MI CHAEL R. FANN I

NG, as Chief Ex ecutive O ffice r of the Ce ntral Pension Fund of the International Union of Oper ating Eng ineer s and ParticipatingEmploy ers, et al ., Plaintiffs,

v. BI G WARRI OR CORP ORATI ON, Def endant. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 09-780 ( CKK)

MEMORAN DUM OP INION (April 21, 2010) Plaintiffs Michael R. Fa

nning, in his off

icial ca pacity as Chief Executive Of

fice r of the Central Pension Fund of

the Interna

tional Union of Oper ating Eng ineer s and Participating Employ ers, the B oard of

Trustee s of the I

nternational Union of Oper ating Eng ineer s and Pipe L ine Employ ers He alth and Welfar e F und, and the B oard of Trustee s of the International Union of Oper ating Eng ineer s and Pipe L ine Contractor s Association National Pipe L ine Tra ining F und (collec tively , “Plaintiffs” or the “F unds”), f iled a Complaint in thi s case ag ainst Defe ndant B ig Warrior Corporation (“De fenda nt” or the “ Corporation”) , on April 29, 2009. Plaintiffs alleg e that the Corporation failed to submit reports or pay to the Funds the pr oper a mount of contributions owed unde r the re levant collec tive barg aining ag ree ments. See Compl., Docket No. [1]

. Although pr operly

and timely

serve d with the Complaint and Sum mons, Defe ndant fa iled to respond to the Complaint, and the Clerk of the Court, upon motion by Plaintiffs, entere d defa

ult ag ainst the Corporation on June 30, 2009. See Clerk’s Entry of De f., Doc ket No. [6] . Presentlybefor e the Court is the F unds’ [16] Amended Motion for Entry of De fault Judgment. Having thoroug hly

considere d the Complaint, the Funds’ amended motion and attac hments thereto, applicable case law, statutory authority , and the r ecor d of the c ase a s a whole, the Court shall GRANT the F unds’ [16] Amended Motion for Entry of De fault Judgment, for the rea sons stated below. I. BACKG ROUND The F unds filed the Complaint in the above-c aptioned matter on April 29, 2009. See Compl. As set forth in the Complaint, t he F unds assert that the D efe ndant is bound throug h its collective ba

rg ainingagree ment with the International Union of Oper ating Eng ineer s and re lated ag ree ments to pay

the Funds c erta in sums of money for e ach hour

worke d by

employ ees of

the Corporation per forming work c overe d by the re levant agree ments and to supply rec ords nec essar

y to permit the Funds to dete rmine if the Corpor ation is making the require d pay ments. Id. ¶¶ 8- 9, 15. Specifica lly , Plaintiffs alleg e that beg inning on January 1, 2009 and continuingto the prese nt and throug h the date of

judgme nt, the Corporation has e mploy ed individuals perf orming work under the rele vant collec tive barg aining ag ree ments, but has failed to submit reports or pa y the proper amount of contributions owed, a s is required unde r the c ollective bar g aining ag ree ment and re lated ag ree ments. Id. ¶¶ 10- 11, 20. Plaintiffs theref ore f iled suit seeking the following relief : a monetar

y awa rd in the amount of the unpa id contributions owed for the period of January 1, 2009 throug h the date of judgme nt, liquidated damag es, intere st on the unpaid contributions, as well as c osts, audit ex penses a nd attorney s’ fe es (Count I ); a c ourt order enjoining the Corporation fr om violating its collective ba rg aining ag ree ments and re quiring the Corporation to immediately

submit t he unpaid c ontributions, li quidated dama g es and inter ested owe d (Count I I );

