1 The Honorable J. Clifford Wallace, of the United States Court of Appeals for the Ninth *

2 Circuit, sitting by designation. The Honorable Sonia Sotomayor, originally a member of this panel,

3 was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel,

4 who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); Local Rule 0.14(2); United

5 States v. Desimone, 140 F.3d 457 (2d Cir. 1998). 

1

07-2558-cv

Finkel v. Whiffen Electric Co.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2008

(Argued: May 8, 2009 Decided: August 11, 2009)

Docket No. 07-2558-cv

GERALD FINKEL, as Chairman of the Joint Industry Board of the Electrical Industry,

Plaintiff-Appellant,

v.

JOSEPH ROMANOWICZ,

Defendant-Appellee,

WHIFFEN ELECTRIC CO., INC.

Defendant.

Before: CABRANES and WALLACE, Circuit Judges.

*

Appeal from a judgment of the United States District Court for the Eastern District of New

York (John Gleeson, Judge). Plaintiff Finkel challenges the District Court’s dismissal of its claims

against defendant Romanowicz after Romanowicz failed to plead or otherwise defend against

plaintiff’s complaint and plaintiff moved for a default judgment. According to plaintiff, the District

Court erred in (1) holding that Romanowicz, an officer of a company that breached its duty to remit
1 No attorney has entered an appearance on behalf of defendant-appellee Joseph **

2 Romanowicz, and he has not filed a brief in this case. 

2

contributions to various ERISA plans of which plaintiff was an administrator, was not liable for

breach of fiduciary duty where plaintiff failed to establish defendant’s status as an ERISA fiduciary

within the meaning of 29 U.S.C. § 1002(21)(A); (2) not conducting a hearing prior to dismissing

plaintiff’s breach-of-fiduciary-duty claim; and (3) holding that, under section 3-403(2)(b) of New

York’s Uniform Commercial Code, defendant was not personally liable for checks he signed on

behalf of the company that were dishonored due to insufficient funds in the company’s checking

account. We hold that (1) plaintiff failed to establish defendant’s status as an ERISA fiduciary

because he did not allege or introduce evidence demonstrating that defendant exercised authority or

control over the management of ERISA plan assets; (2) plaintiff was not entitled to a hearing prior

to the dismissal of its breach-of-fiduciary-duty claim against defendant, as the record demonstrates

that no hearing was necessary and plaintiff did not request one; and (3) the District Court erred in

holding that defendant was not personally liable for certain dishonored checks under New York’s

Uniform Commercial Code, where plaintiff established that the checks did not indicate that

defendant signed them in a representative capacity and defendant presented no evidence of an

understanding between the parties that he had signed them in a representative capacity. 

Affirmed insofar as the District Court held that defendant was not an ERISA fiduciary, and

insofar as the District Court did not conduct a hearing before dismissing the breach of fiduciary

claim; reversed insofar as the District Court held that defendant was not personally liable for the

dishonored checks.

JAMES R. GRISI (Jani K. Rachelson, Robin H. Gise, of counsel,

and Molly A. Brooks, on the brief), Cohen, Weiss and

Simon LLP, for Appellant Gerald Finkel.

**
 Romanowicz failed to oppose the Joint Board’s suit and is therefore deemed to have 1

admitted all well-pleaded allegations in the complaint pertaining to liability. See Greyhound

Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). Our “background”

section is, accordingly, drawn from the Joint Board’s allegations and submissions to the District

Court.

3

JOSÉ A. CABRANES, Circuit Judge:

Plaintiff-appellant Gerald Finkel, as Chairman of the Joint Industry Board of Electrical

Industry (the “Joint Board”), challenges a May 14, 2007 default judgment entered by the United

States District Court for the Eastern District of New York (John Gleeson, Judge) against Whiffen

Electric Co., Inc, (“Whiffen”) pursuant to sections 502 and 515 of the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1132 and 1145, for delinquent contributions

of employee benefits but dismissing the Joint Board’s claims against defendant-appellee Joseph

Romanowicz, a principal of Whiffen. See Finkel v. Whiffen Elec. Co., No. 06-1269, 2007 WL 1395562,

at *2 (E.D.N.Y. May 14, 2007). In this appeal, we consider whether (1) Romanowicz was a

“fiduciary” of an ERISA benefits plan within the meaning of 29 U.S.C. § 1002(21)(A), so that he

may be held jointly and severally liable for the delinquent payments; (2) the District Court erred in

not conducting a hearing before dismissing the Joint Board’s breach-of-fiduciary-duty claim; and (3)

Romanowicz is, under section 3-403(2)(b) of New York’s Uniform Commercial Code (“N.Y.

