United States District Court, D. Maryland
REPORT AND RECOMMENDATION
Timothy J. Sullivan United States Magistrate Judge
Report and Recommendation addresses the Motion for Default
Judgment (“Motion”) (ECF No. 11) filed by
Plaintiff National Electrical Benefit Fund
(“NEBF”). Defendant Greer Electric Company, Inc.
(“Greer”) has not filed a response, and the time
for doing so has passed. See Loc. R. 105.2(a). On
July 7, 2017, in accordance with 28 U.S.C. § 636 and
pursuant to Local Rule 301.6, Judge Chuang referred this case
to me for a report and recommendation on NEBF's Motion.
(ECF No. 12.) I find that a hearing is unnecessary in this
case. See Fed. R. Civ. P. 55(b)(2); Loc. R. 105.6.
For the reasons set forth below, I respectfully recommend
that NEBF's Motion be granted.
FACTUAL AND PROCEDURAL HISTORY
case, NEBF filed suit against Greer under the Employee
Retirement Security Act of 1974, as amended,
(“ERISA”), 29 U.S.C. § 1132(e), to recover
delinquent pension fund contributions and related relief.
(ECF No. 1.) Greer was personally served with the Complaint
and summons but did not file an answer or responsive pleading
within the requisite time period. On March 14, 2017, NEBF
moved for the Clerk's entry of default (ECF No. 7), and
the Clerk entered default against Greer on March 28, 2017
(ECF No. 10). On March 30, 2017, NEBF filed the Motion, to
which Greer has not responded.
Standard for Entry of Default Judgment
determining whether to award a default judgment, the Court
accepts as true the well-pleaded factual allegations in the
complaint as to liability. See Ryan v. Homecomings Fin.
Network, 253 F.3d 778, 780-81 (4th Cir. 2001);
United States ex rel. Durrett-Sheppard Steel Co. v. SEF
Stainless Steel, Inc., No. RDB-11-2410, 2012 WL 2446151,
at *1 (D. Md. June 26, 2012). Nonetheless, the Court must
consider whether the unchallenged facts constitute a
legitimate cause of action, since a party in default does not
admit mere conclusions of law. United States v.
Redden, No. WDQ-09-2688, 2010 WL 2651607, at *2 (D. Md.
June 30, 2012) (citing Ryan, 253 F.3d at 790).
Although the Fourth Circuit has a “strong policy that
cases be decided on the merits, ” United States v.
Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993),
default judgment “is appropriate when the adversary
process has been halted because of an essentially
unresponsive party.” S.E.C. v. Lawbaugh, 359
F.Supp.2d 418, 421 (D. Md. 2005). If the Court determines
that liability is established, the Court must then determine
the appropriate amount of damages. CGI Finance, Inc., v.
Johnson, No. ELH-12-1985, 2013 WL 1192353, at *1 (D. Md.
March 21, 2013). The Court does not accept factual
allegations regarding damages as true, but rather must make
an independent determination regarding such allegations.
Durrett-Sheppard Steel Co., 2012 WL 2446151 at *1.
of the Federal Rules of Civil Procedure provides that
“[i]f, after entry of default, the Plaintiff's
Complaint does not specify a ‘sum certain' amount
of damages, the court may enter a default judgment against
the defendant pursuant to Fed.R.Civ.P. 55(b)(2).” A
plaintiff's assertion of a sum in a complaint does not
make the sum “certain” unless the plaintiff
claims liquidated damages; otherwise, the complaint must be
supported by affidavit or documentary evidence. United
States v. Redden, No. WDQ-09-2688, 2010 WL 2651607, at
*2 (D. Md. June 30, 2012). Rule 55(b)(2) provides that
“the court may conduct hearings or make referrals . . .
when, to enter or effectuate judgment, it needs to . . .
determine the amount of damages.” The Court is not
required to conduct an evidentiary hearing to determine
damages, however; it may rely instead on affidavits or
documentary evidence in the record to determine the
appropriate sum. See, e.g., Mongue v. Portofino
Ristorante, 751 F.Supp.2d 789, 795 (D. Md. 2010).
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, to the extent not inconsistent with law,
make such contributions in accordance with the terms and
conditions of such plan or such agreement.” 29 U.S.C.
§ 1145. ERISA further provides that employers who fail
to make timely contributions are liable in a civil action for
unpaid contributions, interest on the unpaid contributions,
liquidated damages, reasonable attorney's fees and costs,
and any other relief the Court deems appropriate. 29 U.S.C.
§ 1132(a), (g).
Complaint, NEBF alleges that it is a multiemployer employee
pension benefit plan within the meaning of 29 U.S.C. §
1002(2). Greer is an employer that has agreed to participate
in the NEBF pursuant to collective bargaining agreements with
the International Brotherhood of Electrical Works Local Union
602 (“Collective Bargaining Agreements”).
(Id. ¶ 6.) Pursuant to the Collective
Bargaining Agreements, Greer is required to submit
contributions to the NEBF on behalf of Greer's covered
employees. (Id.) In addition to its obligations
under the Collective Bargaining Agreements, Greer is also
bound to the terms and conditions of the Restated Employees
Benefit Agreement and Trust for the NEBF (“Trust
Agreement”). (Id. ¶ 7.) Notwithstanding
its obligations, NEBF has failed to make the contributions
required by the Collective Bargaining Agreements and the
Trust Agreement to the NEBF for its covered employees.
(Id. ¶ 8.) NEBF alleges that Greer owes $6,
887.49 in delinquent contributions in connection with work
performed by Greer's covered employees between March 2014
and December 2014. (Id. ¶ 9.) Despite its
demands for payment, Greer remains delinquent in its payment
obligations. (Id. ¶ 10.) Accepting as true the
unchallenged allegations of the Complaint, NEBF has
established Greer's liability for failure to pay the
contributions as required by the Collective Bargaining
Agreements and the Trust Agreement.
determined that NEBF has established Greer's liability,
it is now appropriate to determine the damages to which NEBF
is entitled. The damages NEBF seeks in its Motion are
appropriate under Rule 54(c) so long as “the record
supports the damages requested.” See Laborers'
Dist. Council Pension v. E.G.S., Inc., No. WDQ-09-3174,
2010 WL 1568595, at *3 (D. Md. Apr. 16, 2010). Here, NEBF has
provided sufficient evidence to support its claim for damages
in the amount of $13, 493.10.
support of its claim for damages, NEBF submits the affidavit
of Angel Losqaudro (“Losquadro”). (ECF No. 11-1.)
Losquadro is the Director of the NEBF's Audit and
Delinquency Department and is familiar with the allegations
of the Complaint and the facts of this case. (Id.
¶¶ 1-2.) Under the Trust Agreement, which Losquadro
incorporates into the affidavit (id. at 4-12), NEBF
may recover interest on delinquent contributions at a rate of
ten percent, liquidated damages in the amount of twenty
percent of the delinquent contributions, audit costs, and
attorney's fees and costs incurred in collecting
delinquent contributions. (Id.) As discussed above,
these damages are allowed under ERISA. 29 U.S.C. §
1132(g). Losquadro states that an audit of Greer's books
and records conducted in August 2015 revealed that Greer
failed to submit a total of $8, 957.14 in contributions for
work performed by its covered employees in 2014. (ECF No.
11-1 ¶ 4.) Greer subsequently paid a total of $2, 069.64
toward the delinquent contributions, leaving an outstanding
balance of $6, 887.49 for the year 2014. (Id. ¶
5.) In addition, NEBF seeks interest on the delinquent
contributions in the amount of $2, 515.13, the calculation of
which is set forth in Exhibit ...