United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
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.
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
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.
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.
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.
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
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).
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."
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. Â§ 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. Â§ 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 ...