U.C.C.”), personally liable for dishonored checks tendered to the Joint Board by Romanowicz to

meet a portion of Whiffen’s obligations for employee benefit contributions. 

BACKGROUND1

The Joint Board is an administrator and fiduciary of several ERISA employee-benefit funds

established by collective bargaining agreements between Local Union No. 3 of the International

Brotherhood of Electrical Workers, AFL-CIO (“the Union”) and employers supplying electrical
 Title 29 U.S.C. § 1145 provides: 2

Every employer who is obligated to make contributions to a multiemployer plan

under the terms of the plan or under the terms of a collectively bargained agreement

shall, to the extent not inconsistent with law, make such contributions in accordance

with the terms and conditions of such plan or such agreement. 

4

services. Whiffen was one such employer at all points relevant to this litigation. Pursuant to one of

these collective bargaining agreements with the Union (the “CBA”), Whiffen was obligated to

withhold specified portions of employees’ wages and, on a monthly basis, remit them to the Joint

Board for deposit in several ERISA funds, including a multi-employer cash or deferred arrangement

within the meaning of Internal Revenue Code § 401(k), 26 U.S.C. § 401(k) (“the 401(k) Plan”).

In September 2004 the Joint Board received two checks from Whiffen bearing

Romanowicz’s signature, one in the amount of $19,048.48 and the other for $7,383.47, conveyed in

accordance with the CBA’s terms. However, each was dishonored and returned to the Joint Board

due to insufficient funds. In August 2005, the Joint Board received another check from Whiffen,

again signed by Romanowicz, this time in the amount of $9,572.98. As with the previous checks,

the August 2005 check was dishonored. From August 3, 2005 through October 12, 2005, Whiffen

failed to make payments required under the CBA to various ERISA funds administered by the Joint

Board. Similarly, from July 6, 2005 through October 12, 2005, Whiffen failed to remit required

contributions to the 401(k) Plan.

In March 2006, the Joint Board filed suit against Whiffen and Ramonowicz, alleging that, in

violation of 29 U.S.C. § 1145, each had failed to remit timely contributions to the 401(k) Plan and

other ERISA plans administered by the Joint Board.2 The Joint Board sought to recover from

Whiffen all funds withheld from the 401(k) Plan and other funds owed for the period from August
 The Joint Board sued Whiffen under 29 U.S.C. § 1132, which provides that an ERISA 3

fiduciary, such as the Joint Board, may bring a civil action to recover contributions withheld from an

ERISA plan. Title 29 U.S.C. § 1132 states, in relevant part:

(a) Persons empowered to bring a civil action[.] A civil action may be brought . . .(3)

by [an ERISA plan] participant, beneficiary, or fiduciary (A) to enjoin any act or

practice which violates any provision of this subchapter or the terms of the plan, or

(B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to

enforce any provisions of this subchapter or the terms of the plan . . . .

 Under 29 U.S.C. § 1109, a fiduciary of an ERISA plan may be personally liable for a breach 4

of a duty owed to the plan. That section provides, in relevant part:

(a) Any person who is a fiduciary with respect to a plan who breaches any of

the responsibilities, obligations, or duties imposed upon fiduciaries by this

subchapter shall be personally liable to make good to such plan any losses to the plan

resulting from each such breach, and to restore to such plan any profits of such

fiduciary which have been made through use of assets of the plan by the fiduciary,

and shall be subject to such other equitable or remedial relief as the court may deem

appropriate, including removal of such fiduciary. 

29 U.S.C. § 1109(a). 

 N.Y. U.C.C. § 3-403 provides: 5

(1) A signature may be made by an agent or other representative, and his authority to make it

may be established as in other cases of representation. No particular form of appointment is

necessary to establish such authority.

