UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

J AMES BOLAND, et al.

Plaintiffs,
v. L ORI NG & SON MASONRY RESTORATI ON, I

NC., Def endant. )

) ) ) ) ) ) ) ) ) ) ) Civil Number 1:11-c v-1766 (AB J )(AK)

MEMORAN DUM OP INION Pending be fore the Court is an Amende d Motion for Def ault J udg ment [11] by

Plaintiffs, J ames B oland, et al. (“Plaintiffs”) , trustees of the Br icklayers a nd Trowe l Trade s International Pension Fund (“ I PF”) . Plaintiffs seek dama g es for withdrawa l liabilit y

pay ments, interest and liquidated damag es fr om Defe ndant L oringand Son Masonry Restoration, Inc. (“ Def

endant” or “L oring ”) unde r the Employ ee Re tirement Investment Securities Ac t (“ERI SA”). On F ebrua ry 23, 2012, the Clerk of Court made an Entry of De fault as to L oring[7] . Plaintiffs filed a Motion for De fault Judgment on Marc h 22, 2012 [8] and the Motion was r efe rre d to the undersig ned pursuant to L CvR 72.2(a) [10] . Plaintiffs filed the Amende d Motion on March 27, 2012. An evidentiar y hear ing w as held on Apr il 30, 2012, at which Plaintiffs offe red e vidence from Peter Robert Har dcastle, a

n enrolled a ctuar

y for I PF. Def

endant did not appe ar at the hear ing. I. BACKG ROUND L oringis a Connecticut building a nd construction compa

ny that employ ed member s of the B ricklayers a

nd Trowe l Trade s I nternational Union local af filiates and e x ecute d a collec tivebarg ainingag ree ment with the Union. (De cl. of Da vid F. Stupar [11-1] at 1-2.) Pursuant to the barg ainingag ree ment, L oringwas oblig ated to make contributions to I PF to fund the be nefits provided to employ ees. ( Id. at 1.) L oringcea sed makingits required c ontributions, and in 2009, I PF deter mined that L oringhad withdra wn from the F und. (

Id. at 2-3). See29 U.S.C. § 1383(b). Plaintiffs seek $41,159.97 in damag es, of whic h $32,551.75 is in withdrawal liability , $2,097.87 in interest and $6,510.35 in liquidated dama g es. II. DISCUSS ION A. Standard f

or De fau lt Judgme nt The c lerk of c ourt must enter a defa ult “[w] hen a pa

rty ag ainst whom a judg ment for aff irmative re lief is soug ht has failed to plea d or otherw ise defe nd, and that fa ilure is shown by aff idavit or otherwise .” F ed. R. Civ. P. 55(a). Where the plaintiff’s cla im is not for a sum
cer tain, the par

ty must apply

to the court for

a def ault judgme nt. Fed. R. Civ. P. 55(b). “The deter mination of whether

defa ult judgment is appropr iate is committed to the discretion of the trial court.” Int’l Painters &Allied Trades Indus. Pension Fund v. Aux ier Drywall, LL C , 531 F. Supp. 2d 56, 57 (D.D.C. 2008) (c iting Jack son v. Bee ch , 636 F.2d 831, 836 ( D.C. Cir. 1980)). The standa

rd for defa ult judgment is satisfied whe re the defe ndant makes no r equest to set aside the def ault and no sug g estion that it has a meritorious def ense. J.D. Holdings, LLC v. BD Ventures, LLC , 766 F. Supp. 2d 109, 113 (D.D .C. 2011). Upon entry

of def ault by the cler k of the c ourt, the “de faultingdefe ndant is deeme d to admit ever

y well-plea ded alleg ation in the complaint.” U.S. v. Be ntley , 756 F. Supp. 2d 1, 3 (D.D.C. 2010). The court must then make a deter mination of the sum to be awa rded. Id. “The

2court may

rely on detailed a ffidavits or doc umentary evidenc e to deter

mine the appr opriate sum for the de fault judg ment.” Id. Under ERI SA, a pension fund whic h has obtained liability ag ainst a delinquent e mploy er may seek da mag es of ( 1) the unpa id contributions, (2) intere st on the unpaid contributions; (3) liquidated damag es as pr ovided in the pension plan but not exceeding20 perc ent of the unpa id contributions; (4) re asonable attorney s fee s and costs; and (5) other leg al or e quitable re lief that the cour t finds appropriate. 29 U.S.C. § 1132(g )(2)
. B. Dam ages Upon L oring ’s withdraw al, I PF ca lculated L oring ’s withdraw al liability and notified L oring
. See 29 U.S.C. § 1399. Accordingto I PF, L oring ’s withdraw al liability totaled $231,387. (Attac hment 2 to Ex hibit A of Stupar Dec l.) See 29 U.S.C. § 1391. According ly , L oringwas require d to pay

$2,959.25 per month for

101 months plus a final pay ment of $1,576.04. (Attac hment 2 to Ex hibit A of Stupar Dec l.) L oringmade the f irst pay ment but no further pay ments. (Stupar De cl. at 3.) This fir st pay ment was not a c ontribution to I PF, but rathe r a pay ment of withdraw al liability . 29 U.S.C. § 1392(b). Def endant noted a

desire to e ng ag e in ar

bitration with Pl aintiffs as a llowed under ERI SA. (Stupar De cl. at 4.) Plaintiffs stated at the hear ing tha t Defe ndant has take n no action to pursue arbitration after e x pressingthis desire. Even if Def endant we re to initiate ar

bitration proce eding s, it would sti ll be responsible for complying w ith the pay

ment schedule for withdrawa l liabilit y

until the arbitrator issued a final opinion. (Withdrawal L iability Procedur es of I PF [11-1] at I I I .F.)

3Plaintiffs’ suit seeks damag es for eleve n pay

ments following the one paid by Def endant, totaling $32,551.75. Plaintiffs see k $2,097.87 in interest, as provide d in 29 U.S.C. § 1132(g )(2) (C)(i), c alculate d at 15 per cent pe r annum, the r ate e stablished in the Gene ral Collection Procedure s of the Centra l Coll ection Unit of the B ricklayers a nd Allied Craftwor

kers. (Attac hment 3 to Ex hibit A of Stupar Dec l. at 23.) F inally , Plaintiffs seek liquidated dama g es of 20% of the de linquent amount, pursuant to 29 U.S.C. §1132(g) (2)( C)(ii) and e stablished in the same Ge nera l Coll ection Proce dures. Plaintiffs re quest $6,510.35 in liquidated damag es. ( Id. ) The total soug ht is $41,159.97. The Clerk of

Court’s Entry

of De fault as to De fenda nt established Def

endant’ s liabilit y . Def endant of fer ed no evide nce pr ior to or at the e videntiary hear ing disputingthe sum to be
awa rded a nd Plaintiffs offer ed suff

icient evidenc e in support of their r equest. III. CONCLUSION For the fore g oing r easons, the Court g rants Plaintiffs’ Motion for De fault Judgment [8] , awa rds damag es totaling $41,159.97. A sepa rate Orde r of judg ment will accompa ny this Opinion.

Date: Ma y 1, 2012 /s/ ALAN KAY UNI TED STATES MAGI STRATE J UDGE

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