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. 10) filed by
Plaintiff National Electrical Benefit Fund
(“NEBF”). Defendant Great Lakes Electrical
Contractors, Inc. (“Great Lakes”) has not filed a
response, and the time for doing so has passed. See
Loc. R. 105.2(a). On May 14, 2018, 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
FACTUAL AND PROCEDURAL HISTORY
case, NEBF filed suit against Great Lakes 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.) Great Lakes was personally served with the
Complaint and summons (see ECF No. 5), but it did
not file an answer or responsive pleading within the
requisite time period. On March 27, 2018, NEBF moved for the
Clerk's entry of default (ECF No. 7), and the Clerk
entered default against Great Lakes on April 4, 2018 (ECF No.
8). On April 26, 2018, NEBF filed the Motion, to which Great
Lakes 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. Ryan, 253 F.3d at
780. 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.) Great Lakes is an employer
that has agreed to participate in the NEBF pursuant to
collective bargaining agreements with several labor unions.
(Id. ¶ 6.) Specifically, September 14, 1998,
Great Lakes' representatives signed a Letter of Assent in
which Great Lakes agreed to “comply with, and be bound
by, all of the provisions contained” in an Inside Labor
Agreement between the Lake County Division, Northeastern
Illinois Chapter, NECA, Inc. and Local Union 150, IBEW, as
well as “subsequent approved labor agreements.”
(ECF No. 11-8.) Great Lakes entered into similar agreements
on June 20, 2001 (regarding the Inside Labor Agreement
between the Aurora Division, Northeastern Illinois Chapter,
NECA, Inc. and Local Union 461) (ECF No. 11-10); June 25,
2001 (regarding the Inside Labor Agreement between
Northeastern Illinois Chapter of NECA, Elgin Division and
Local Union 117, IBEW) (ECF No. 11-2); and August 18 and 19,
2004 (regarding the Principal Labor Agreement and
Communications Labor Agreement between the Electrical
Contractors Assoc. of City of Chicago, NECA and Local Union
134, IBEW (ECF Nos. 11-6 & 11-4). By signing the Letters of
Assent and agreeing to “comply with, and be bound by,
” the terms of the relevant collective bargaining
agreements, Great Lakes agreed to the following provision,
which is contained in each of the collective bargaining
It is agreed that in accord with the Employees Benefit
Agreement of the National Electrical Benefit Fund (NEBF) as
entered into between the National Electrical Contractors
Association and the International Brotherhood of Electrical
Workers on September 3, 1946, as amended, and now delineated
as the Restated Employees Benefit Agreement and Trust, that
unless authorized otherwise by the NEBF the individual
employers will forward monies to the NEBF's designated
local collection agent an amount equal to 3% of the gross
monthly labor payroll paid to, or accrued by, the employees
in this bargaining unit, and a completed payroll report
prescribed by the NEBF. The payment shall be made by check or
draft and shall constitute a debt due and owing to the NEBF
on the last day of each calendar month, which may be
recovered by suit initiated by the NEBF or its assignee. The
payment and the payroll report shall be mailed to reach the
office of the appropriate local collection agent not later
than fifteen (15) calendar days following the end of each
calendar month.The individual Employer hereby accepts, and
agrees to be bound by, the Restated Employees Benefit
Agreement and Trust.
(ECF Nos. 11-3 at 25; 11-5 at 22-23; 11-7 at 27-28; 11-9 at
21; 11-11 at 22-23.)
term included in each of the collective bargaining agreements
is consistent with Article 6 of the Restated Employees
Benefit Agreement and Trust for the NEBF (“Trust
Agreement”), which is referenced ...