Opinion
21-cv-04403-JSC
10-25-2021
BOARD OF TRUSTEES FOR THE LABORERS HEALTH & WELFARE TRUST FUND FOR NORTHERN CALIFORNIA, et al., Plaintiffs, v. EMPIRE ENGINEERING & CONSTRUCTION, INC., Defendant.
ORDER REASSIGNING CASE AND REPORT AND RECOMMENDATION RE: MOTION FOR DEFAULT JUDGMENT
RE: DKT. NO. 13
JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE
Plaintiffs--several employee benefit plans and their trustees--allege that Defendant Empire Engineering & Construction, Inc. failed to pay contributions to the Trust Funds, as required by the parties' bargaining agreements. Plaintiffs' motion for default judgment requesting unpaid contributions, interest, liquidated damages, and attorneys' fees and costs, is now pending before the Court. Although Plaintiffs have consented to the Court's jurisdiction, Defendant has not, and the action must therefore be reassigned to a district judge. See Williams v. King, 875 F.3d 500, 504 (9th Cir. 2017) (magistrate judge lacked jurisdiction to dismiss case on initial screening because unserved defendants had not consented to proceed before magistrate judge). Accordingly, the Clerk of the Court is ordered to REASSIGN this action to a district court judge and the Court RECOMMENDS that the district court GRANT Plaintiffs' motion for default judgment.
BACKGROUND
A. Factual Background
Plaintiffs include employee benefit plans created by a written Trust Agreement pursuant to section 302 of the LMRA (29 U.S.C. § 186), specifically, the Laborers Health and Welfare Trust Fund for Northern California, Laborers Pension Trust Fund for Northern California, Laborers Vacation-Holiday Trust Fund for Northern California, and Laborers Training and Retraining Trust Fund for Northern California (collectively the “Trust Funds”). (Dkt. No. 1 at 2.) Each Trust Fund is administered by a Board of Trustees, which has the authority to bring an action in the name of the Trust Funds. (Id.) Defendant Empire Engineering & Construction, Inc. is an employer by virtue of ERISA § 3(5), 29 U.S.C. § 1002(5), and LMRA § 301, 29 U.S.C. § 185. (Id.) Defendants signed a Memorandum Agreement with the Trust Funds, which incorporated by reference the Laborers Master Agreement for Northern California and bound Defendants to its terms and conditions. (Dkt. No. 13-1, Ex. A at § 1.) By signing the Master Agreement, which incorporates each Trust Funds' Trust Agreements, Defendant promises to pay Plaintiffs an hourly amount determined in the Trust Agreements for each hour worked by an employee performing any work covered by the Trust Agreements. (Dkt. No. 13-1 at § 28A)
Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.
Also, the Trust Agreements provide for prompt payment of delinquent contributions, payment of interest on those delinquent contributions, and payment of attorney's fees and costs to cover the damages incurred if an employer breaches the Trust Agreements. (Dkt. No. 13-1, Ex. A at Art. II § 10.) Additionally, the Trust Agreements provide that Plaintiffs may audit the signatory employers' records to determine if all benefit contributions have been timely paid. (Dkt. No. 13-1, Ex. A at Art. 4 § 7.)
Pursuant to the Trust Agreements, the Plaintiffs audited Defendant's books and records for the period of January 2013 to June 2019, which revealed that Defendant owed principal contributions in the amount of $38,538.55, interest related in the amount of $44,082.41, and liquidated damages in the amount of $2,400. (Dkt. No. 13-1 at ¶ 15, Ex. E., Ex. F.) Plaintiffs demanded payment from Defendant, but Defendant did not comply. (Dkt. No. 13-1 at ¶ 15.)
B. Procedural History
Plaintiffs filed the Complaint on June 9, 2021, alleging that Defendant breached the Trust Agreements in violation of ERISA § 502, 29 U.S.C. § 1132, and LMRA § 301(a). (Dkt. No. 1 at 2.) The Complaint was served on Defendant on June 21, 2021 by substituted service. (Dkt. No. 6).
