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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BOARD OF TRUSTEES OF THE SAN

MATEO HOTEL EMPLOYEES, et

al.,

Plaintiff(s),

v.

LADY LUCK GOURMET LLC, a

Limited Liability Co., dba

GO BISTRO,

Defendant(s).

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No. C09-1544 BZ 

REPORT AND RECOMMENDATION

Before me is plaintiffs’ Motion for Default Judgment

(“Motion”) against defendant Lady Luck Gourmet (“defendant”). 

Defendant has never appeared in this action and did not

respond to plaintiffs’ motion. As defendant has not consented

to my jurisdiction, the following is a report and

recommendation for entry of default judgment.

On April 16, 2009, plaintiffs filed an amended complaint

under Section 301(c)(1) of the National Labor Relations Act of

1947 (“NLRA”), 29 U.S.C. § 185(a), and Section 502 of the

Employee Retirement Income Security Act of 1974 (“ERISA”), 29

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U.S.C. § 1132, alleging that defendant violated a collective

bargaining agreement and certain Trust Agreements that

required defendant to make regular contributions to the San

Mateo Hotel and Restaurant Employees Welfare and Pension Funds

(“Trust Funds”), of which plaintiffs are trustees. First

Amended Compl. ¶¶ 2, 5. According to the complaint, these

agreements obligate defendant to make regular contributions

for all hours worked by its employees who are covered by the

Trust Funds. Compl. ¶¶ 5, 6. The complaint seeks damages for

unpaid contributions, liquidated damages, interest, attorneys’

fees, costs, and injunctive relief. Compl. Prayer ¶¶ 1, 2.

Plaintiffs effected service on April 29, 2009. Doc. No.

27-1 at 1. Defendant failed to answer the complaint or

otherwise defend the action. On September 1, 2009, upon

plaintiffs’ request, the Clerk of this court entered

defendant’s default under Rule 55(a). Doc. No. 17. By its

default, defendant is deemed to have admitted the well-pleaded

arguments of the complaint except those as to the amount of

damages. See Fed. R. Civ. P. 8(d). 

A court may not enter default judgment against an

unrepresented minor, an incompetent person, or a person in

military service. See Fed. R. Civ. P. 55(b)(2); 50 App.

U.S.C. § 521. As a limited liability company (LLC), this

requirement does not apply to Lady Luck Gourmet. Compl. ¶ 3. 

Pursuant to Rule 55(b)(2), the court may enter a default

judgment against a party against whom default has been

entered. The decision to grant or deny a default judgment

under Rule 55(b) is within the discretion of the Court. Eitel

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v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). A formal

hearing is not required for a court to render a default

judgment. Davis v. Fendler, 650 F.2d 1154 (9th Cir. 1981). 

Section 1132(g) of ERISA provides that in an action to

enforce payment of delinquent contributions: 

the court shall award the plan - 

(A) the unpaid contributions,

(B) interest on the unpaid contributions,

(C) an amount equal to the greater of - 

(i) interest on the unpaid contributions, or

(ii) liquidated damages provided for under the

plan in an amount not in excess of 20 percent 

. . . of the amount determined by the court

under subparagraph (A),

(D) reasonable attorney’s fees and costs

29 U.S.C. § 1132(g)(2). A plaintiff is entitled to a

mandatory award under 1132(g)(2) if the following requirements

are satisfied: (1) the employer is delinquent at the time the

action is filed; (2) the district court enters a judgment

against the employer; and (3) the plan provides for such an

award. Plumbers & Pipefitters Nat’l Pension Fund v. Eldridge,

232 Fed. Appx. 680, 683 (9th Cir. 2007). Plaintiffs have

shown that defendant was delinquent at the time the action was

filed. I recommend that judgment be entered in favor of the

plaintiffs. Further, the San Mateo Hotel Employees and

Restaurant Employees Welfare and Pension Funds Declaration of

Trust (“Trust Agreement”) provides for such an award. 

Accordingly, plaintiffs are entitled to an award under section

1132(g). See Iron Workers Dist. Council of Western NY and

Vicinity Welfare and Pension Funds v. Hudson Steel Fabricators

& Erectors, Inc., 68 F.3d 1502, 1507 (2d Cir. 1995).

Plaintiffs have the burden of proving damages and have

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1 The amounts in the logs total approximately $20.00

more than plaintiffs are claiming, but this appears to be error

on the part of defendant’s employee. 

2 F.R. Civ. P. 54(c) states that “[a] default judgment

must not differ in kind from, or exceed in amount, what is

demanded in the pleadings.” 

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submitted a declaration from Pam Barrett, Administrator of the

Trust Funds. See Declaration of Pam Barrett in Support of

plaintiffs’ Motion for Default Judgment (“Barrett Decl.”) ¶ 1. 

Plaintiffs seek delinquent contributions totaling $94,784.29. 

Barrett Decl. ¶ 9. Plaintiffs have established that defendant

failed to make timely contributions for the months of

February, October, November, and December, 2009, and submitted

time logs in support of their claim.1 Barrett Decl. ¶ 7, Ex.

4 and 5. Defendant has not challenged the proof of

delinquency. 

This motion seeks damages that differ from those in the

prayer of the First Amended Complaint, which demanded

contributions from December 2008 and January 2009, plus a past

due “rate increase” in the amount of $14,268.60. First

Amended Compl. ¶ 8. Plaintiffs have abandoned those demands

and now seek damages for contributions owed for February,

October, November, and December 2009. Barrett Decl. Ex. 4. 