2and an a

udit of the Corporation’s r ecor ds to permit Plainti ffs to dete rmine the amounts owed (Count I I I ). Id. ¶¶ 16- 31. On J uly 2, 2009, the Funds move d for summary judgme nt on Count I I I(audit) of the Complaint. See Pls.’ Mot. for Entry of De f. J. on C ount I I Iof the Compl., Docket No. [7]. The Court subsequently

g rante d the Funds’ motion, finding that “[t] he F unds are [] entitled to defa ult judgme nt as to the Corporation’s liability for its failure to timely

pay contributions to the Funds and to supply

rec ords nec essar

y to permit the Funds to dete rmine if the Corpor ation is making the require d pay

ments, as re quired unde r the ter ms of the Corporation’s collective ba rg aining ag ree ment and re lated ag ree ments.” Fanning v. Big W arrior Cor

p. , 659 F. Supp. 2d 182, 184 (D.D.C. 2009). The Court theref ore a war ded def

ault judgme nt to the Funds on Count I I I(audit) of the Complaint and orde red the Corporation to provide to Plaintiffs all contributions repor ts require d by

the re levant ag ree ments for wor k perf ormed since J anuar

y 2009 and all per

tinent employ ment and pay

roll rec ords re quired for

the Plaintiffs to verify

the ac cura cy

of the Corporation’s c ontribution reports for w ork per formed sinc e January 2009. Id. at 185. The F unds rec ently

advised the Court that the Corpor ation failed to provide the pay roll

rec ords and c ontribution reports as re quired. Ne verthe less, the Funds indicate that they have be en able to ca lculate the a

mount of contributions owed by Def endant usingcontribution rec ords prepa red by the Corporation and supplied to the Central Pension Fund of the International Union of Ope ratingEng ineer s and ParticipatingEmploy ers. B ased on the se ca lculations, the Funds initially moved for de fault judg ment on Count I(unpaid c ontributions) of the Complaint on Dec ember

21, 2009, seekinga monetar y awa rd consisting of all contributions owed a s well as liquidated damag es, intere st, audit fees a nd attorney s’ fe es and c osts. SeeMot. for Entry of De f.

3J ., Docke t No. [11]

. Specifica lly , Plaintiffs sought a mone tary awa rd of $1,096,063.89, whic h 1 principally

consisted of unpa id contributions owed by Def endant in the amount of $912,983.02 “for the months of October

2008 throug h October

2009.” Id. Be cause the Complaint, however, alleg es only

that the Corporation failed to pay Plaintiffs the proper

amount of contributions owed for the time pe riod beg inning on January 1, 2009, see Compl. ¶ 17 (“De fenda nt failed to pay contributions for the pe riod of January 1, 2009, to the prese nt.”), ther e wa s no basis on the rec ord then bef ore the Court to awar d Plaintiffs monetary damag es base d on unpaid contributions that

wer e owe d prior to J anuar y of 2009. Ac cording ly , the Court denied Plaintiffs’ [11] M otion for Entry of De fault Judgment without prejudice , permitting Plaintiffs leave to re -file a n amende d motion in conformity

with the alleg ations in the Complaint. SeeApr. 14, 2010 Or der, D ocket No. [14]

. Plaintiffs have since filed an A mended Motion for Entr y of De fault Judgment, which is now pendingbefor e the Court. See Am. Mot. for Entry of De f. J., Docket No. [16] . As requir ed, Plaintiffs amended the ir motion to conform with the alleg ations in their Complaint and theref ore seek a monetary judgme nt for contr ibutions owed only from January

1, 2009 throug h October 31, 2009, plus interest, damag es, and a ttorney s’ fe es and c osts. See id. , Att. 1 (Mem. in Support of Am. Mot. for Entry

of De f. J.) (here inafter , “Pls.’ Mem.”) at 2. The Court notes that, like Plaintiffs’ previous [11] Motion for Entry of De fault Judgment, Plaintiffs’ pending Amended

The attachments to Plaintiffs’ [11] Motion for Entry of De fault Judgment, which ha d 1 orig inally been f iled on the public docke t, inadverte ntly contained unr edac ted listings of individual member’s socia l security numbers; in order

to ensure that such confide ntial information did not continue to rema in on the public docket, the Court ha s since plac ed the motion and its attachments under se al at Plaintiffs’ re quest. SeePls.’ Mot. t o Seal, Docke t No. [15] ; Apr. 15, 2010 Min. Orde r. 4Motion for Entry of De fault Judgment see ks only an aw ard of

monetary damag es, as r equeste d in Count Iof the Complaint, and is silent as to any reque st for injunctive re lief, as se t forth in Count I Iof the Complaint. See ge nerallyPls.’ [ 16] Am. Mot . for Entry of De f. J; see also id. , Att. 8 (propose d order ). As the Court spec ifically advised Plaintiffs in denying the ir prior motion, the Court interprets Plaintiffs’ fa ilure to reque st any injunctive relief