The Summons was returned to the Court on June 22, 2021. (Id.) Defendant failed to answer the Complaint, and at Plaintiffs' request, the Clerk entered default against the Defendant on July 29, 2021. (Dkt. No. 9). Plaintiffs filed the now pending motion for default judgment on September 15, 2021. (Dkt. No. 13.) On October 7, 2021, the Court ordered Plaintiffs to show cause regarding the adequacy of service of process on Defendant. (Dkt. No. 14.) Plaintiffs filed their response on October 13, 2021. (Dkt. No. 15.) Having reviewed their response, and for the reasons set forth below, the Order to Show Cause is DISCHARGED.
DISCUSSION
A. Jurisdiction
When a court considers whether to enter a default judgment it has “an affirmative duty to look into its jurisdiction over both the subject matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). Here, the Court has subject matter jurisdiction pursuant to 29 U.S.C. § 1132 (empowering ERISA plan fiduciaries to bring civil actions to enforce plan terms). The Court has personal jurisdiction because Defendant is a registered California corporation. Business Search - Entity Detail, CALIFORNIA SECRETARY OF STATE, https://businesssearch.sos.ca.gov/ (select “Corporation Name” search type and search “empire engineering & construction, inc.”) (last visited October 1, 2021).
B. Service of Process
The Court must assess whether the defendant against whom default judgment is sought was properly served with notice of the action. Penpower Tech. Ltd. v. S.P.C. Tech., 627 F.Supp.2d 1083, 1088 (N.D. Cal. 2008). Service on a corporation may be made by delivering a copy of the summons and complaint in accordance with state law where the district court is located. See Fed. R. Civ. Proc. 4(e)(1); 4(h)(1)(A). California law states that service on a corporation may be made by serving “the person designated as agent for service of process.” Cal. Civ. Proc. Code § 416.10(a). Service may be completed by personal service or, if personal service cannot be accomplished after reasonable diligence, by leaving the summons and complaint:
during usual office hours in [the defendant's] office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is
apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.Cal. Civ. Proc. Code §§ 415.10, 415.20(a).
Here, Plaintiffs hired a professional process server to serve Defendant with the Complaint and Summons. The Proof of Service states that the Complaint and Summons were served on Clifton Burch, the registered agent for service, by substituted service by leaving copies with Muhammed Jawwad, a manager, on June 21, 2021 at the address, 675 Hegenberger Rd. suite 216, Oakland, CA 94621 (the “Hegenberger Road” address) (Dkt. No. 6 at 1.) Because this is not the address identified as that belonging to Clifton Burch, the Court ordered Plaintiffs to show cause as to how service was proper. (Dkt. No. 14.) Plaintiffs' response states that they hired a professional process server to serve Clifton Burch at the address listed with the California Secretary of State: 180 Mendell St., San Francisco, CA 94124 (the “Mendell Street” address). See Business Search - Entity Detail, CALIFORNIA SECRETARY OF STATE, https://businesssearch.sos.ca.gov/ (select “Corporation Name” search type and search “empire engineering & construction, inc.”) (last visited October 1, 2021). (Dkt. No. 15 at 1.) The process server attempted service at Mendell Street on June 17, 2021. (Id.) However, Mendell Street was a bad address and “a ‘John Doe' located next door at 182 Mendell Street informed the process server that Defendant had moved out three months prior.” (Id.; see also Dkt. No. 15, Ex. A.) Plaintiffs reviewed Defendant's website, www.empireconstructionsf.com, and found that Defendant listed two business addresses, Mendell Street and Hegenberger Road. (Dkt. No. 15, Ex. B.) Plaintiff informed the process server of the Hegenberger Road address, and the process server served Defendant by substituted service by leaving a copy of the Summons and Complaint at that address with the office manager, Muhammed Jawwad. (Dkt. No. 15 at 1; Dkt. No. 6 at 1.)
The Court concludes that based on the foregoing Plaintiffs exercised reasonable diligence when attempting to personally serve Clifton Burch. “Two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.” Bein v. Brechtel-Jochim Grp., Inc., 6 Cal.App.4th 1387, 1391-92 (1992). If the process server discovers that the defendant no longer resides at the proper service address, the address is no longer proper and the process server does not have to continue attempting service at the address to be reasonably diligent. See Ellard v. Conway, 94 Cal.App.4th 540, 545 (2001). Here, a John Doe informed the process server that Defendant moved out of Mendell Street three months prior. (Dkt. No. 15, Ex. A.) Thus, it did not appear that Mendell Street was a viable office address for the purpose of Cal. Civ. Proc. Code § 415.20(a), nor for accomplishing personal service on Clifton Burch.
