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 Omni Electrical Systems, Inc.
(“Omni”) has not filed a response, and the time
for doing so has passed. See Loc. R. 105.2(a). On
November 29, 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.
AND PROCEDURAL HISTORY
case, NEBF filed suit against Omni 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.) Omni was personally served with the Complaint
and summons but did not file an answer or responsive pleading
within the requisite time period. On June 29, 2017, NEBF
moved for the Clerk's entry of default (ECF No. 5), and
the Clerk entered default against Omni on July 6, 2017 (ECF
No. 8). On July 25, 2017, NEBF filed the Motion, to which
Omni 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). (ECF No. 1 ¶ 4.) Omni is an employer that has
agreed to participate in the NEBF pursuant to collective
bargaining agreements with the International Brotherhood of
Electrical Workers Local Union 98 (“Collective
Bargaining Agreements”). (Id. ¶ 6.)
Pursuant to the Collective Bargaining Agreements, Omni is
required to submit contributions to the NEBF on behalf of
Omni's covered employees. (Id.) In addition to
its obligations under the Collective Bargaining Agreements,
Omni 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, Omni 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
Omni owes $14, 897.11 in delinquent contributions in
connection with work performed by Omni's covered
employees in August 2016 and September 2016. (Id.
¶ 9.) Despite NEBF's demands for payment, Omni
remains delinquent in its payment obligations. (Id.
January 25, 2018, the Court ordered NEBF to supplement its
Motion with proof that Omni is a signatory to the Collective
Bargaining Agreements and the Trust Agreement, as has been
required in other cases. (ECF No. 13.) See Trustees of
the Electrical Workers Local No. 26 Pension Trust Fund v.
Control Specialties, LLC, No. TDC-16-0220 (ECF No. 35);
Trustees of Nat'l Auto. Sprinkler Indus. Fund v.
Sprinkler Contractors, LLC, No. TDC-16-2639 (ECF No.
14). In response, NEBF submitted an affidavit of Angel
Losquadro (“Losquadro”), the Director of the
Audit and Delinquency Department of NEBF. (ECF No. 14.)
Losquadro states that Omni is bound to contribute to the NEBF
because it executed a Letter of Assent, which is attached at
ECF No. 14-1. Through the Letter of Assent, Omni agreed to
“comply with, and be bound by, all of the provisions
contained in” the “current and subsequent
approved labor agreements” between the
“Philadelphia Division, Penn-Del-Jersey Chapter NECA
and Local Union 98, IBEW.” (Id. at 2.)
inside commercial labor agreement (“Labor
Agreement”) for the relevant period is attached at ECF
No. 14-2. It applies to “ALL FIRMS who sign a LETTER OF
ASSENT to be bound” by it. (Id. at 5.) And
specifically, in Section 6.01, it provides that each employer
that has assented to the Labor Agreement “accepts, and
agrees to be bound by, the Restated Benefit Agreement and
Trust.” (Id. at 33.) A copy of the Trust
Agreement, which is discussed below, is attached at ECF No.
14-3. Through Losquadro's Affidavit and the exhibits
attached thereto, NEBF has established that Omni is bound by
the Labor Agreement (the operative Collective Bargaining
Agreement for the relevant time) and the Trust Agreement.
as true the unchallenged allegations of the Complaint, along
with the evidence submitted in NEBF's supplement to its
Motion, NEBF has established Omni's liability for failure
to pay the ...