United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
National Electrical Benefit Fund (""Plaintiff'
or "NEBF") brings this action against Defendants
Allan/Brite-Way Electrical Contractors. Inc. ("AB
Electrical") and Allan Brite-Way Electrical Utility
Contractors. Inc. ("AB Utility") (collectively, the
"Defendants") under the Employee Retirement Income
Security Act of 1974 ("ERISA"), as amended by the
Multiemployer Pension Plan Amendments Act of 1980. 29 U.S.C.
§§ 1001 et seq. Now pending before the
Court is Plaintiffs Motion for Default Judgment pursuant to
Fed.R.Civ.P. 55(b), ECF No. 12. No. hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016). For the following
reasons. Plaintiffs Motion for Default Judgment is granted,
and judgment is entered against Defendants in the amount of
following facts are established by the Amended Complaint. ECF
No. 8. and evidentiary exhibits in support of the Motion for
Default Judgment, ECF Nos. 12-1. 12-2. The NEBF is a
multiemployer employee pension benefit plan within the
meaning of Section 3(2) of ERISA. 29 U.S, C. § 1002(2).
which has been established pursuant to an agreement entered
into between the International Brotherhood of Electrical
Workers ("IBEW") and the National Electrical
Contractors Association ("NECA"). ECF No. 8 ¶
Employers agree to participate in the NEBF pursuant to
collective bargaining agreements with the IBEW or one of its
affiliated local unions. Id. The NEBF is
administered at 2400 Research Boulevard. Suite 500.
Rockville. Maryland 20850-3238. Id.
states upon information and belief that AB Electrical is a
New Jersey corporation whose business address and main place
of business is 2360 Lexington Avenue. 6th Floor. New York. NY
10017. ECF No. 8 ¶ 5. Plaintiff states upon information
and belief that AB Utility is a New Jersey corporation whose
business address and main place of business is 130 Algonquin
Parkway. Whippany. N.J. 07981. ECF No. 8 ¶ 6. Defendants
are employers within the meaning of Section 3(5) of ERISA. 29
U.S.C. § 1002(5), and are engaged in an industry
affecting commerce. Id. ¶ 5-6. NEBF alleges
that AB Utility is an "alter ego and/or successor or
parallel corporation to AB Electrical and is equally
liable." Id. ¶ 33.
times relevant to the action. Defendants were signatories to
collective bargaining agreements with IBEW Local Unions 3.
98. 102. 104. 164, 222. 269. 351. 456. and 1249. as the
collective bargaining representatives for Defendants'
employees. Id. ¶ 7. According to the Amended
Complaint, the collective bargaining agreements obligated
Defendant to submit contributions to the NHBF on behalf of
employees covered by the Agreements. Id. Defendants
were also bound to the terms and conditions of the Restated
Employees Benefit Agreement and Trust ("Trust
Agreement"), which governed administration of the NEBF.
Id. ¶ 8. The Trust Agreement obligated
Defendants to make certain monthly contributions, and
provided for the collection of interest, liquidated damages,
and audit fees regarding delinquent contributions.
Id. ¶¶ 16 18.
allegedly failed to timely report or contribute to NEBF for
work performed by Defendant's covered employees between
2011 and 2015. According to an audit conducted by an
independent auditor in January 2015. AB Electrical failed to
report a total of $937.15 in contributions due for the work
performed by employees covered by the Collective Bargaining
Agreement with IBEW Local Union 102 during the years 2011 and
2012. Id. ¶ 11. According to an audit conducted
by an independent auditor in November 2016. AB Electrical
failed to report a total of $147, 186.36 in contributions due
for the work performed by employees covered by the Collective
Bargaining Agreements during the years 2014 and 2015.
Id. ¶ 10. Furthermore. AB Electrical failed to
pay $9, 532.37 in contributions that were reported to NEBF.