(2) An authorized representative who signs his own name to an instrument

(a) is personally obligated if the instrument neither names the person represented nor shows

that the representative signed in a representative capacity;

(b) except as otherwise established between the immediate parties, is personally obligated if

5

3, 2005 to October 12, 2005. It also sought to impose joint and several liability against Whiffen and 3

Romanowicz for delinquent contributions to the 401(k) Plan under the theory that Romanowicz had

withheld contributions in breach of a fiduciary duty. Further, the Joint Board averred that, under 4

section 3-403(2)(b) of the N.Y. U.C.C., Romanowicz was personally liable for the dishonored

checks.5
the instrument names the person represented but does not show that the representative

signed in a representative capacity, or if the instrument does not name the person represented

but does show that the representative signed in a representative capacity.

(3) Except as otherwise established, the name of an organization preceded or followed by the

name and office of an authorized individual is a signature made in a representative capacity.

 Although a court accepts as true all well pleaded allegations against a defaulting defendant 6

for purposes of determining liability, a default is not an admission of damages, which must be

established in a separate evidentiary proceeding. Greyhound Exhibitgroup, Inc., 973 F.2d at 158. Even

where a party has defaulted, it may still contest the amount of damages awarded to a plaintiff. Id. In

this case, no evidentiary hearing was necessary to establish damages because the Joint Board did not

ask for one but instead submitted documentary evidence of damages. Neither Whiffen nor

Romanowicz submitted any response in opposition.

6

Neither Whiffen nor Romanowicz responded to the complaint or otherwise appeared before

the District Court to defend the lawsuit brought by the Joint Board. On June 9, 2006, the Joint

Board requested that the Clerk of the Court enter defendants’ default pursuant to Rule 55 of the

Federal Rules of Civil Procedure. See Fed. R. Civ. P. 55(a) (“When a party against whom a judgment

for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by

affidavit or otherwise, the clerk must enter the party’s default.”). On the same day, the Joint Board

moved for a default judgment against both defendants, arguing that further briefing was not

necessary to establish defendants’ liability because entry of judgment in their favor would “require[]

no findings of fact and there are no disputed questions of law.” J.A. 7 (motion for default

judgment); see also Fed. R. Civ. P. 55(b)(2) (noting that a district court “may conduct hearings or

make referrals . . . to enter or effectuate [a default] judgment”). 

The District Court noted defendants’ default and referred the matter to Magistrate Judge

Steven M. Gold to recommend an award of damages. Whiffen and Romanowicz again failed to

respond to the Joint Board’s allegations. After reviewing the complaint and documents submitted 6

by the Joint Board, the Magistrate Judge concluded that the Joint Board had established Whiffen’s
7

liability for unpaid contributions to the 401(k) Plan and other benefit funds and recommended an

award of $12,341.58 for unpaid contributions to the 401(k) Plan and $106,102.34 for unpaid

contributions to other funds. Magistrate Judge Gold also recommended an award of $8,493.95 in

interest, $8,493.95 in liquidated damages, and $7,670.28 in attorneys’ fees and costs. See 29 U.S.C. §

1132(g)(2) (authorizing awards of unpaid contributions, interest, attorney’s fees and costs, and

“other legal or equitable relief”).

Magistrate Judge Gold recommended dismissal of the Joint Board’s claims against

Romanowicz. First, the Magistrate Judge concluded that the Joint Board had failed to make out a

prima facie case for breach of fiduciary duty against Romanowicz because it had not established that

he was a fiduciary of the 401(k) Plan. Second, Magistrate Judge Gold reasoned that Romanowicz

was not personally liable under the N.Y. U.C.C. for the dishonored checks because, in the

Magistrate Judge’s view, the parties “likely” understood that Romanowicz signed them in a

representative capacity, J.A. 228 (Report and Recommendation), and that the Joint Board had

“offered no evidence, nor made any assertions of fact, suggesting there was not such [an

understanding],” id. at 229. 

Over the Joint Board’s timely objection, the District Court adopted Magistrate Judge Gold’s

Report and Recommendation, holding that the Joint Board had failed to establish Romanowicz’s

alleged fiduciary status because the Board did not demonstrate Romanowicz’s exercise of authority

over 401(k) Plan assets. See Finkel, 2007 WL 1395562 at *1. After noting that the Joint Board

characterized Magistrate Judge Gold’s second conclusion as “clearly erroneous,” the District Court

agreed with the Magistrate Judge’s finding that the parties understood Romanowicz to have signed

the dishonored checks in a representative capacity. See id. at *2. 

