OPINION & ORDER - 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MASONRY INDUSTRY TRUST

ADMINISTRATION, INC.,

No. 3:14-cv-01570-HZ

Plaintiff,

OPINION & ORDER

v.

CHRIS LEE MASONRY, INC., et al, 

Defendants.

Bradley L. Middleton

Bradley L. Middleton, P.C.

6950 SW Hampton St., Ste. 250

Tigard, OR 97223

Attorney for Plaintiff

HERNÁNDEZ, District Judge:

Plaintiff Masonry Industry Trust Administration, Inc., is the administrative agent for the 

Masonry Industry Funds, a group of multi-employer trust funds for unionized workers in the 

masonry and bricklaying industry. Plaintiff brought this action against Defendants Chris Less 

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OPINION & ORDER - 2

Masonry, Inc. and Chris H. Lee, individually, (collectively “Defendants”) for failing to make

mandatory contributions to the funds as required by a collective bargaining agreement. After 

Defendant failed to appear, Plaintiff moved for a clerk’s entry of default, which the clerk granted 

in February of 2016. 

Plaintiff now moves for entry of default judgment against Defendant. Plaintiff’s motion is 

granted. 

STANDARDS

After entering an order of default, the district court has discretion to issue a default 

judgment. See FED. R. CIV. P. 55; DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 852 (9th Cir. 

2007). The court has “considerable leeway as to what it may require as a prerequisite to the entry 

of a default judgment.” Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987) 

(per curiam) (footnote omitted). In exercising its discretion, the court may consider: (1) the 

possibility of prejudice to the plaintiff; (2) the merits of plaintiff’s substantive claim; (3) the 

sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a 

dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) 

the strong policy favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th 

Cir. 1986) (citation omitted); see also Cascade Pension Trust v. JB Techs., Inc., No. 1:12-CV-34-

PA, 2013 WL 357766, at *1 (D. Or. Jan. 29, 2013). 

The court may take the complaint’s well-pleaded factual allegations as true, other than 

the amount of damages. Id. at 917–18 (citation omitted); DIRECTV, 503 F.3d at 854 (citations 

omitted). On the other hand, a “defendant is not held to admit facts that are not well-pleaded or 

to admit conclusions of law.” DIRECTV, 503 F.3d at 854 (quotation omitted); see also Cascade 

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Pension Trust v. Bob Fisher Elec., Inc., No. 6:14-CV-01920-MC, 2015 WL 1802217, at *2 (D. 

Or. Apr. 20, 2015). 

DISCUSSION

I. Default Judgment

Based on the clerk’s entry of default in this case, the Court accepts the well-pleaded 

allegations in Plaintiff’s complaint as true, except those relating to damages. See ECF 30; 

TeleVideo, 826 F.2d at 917–18. Defendants were parties to two written collective bargaining 

agreements.1The agreements required Defendants to make contributions to the funds managed 

by Plaintiff on behalf of Defendants’ employees who performed work covered by the 

agreements. Complaint ¶ 7, ECF 1. 

Under 29 U.S.C. § 1145, an employer that is required to contribute to an employee 

benefit plan must comply with the governing collective bargaining agreement. Plaintiff 

submitted reports and affidavits showing that Defendants failed to make contributions as 

required by the agreements; therefore, Plaintiff states a valid ERISA claim. Horn Decl. Ex. 6, 

ECF 34-6; Ex. 7, ECF 34-7; see also Bob Fisher, 2015 WL 1802217 at *2. Plaintiff will be 

prejudiced if the Court does not enter a judgment in its favor because it would be left without an 

avenue to collect the delinquent contributions. JB Techs., 2013 WL 357766 at *1 (explaining 

that “[f]or a multi-employer trust fund [such as Plaintiff] to recover delinquent contributions 

from an employer, “(1) the employer must be delinquent at the time the action is filed; (2) the 

 

1 The agreements provide for both corporate and individual liability for the individual who signs the 

agreement on behalf of the corporation. Horn Decl. Ex. 3 at 1, ECF 34-4; Ex. 4 at 2, ECF 34-4. Chris Lee 

signed both agreements on behalf of Chris Lee Masonry, Inc. Ex. 3 at 2; Ex. 4 at 3. Thus, both defendants 

are liable here. Employee Painters’ Trust v. J & B Finishes, 77 F.3d 1188, 1192 (9th Cir. 1996) (holding 

that a company president was personally liable for breaches of a collective bargaining agreement he 

signed that included a similar individual liability provision). 

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district court must enter a judgment against the employer; and (3) the plan must provide for such 

an award.”) (citation omitted). 

As for the other relevant Eitel factors, the amount of money at stake here is appropriate 

considering the number of workers the Defendants employed and the number of months 

Defendants failed to make contributions. There is little possibility for any dispute over the 

material facts here because Plaintiff relies primarily on Defendants’ own financial reporting to 

show the delinquent amounts. Accordingly, the Court finds that the entry of default judgment is 

appropriate in this case. 

