These two separate motions have apparently been docketed in a single entry. 1

 Defendant has not answered any of plaintiffs’ filings in this case, including the 2

complaint. Accordingly, I state the facts as culled from the affidavits and other documents filed

on plaintiffs’ behalf.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TRUSTEES OF THE NATIONAL

ELEVATOR INDUSTRY PENSION,

HEALTH BENEFIT, EDUCATIONAL

FUNDS, ELEVATOR

CONSTRUCTORS ANNUITY AND

401(K) RETIREMENT PLAN,

Plaintiffs,

v.

HUGHES ELEVATOR CAB CO., INC.,

Defendant.

CIVIL ACTION 

No. 05-3704

MEMORANDUM OPINION

Before the court are plaintiffs’ Motion for Entry of Final Judgment and Motion for

Attorney’s Fees and Costs. See Docket No. 29 (filed Feb. 4, 2009). To date, defendant 1

has filed no response to these motions. For the reasons that follow, I will grant the

plaintiffs’ motions by default.

I. FACTUAL BACKGROUND2

Plaintiffs are the trustees of multi-employer employee benefit plans – the National

Elevator Industry Pension, Health Benefit, Educational Funds, Elevator Constructors

Annuity and 401(k) Retirement Plan (“NEI Trust Funds”) – as that term is defined by the

Case 2:05-cv-03704-LP Document 33 Filed 08/13/09 Page 1 of 5
 The $13,319.50 sum accounts for the $250.00 filing fee; a $115.00 charge for “Special

3

Process Server”; and $12,954.50 in attorney’s fees. Curley Affidavit at ¶ 8. Curley has attached

to his affidavit a detailed report of the time and billing rate spent on this matter. O’Donoghue &

O’Donoghue billed plaintiffs at a rate of $95.00/hour for paralegal work and between

$175.00/hour and $215.00/hour for attorney work. Id. at ¶ 7.

2

Employee Retirement Income Security Act (“ERISA”), Pub. L. 93-406. Defendant

Hughes Elevator Cab Co., Inc. (“Hughes”) is a corporation transacting business in the

elevator industry. 

Plaintiffs and defendant entered into a collective bargaining agreement (the

“CBA”) establishing the terms and conditions of employment for defendant’s employees. 

Affidavit of Robert O. Betts, Jr. (“Betts Affidavit”) at ¶ 2 (Docket No. 29, filed February

4, 2009). Under the CBA, Hughes must file monthly reporting forms indicating the

number of hours worked by its employees and must then pay a corresponding contribution

to the NEI Trust Funds. Id. at ¶ 5. Hughes filed these monthly report forms, indicating

the exact amount of contributions due, during all the months between and including April

2004 and January 2005. Id. at ¶ 5; “Miscellaneous Assessment Report” (Docket No. 29

Exh. A, filed Feb. 4, 2009). However, Hughes failed to pay the reported charges, which

amount to §32,577.87. Betts Affidavit at ¶ 7.

Interest for the unpaid contributions, calculated on the outstanding balance on the

sixteenth of each month according to the Internal Revenue Service rate in effect during

each month that a delinquency exists, amounts to $11,205.69. Id. at ¶¶ 8-9. Pursuant to

the terms of the Agreements and Declarations of Trust of the NEI Trust Funds (the

“Agreements”), defendant is obligated to pay liquidated damages of 20% of the unpaid

monthly contributions, which amounts to $6,515.57. Id. at ¶ 10. Pursuant to those same

Agreements, defendant is obligated to pay all necessary costs incurred by the Funds,

including Attorneys’ fees. 

Plaintiffs’ attorney Robert Curley, a partner with the law firm of O’Donoghue &

O’Donoghue, has submitted an affidavit in support of plaintiffs’ attorney’s fees motion. 