This timely appeal followed. 
 In a footnote, the Joint Board argues that remand is appropriate because, according to the 7

Joint Board, the District Court failed to review de novo the Magistrate Judge’s Report and

Recommendation. See Appellant’s Br. 20 n.4. The Joint Board’s argument is grounded in the

District Court’s repeated use of the phrase “clearly erroneous.” See Finkel, 2007 WL 1395562 at *2

(“Plaintiff objects that [the Magistrate Judge’s] inference of the parties’ likely past course of dealing

was clearly erroneous. But the inference of the existence of past payments from Whiffen to the

union was not clearly erroneous . . . . The further inference that those weekly payments usually took

the form of checks signed by Romanowicz was not clearly erroneous either . . . .” (internal citations

omitted)). The Joint Board is correct insofar as it observes that it was entitled to de novo review of

the Magistrate Judge’s Report and Recommendation. See 28 U.S.C. § 636(b)(1) (providing that,

except with respect to certain pretrial matters, “[a] judge of the court shall make a de novo

8

DISCUSSION

On appeal, the Joint Board argues that the District Court erred in (1) holding that

Romanowicz was not a fiduciary of the 401(k) Plan, (2) failing to conduct a hearing prior to

dismissing the breach-of-fiduciary-duty claim, and (3) holding that, under the N.Y. U.C.C.,

Romanowicz was not personally liable for the dishonored checks because he signed them in a

representative capacity. 

In light of Romanowicz’s default, a court is required to accept all of the Joint Board’s factual

allegations as true and draw all reasonable inferences in its favor, see Au Bon Pain Corp. v. Artect, Inc.,

653 F.2d 61, 65 (2d Cir. 1981) (noting that, where a party moves for a default judgment after

another party’s default, the moving party is “entitled to all reasonable inferences from the evidence

offered”), but it is also required to determine whether the Joint Board’s allegations establish

Romanowicz’s liability as a matter of law, see id. (“[A] district court retains discretion under [Federal

Rule of Civil Procedure] 55(b)(2) once a default is determined to require proof of necessary facts

and need not agree that the alleged facts constitute a valid cause of action . . . .”). 

We review de novo a district court’s application of law to undisputed facts, see, e.g., In re New

Times Sec. Servs., Inc., 463 F.3d 125, 127 (2d Cir. 2006), which in this case were established through

the Joint Board’s pleadings, submissions to the District Court, and Romanowicz’s default. See 7
determination of those portions of a [magistrate judge’s] report or specified proposed findings or

recommendations to which objection is made”). However, even if we assume for the sake of

argument that the District Court applied the wrong standard of review, our own de novo review of the

record and the District Court’s application of law to the facts of this case, which are undisputed in

light of Romanowicz’s default, obviates the need for a remand. 

9

LoPresti v. Terwilliger, 126 F.3d 34, 39 (2d Cir. 1997) (“[W]here the facts are not in question, whether a

party is an ERISA fiduciary is ‘purely a question of law.’” (quoting Kayes v. Pac. Lumber Co., 51 F.3d

1449, 1458 (9th Cir. 1995)).

Fiduciary Duty

Pursuant to 29 U.S.C. § 1145, see note 2, ante, where an employer has entered into a collective

bargaining agreement requiring him to remit funds to an ERISA plan, the employer is obligated to

“make such contributions in accordance with the terms and conditions of [the collective bargaining]

agreement.” If an employer fails to make required contributions, a fiduciary of the plan may sue the

employer, or another fiduciary of the plan, as that term is defined under ERISA, to recover the

unpaid contributions. See 29 U.S.C. §§ 1132, 1109; notes 3 & 4, ante. In turn, ERISA provides

alternative definitions of “fiduciary.” For example, ERISA provides that a fiduciary is someone who

“exercises any discretionary authority or discretionary control respecting management of [an ERISA

benefit] plan or exercises any authority or control respecting management or disposition of its

assets.” 29 U.S.C. § 1002(21)(A)(i) (emphasis added). 

