United States District Court, D. Maryland
INTERNATIONAL PAINTERS AND ALLIED TRADES INDUSTRY PENSION FUND, et al. Plaintiffs,
K & K. PAINTING, INC. Defendant.
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge.
Report and Recommendations addresses the Motion for Default
Judgment filed by Plaintiffs, International Painters and
Allied Trades Industry Pension Fund (“Fund” or
“Pension Fund”), Tim D. Maitland
(“Maitland”), Finishing Trades Institute
(“FTI”), Political Action Together Fund
(“PAT Fund”), and Painters and Allied Trades
Labor Management Cooperation Initiative (“LMCI”)
(collectively, “Plaintiffs” or
“Funds”) against Defendant K&K Painting, Inc.
(“Defendant”), ECF 11. Defendant did not file an
opposition, and the deadline to do so has now passed.
See Loc. R. 105.2.a (D. Md. 2018). On August 27,
2019, in accordance with 28 U.S.C. § 636 and Local Rules
301 and 302, Judge Hollander referred this case to me to
review Plaintiffs' motion and to make recommendations
concerning damages. ECF 12. I have reviewed Plaintiffs'
motion and accompanying attachments. No hearing is necessary.
See Loc. R. 105.6. For the reasons discussed below,
I respectfully recommend that Plaintiffs' Motion for
Default Judgment be GRANTED, and that damages be awarded as
set forth herein.
November 2, 2018, Plaintiffs filed a Complaint in this Court
alleging that Defendant failed to make contributions required
under the Employee Retirement Income Security Act of 1974
(“ERISA”) and governing contracts. Specifically,
Plaintiffs allege that Defendant employed members of local
labor unions or district councils affiliated with the
International Union of Painters and Allied Trades (“the
Union”) and agreed to abide by a Collective Bargaining
Agreement (“CBA”). Compl. ¶ 17. The CBA,
along with the Agreement and Declaration of Trust of the Fund
(“Trust Agreement”), established and maintained
the Pension Fund. Id. ¶¶ 17-18. The
Pension Fund and Maitland are authorized collection
fiduciaries and agents for the International Painters and
Allied Trades Industry Pension Plan and the International
Painters and Allied Trades Industry Annuity Plan, each of
which is a “multiemployer plan, ” “employee
benefit plan, ” and “employee benefit pension
plan” as defined by ERISA. Id. ¶¶
5-8. The Pension Fund and Maitland are also authorized
collection fiduciaries and agents for the LMCI, an entity
that performs certain employer association functions, and for
the FTI and PAT Fund. Id. ¶¶ 7, 10, 12.
corporate employer utilizing Union employees, Defendant
agreed to abide by the terms of the CBA and the Trust
Agreement. Id. ¶¶ 17-18. Those obligations
included (1) making full and timely payment on a monthly
basis to the Funds as required by the CBA, Trust Agreement,
and plan documents; (2) filing monthly remittance reports
with the Pension Fund detailing all the employees or work for
which contributions were required under the CBA; (3)
producing books and records for an audit upon the Funds'
request; and (4) paying liquidated damages, interest, audit
costs, and litigation costs, including attorneys' fees,
the Funds expended in collecting amounts due as a result of
Defendant's failure to comply with its contractual and
statutory obligations. Id. ¶ 19.
February 9, 2018, the Funds completed an audit of
Defendant's books and records from January 1, 2015,
through October 31, 2017. Id. ¶¶ 22-23. On
November 2, 2019, Plaintiffs filed a Complaint alleging that
Defendant failed to pay amounts due under the CBA in at least
the sum of $257, 690.36. Id. ¶ 20. The
Complaint requests the sum certain amount
plus any additional amounts which may become due during the
pendency of this lawsuit, together with interest, at the
rate(s) prescribed by 26 U.S.C. § 6621 from the due date
for payment until the date of actual payment, liquidated
damages equal to the greater of the interest on the unpaid
contributions or liquidated damages provided by the documents
governing the ERISA Funds or statute, the cost of any audit
and reasonable attorneys' fees and costs incurred in this
action or the collection or enforcement of any judgment all
as provided under the Trust Agreements, plan documents of the
ERISA Funds, and 29 U.S.C. § 1132(g)(2).
Id. ¶ 22(1). The Complaint also seeks damages
for the contributions found due and owing by the audit,
together with interest at the rate(s) prescribed by 26 U.S.C.