The California Code of Civil Procedure allows service by leaving a copy of the summons and complaint at the person's usual place of business with a person apparently in charge of the office. See Cal. Civ. Proc. Code § 415.20(b); see also Cal. Civ. Proc. Code §§ 416.60, 416.70, 416.80, 416.90. The person who appears in charge can simply be someone who will know what to do with the documents. See Hong-Ming Lu v. Primax Wheel Corp., No. C 04-4170 JSW, 2005 WL 807048, at *3 (N.D. Cal. Apr. 7, 2005); see also Bein 6 Cal.App.4th at 1393-94 (holding that a guard of a gated residential community in which the defendant company's president resided was a person apparently in charge of a corporate office for purposes of substitute service where the relationship with the person to be served made it more likely than not that he would deliver process to the defendants). Plaintiffs' substitute service on the office manager at Hegenberger Road was adequate given Plaintiffs' reasonable diligence in attempting to complete service of process on Clifton Burch personally and the reasonable expectation that the office manager at the business address, Hegenberger Road, would convey the Complaint and Summons to Mr. Burch.
Given the totality of circumstances present here, the Court concludes that service of process was adequately executed on Defendant.
C. Default Judgment
After entry of default, a court may grant default judgment on the merits of the case. Fed.R.Civ.P. 55. Upon entry of default, the factual allegations of the complaint related to liability are accepted as true and deemed admitted by the non-moving party. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). “The district court's decision whether to enter a default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Courts consider the following factors in determining whether to enter default judgment:
(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The majority of the Eitel factors support default judgment.
i. Likelihood of Prejudice to Plaintiffs
The first Eitel factor considers whether the plaintiff will suffer prejudice if default judgment is not entered. Eitel, 782 F.2d at 1471. Here, if the motion was denied, then Plaintiffs would likely be left without a remedy given Defendant's failure to appear or otherwise defend this action. See Pepsico, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002). Thus, the first factor weighs in favor of default judgment.
ii. Merits of Plaintiffs' Substantive Claims/Sufficiency of the Complaint
The second and third Eitel factors address the merits and sufficiency of plaintiff's claims as pleaded in the complaint. Courts often analyze these two factors together. See Dr. JKL Ltd. v. HPC IT Educ. Ctr., 749 F.Supp.2d 1038, 1048 (N.D. Cal. 2010). In analyzing the second and third Eitel factors, the Court accepts as true all well-pled allegations regarding liability. See Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002) (internal citation omitted). Here, Plaintiffs assert claims under ERISA § 502, which provides that “[e]very employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall… make such contributions in accordance with the terms and conditions of such plan or such agreement.” 29 U.S.C. § 1145. As such, Plaintiffs must prove that “(i) the trusts are multiemployer plans as defined by 29 U.S.C. § 1002(37); (ii) the collective bargaining agreement obligated Defendant to make contributions; and (iii) Defendant did not make the required contributions.” Operating Eng'rs Health and Welfare Trust Fund for N. Cal. V. Breneman, Inc., No. 17-cv-05172-EDL, 2018 WL 5099250, at *4 (N.D. Cal. Aug. 15, 2018).
Here, Plaintiffs allege that the Trust Funds are employment benefit plans under 29 U.S.C. § 1002(3), that under the applicable agreements Defendant was obligated under the Trust Agreements to pay contributions to the Trust Funds, and that Defendant failed to do so. (Dkt. No. 1 at 2-4.) These allegations are sufficient to state a claim under ERISA § 515. Thus, the second and third factors weigh in favor of default judgment.
iii. Amount of Money at Stake
Under the fourth Eitel factor, courts should consider “the amount of money at stake in relation to the seriousness of Defendant's conduct.” PepsiCo, Inc., 238 F.Supp.2d at 1176. “When the money at stake is substantial, default judgment is discouraged.” Bd. of Trs. v. Core Concrete Constr., Inc., No. 11-02532 LB, 2012 WL 380304, at *4 (N.D. Cal. Jan. 17, 2012) (internal citation omitted). However, when “the sum of money at stake is tailored to the specific misconduct of the defendant, default judgment may be appropriate.” Id. (internal citation omitted). To determine whether the amount of money at stake is reasonable, courts consider the plaintiff's “declarations, calculations, and other documentation of damages.” Truong Giang Corp. v. Twinstar Tea Corp., No. C 06-03594 JSW, 2007 WL 1545173, at *12 (N.D. Cal. May 29, 2007).