See Curley Affidavit (Docket No. 29, filed Feb. 4, 2009). In that affidavit, Curley

declares that, in 63 hours of work, his firm incurred total costs of $13,319.50. Id. at ¶ 9.3

II. PROCEDURAL HISTORY

On February 1, 2006, I entered an order granting plaintiffs’ Praecipe for Entry of

Judgment By Default. See Docket No. 7. In that order, I directed Hughes to “fully

cooperate with Plaintiffs’ Auditor” and held that “Plaintiffs shall be entitled to receive

any delinquent contributions uncovered by the ensuing audit, as well as attorney’s fees,

liquidated damages and costs, pursuant to 29 U.S.C. § 1132(g).” Id. at 2. The parties

were instructed to “return to this court for entry of an order specifying the amount, if any,

to be paid by the Defendants to the Plaintiffs.” Id.

Case 2:05-cv-03704-LP Document 33 Filed 08/13/09 Page 2 of 5
 Plaintiffs’ motion also requests, in the alternative, a hearing to specify the amounts 4

owed. I am not inclined to conduct a hearing, however, because of the burden it would place on

defendant’s counsel, who, according to her affidavit, is apparently no longer being compensated

for her work on this matter. Moreover, insofar as the amounts requested by plaintiffs appear to

be well justified, and given defendant’s failure to participate in this court’s prior proceedings, a

hearing would serve little purpose.

3

On March 17, 2006, plaintiffs moved this court for an Order to Show Cause Why

Defendant Should Not be Held in Contempt of Court on the ground that defendant had

not complied with the auditor’s requests. See Docket No. 8. On January 30, 2007, I

entered the requested order to show cause. See Docket No. 9. At a hearing held on

March 13, 2008, I again directed defendant to comply with the audit, and the parties

stated agreement, on the record in open court, that the audit would be conducted on April

17, 2008 and April 23, 2008. 

Subsequent to that hearing, defendant’s counsel moved this court for permission to

withdraw as counsel for the defendant. See Docket No. 28 (filed November 19, 2008). In

a certification attached to that motion, defendant’s counsel Caren Litvin stated that she

had “repeatedly requested” that defendant comply with the auditor’s requests, but that

defendant “failed to respond” to Litvin’s requests to comply. See Certification of Caren

Litvin at ¶ 5.

Plaintiff’s auditor, meanwhile, has filed an affidavit with this court explaining that

his company “has attempted to conduct an [sic] payroll audit of Hughes Elevator” since

2004, but has been unable to because “Jennifer Hughes, the President of Hughes

Elevator[,] repeatedly refused to supply information to the Auditors.” Affidavit of Daniel

A. Winters ¶¶ 5-6 (Docket No. 30, filed July 1, 2009). 

In the motions now before this court, plaintiffs request that I enter a final

judgment in the amount of $32,577.87 in reported but unpaid benefit contributions, 4

$11,205.69 in interest due on the reported but unpaid benefit contributions, $6,515.57 in

liquidated damages, and $13,319.50 in attorney’s fees and costs.

III. LEGAL ANALYSIS

A party is in default when it “has failed to plead or otherwise defend.” Fed. R.

Civ. P. 55(a). Defendant Hughes has failed to answer plaintiffs’ complaint, to respond to

plaintiffs’ motion for a final judgment, and to comply with the court-ordered audit. 

To determine whether default judgment is an appropriate remedy, this court should

consider the six factors named in Poulis v. State Farm Fire & Cas. Ins. Co., 747 F.2d 863

(3d Cir.1984). Those factors are: (1) the extent of the party's personal responsibility for

failure to defend, (2) the extent of any prejudice to the adversary, (3) any history of

dilatoriness on the part of the defendant, (4) whether the attorney’s conduct was willful or

in bad faith, (5) whether alternative sanctions are adequate, and (6) whether the

Case 2:05-cv-03704-LP Document 33 Filed 08/13/09 Page 3 of 5
 Defendant only retained counsel as of March 3, 2008. See Docket No. 23. Counsel 5

promptly appeared at a status conference ten days later. Counsel filed a motion to withdraw on

November 19, 2008. See Docket No. 28. 

