IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

TRUSTEES OF THE NATIONAL ELEVATOR : 

INDUSTRY PENSION, HEALTH BENEFIT, : 

AND EDUCATIONAL FUNDS, : 

 : 

 Plaintiffs, : 

 : 

 : 

 v. : CIVIL ACTION NO. 02-4351 

 : 

 : 

AL'AN EL MAINTENANCE CORP. : 

 : 

 Defendant. : 

MOTION FOR ENTRY OF JUDGMENT BY DEFAULT

 

 On June 28, 2002, NEI Trust Funds filed this action against Al'An El Maintenance Corp. to 

recover contributions and interest due the Plaintiffs’ employee benefit Trust Funds. Defendant was 

served with the Summons and Complaint on July 16, 2002. Defendant has not made an appearance 

in this case. On or about August 9, 2002, the Clerk of Court entered a Default against Al'An El 

Maintenance Corp. 

 NEI Trust Funds file this Motion for Entry of Judgment by Default pursuant to Rule 

55(b)(1) of the Federal Rules of Civil Procedure. The specific amount of damages has been 

determined as set forth in the attached Memorandum in Support of Motion for Entry of Judgment. 

 NEI Trust Funds respectfully request that the Court enter Judgment in favor of the NEI 

Trust Funds in the amount of $111,127.49 in contributions due the Trust Funds, and $22,225.49 in 

liquidated damages, and interest due in the amount of $2,646.24, plus costs and attorney's fees, 

pursuant to 29 U.S.C. §1132(g). 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 1 of 14
 Respectfully submitted, 

DATE: August 13, 2002 O'DONOGHUE & O'DONOGHUE 

 Constitution Place, Suite 515 

 325 Chestnut Street 

 Philadelphia, PA 19106 

 Telephone (215) 629-4970 

 Facsimile (215) 629-4996 

 

 By: ______________________ 

 Robert P. Curley 

 Attorney I.D. No. 55760 

By: ______________________ 

 David D. Capuano 

 Attorney I.D. No. 70238 

 

 Attorneys for Plaintiffs 

 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 2 of 14
CERTIFICATE OF SERVICE

 I hereby certify that a copy of the foregoing Motion for Entry of Judgment by Default and 

Memorandum in Support of Motion for Entry of Judgment by Default, Motion for Attorney's Fees 

and Costs and Memorandum in Support of Motion for Attorney’s Fees and Costs and Affidavit in 

Support of Motion for Attorney’s Fees and Costs was sent by first class mail, postage prepaid, this 

13th day of August, 2002 to: 

 Al'An El Maintenance Corp. 

 2368 Westchester Avenue 

 Bronx, NY 10462-5008 

 ______________________ 

 Robert P. Curley 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 3 of 14
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TRUSTEES OF THE NATIONAL ELEVATOR : 

INDUSTRY PENSION, HEALTH BENEFIT, : 

AND EDUCATIONAL FUNDS, : 

 : 

 Plaintiffs, : 

 : 

 : 

 v. : CIVIL ACTION NO. 02-4351 

 : 

 : 

AL'AN EL MAINTENANCE CORP. : 

 : 

 Defendant. : 

MEMORANDUM IN SUPPORT OF 

MOTION FOR ENTRY OF JUDGMENT

 Plaintiffs are the Trustees of the National Elevator Industry Pension, Health Benefit and 

Educational Funds (the "Trust Funds"). The Trust Funds are third party beneficiaries to the 

Collective Bargaining Agreement (the "Agreement") between the International Union of Elevator 

Constructors (the "Union") and Al'An El Maintenance Corp. (the "Defendant"). Pursuant to the 

Collective Bargaining Agreement, the Defendant is obligated to file monthly reporting forms with 

the Trustees indicating the number of hours worked by its employees who are elevator constructor 

mechanics and helpers covered by the Agreement. Along with these reporting forms the Defendant 

is required to submit contributions corresponding to the total number of hours worked by the 

Defendant's covered employees. These contributions finance the Trust Funds and provide pension, 

medical and educational benefits to the Defendant's elevator constructor mechanics and helpers. 