Here, Plaintiffs seek a judgment in the amount of $85,020.96 in unpaid contributions, liquidated damages, and interest. (Dkt. No. 13 at 13.) They also contend they are entitled to $9,610.00 in attorneys' fees and $751.38 in costs, for a total of $95,382.34. (Id.) The amount at stake is reasonable given that the damages for the unpaid contributions are directly tailored to Defendant's misconduct, and the liquidated damages and interest are specified in the Trust Agreements. (See Dkt. No. 13-1 at ¶ 11; see also Dkt. No. 13-1, Ex. A at Art. II § 10.) Further, the amount requested, while not nominal, is not as much as other ERISA cases in which default judgment was granted. See, e.g., Bd. of Trs. Of Laborers Health and Welfare Trust Fund for N. Cal. v. Cal-Kirk Landscaping, Inc., No. C-08-3292 EMC, 2012 WL 5869619, at *5 (N.D. Cal. Nov. 19, 2012) (awarding $230,1130.27 for damages and $434,853.63 for attorneys' fees and costs). Thus, this factor weighs in favor of default judgment.
iv. Possibility of Dispute Involving Material Facts
The fifth Eitel factor considers the possibility that material facts may be in dispute. Eitel, 782 F.2d at 1471-72. Here, there is no indication that the material facts are in dispute. Additionally, taking Plaintiffs' allegations as true, they notified Defendant prior to filing the Complaint that Defendant was delinquent on its contributions, but Defendant did not respond. (Dkt. No. 1 at 4.) See TeleVideo Sys., 826 F.2d at 917-18. Thus, this factor also weighs in favor of default judgment.
v. Excusable Neglect
The sixth Eitel factor asks whether a defendant's default may have been due to excusable neglect. Eitel, 782 F.2d at 1471. Plaintiffs properly served Defendant with the Summons and Complaint, and the Clerk's Notice of Default, but Defendant did not respond or request that the Default be set aside. (Dkt. No. 13 at 6.) Thus, it is unlikely there was excusable neglect, and this factor weighs in favor of default judgment.
vi. Policy Favoring Decision on the Merits
Finally, the seventh Eitel factor, which favors decisions on their merits, weighs against default judgment. Eitel, 782 F.2d at 1472. “However, the mere existence of [Rule] 55(b) indicates that this preference, standing alone, is not dispositive.” PepsiCo, 238 F.Supp.2d at 1177. A defendant's failure to answer “makes a decision on the merits impractical, if not impossible.” Id. Here, Defendant failed to respond to any of the papers served on it.
Taken together, the Eitel factors weigh in favor of default judgment.
D. Relief Sought
Having determined that the motion for default judgment should be granted, the next issue is the relief to which Plaintiffs are entitled. In assessing the appropriate amount of damages on default judgment, the Court does not presume the truth of any factual allegations related to the amount of damages. TeleVideo Sys., 826 F.2d at 917-18. Thus, Plaintiffs are required to prove all damages sought in the Complaint, and the Court must ensure the amount is reasonable as demonstrated by the evidence. Fed.R.Civ.P. 55(b); see also TeleVideo Sys., 826 F.2d at 917-18 (stating that the general rule of law is that all factual allegations except the amount of damages are taken as true on default judgement).