In this case, the Joint Board alleged that employees’ elective contributions to the 401(k) Plan

“were withheld from employees’ wages and . . . maintained by [Romanowicz and Whiffen] as part of

[Whiffen’s] general assets for the benefit of Romanowicz and [Whiffen], rather than being remitted

to the [401(k)] Plan.” J.A. 15 (Complaint at ¶ 32). With respect to his role in withholding and

failing to remit wages, the Joint Board alleged that “Romanowicz, by virtue of his position as an officer of

[Whiffen], exercised control over [Whiffen] assets, including the general assets with which withheld
 Although Whiffen failed to remit withheld employee wages to the Joint Board for deposit 8

in the 401(k) Plan, the District Court correctly concluded those funds nevertheless became “assets”

of the plan within the meaning of § 1002(21)(A)(i). Pursuant to Department of Labor regulations,

“the assets of [an ERISA] plan include amounts . . . that a participant has withheld from his wages

by an employer[ ] for contribution to the plan as of the earliest date on which such contributions can

reasonably be segregated from the employer’s general assets.” 29 C.F.R. § 2510.3-102. The District

Court’s conclusion in this case was consistent with our recent decision in In re Halpin, 566 F.3d 286

(2d Cir. 2009). In Halpin, we held that an employer’s contributions to an ERISA plan become plan

assets only after they are paid to the plan. Id. at 290. Here, we consider an employee’s contributions

to an ERISA plan, which became plan assets when money was withheld from the employee’s wages. 

See Halpin, 566 F.3d at 289 (“Although the Department of Labor . . . has officially issued a regulation

that specifies when employee contributions become assets, . . . it has not issued formal rule governing

when employer contributions become plan assets.” (internal citations omitted)).

10

contributions [were] commingled, failed to advise participants or employees of [Whiffen] that

[Whiffen and Romanowicz] had failed and refused to remit the withheld contributions to the

[401(k)] Plan.” J.A. 15 (Complaint at ¶ 35) (emphasis added). Based on these allegations, the Joint

Board concluded that “Romanowicz exercised authority or control over Plan assets. Thus,

Romanowicz [was a] fiduciar[y] of the Plan within the meaning of § 1002(21)(A)(i).” J.A. 16

(Complaint at ¶ 36). Similarly, in its objection to the Magistrate Judge’s recommendation that its

breach-of-fiduciary-duty claim be dismissed, the Joint Board alleged that “[a]s the principal of

Whiffen, Romanowicz withheld Employee Elective Contributions from employee paychecks” and

did not make required contributions to the 401(k) Plan. J.A. 234. 

In dismissing the action against Romanowicz, the District Court reasoned that, under §

1145, Whiffen was obligated to remit withheld employee wages to the Joint Board for deposit in the

401(k) Plan and that the funds withheld from the 401(k) Plan were “assets” within the meaning of §

1002(21)(A)(i). However, the District Court concluded that the Joint Board failed to allege that “(1) 8

[Romanowicz] had the authority to determine which company bills to pay and when; or (2) he

‘exercise[d]’ that authority by using the money from the unpaid contributions for company

payments.” Finkel, 2007 WL 1395562 at *2 (quoting 29 U.S.C. § 1002(21)(A)(i)). 
11

On appeal, the Joint Board presses the view that § 1002(21)(A)(i)’s description of a fiduciary

as one who “exercises any authority or control respecting management or disposition of [ERISA

plan] assets” accurately characterizes Romanowicz’s role in administering the 401(k) Plan assets in

this case. The Joint Board contends that, in omitting “discretionary” from this definition of

fiduciary under § 1002(21)(A)(i), Congress intended to establish that an individual need only exercise

minimal control over plan assets in order to be regarded as an ERISA fiduciary. In the Joint Board’s

view, the District Court erred in holding that under § 1002(21)(A)(i) an ERISA fiduciary must enjoy

some discretionary authority over the disposition of company assets. 

Although we have recognized that “Congress intended ERISA’s definition of fiduciary to be

broadly construed,” LoPresti, 126 F.3d at 40 (internal quotation marks omitted), we have also

concluded that “‘management or disposition’ . . . [of ERISA plan assets] refers to the common

transactions in dealing with a pool of assets: selecting investments, exchanging one instrument or

asset for another, and so on,” Harris Trust & Sav. Bank v. John Hancock Mut. Life Ins. Co., 302 F.3d 18,

28 (2d Cir. 2002) (internal quotation marks omitted)); cf. Webster’s Third New International Dictionary

(unabridged) 1372 (1976) (defining “management” to include “the act of conducting or supervising

something (as a business); esp: the executive function of planning, organizing, coordinating,

directing, and supervising any industrial or business project or activity with responsibility for results”

(emphasis added)).