 The Plaintiff Trustees filed this action on June 28, 2002 to collect contributions due the 

Trust Funds from the Defendant. 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 4 of 14
 The Defendant filed the monthly report forms for the months of April 2002 through and 

including June 2002 indicating the exact amount of contributions due, as required by the 

Agreement, but has failed to pay the proper corresponding contributions. The specific reports and 

an explanation for the amounts owed has been determined as set forth in the attached Affidavit of 

Robert Milano of the NEI Trust Funds. (See Exhibit “A”). 

 Accordingly, the Defendant is obligated to the Trust Funds for the following: 

 1. Defendant is obligated to the Plaintiffs in the amount of $111,127.49 in monthly 

contributions. This amount differs from the amount set forth in the Complaint due to Defendant's 

continuing failure to make proper and timely contributions to the Funds. 

 2. Defendant is obligated to the Plaintiffs in the amount of $22,225.49 in liquidated 

damages pursuant to the terms of the Agreements and Declarations of Trust of the Trust Funds, and 

pursuant to 29 U.S.C. §1132(g)(2)(C)(ii). This sum is 20% of the above monthly contributions due. 

 3. Pursuant to the terms of the Agreements and Declarations of Trust of the Trust 

Funds, and pursuant to 29 U.S.C. §1132(g)(2)(B), the Defendant is obligated to the Trust Funds for 

interest on delinquent contributions. These interest charges are calculated on the sixteenth of the 

month and are assessed one-month in advance on all unpaid items as of the fifteenth. Moreover, 

these interest charges are calculated at the Internal Revenue Service rate in effect during each 

month that a delinquency exists and will be calculated on the outstanding balance on the fifteenth of 

each month whether the balance is comprised of either principal, interest or both. The Internal 

Revenue Service rate in effect for the months of January 2002 through and including May 2002 was 

nine percent (9%). Accordingly, Defendant is obligated to the Trust Funds in the amount of 

$2,646.24 in interest for the aforementioned months. 

 4. Pursuant to the terms of the Agreements and Declarations of Trust of the Trust 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 5 of 14
Funds, and pursuant to 29 U.S.C. §1132(g)(2)(D), Defendant is obligated to the Trust Funds for all 

attorney's fees and costs associated with the cost of collection, as described in the attached Motion 

for Attorney's Fees and Costs. Defendant is obligated to the Trust Funds in the amount of 

$1,230.20 in attorney's fees and costs. 

 The Defendant is obligated to the Plaintiff Trust Funds in the amount of $137,229.42 in 

contributions, interest, liquidated damages, costs and attorney's fees. 

 Respectfully submitted, 

DATE: August 13, 2002 O'DONOGHUE & O'DONOGHUE 

 Constitution Place, Suite 515 

 325 Chestnut Street 

 Philadelphia, PA 19106 

 Telephone (215) 629-4970 

 Facsimile (215) 629-4996 

 By: 

 Robert P. Curley 

 Attorney I.D. No. 55760 

 

 By: _________________________ 

 David D. Capuano 

 Attorney I.D. No. 70238 

 Attorneys for Plaintiffs 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 6 of 14
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TRUSTEES OF THE NATIONAL ELEVATOR : 

INDUSTRY PENSION, HEALTH BENEFIT, : 

AND EDUCATIONAL FUNDS, : 

 : 

 Plaintiffs, : 

 : 

 v. : CIVIL ACTION NO. 02-4351 

 : 

AL'AN EL MAINTENANCE CORP. : 

 : 

 Defendant. : 

PLAINTIFFS' MOTION FOR ATTORNEY'S FEES AND COSTS

 Pursuant to Section 502(g)(2)(D) of the Employee Retirement Income Security Act of 1974, 

(as amended) (ERISA), 29 U.S.C. §1132(g)(2)(D), Plaintiffs respectfully request the award of their 

attorney's fees and costs incurred in this action. 

 The legal basis for this claim and the exact amounts claimed are set forth in the attached 

Memorandum and Statement of Attorney's Fees and Costs. 