in their motion for defa

ult as indicating a cle ar intent to see k defa ult judgment only

as to Count Iof the Complaint and not as to Count I Ias we ll. SeeApr. 14, 2010 Or der at 2, n. 2 (“Althoug h Plaintiffs have not spec ified in their Motion, the Court understands Plaintiffs to have move d for de fault judg ment only as to Count I(unpaid c ontributions) and not as to Count I I (injunctive re lief), a s the Motion and attache d proposed or der a re both silent as to any

reque st for injunctive re lief.”) . Plaintiffs have not disputed this assumpt ion in their Amended Motion for E ntry of De fault Judgment nor have they attempted to see k injunctive relief in the instant moti on. Acc ording ly , the Court understands

once a g ain that Plaintiffs are not seekingdefa ult judgment as to Count I I (injunctive re lief) a

nd shall DI SMI SS W I THOUT PREJ UDI CE Court I Iof the Complaint. The Court there fore considers only

Plaintiffs’ claim for de fault judg ment as to its request for monetary damag es as se t forth in Count Iof the Complaint. As of the date of this Memorandum Opinion, the Corporation has not enter ed an a

ppear ance nor filed a

ny pleading s in this case. II. LEGAL STANDARD Fe dera l Rule of Civil Procedur e 55(a ) provides that the cler k of the c ourt must enter a party ’s def

ault “[w]hen a party

ag ainst whom a judg ment for a ffirmative relief is sought has f

ailed to plead or othe rwise de fend, a nd that failure is shown by aff idavit or otherwise .” F E D . R. C I V . P. 55(a) . After

a def ault has bee n enter ed by

the cler k of the c ourt, a c ourt may enter a def ault

5judgme nt pursuant to Rule 55(b). F E D . R. C I V . P. 55(b). “ The de termination of whe ther de fault

judgme nt is appropriate is committ ed to the discre tion of the trial cour t.” Int’l Painters & Allied Trades Indus. Pension Fund v. Aux ier Drywall, LL C, 531 F. Supp. 2d 56, 57 (D.D .C. 2008) (citing Jack

son v. Bee ch , 636 F.2d 831, 836 ( D.C. Cir. 1980)). Upon e ntry of def ault by the cler k of the c ourt, the “de faulting defe ndant is deeme d to admit every well-plea ded alleg ation in the complaint.” Int’l Painters & Allied Trades Indus. Pension Fund v. R.W . Armine Dry wall Co., Inc. , 239 F. Supp. 2d 26, 30 (D.D .C. 2002) (interna l citation omitt ed). “ Although the defa ult establishes a de fenda

nt’s liability , the cour

t is required to make an indepe ndent deter mination of the sum to be awa

rded unle ss the amount of dama g es is cer tain.” Id. (citing Adkins v. Tese o , 180 F. Supp. 2d 15, 17 (D.D .C. 2001)). Ac cording ly , when movingfor a defa ult judgment, the plaintiff must prove its entitlement to the amount of monetar y damag es re quested. Id. “In ruling on such a motion, the cour t may rely on detailed a ffidavits or doc umentary evidenc e to deter

mine the appr opriate sum for

the def ault judgme nt.” Id. III. DISCUSS ION As explained above, in lig ht of Def endant’ s failure to enter a n appea ranc e or r espond to Plaintiffs’ lawsuit, the Court previously g rante d defa

ult judgment ag ainst Defe ndant, finding that “[t] he F unds are [] entitled to defa ult judgment as to the Corpor ation’s liability for its failure to timely pay contributions to the Funds and to supply rec ords nec essar

y to permit the Funds to deter mine if the Corporation is m akingthe re quired pa y ments, as re quired unde r the ter ms of the Corporation’s c ollective bar g aining ag ree ment and re lated agree ments.” Fanning , 659 F. Supp. 2d at 184. Plaintiffs now seek a n awa rd of moneta

ry damag es base d upon the Court’s pre vious entry of def ault judgme nt.

