Opinion
CIVIL ACTION NO. 04-415
May 24, 2004
REPORT AND RECOMMENDATION
Presently before the court is plaintiffs Request for Entry of Default, pursuant to Fed.R.Civ.P. 55(a). (Doc. No. 4.) After a hearing held on May 20, 2004, and upon review of the entire record, this court recommends that the court enter a default against the defendant, Walter Rowe, Inc.
The court will consider this request as one pursuant to Fed.R.Civ.P. 55(b)(2), since the Clerk has not entered judgment by default.
I. BACKGROUND
Plaintiff, Kathleen M. Corcoran, ("Corcoran") as administrator of the International Union of Operating Engineers Local No. 542 Pension, Welfare Apprenticeship, Training and Safety, Supplemental Unemployment Benefit and Annuity Fund ("the Fund") filed this ERISA action against defendant, Walter Rowe, Inc. Plaintiff alleges that defendant failed to make contributions to the Fund, and also failed to file the required contribution reports for the months of June and December 2002 and for the months of July and August 2003. As relief, plaintiff sought $59,273.28 in total unpaid contributions, court costs and attorney fees. (Doc. No. 1 at 6-9; Ex. "C" Statement of Damages.) On May 3, 2004, plaintiff filed the Request for Default Judgment. (Doc. No. 4.) On May 5, 2004, the Honorable Eduardo C. Robreno scheduled a hearing on plaintiff's request for default judgment. Defendant failed to appear for this hearing. At the hearing, counsel for plaintiff, Thomas J. McGoldrick, Esquire, reiterated plaintiff's demand for $59,273.28.
II. DISCUSSION
When an application is made to the court under Rule 55(b)(2) for entry of a judgment by default, the court must exercise sound judicial discretion in determining whether the judgment should be entered.Kocenko v. Buskirk, 56 F.R.D. 14, 16 (E.D. Pa. 1972); 10A Wright, Miller Kane, Federal Practice and Procedure: Civil 3d § 2685 at 30 (1998) (hereinafter "Wright Miller"). In exercising its discretion, the court should consider "the amount of money potentially involved; whether material issues of fact or issues of substantial public importance are at issue; whether the default is largely technical; whether plaintiff has been substantially prejudiced by the delay involved; and whether the grounds for default are clearly established or are in doubt. Furthermore, the court may consider how harsh an effect a default judgment might have, or whether the default was caused by a good-faith mistake or by excusable or inexcusable neglect on the part of the defendant." Wright Miller § 2685 at 32-38.
After a court finds that a judgment by default should be entered, it must determine the amount of damages to be awarded. "If defendant does not contest the amount prayed for in the complaint and the claim is for a sum certain that can be made certain by computation, the judgment generally will be entered for that amount without any further hearing." Wright Miller § 2688 at 63.
The record shows that this case is an ERISA action. Defendant failed to make contributions to the Fund, as per its agreement with the union. The amount of money demanded by plaintiff is not unreasonable, and there appears to be no material issue of fact. Defendant has neither contested its obligation to plaintiff nor the amount due to it. Defendant has been most derelict in its obligation to respond to the complaint. Defendant has not answered or responded to the complaint since it was served almost four months ago. No attorney has entered an appearance to represent defendant's interests. The court scheduled the May 20, 2004 hearing on May 5, 2004, and defendant did not request a continuance of the same. This court finds that plaintiff will be substantially prejudiced by further delay.
A copy of the complaint was duly served on defendant on February 18, 2004, and a Return of Service was filed with the court on March 12, 2004. (Affidavit in Support of Request for Default Judgment at 1.)
The Affidavit of Amount Due supplied by plaintiff establishes that the amount owed is a sum certain in the amount of $59,273.28. Accordingly, for all the above reasons, this court makes the following:
This affidavit is supported with copies of employers' combined monthly reports for the International Union of Operating Engineers, Local. No. 542. (Affidavit in Support of Request for Default Judgment, Ex. A.)