Id. Â¶ 12. NEBF made demands that AB Electrical pay
the contributions, but AB Electrical has refused to do so.
filed the initial Complaint on June 5. 2017. ECF No. 1. and
the Clerk entered default against Defendants on July 17,
2017, ECF No. 7. Plaintiff filed the instant Amended
Complaint against Defendants on August 8. 2017. "to
include amounts due NEBF that had been inadvertently omitted
from [the] original Complaint." ECF No. 8: ECF No. 12 at
2. Defendants were served on August 9 and August 10, 2017.
ECF Nos. 9-10. An Answer from Defendants was due on or before
August 30 and 31. 2017. Id. On September 8. 2017.
with no answer having been filed. Plaintiff again moved for
default. ECF No. 11. The Clerk entered default against
Defendants on May 24. 2018. ECF No. 13. Plaintiff now seeks
default judgment against Defendants in the amount of $148,
123.51 in unreported contributions: $9, 532.37 in unpaid
reported contributions; $43, 588.45 in interest; $31, 531.20
in liquidated damages: $4, 186.18 in audit costs: and.
$3.146.10 in attorney's fees - for a total of
$240.107.81, pursuant to Section 502(g)(2) of ERISA. 29
U.S.C. § 1132(g)(2). ECF No. 12-2 at 3-4.
STANDARD OF REVIEW
a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must
enter the party's default." Fed.R.Civ.P. 55(a).
"A defendant's default does not automatically
entitle the plaintiff to entry of a default judgment; rather,
that decision is left to the discretion oi' the
court." EdtiC, Credit Mgmt. Corp. v. Optimum
Welding. 285 F.R.D. 371. 373 (D. Md. 2012). Although
"[t]he Fourth Circuit has a 'strong policy' that
"cases be decided on their merits."""
Choice Hotels Intern, Inc. v. Savannah Shakti Carp.,
No. DKC-11-0438. 2011 WL 5118328 at *2 (D. Md. Oct. 25.
2011) (citing United Stales v. Shaffer Equip. Co.,
11 F.3d 450. 453 (4th Cir. 1993)). "default judgment may
be appropriate when the adversary process has been halted
because of an essentially unresponsive party[, ] Id.
(citing S.E.C. v. Lawbaugh, 359 F.Supp.2d 418.421
(D. Md. 2005)).
default, the well-pled allegations in a complaint as to
liability are taken as true. although the allegations as to
damages are not." Lawbaugh. 359 F.Supp.2d at
422; see also Ryan v. Homecomings Fin. Network. 253
F.3d 778. 780 (4th Cir. 2001) (noting that "[t]he
defendant, by fits] default, admits the plaintiffs
well-pleaded allegations of fact, " which provide the
basis for judgment). Upon a finding of liability, "[t]he
court must make an independent determination regarding
damages . . ." hit 7 Painters & Allied
Trades Indus. Pension Fund v. Capital Restoration &
Painting Co.. 919 F.Supp.2d 680. 684 (D. Md. 2013).
"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). While the Court may hold a hearing to
prove damages, it is not required to do so; it may rely
instead on "detailed affidavits or documentary evidence
to determine the appropriate sum." Adkins. 180
F.Supp.2d at 17 (citing United Artists Corp. v.
Freeman. 605 F.2d854. 857(5thCir. 1979)).
Court has subject matter jurisdiction over this action
pursuant to Section 502 of ERISA, 29 U.S, C. § 1132 and
1451(c). Venue is proper under 29 U.S.C. §§
1132(e)(2). 1451(d). as the NEBF is administered in
Rockville. Maryland. See Ed. of Trs., Sheet Metal
Workers' Nat'l Pension Fund v. McD Metals.
Inc.. 964 F.Supp. 1040 (E.D. Va. 1997): Trustees of
Nat. Automatic Sprinkler Indus. Pension Fund v. Best
Automatic Fire Prot, Inc.. 578 F.Supp. 94. 95 (D. Md.
FRISA. "[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 . . . make such contributions in accordance with the
terms and conditions of such plan or such agreement." 29
U.S.C. § 1145; see Bd. of Trustees, Sheet Metal
Workers' Nat 7 Pension Fund v. Camelot
Constr.. Inc.. No. 1:14-CV-16I-EMB-TR.I. 2015 WL
13050031. at *3 (E.D. Va. Apr. 14. 2015). In the Amended
Complaint. Plaintiff alleges that Defendants were obligated
under the terms of the Collective Bargaining Agreements and
Trust Agreement to report and make contributions to NEBF. but
failed to do so between 2011 and 2015. leaving an outstanding
contribution balance of $157, 655.88. See ECF No. 8
at 3-5. The Affidavit of Angel Losquadro. Director of the
Audit and Delinquency Department of the NEBF and the
accompanying exhibits further establish that Defendant