6Although the defa ult establishes a def

endant’ s liabilit y , the Court must make an independe nt determination of the sum to be a war ded in the judg ment unless the amount of damag es is cer

tain. Adkins , 180 F. Supp. 2d at 17. Unde r sec tion 515 of ERI SA, “[e]very employ er who is obligate d to make contr ibutions t o a multiemploy er pla n under the terms of the plan or unde r the ter

ms of a collec tively

barg ained a g ree ment shall . . . make such c ontributions in

acc ordanc e with the ter

ms and conditions of such plan or such ag ree ment.” 29 U.S.C. § 1145. When an employ er f

ails to make such c ontributions, ERI SA provides that the fiduc iary for a plan may bring an ac tion and obtain a mandatory awa rd for the plan consisting of: (A) the unpaid contributions, (B ) intere st on the unpaid contributions, (C) an a mount equal to the g reater of – (i) intere st on the unpaid contributions; or (ii) liquidated damag es p ro v ided for under the plan in an amount not in excess of 20 perc ent (or such highe r perc entag e as may be permitted under Fe dera l or State law) o f t h e am ount deter mined by the Court under Subparag raph ( a), (D) rea sonable attorney ’s fee s and costs of the action, to be p aid by the defe ndant, and (E) suc h other leg al or e quitable re lief as the c ourt dee ms appropriate. Id. § 1132(g )(2) . I ntere st is calculated usingthe rate provided unde r the plan, or , if none, the r ate presc ribed by

26 U.S.C. § 6621. Id. Plaintiffs have provide d the Court with affidavits to support a damag es aw ard of $1,095,315.73. First, Plaintiffs seek a n awa rd of $889,393.27 f

or unpaid c ontributions owed for the per iod of J anuar

y 1, 2009 throug h October 31, 2009. SeePls.’ Mem. ¶ 1. The spec ific

7amount of contributions owed ha s been de termined ba sed on an a udit of the Corporation’s

rec ords conduc ted by

Calibre CPA Group, L L C. See id.; see also gene rally id. , Ex . 1 (De cl. of Ellen K. O’D ell, Senior Manag er f or Calibre CPA Group, PL L C) (her einaf ter, “ O’De ll Decl.”)

. The amounts owed wer e ca lculated f or ea ch month, and a summar y char t supplied by

Calibre identifies the month and y ear for whic h the var ious contributions are owe d. SeeEx . C. to O’Dell Dec l. (summary

char t). I n filing the Amended Motion for Entry of De fault Judgment, Plaintiffs have r e-submitted the same summary char t authenticate d by

Ms. O’De ll, but have omitted any unpaid contributions for the pe riod of time prior to January 1, 2009. SeePls.’ Am. Mot. for Entry of De f. J., Ex . 5 (ame nded summary char t). As demonstrate d by

the amende d summary

char t, the Corporation has f

ailed to pay

a total of $889,393.27 in contributions to the Funds f or the pe riod of time betwe en January

2009 and Oc tober 2009. See id. ; see also Ex . B. to O’ Dell Dec l. (delinquenc y

repor t) (conf irming that Defe ndant owes $889,393.27 in unpa id contributions from J anuar y 2009 throug h October

2009). I n addition, Plainti ffs ha

ve ca lculated that the Corpor ation owes intere st on the unpaid contributions in the amount of $64,232.67. Pls.’ Mem. ¶ 3. This amount is based on an inter est rate of 9% pe r annum, a s provided for in the rele vant ag ree ments, and is calc ulated fr om the due date of the unpaid contr ibutions out lined above thr oug h April 15, 2010. SeePls.’ Am. Mot. for Entry of De f. J., Ex . 4 (Supplemental De cl. of Richar d Hopp) (he reina fter, “ Supp. Hopp Decl.” ), ¶ 2 ; see also id. , Ex . 2 (De cl. of Micha el R. Fa nning) (her einaf

ter, “ Fa nning D ecl.” ) ¶ 11 & Ex

. A (Restate d Ag ree ment and De clar ation of Trust of the Central Pension Fund of the International Union of Ope ratingEng ineer s and ParticipatingEmploy ers) , Art. I V, § 4.5(c ) (a uthorizi ng the Funds to collec t interest on delinquent contr ibutions t o be ca lculated a t the rate of 9% simple