Contrary to the Joint Board’s assertions, the District Court was not free to conclude that

Romanowicz’s status as an officer of Whiffen made him a fiduciary of the 401(k) Plan. Cf. LoPresti,

126 F.3d at 40 (“Unlike the common law definition under which fiduciary status is determined by

virtue of the position a person holds, ERISA’s definition is functional.” (internal quotation marks

omitted)). We have held that even where an individual (1) was an officer of a company, (2) was

“authorized to sign checks on the Company’s account,” and (3) “had some general knowledge that
12

deductions were made from employees’ wages,” he still was not an ERISA fiduciary because he had

“no responsibility for determining which of the company’s creditors would be paid or in what

order.” LoPresti, 126 F.3d at 40 (internal quotation marks omitted).

Accepting all of the Joint Board’s allegations in this case as true and drawing all inferences in

its favor, we conclude that Romanowicz was simply an officer of Whiffen, that he signed checks on

the company’s behalf, and that he and Whiffen “maintained” plan assets “for the benefit of

[Romanowicz and Whiffen],” J.A. 15 (Complaint at ¶ 32). The Joint Board has not alleged that

Romanowicz “select[ed] investments” or “exchang[ed] one instrument for another.” Harris Trust &

Sav. Bank, 302 F.3d at 28. Nor has it alleged that he was “responsibil[e] for determining which of

the company’s creditors would be paid or in what order,” LoPresti, 126 F.3d at 40 (internal quotation

marks omitted), or otherwise enjoyed authority or control over the management of 401(k) Plan assets. 

In short, the Joint Board has not alleged that Romanowicz engaged in, or had the authority to

engage in, any activities that would make him a fiduciary under § 1002(21)(A)(i)’s definition of that

term. 

In sum, the Joint Board’s allegations are not sufficient to establish Romanowicz’s status as a

fiduciary. 

Hearing Prior to Dismissal

The Joint Board’s contention that the District Court erred in failing to conduct an

evidentiary hearing prior to dismissing its breach-of-fiduciary-duty claim against Romanowicz is

without merit. Under Rule 55(b) of the Federal Rules of Civil Procedure, where a party has applied

for a default judgment, the “[district] court may conduct hearings or make referrals” in order to,

among other things, “determine the amount of damages[,] establish the truth of any allegation by

evidence[,] or investigate any other matter.” Fed. R. Civ. P. 55(b)(2)(B-D) (emphasis added). In

permitting, but not requiring, a district court to conduct a hearing before ruling on a default
13

judgment, Rule 55(b) commits this decision to the sound discretion of the district court. We

therefore review the District Court’s decision for “abuse of discretion.” See Sims v. Blot, 534 F.3d

117, 132 (2d Cir. 2008) (“A district court has abused its discretion if it based its ruling on an

erroneous view of the law or on a clearly erroneous assessment of the evidence, . . . or rendered a

decision that cannot be located within the range of permissible decisions.” (internal quotation marks

and citations omitted)). 

The Joint Board asserts that the District Court erred inasmuch as it “sua sponte, undertook to

analyze the substantive claims against Romanowicz without giving [the Joint Board] the opportunity

to submit further evidence that would tend to show that Romanowicz acted as a fiduciary.”

Appellant’s Br. 40. Our review of the record reveals that, notwithstanding its contention on appeal,

the Joint Board never asked for a hearing, and one was not necessary. The Joint Board had ample

opportunity to amend its complaint or supplement its allegations with evidence prior to moving for

a default judgment against Romanowicz. In moving for default judgment, the Joint Board chose to

rely on the allegations in its complaint as well as two declarations and seventeen exhibits that it

submitted with its motion for a default judgment. The Joint Board not only failed to request a

hearing but it assured the District Court that entry of a default judgment against Romanowicz would

entail “no findings of fact or disputed questions of law.” J.A. 7. Similarly, the Joint Board did not

ask for a hearing on its objection to the Magistrate Judge’s Report and Recommendation.

Following Romanowicz’s default, there were no disputed issues of fact, and particularly in

light of the Joint Board’s failure to request a hearing, we have no trouble concluding that the District

Court acted well within its discretion in proceeding without one. 

Personal Liability for Dishonored Checks

Finally, we turn to the Joint Board’s argument that the District Court erred in holding that
 After the Joint Board filed its complaint, and prior to Whiffen’s default, Whiffen covered 9

the check in the amount of $19,048.48. Accordingly, only the remaining two checks, which totaled

$ 16,956.45, were before the District Court as a possible basis for Romanowicz’s personal liability.

