Opinion
Civ. No. 99-0525 (DRD).
September 13, 1999
Markowitz Richman, R. Matthew Pettigrew, Jr. Esq., Haddonfield, New Jersey, Attorney for Plaintiff.
Roma Elevator Construction Co., Brooklyn, New York, Defendant.
O P I N I O N
Plaintiffs, Elevator Constructors Union Local 1 Annuity and 401(k) Fund (Fund) and, Local No. 1 International Union of Elevator Constructors, AFL-CIO (Local 1), move for default judgment against defendant, Roma Elevator Construction Co. (Roma) pursuant to Fed.R.Civ.P. 55 for contributions due, and an order to make future payments. The motion is unopposed. For the following reasons, Local 1 and Fund's motion will be granted.
JURISDICTION and Venue
This Court has jurisdiction pursuant to Sections 502 and 515 of the Employee Retirement Income Security Act of 1974, as amended (ERISA), 29 U.S.C. § 1132 and 1145, as amended (LMRA), 29 U.S.C. § 185, to collect unpaid fringe benefit contributions because Local 1 is a beneficiary. Venue is proper pursuant to Section 502(e)(2) of ERISA, 29 U.S.C. § 1132 (e)(2); because Local 1 and Fund have their principal offices in New Jersey.
BACKGROUND
Fund is a multi-employer benefit fund within the meaning of § 302(c)(5) of the LMRA, 29 U.S.C. § 186 (c)(5), and Sections 3(3) and 3 (37) of ERISA, 29 U.S.C. § 1002(3) and 1002(37). The Fund receives and administers contributions from various contractors who are obligated to make contributions thereto by virtue of their having agreed to be bound by collective bargaining agreements with Local No. 1. Local No. 1 is a labor organization within the meaning of § 101(5) and 301 of the LMRA, 29 U.S.C. § 152 (5) and 185. Roma, at all times relevant hereto, has been an employer acting directly as an employer within the meaning of Section 3(5) of ERISA, 29 U.S.C. § 1002(5).
Roma's employees who are represented by the Union are participants in, and beneficiaries of the Fund. Roma is a signatory to a collective bargaining agreement (Agreement) and a memorandum of agreement between Union and Elevator Manufacturers Association of New York, Inc. and as such, is bound by the terms of the Agreement. The Agreement requires Roma to make timely monthly contributions to the Fund for each full hour worked by each employee in that month. To date of this complaint Roma owes $9,200.00 contributions to Fund and $36,442.00 in late contributions and interest for the months of January and February 1998 in breach of the Agreement.
DISCUSSION
The entry of defaults and default judgments is governed by Fed.R.Civ.P. 55. Under subsection (a) of that Rule, the clerk of the court is instructed to enter the default of a party which has "failed to plead or otherwise defend as provided by these rules" when the failure to defend "is made to appear by affidavit or otherwise." Fed.R.Civ.P. 55(a). Under subsection (b) of the Rule, a court is permitted to grant a default judgment for damages if the party seeking the judgment has applied for and received an entry of default under Rule 55(a). Rule 55(b) states in pertinent part:
(b) Judgment. Judgment by default may be entered as follows:
(1) By the Clerk. When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk . . . shall enter judgment . . .
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor. . . . If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper . . . .
The disposition of a motion for entry of a default judgment by the court lies within the court's sound discretion. Mindek v. Rigatti 964 F.2d 1369, 1373 (3d Cir. 1992); 10 James W. Moore et al., MOORE'S FEDERAL PRACTICE, § 55.20[2][b] (Matthew Bender 3d ed.).
In the present case, it is clear that a default judgment is appropriate. The clerk of the court has entered the default of Roma. More than three months have passed since the complaint was served upon Roma, during which time Roma has failed to respond in any way. Moreover, the allegations in the complaint, if taken as true, state a claim for which Local 1 and Fund are entitled to relief. Fed.R.Civ.P. 8(d) requires that those allegations be taken as true, at least as to liability. Nor is there any apparent reason why Roma should not be bound by the allegations in the complaint. Cf. Feliciano v. Reliant Tooling Co., 691 F.2d 653 (3d Cir. 1982) (granting motion to set aside default judgment where defendant was an alien unfamiliar with American procedure). Accordingly, Local 1 and Fund motion for a default judgment will be granted.
Rule 8(d) states in relevant part: "Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading."
There remains the issue of damages. While a default judgment constitutes an admission of liability, the quantum of damages must be established by proof unless the amount is liquidated or susceptible of mathematical computation. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); United States v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir. 1989). Local 1 and Fund seek the amount of Roma's failure to make contributions, $9,200.00 plus the amount of unpaid contributions subsequent to the lawsuit with interest, $36,442.00. In addition Local 1 and Fund request an Order directing Roma to make future contributions in a timely manner.
Section 515 of ERISA, 29 U.S.C. § 1145, requires that every employer, who is obligated to make contributions to a multi-employer plan under the terms of the plan or under the terms of a collective bargaining agreement, shall do so in accordance with such a plan or agreement. Another relevant section provides that in any action instituted for on or behalf of a multi-employer plan to enforce the payment of delinquent contributions, the Court shall, if judgment is entered in favor of the plan, award the plan:
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of —
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A),
(D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court deems appropriate
Section 502(g) of ERISA, 29 U.S.C. § 1132(g)(2). It is clear from the sworn affidavits that Local 1 and Fund are entitled to judgment for the amount of $45,642.00 for contributions due, contributions subsequent to this lawsuit and interest.
Local 1 and Fund are also entitled to its attorney's fees and costs. Local 1 and Fund's attorney's certification recites attorney's fees as $1590.00 ($150.00 an hour for 10.6 hours) and costs as $225.00 ($150.00 filing fee, $50.00 service fee, $25.00 photocopying costs). As quoted above attorney's fees and costs are mandated by ERISA to be included in the award. Id. at subsection (d).
CONCLUSION
For the reasons set forth above, Local 1 and Fund's motion for default judgment in the amount of $47,232.00 will be granted and Roma will be ordered to make further contributions in a timely manner and in accordance with the Agreement and ERISA.
An appropriate order follows.