II. Damages

Plaintiffs must prove the amount of damages they seek in this action. Bob Fisher, 2015 

WL 1802217 at *3. In an action to collect delinquent contributions under 29 U.S.C. § 1145, the 

ERISA statute requires that the court award:

(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.

29 U.S.C. § 1145(g)(2). “Such an award is mandatory if: (1) the employer is delinquent at the 

time the action is filed; (2) the district court had entered a judgment against the employer; and 

(3) the plan . . . provide[s] for such an award.” Bob Fisher, 2015 WL 1802217 at *3 (citing Nw. 

Adm’rs, Inc. v. Albertson’s, Inc., 104 F.3d 253, 257 (9th Cir. 1996).

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OPINION & ORDER - 5

a. Unpaid Contributions

Plaintiff submitted affidavits and reports showing that Defendants failed to pay 

$54,096.19 in contributions to the funds between September 2013 and May 2014. Horn Decl., 

Exs. 6–7, ECF 34-6, 34-7. Defendants were required under the agreements to file monthly 

reports showing the number of hours worked by all covered employees. Horn Decl. ¶ 17. 

Plaintiff submitted copies of Defendants’ reports for the months of September 2013 through May 

2014. Horn Decl. ¶ 18. Defendants submitted the reports but never paid the amounts due. Horn 

Decl. ¶ 18. Plaintiff’s auditors examined the reports and prepared an additional report 

summarizing the amounts Defendants owe and how those amount are allocated between the 

various funds. Horn Decl. Ex. 7. After examining both sets of reports, the Court finds that the 

evidence shows Defendants owe $54,096.16 in unpaid contributions for the period of September 

2013 to May 2014. 

b. Interest on Unpaid Contributions

The statute here provides that “interest on unpaid contributions shall be determined by 

using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of Title 

26.” 29 U.S.C. § 1132(g)(2). The agreements provide for interest at eighteen percent per year for 

most of the funds, except that the interest rate for the International Pension fund is fifteen percent 

per year. Hon Decl. ¶ 13, Ex. 1 at 5, 13, 23, 31. 

Plaintiff claims that one group of funds (referred to in Plaintiff’s briefing as the 

“Ancillary Funds”) is subject to the Oregon statutory interest rate of nine percent. Pl. Memo at 

11. Plaintiff did not cite to an included exhibit where the Court could examine the contract 

language, nor could the Court find a copy of the Ancillary Fund contract in the exhibits. Without 

any contract language for guidance, the Court turns to section 6621 to determine the appropriate 

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rate. Section 6621sets the rate that the Internal Revenue Service charges taxpayers who underpay 

taxes. 26 U.S.C. § 6621. The underpayment rate from September 2013 to May 2014 was three 

percent.2

Accordingly, the Court awards Plaintiff interest on Defendants’ unpaid contributions as 

follows:

 Ancillary Funds (3%): (.03) x ($6,224.23) / 365 = $.51/day 

 International Pension Funds (15%): (.15) x ($1,682.51) / 365 = $.69/day

 All Other Funds (18%): (.18) x ($46,189.27) / 365 = $22.77/ day

 Total Daily Interest Rate = $23.97

See Horn Decl. Ex. 7 at 3. 

c. Liquidated Damages

Liquidated damages only apply “when (1) the fiduciary obtains a judgment in favor of the 

plan, (2) unpaid contributions exist at the time of suit, and (3) the plan provides for liquidated 

damages.” Bob Fisher, 2015 WL 1802217 at *3 (quoting Idaho Plumbers & Pipefitters Health 

and Welfare Fund v. United Mech. Contractors, Inc., 875 F.2d 212, 215 (9th Cir.1989) (emphasis 

omitted). In this case, all the disputed funds remain unpaid. The agreements provide for 

liquidated damages of ten percent for the majority of the funds and twenty percent for the 

International Pension Fund; however, the agreements do not provide liquidated damages for the 

so-called Ancillary Funds. Horn Decl. ¶¶ 14, Ex. 7. Having examined the agreements and 

Plaintiff’s reports, the Court adopts Plaintiff’s liquidated damages calculation and awards 

$4,955.42. Horn Decl. Ex. 7. 

//

 

2 Rev. Rul. 2016-06, 2016-14 I.R.B. 519 (2016), available at 2016 WL 1273374.

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OPINION & ORDER - 7

d. Attorney’s Fees & Costs

Plaintiff indicated that it will seek an award of attorney’s fees and costs, but will submit 

an attorney fee application and cost bill pursuant to Federal Rule of Civil Procedure 54 at a later 

date. Pl. Mot. at 11. Accordingly, the Court does not award any attorney fees or costs at this 

time. 

ORDER

For the reasons stated, Plaintiff’s motion for default judgment [32] is GRANTED. 

Plaintiff shall submit a proposed judgment consistent with this order within fourteen days of the 

date below. 

Dated this day of _______________________, 2016. 

MARCO A. HERNÁNDEZ

United States District Judge

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