IS ORDERED that plaintiff's motion for default judgment (Docket #24) be a n d the same is hereby GRANTED in part and DENIED in part; the National Joint A d ju s tm e n t Board Panel's March 24, 2008 award in favor of plaintiff and against d e fen d a n t is hereby CONFIRMED; IT IS FURTHER ORDERED that costs are hereby taxed in the amount of $ 4 0 5 .6 5 against the defendant. IT IS FURTHER ORDERED that Anne Rhoades' motion to represent d e fen d a n t pro se (Docket #11) be and the same is hereby DENIED. T h e Clerk is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 25th day of June, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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