 Respectfully submitted, 

DATE: August 13, 2002 O'DONOGHUE & O'DONOGHUE

 Constitution Place, Suite 515 

 325 Chestnut Street 

 Philadelphia, PA 19106 

 Telephone (215) 629-4970 

 Facsimile (215) 629-4996 

 By: 

 Robert P. Curley 

 Attorney I.D. No. 55760 

 By: _________________________ 

 David D. Capuano 

 Attorney I.D. No. 70238 

 Attorneys for Plaintiffs 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 7 of 14
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TRUSTEES OF THE NATIONAL ELEVATOR : 

INDUSTRY PENSION, HEALTH BENEFIT, : 

AND EDUCATIONAL FUNDS, : 

 : 

 Plaintiffs, : 

 : 

 : 

 v. : CIVIL ACTION NO. 02-4351 

 : 

 : 

AL'AN EL MAINTENANCE CORP. : 

 : 

 Defendant. : 

 

AFFIDAVIT IN SUPPORT OF 

PLAINTIFFS' MOTION FOR ATTORNEY'S FEES AND COSTS

 I, Robert P. Curley, counsel of record for Plaintiffs, Trustees of the National Elevator 

Industry Pension, Health Benefit and Educational Funds (hereinafter “NEI Funds”), hereby certify, 

declare and verify under penalty of perjury pursuant to 28 U.S.C. Section 1746 this 13th day of 

August, 2002, the following: 

 1. That I am an attorney with the law firm of O’Donoghue & O’Donoghue, the 

counsel of record for the Plaintiffs. 

 2. That I am familiar with the Collective Bargaining Agreement between the 

Defendant, Al'An El Maintenance Corp. and Local 1 and the Agreements and Declarations of Trust 

establishing the NEI Funds. 

 3. That pursuant to the Collective Bargaining Agreement and Agreements and 

Declarations of Trust, the Defendant agreed to pay the NEI Funds certain sums of money for each 

hour worked by all employees of Defendant covered by the Collective Bargaining Agreement. 

 4. The Agreements and Declarations of Trust establishing the NEI Funds provide that 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 8 of 14
an Employer who fails to pay the amounts required by the Collective Bargaining Agreement on 

time shall be obligated to pay interest at the rate currently charged by the Internal Revenue Service 

from five days after the date of delinquency of the date of payment and liquidated damages of 20%, 

as well as all necessary costs of collection incurred by the Funds, including, but not limited to, 

reasonable attorneys’ fees and court costs. Defendant is bound to the Agreements and Declarations 

of Trust. 

 5. That the firm expended 9.00 hours in the above captioned case on behalf of 

Plaintiffs (see Exhibit “A”). 

 6. That the amount of time expended within the usual and customary time spent by an 

attorney of this type of case. 

 7. O’Donoghue & O’Donoghue has negotiated a fee of $170.00 per hour (attorney 

time) and $95.00 per hour (paralegal time) with its client, the Trustees of the National Elevator 

Industry Pension, Health Benefit and Educational Funds for the performance of this type of legal 

representation. We believe that this hourly fee is below the usual and customary fee charged for 

this type of work. 

 8. I further affirm that the following costs were expended on behalf of the Plaintiffs in 

this case. 

 Copies - $5.00 

 Postage - $12.70 

 Special Process Server - $95.00 

 Filing Fee - $150.00 

 $262.70 

 Total Costs - $262.70 

 Attorney’s Fees - $967.50

 $1,230.20 

 9. Plaintiffs’ counsel respectfully requests the Court to grant Plaintiffs attorney’s fees 

and costs in the amount of $1,230.20. 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 9 of 14
 

 Respectfully submitted, 

DATE: August 13, 2002 O’DONOGHUE & O’DONOGHUE 

 Constitution Place, Suite 515 

 325 Chestnut Street 

 Philadelphia, PA 19106 

 Telephone (215) 629-4970 

 Facsimile (215) 629-4996 

 By: ________________________ 

 Robert P. Curley 

 Attorney I.D. No. 55760 

 

