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National Electrical Benefit Fund v. Donald A. Pusey, Inc.

United States District Court, D. Maryland, Southern Division

June 1, 2016

NATIONAL ELECTRICAL BENEFIT FUND, Plaintiff,
v.
DONALD A. PUSEY, INC., Defendant.

          MEMORANDUM OPINION

          GEORGE J. HAZEL United States District Judge.

         Pending before the Court is Plaintiff National Electrical Benefit Fund's ("NEBF") Motion for Default Judgment against Donald A. Pusey. Inc. ("Pusey"*). ECF No. 6. In its Motion for Default Judgment. NEBF is seeking "S2.035.38 in delinquent contributions: interest in the amount of $679.72: liquidated damages in the amount of $407.08: attorney's lees and costs in the amount of $992.80. audit fees in the amount of $366.93. plus any additional fees and costs incurred by NEBF in connection with the enforcement of a judgment: and interest on all amounts awarded." ECF No. 1 ¶ 8. Pusey has not tiled a response and the deadline for a response elapsed on October 14. 2015. See Loc. R. 105.2(a) (D. Md. 2014). A hearing is unnecessary. Loc. R. 105.6. For the reasons stated below. Plaintiffs motion for default judgment is GRANTED, in part, and DENIED, in part.

         I. BACKGROUND

         Plaintiff NEBF is a multiemployer "employee pension benefit plan." as defined by 29 U.S.C. § 1002(2). established pursuant to an agreement between the International Brotherhood of Electrical Workers and the National Electrical Contractors Association. ECF No. 1 ¶ 4. Defendant Pusey is an "employer." as that term is defined by 29 U.S.C. § 1002(5). contracted to submit contributions to NEBF. ECF No. 1 ¶ 5. Pursuant to the collective bargaining agreements ("Bargaining Agreements") signed by NEBF and Pusey. Pusey was obligated to submit contributions to the NEBF on behalf of Pusey's employees covered by the Bargaining Agreements. ECF No. I ¶ 6. Pusey is also bound to the terms and conditions of the Restated Employees Benefit Agreement and Trust for NEBF ('"Trust Agreement"). ECF No. 1 ¶ 7.

         Pusey failed to pay NEBF $2, 035.38 for work performed by Pusey's employees between March 1, 2012 and December 31. 2013. ECF No. 1 ¶ 9. The Employees Benefit Agreement authorizes the Trustees to recover delinquent contributions, including recovering "interest on the delinquent contributions at a rate often percent (10%) per annum, liquidated damages in an amount equal to twenty percent (20%) of the delinquency, and all costs, including attorneys' fees and audit expenses, incurred in collecting the delinquency." ECF No. 1 ¶ 15.

         On September 9. 2015. NEBF filed this Complaint under the Employee Retirement Income Security Act of 1974. as amended. ("ERISA") to collect delinquent contributions owed to NEBF by Pusey. ECF No. 1 ¶ 1. Although the Court's docket reflects that the Summons was not returned executed until November 4. 2015. the affidavit of service indicates that the Summons was served on September 23. 2015. which means Pusey"s answer was due on October 14, 2015. See ECF No. 4. Pusey failed to answer the Complaint, and the Clerk filed an Entry of Default on November 24. 2015. ECF No. 7.

         In its Default Judgment. NEBF is seeking "$2, 035.38 in delinquent contributions: interest in the amount of $ 679.72: liquidated damages in the amount of $407.08; attorney's lees and costs in the amount of $992.80. audit fees in the amount of $366.93. plus any additional Ices and costs incurred by NEBF in connection with the enforcement of a judgment: and interest on ail amounts awarded." ECF No. 1 ¶ 8. NEBF submitted an affidavit in support of its Complaint. ECFNo. 6-2.

         On April 7. 2016. the Court ordered Plaintiff to supplement its Motion for Default Judgment with the relevant portions of the Bargaining Agreement, Trust Agreement, and Audit, as well as an affidavit demonstrating that Ms. Hawkins attorney's fees are consistent with the Local Rules. ECF No. 8. Plaintiff complied with the Court's Order by providing the requested documents, ECF Nos. 9-1 to 9-6. and filing an Affidavit of Counsel that informs the Court that Ms. Hawkins, who has been a licensed attorney for twenty-two years and admitted to this Court on January 6. 1997. charged a rate of $369 per hour in this litigation. FCF No. 9 ¶¶ 6-8.

         II. DISCUSSION

         Under Federal Rule of Civil Procedure ("Rule") 55(a). the Clerk must enter a party's default upon "a showing that a party against whom judgment is sought has failed to plead or otherwise defend." Fed.R.Civ.P. 55(a). The Clerk may enter a default judgment against a defendant who is "neither a minor nor an incompetent person" if the plaintiffs claim is "for a sum certain or a sum that can be made certain by computation." Fed. R. Ci\. P. 55(b)(1). After the Clerk has entered a default, the Plaintiff may seek a default judgment. See Fed. R. Civ. P. 55(b): Bait. Line Handling Co, v. Brophy. 771 F.Supp.2d 531. 540 (D. Md. 2011). The Fourth Circuit has a strong policy that cases be decided on the merits, but "default judgment is available when the adversary process has been halted because of an essentially unresponsive party." Disney Enters., Inc. v. Dehtne. 446 F.Supp.2d 402. 405 (D. Md. 2006) (citation and quotation marks omitted). Whether a plaintiff is entitled to entry of a default judgment is left to the discretion of the Court. Choice Hotels Int'l v. Savannah Shakti Corp.. DKC-11-043S. 2011 U.S. Dist. LEXIS 123162. at *2 (D. Md. Oct. 25. 2011).

         In considering a motion for default judgment, the Court "lakes as true the well-pleaded factual allegations in the complaint, other than those pertaining to damages." Choice Hotels Int'l. Inc. v. Vishul, Inc., No. PWG-13-2078. 2014 U.S. Dist. LEXIS 160347. at * 6 (D. Md. Nov. 14. 2014) (citing Ryan v. Homecomings Fin. Xelwork. 253 F.3d 778. 780 (4th Cir. 2001)). "If the Court finds that 'liability is established, it must then determine the appropriate amount of damages.*" Id. at *7. Rule 54(c) provides that a "default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Fed.R.Civ.P. 54(c).

         Here. Plaintiff seeks damages based on Defendant being delinquent under 29 U.S.C. §1145. Under 29 U.S.C. § 1145. Pusey is obligated to make contributions to NEBF in accordance with the terms and conditions of the Bargaining Agreements. 29 U.S.C. § 1145 (2012) ("Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan Of under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law. make such contributions in accordance with the terms and conditions of such plan or such agreement.").When an employer fails to make the obligated contributions, a fiduciary of a multiemployer plan may enforce the provisions of ERISA and the terms of the Bargaining Agreements through a civil action. 29 U.S.C. § 1132(a)(3) ("A civil action ma\ be brought . .. (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this title or the terms of the plan, or (B) to obtain other appropriate equitable relief (i)to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan . . .."). In any action by a fiduciary on behalf of a plan to enforce 29 U.S.C. § 1145 in which a judgment in favor of the plan is awarded, the Court shall award the plan:

(A)the unpaid contributions.
(B) interest on the unpaid ...

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