§ 6621 from the due date for payment until the date of
actual payment, liquidated damages equal to the greater of
the interest on the unpaid contributions or liquidated
damages provided by the plan document(s) or statute(s), the
cost of the audit, and reasonable attorneys' fees and
costs incurred in this action and in connection with any
proceedings to enforce or collect any judgment all as
provided under the Trust Agreements, Plan and 29 U.S.C.
Id. ¶ 29(1). The Complaint further requests
injunctive relief. Id. ¶¶ 26-29.
was served with the summons and Complaint on November 29,
2018. ECF 5. After Defendant failed to file an Answer or
otherwise defend, Plaintiffs filed a Motion for Entry of
Default, ECF 6, on January 22, 2019, which the clerk granted
on January 23, 2019, ECF 7. Plaintiffs thereafter filed a
Motion for Judgment by Default, ECF 11, on May 1, 2019,
seeking a total award of $271, 830.66. In support of their
motion, Plaintiffs attached the Affidavit of Michael
O'Malley, the Delinquency Manager of the Pension Fund,
ECF 11-5, and the Affidavit of Counsel, James E. Goodley,
Esq., ECF 11-10. Mr. O'Malley's affidavit alleged
that, as of February 9, 2018, Defendant owed the Pension Fund
$180, 408.69 in contributions, $17, 298.09 in interest, $36,
081.73 in liquidated damages, and $3, 516.65 in audit costs;
owed LMCI $7, 511.04 in contributions, $832.00 in interest,
$1, 502.71 in liquidated damages, and $29.44 in audit costs;
owed FTI $7, 974.15 in contributions, $868.09 in interest,
$1, 595.33 in liquidated damages, and $29.44 in audit costs;
and owed the PAT Fund $3, 987.17 in contributions, $434.06 in
interest, $796.43 in liquidated damages, and $14.72 in audit
costs. Pl. Mot., Ex. 1, ¶ 8. Mr. Goodley's affidavit
supported a request for attorneys' fees and costs in the
amount of $8, 920.92. ECF 11-10.
STANDARD FOR DEFAULT JUDGMENT
reviewing Plaintiffs' Motion for Judgment by Default, the
Court accepts as true the well-pleaded factual allegations in
the complaint as to liability. Ryan v. Homecomings Fin.
Network, 253 F.3d 778, 780 (4th Cir. 2001). It, however,
remains for the Court to determine whether these unchallenged
factual allegations constitute a legitimate cause of action.
Id. at 780-81; see also 10A Wright, Miller
& Kane, Federal Practice and Procedure § 2688 (3d
ed. Supp. 2010) (“[L]iability is not deemed established
simply because of the default . . . and the court, in its
discretion, may require some proof of the facts that must be
established in order to determine liability.”).
Court determines that liability is established, it must then
determine the appropriate amount of damages. Ryan,
253 F.3d at 780-81. The court does not accept factual
allegations regarding damages as true, but rather must make
an independent determination regarding such allegations.
See Credit Lyonnais Sec. (USA), Inc. v. Alcantara,
183 F.3d 151, 155 (2d Cir. 1999). In so doing, the Court may
conduct an evidentiary hearing. Fed.R.Civ.P. 55(b)(2). The
court may also make a determination of damages without a
hearing so long as there is an adequate evidentiary basis in
the record for an award. See Adkins v. Teseo, 180
F.Supp.2d 15, 17 (D.D.C. 2001) (“The court need not
make this determination [of damages] through a hearing,
however. Rather, the court may rely on detailed affidavits or
documentary evidence to determine the appropriate
sum.”); see also Trs. of the Nat'l Asbestos
Workers Pension Fund v. Ideal Insulation, Inc., Civil
No. ELH-11-832, 2011 WL 5151067, at *4 (D. Md. Oct. 27, 2011)
(determining that, in a case of default judgment against an
employer, “the Court may award damages without a
hearing if the record supports the damages requested”);
Pentech Fin. Servs., Inc. v. Old Dominion Saw Works,
Inc., Civ. No. 6:09cv00004, 2009 WL 1872535, at *2 (W.D.
Va. June 30, 2009) (concluding that there was “no need
to convene a formal evidentiary hearing on the issue of
damages” after default judgment where plaintiff