8interest). Plaintiffs have also demonstrate d that they are entitled to liquidated damag es in the amount of $133,408.99, as pr ovided for both in 29 U.S.C. § 1132(g )(2) and by the re levant ag ree ments, which amount equa ls fifteen pe rce nt of the unpaid c ontributions owed. SeeSupp. Hopp Dec l. ¶ 1; see also Fa nning D ecl. ¶

11 & E x . A (Restate d Ag ree ment and De clar ation of Trust of the Centra l Pension Fund of the International Union of Oper ating Eng ineer s and Participating Employ ers) , Art. I V, § 4.5(b) ( authorizing the F unds to collect liquidated on delinquent contributions in an amount up to twenty perc ent). 2 I n addition, Plainti ffs incur red $3,722.50 in a

uditing costs in conne ction with Calibre’s audit of the Corporation’s rec ords in order to determine the amount of contributions owed to the Funds. Pls.’ Mem. ¶ 5; O’D ell Dec l. ¶ 8. Plaintiffs are entitled to rec over this amount pursuant to the terms of the pa

rties’ c ollective bar g aining and re lated agree ments and 29 U.S.C. § 1132(g )(2) (E). SeeFa

nning D ecl. ¶

12 & E x . A (Restate d Ag ree ment and De clar ation of Trust of the Central Pension F und of the International Union of Oper ating Eng ineer s and Participating Employ ers) , Art. I V, § 4.5(e ) (a uthorizi ng awa

rd of a udit ex penses incur

red in c onnection with delinquent contributions); cf. 29 U.S.C. § 1132(g) (2)( E) (pla intiffs are entitled to awar d of “suc h other leg al or e quitable re lief as the c ourt dee ms appropria te”)

. Finally , Plaintiffs request a n awa rd of attorney s’ fe es and c osts in the amount of $4558.00 for pr osecution of this ac tion. See Pls.’ Mem. ¶ 4. Plaintiffs are e ntitled to recove r re asonable attorney s’ fe es and c osts pursuant to 29 U.S.C. § 1132(g) (2)( D) a nd the terms of the parties’

Although the rele vant ag ree ments appea r to authorize the F unds to collect liquidated 2 damag es in an amount up to twenty perc ent of the de linquent contributions, the Funds re quest only fiftee n perc ent in their instant Amended Motion for Entry of De fault Judgment. SeePls.’ Mem. ¶ 2. 9collective ba rg ainingagree ments. See Fa nning D ecl. ¶

12 & E x . A (Restate d Ag ree ment and Dec lara tion of Trust of the Centra l Pension Fund of the International Union of Oper ating Eng ineer s and ParticipatingEmploy ers) , Art. I V, § 4.5(e ) (a uthorizi ngawa

rd of c osts and attorney s’ fe es). Spec ifically , Plaintiffs have attached suppor ting doc umentation showing that they have inc urre d attorney s’ fe es in the amount of $4,053.00 a nd costs in the amount of $505.00 in liti g ating this action. See Pls.’ Am. Mot. for Entry of De fault J., Ex . 3 (De cl. of Attorne y ’s Fe es and L eg al Costs) & Exs. A & B (time and e x pense de tail). This is based on 19.30 hours of attorney time at the rate of $210 pe r hour plus expenses for the filing fee and out of state se rvice

. See ge nerally id. The Court finds that these r ates a re r easona

ble for the service s rende red a nd shall theref

ore a war d the attorne y s’ fe es and c osts requested. Acc ording ly , pursuant to the ter ms of the re levant agree ments and 29 U.S.C. § 1132(g )(2) , the Court shall awa

rd Plaintiffs a monetar

y judgme nt in the total amount of $1,095,315.73

. IV. CONCLUSION For the re asons set for

th above, the Court sha ll GRANT the Funds’ [16] Amended Motion for Entry of De fault Judgment and sha ll awar d Plaintiffs a monetary judgme nt in the total amount of $1,095,315.73 . In addition, the Court DI SMI SSES WI THOUT PREJ UDI CE Count I I (injunctive re lief) of

the Complaint. An appropriate Orde r ac companies this Memora ndum Opinion. Date: Apr il 21, 2010

/s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

10