 Attorneys for Plaintiff 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 10 of 14
 IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

TRUSTEES OF THE NATIONAL ELEVATOR : 

INDUSTRY PENSION, HEALTH BENEFIT, : 

AND EDUCATIONAL FUNDS, : 

 : 

 Plaintiffs, : 

 : 

 : 

 v. : CIVIL ACTION NO. 02-4351 

 : 

 : 

AL'AN EL MAINTENANCE CORP. : 

 : 

 Defendant. : 

MEMORANDUM IN SUPPORT OF 

PLAINTIFFS' MOTION FOR ATTORNEY'S FEES AND COSTS

 NEI Trust Funds' request for attorney's fees and costs is filed pursuant to Section 

502(g)(2)(D) of the Employee Retirement Income Security Act of 1974, as amended, (ERISA) 29 

U.S.C §1132(g)(2)(D), which provides: 

 In any action under this subchapter by a fiduciary for or on behalf of a plan to 

enforce section 1145 of this Title in which a judgment in favor of the plan is awarded, the 

court shall award the plan - 

 (D) reasonable attorney's fees and costs of the action, to 

be paid by the defendant, and ... 

In Teamsters Local 115 Pension Plan v. Yahn & McDonnell, Inc., 787 F.2d 128, 133 (3rd Cir. 

1986), the Court stated "[b]ecause of the clear language of the statute [referring to ERISA Section 

502(g)(2)], we join the Second, Fifth and Ninth Circuits in holding that in successful actions for 

delinquent payments, 'attorney's fees are no longer discretionary'" citing, Operating Engineers 

Pension Trust v. Reed, 726 F. 2d 513, 514 (9th Cir. 1984); accord, O'Hare v. General Marine 

Transport Corp., 740 F.2d 160, 171 (2nd Cir. 1984); Carpenters Amended and Restated Health 

Benefit Fund v. John W. Ryan Construction Co., Inc., 767 F.2d 1170 (5th Cir. 1985). 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 11 of 14
 Based on the foregoing, NEI Trust Funds respectfully request an award of their attorney's 

fees and costs incurred in this action in the amount set forth in their counsel's statement. 

 

 

 Respectfully submitted, 

DATE: August 13, 2002 

 O'DONOGHUE & O'DONOGHUE 

 Constitution Place, Suite 515 

 325 Chestnut Street 

 Philadelphia, PA 19106 

 Telephone (215) 629-4970 

 Facsimile (215) 629-4996 

 By: 

 Robert P. Curley 

 Attorney I.D. No. 55760 

 By: _________________________ 

 David D. Capuano 

 Attorney I.D. No. 70238 

 Attorneys for Plaintiffs 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 12 of 14
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TRUSTEES OF THE NATIONAL ELEVATOR : 

INDUSTRY PENSION, HEALTH BENEFIT, : 

AND EDUCATIONAL FUNDS, : 

 : 

 Plaintiffs, : 

 : 

 : 

 v. : CIVIL ACTION NO. 02-4351 

 : 

 : 

AL'AN EL MAINTENANCE CORP. : 

 : 

 Defendant. : 

JUDGMENT

 In consideration of Plaintiffs' Motion for Judgment by Default and Memorandum in 

Support; Motion for Attorney's Fees and Costs and Memorandum and Statement in Support, and 

good cause having been shown, it is this ____ day of ________________________, 2002; 

 ORDERED that both Motions are granted and Judgment is entered in favor of the Plaintiffs' 

for the following obligations and amounts: 

 Contributions Owed for the months of 

 4/02-6/02 $111,127.49 

 Liquidated Damages $22,225.49 

 Interest $2,646.24 

 Attorney's Fees $967.50 

 Costs $262.70

 Total $137,229.42 

JUDGMENT is hereby entered against the Defendant in the amount of $137,229.42. 

 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 13 of 14
 

 James T. Giles , J. 

Case 2:02-cv-04351-JG Document 4 Filed 08/13/2002 Page 14 of 14