4

underlying claims or defenses appear to have merit. Poulis, 747 F.2d at 868-70. I

consider each of these factors in turn.

First, the record before this court suggests that Hughes is indeed personally

responsible for its failure to defend. Hughes’s counsel, Caren Litvin, has filed a motion

to withdraw as counsel for Hughes on the grounds that Hughes has neither heeded

counsel’s advice nor paid counsel’s fees. Hughes has not responded to Litvin’s motion. 

According to the auditor, Daniel A. Winters, Hughes has refused to cooperate with his

attempts to carry out the court-ordered audit. Accordingly, I conclude that Hughes – and

not Litvin – appears to be personally responsible for the failure to defend against

plaintiffs’ lawsuit and to comply with this court’s order.

Second, plaintiff has been greatly prejudiced by defendant’s failure to defend this

lawsuit and to comply with this court’s order. Defendant’s failure to defend has cost

plaintiffs a great deal of time, as this case has now lingered for almost four years. More

than 40 months have passed since I entered the initial default judgment in this case and

first ordered Hughes to comply with the audit. Moreover, Hughes’s noncompliance has

forced plaintiffs to seek an entry of final judgment without the benefit of an audit that

might have uncovered additional funds owed.

Third, defendant’s dilatoriness has been consistent throughout the course of this

lawsuit. Hughes has not made a single substantive filing in this matter. This court was

forced to reschedule defendant’s contempt hearing numerous times in order to

accommodate defendant.

There has been no evidence of willful conduct on the part of defendant’s counsel,

and it is apparent that the attorney-client relationship has broken down as a result of

defendant’s failure to engage in this litigation. Alternative sanctions, meanwhile, would 5

only prolong this lawsuit even further, which is neither fair to plaintiffs nor to this court. 

Finally, given the documentation of defendant’s unpaid contributions presented by

plaintiffs, it does not appear that Hughes has a viable defense to plaintiff’s claims. Any

monetary sanctions, thus, would only exacerbate the financial burden on the defendant. 

In sum, none of the Poulis factors weighs against entering judgment by default. 

Thus, for the foregoing reasons, and upon consideration of plaintiffs’ motions, I will enter

a final default judgment against Hughes and award plaintiffs reasonable attorney’s fees

and costs.

IV. AMOUNT OF JUDGMENT

Plaintiffs have brought suit to enforce defendant’s delinquent contribution

pursuant to 29 U.S.C. § 1132(g). See Plaintiff’s Motion for Entry of Final Judgment at p.

Case 2:05-cv-03704-LP Document 33 Filed 08/13/09 Page 4 of 5
5

3. 29 U.S.C. § 1132(g) provides:

Attorney's fees and costs; awards in actions involving delinquent contributions

(1) In any action under this subchapter (other than an action described in

paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its

discretion may allow a reasonable attorney's fee and costs of action to either

party.

(2) 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--

(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 (or such higher percentage as may be permitted under

Federal or State law) of the amount determined by the court under

subparagraph (A),

(D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and

(E) such other legal or equitable relief as the court deems appropriate. 

The amounts requested by plaintiffs appear to be accurately calculated. However,

plaintiffs have requested that this court award both interest on the unpaid contributions

and liquidated damages, rather than “an amount equal to the greater of” those two sums

as contemplated by § 1132(g)(2)(C). Although I am also free to award “such other legal

or equitable relief” as I deem appropriate according to § 1132(g)(2)(E), plaintiffs have

made no showing as to why I should depart from the clearer instruction provided by §

1132(g)(2)(C). Accordingly, I will award plaintiffs §32,577.87 in unpaid contributions,

$11,205.69 in interest on the unpaid contributions, and $13,319.50 in attorney’s fees and

costs. An appropriate order follows.

Case 2:05-cv-03704-LP Document 33 Filed 08/13/09 Page 5 of 5