Under ERISA, an employee benefit plan that obtains judgment in its favor in an action under 29 U.S.C. § 1132 is entitled to the following relief: (1) unpaid contributions; (2) interest on the unpaid contributions; (3) liquidated damages, not in excess of 20% of the unpaid contributions; (4) reasonable attorney's fees and costs; and (5) other legal or equitable relief in the discretion of the court. See 29 U.S.C. § 1132(g)(2) (stating that the court “shall award” these types of relief). Plaintiffs request the first four: unpaid contributions, liquidated damages, interest on late-paid and unpaid contributions, and attorneys' fees and costs. (Dkt. No. 13 at 13.)
a. Damages
Here, Plaintiffs seek to recover unpaid contributions for the timeframe between January 2013 to June 2019, totaling $38,538.55. (Dkt. No. 13 at 13; see also Dkt. No. 13-1, Ex. E.) Although the Complaint alleged payments due for January 2021 to March 2021 as well, Plaintiffs do not seek the unpaid contributions for this time period in their motion for default judgment. (Id.; see also Dkt. No. 13 at 13.) Thus, the Court will not consider any unpaid contributions for the period of January 2021 to March 2021. Defendant was a signatory to the Trust Agreements during the period of January 2013 to June 2019. (Dkt. No. 13-1 at ¶ 7.) The Trust Agreements required Defendants to contribute and pay to Plaintiffs an hourly amount for each hour paid for work by an employee doing work covered by the Trust Agreements. (Dkt. No. 13-1, Ex. D at § 28A.) Plaintiffs performed an audit of Defendant's books and records to assess if Defendant was delinquent on any contributions to the Trust Funds. (Dkt. No. 13-1 at ¶ 15.) A summary of the audit revealed that Defendant failed to pay contributions to the Trust Funds for the hours worked by employees doing work covered by the Trust Agreements some months in the period between January 2013 to June 2019. (Dkt. No. 13-1, Ex. E.) Defendant owed $18,966.32 for the period of January 2013 and August to December of 2013 (Dkt. No. 13-1 at 293-95); $2,397.60 for July, September, and October of 2014 (Id. at 296); $5,475.93 for February to April and December of 2015 (Id. at 297-8); $10,730.20 for 2016 (Id. at 299); $46.16 for 2017 (Id. at 200); $118.25 for October 2018 (Id. at 301); and $804.10 for February 2019 (Id. at 302.) Therefore, the Court recommends granting the requested award of $38,538.55 for unpaid contributions for the months between January 2013 to June 2019.
Plaintiffs also request liquidated damages and interest on unpaid and late-paid contributions. (Dkt. No. 13 at 13; see also Dkt. No.13-1, Ex. E.) For January 2013 to June 2019, they request liquidated damages of $150 per month and 1.5% interest per month incurred on all unpaid contributions, totaling $2,400.00 and $44,082.41, respectively. (Id.)
ERISA requires an award of liquidated damages if “(1) the fiduciary obtains a judgment in favor of the plan, (2) unpaid contributions exist at the time of suit, and (3) the plan provides for liquidated damages.” Idaho Plumbers & Pipefitters Health & Welfare Fund v. United Mech. Contractors, Inc., 875 F.2d 212, 215 (9th Cir. 1989) (emphasis in original). Here, those requirements are met. If this Report and Recommendation is adopted, then Plaintiffs will have obtained a judgment in their favor. As alleged in the Complaint and supported by the evidence submitted with the motion for default judgment, contributions remain unpaid. (Dkt. No. 1 at 5; Dkt. No. 13-1 at ¶ 16) The Trust Agreements dictate that liquidated damages will be calculated at a flat fee of $150.00 per month. (Dkt. No. 13-1, Ex. A at Art. II § 10.)
In addition, the Trust Agreements permit “the Board of Trustees to set or amend the liquidated damages and interest provisions applicable to delinquent contributions.” (Id.) They provide that the liquidated damages and interest must be set at an amount that compensates for the cost of collection and the loss to the Trust Funds. (Id.) The Board of Trustees commissioned a Certified Public Accounting firm to calculate the cost of collection, and subsequently set the interest rate charged on delinquent payments at 1.5% per month. (Dkt. No. 13-1 at ¶ 12.) Under 29 U.S.C. § 1132(g), “interest on unpaid contributions shall be determined by using the rate provided under the plan.” Here, the Trust Agreements provides that the interest rate should be determined by the Board of Trustees, who set the rate at 1.5%. (Dkt. No. 13-1, Ex. A at Art. II § 10.)