Even though plaintiffs’ focus has shifted away from the

original request to these four specific months, they can still

recover these contributions. Other courts have considered

whether damages accrued after filing the complaint can be

awarded without running afoul of Rule 54(c), and have held

that they can.2

 See, e.g. Bd. of Trustees of the Sheet Metal

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Workers Local 104 Health Care Plan v. Total Air Balance Co.,

2009 WL 1704677 (N.D. Cal. June 17, 2009), at *3 (granting

default judgment and awarding liquidated damages that

“accumulated after the First Amended Complaint was filed” and

were “only prospectively described” in that Complaint). 

Plaintiffs’ complaint did assert that “additional amounts may

become due during the course of this litigation and in the

interest of judicial economy, recovery of said sums will be

sought.” First Amended Compl. ¶ 8. Defendant has been served

and is therefore “fully apprised of the scope of liability

sought,” including the future amounts referred to in the First

Amended Complaint. Board of Trustees of the Sheet Metal

Workers Local 104, 2009 WL 1704677 at * 5. I therefore

recommend that $94,784.29 in delinquent contributions be

awarded to plaintiffs. 

Plaintiffs seek interest of four percent on the

delinquent contributions. Under ERISA, plaintiffs may recover

interest based on the rate set by the Trust Agreement. See 29

U.S.C. § 1132(g)(2). The Trust Agreement states on page eight

that the employer “shall be liable to the trustees for . . .

contributions remaining unpaid together with interest thereon

until full payment is made.” Doc. No. 26, Ex. 2. There is

not an interest rate dictated in the agreement, so plaintiffs

base the four percent figure on 29 U.S.C. 1132(g) and the

current IRS rate. Barrett Decl. ¶ 9. 

The hearing in this case was held on March 17, 2010. 

Interest on the contribution amounts owed are as follows:

1. $18,862.20 was due on March 15, 2009; 367 days at the

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rate of 4% equals $759.69.

2. $25,239.86 was due on November 15, 2009; 122 days at

the rate of 4% equals $337.94.

3. $24,005.48 was due on December 15, 2009; 92 days at

the rate of 4% equals $241.96.

4. $26,676.75 was due on January 15, 2010; 61 days at the

rate of 4% equals $178.12. 

I therefore recommend that plaintiffs recover $1,517.71 in

interest for the unpaid contributions. 

Plaintiffs also seek $9,478.44 in liquidated damages, or

ten percent of the delinquent contributions. Barrett Decl.

Ex. 4. Liquidated damages are recoverable under ERISA, as

provided in the plan, in an amount not to exceed twenty

percent. See 29 U.S.C. § 1132(g)(2). Amendment 3 of the

Welfare Fund Trust Agreement provides for liquidated damages

equaling the greater of either ten percent of the amount owed

or twenty dollars per delinquency. Barrett Decl. Ex. 2. The

pension fund agreement contains similar language. Barrett

Decl. Ex. 3. I therefore recommend that plaintiffs recover

$9,478.44 in liquidated damages. 

Plaintiffs also seek $1,110 in attorneys’ fees and $740

in costs. Michael J. Carroll, plaintiffs’ counsel, in his

Declaration in Support of Motion for Default Judgment,

calculates that he spent in excess of six hours prosecuting

this action at a rate of $185.00 per hour. See Carroll Decl.

¶ 5. Mr. Carroll spent this time preparing the Complaint,

Motion for Entry of Default with Supporting Declaration, three

Subpoenas in a Civil Case and Notices of Taking Deposition of

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a Party Including Notice to Produce Documents, an Exparte

Application to Continue the Case Management Conference with

Supporting Declaration and Proposed Order, a Motion to Compel

Compliance with Subpoena with Supporting Declaration and

Proposed Order, and this motion. Id. This time was

reasonable and necessary to obtain a default judgment in his

client’s favor, and is therefore recoverable. See id. The

rate charged is also reasonable in relation to work performed. 

See id. Plaintiffs also incurred $740 in costs consisting of

filing fees and costs associated with service of process. 

Carroll Decl. ¶ 2. Based on the declaration submitted in

support of plaintiffs’ application, I find that these amounts

are reasonable and recommend that plaintiffs recover $1110 in

attorneys’ fees and $740 in costs. 

Finally, plaintiffs request that the Court enter a

limited judgment reserving their rights to audit defendant for

the periods prior to judgment and to collect by subsequent

legal action any sum found to be due after an audit. First

Amended Compl. Prayer ¶ 3. For the reasons cited in this

Court’s Report and Recommendation dated June 16, 2005, in

Board of Trustees of the Bay Area Roofers Health and Welfare

Trust Fund v. Ace Roofing Company, No. C04-3098 MJJ, I

recommend that plaintiffs’ request for entry of such a

judgment be denied. 

For the foregoing reasons, I recommend that Judgment be

entered in plaintiffs’ favor against Lady Luck Gourmet for

$107,630.44. This amount includes the unpaid contribution

amount of $94,784.29, as well as $9,478.44 in liquidated

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damages, $1,517.71 in interest on delinquent contributions,

$1,110 in attorneys’ fees and $740 in costs. 

Dated: March 17, 2010

 Bernard Zimmerman 

 United States Magistrate Judge

G:\BZALL\-BZCASES\BD. OF TRUSTEES V. LADY LUCK GOURMET\REPORT AND RECOMMENDATION ON

PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT.wpd

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