Accordingly, the Court recommends granting Plaintiffs' request for $2,400 in liquidated damages and $44,082.41 in interest.
b. Attorneys' Fees and Costs
Plaintiffs also seek attorneys' fees in the amount of $9,610.00. (Dkt. No. 13 at 13.) An award of fees is mandatory because contributions are unpaid, and the Trust Agreements provide for fees and costs. (Dkt. No. 13-1, Ex. A at Art. II § 10.) See Northwest Administrators, Inc. v. Albertsons, Inc., 104 F.3d 253, 257-58 (9th Cir. 1996). To determine a reasonable fee award, federal courts use the lodestar method. Grove v. Wells Fargo Financial Cal., Inc., 606 F.3d 577, 582 (9th Cir. 2010). The court calculates a “lodestar amount” by multiplying the number of hours counsel reasonably spent on the litigation by a reasonable hourly rate. Id. A reasonable hourly rate is the prevailing rate in the community for similar work performed by attorneys of comparable skill, experience, and reputation. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). Reasonable hours expended on a case are hours that are not “excessive, redundant, or otherwise unnecessary.” McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009).
Here, Plaintiffs' counsels' rates are $150 per hour for a paralegal, $290 per hour for an associate attorney prior to June 1, 2021 and $300 per hour as of June 1, 2021, and $345 per hour for a shareholder attorney. (Dkt. No. 13-1 at ¶¶ 5-9.) The Ninth Circuit found that rates between $375-$400 were in line with rates charged by ERISA counsel in 2007. See Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 947 (9th Cir. 2007). Thus, given that Plaintiffs' counsels' rates are below this range, they are reasonable.
Next, the Court looks at the reasonableness of the hours billed. Counsel billed a total of 34.1 hours of legal work, including 31.5 by shareholder attorney Concepción E. Lozano-Batista, 18.1 hours by Craig L. Schechter, 4.2 by paralegal Teresa Rojas Alou, and 0.2 hours by senior paralegal Aaron Nathan. (Dkt 13-2 at ¶ 5.) The declaration of Craig L. Schechter outlines in detail the work done by attorneys Schechter and Lozano-Batista, including preparing motion papers and meeting with clients. (Id. at ¶¶ 6-7, Ex. A.) The hours of work performed by Plaintiffs' attorneys are reasonable, however, “[f]ees for law clerks and paralegals are compensable as attorney's fees [only] so long as the work is legal rather than clerical in nature.” Jacobson v. Persolve, LLC, No. 14-CV-00735-LHK, 2016 WL 7230873, at *7 (N.D. Cal. Dec. 14, 2016).
Here, Plaintiffs seek fees for filing and document organization by paralegals which is clerical in nature. See Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009). Plaintiffs seek fees for 4.2 hours paralegal Alou spent on:
Review file and prepare complaint draft...Review of applicable rules to determine due date triggered by substituted service of summons and complaint…Preparation of exhibits to motion for default judgment…Incorporate additional exhibits to motion for entry of default judgment…Coordinate preparation and assembling of
additional exhibits in support of motion for entry of default judgment.(Id.) The 1.50 hours Alou spent preparing exhibits are clerical and thus not compensable. Therefore, the Court recommends granting attorneys' fees totaling $9,370.00.
Finally, Plaintiffs request $751.38 in costs which consists of the filing fee, service fees, and reproduction costs. Because these costs are reasonable and both ERISA, 29 U.S.C. §1132(g)(2)(D), and the Trust Agreements provide for recovery of costs (Dkt. No. 13-1, Ex. A at Art. II § 10.), the Court recommends that Plaintiffs be awarded costs in the amount of $751.38.
CONCLUSION
For the reasons stated above, the Court RECOMMENDS that the district court GRANT Plaintiffs' motion for default judgment and award Plaintiffs $85,020.96 in damages, $9,370.00 in attorneys' fees, and $751.38 in costs, for a total judgment of $94,707.34.
Any party may file objections to this report and recommendation with the district judge within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Civ. L.R. 72-3. Failure to file an objection may waive the right to review of the issue in the district court.
IT IS SO ORDERED.