14

Romanowicz could not be liable for dishonored checks he signed on behalf of Whiffen. Pursuant 9

to section 3-403 of the N.Y. U.C.C., “[a]n authorized representative who signs his name to an

instrument . . . except as otherwise established between the immediate parties, is personally obligated

if the instrument names the person represented but does not show that the representative signed in a

representative capacity.” N.Y. U.C.C. § 3-403(2)(b). As explained by the New York Court of

Appeals, this rule “aims to foster certainty and definiteness in the law of commercial paper.” Rotuba

Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 228 (1978); see also In re Golden Distrib., Ltd, 134 B.R. 770, 774

(Bankr. S.D.N.Y. 1991) (“While [section 3-403(2)(b)] may seem harsh, the rule is in keeping with the

general intent and purpose of the negotiable instrument law to protect holders in due course. 

Commercial paper must be permitted to be freely negotiable without undue risk.” (internal

quotation marks omitted)).

In this case, the Joint Board’s complaint alleged, and our review of the record confirms, that

the checks contain Whiffen’s name, but “[t]he face of each of the dishonored checks does not

disclose that Romanowicz signed the check in a representative capacity.” J.A. 14 (Comp. ¶ 30).

Even where, as here, the face of a check indicates that funds are drawn from a corporate account,

the individual who signs the check may be personally liable under section 3-403 unless he specifically

indicates that he is signing in a representative capacity. See N.Y. U.C.C. 3-403(2)(b). 

Magistrate Judge Gold nevertheless recommended that the District Court hold that

Romanowicz had signed in a representative capacity, based on the Magistrate Judge’s observation

that “it seems likely that the parties had ‘otherwise established’” that Romanowicz was signing in his

representative capacity. J.A. 228. The Magistrate Judge went on to note that the Joint Board had
15

“offered no evidence, nor made any assertions of fact, suggesting there was not such a course of

dealing.” J.A. 229. The District Court adopted Magistrate Judge Gold’s recommendation, reasoning

that Romanowicz’s representative capacity was confirmed by the fact that “weekly payments [from

Whiffen to the Joint Board] usually took the form of checks signed by Romanowicz.” Finkel, 2007

WL 1395562 at *2. 

The Joint Board argues that the party seeking to avoid personal liability under section 3-

403(2)(b) bears the burden of establishing an understanding between the parties that he signed the

checks solely in a representative capacity and that, in this case, Romanowicz failed to meet that

burden. According to the Joint Board, the District Court sua sponte raised an affirmative defense on

behalf of Romanowicz and erroneously placed a burden on the Joint Board to establish that he had

not signed the instruments in a representative capacity. Further, the Joint Board argues that the

District Court’s finding of a “likely” understanding in the course of dealing between the Joint Board

and Romanowicz amounted to an inference against it, in contravention of the rule that a court must

draw all reasonable inferences in favor of the plaintiff where the defendant has defaulted. See Au

Bon Pain Corp., 653 F.2d at 65. 

We agree with the Joint Board that, in this respect, the District Court erred as a matter of

law. The District Court correctly noted that, under section 3-403(2)(b), a signatory of a dishonored

check who failed to indicate on the face of the check that he signed in a representative capacity may

escape personal liability where “there [is] an understanding, implicit in the course of dealing

[between the parties,] that he was acting in a representative capacity.” See Finkel, 2007 WL 13955562

at *2 (describing a holding of In re Golden Distribs., Ltd., 134 B.R. at 774). However, this exception is

an affirmative defense under New York law, and Romanowicz did not raise it. The New York

Court of Appeals has held that “[t]o escape personal liability [under section 3-403(2)(b)], the signer has

the burden to ‘establish’ an agreement, understanding or course of dealing to the contrary.” Rotuba
16

Extruders, 46 N.Y.2d at 229 (emphasis added). Unless the defendant makes “an affirmative

demonstration that the taker of the note knew or understood that the signer intended to execute the

instrument in a representative status only, there can be no defense that, notwithstanding the form of the

note, representative liability was otherwise established between the parties.” Id. (internal quotation

mark and alteration omitted) (emphasis added); see also Golden Distribs., Ltd. v. Garced, 134 B.R. 766,

770 (Bankr. S.D.N.Y. 1991) (holding that an individual was personally liable under section 3-

403(2)(b) where he failed to appear at his trial and thus failed to “demonstrate that there was an

understanding, implicit in his course of dealing with [a company], that he was acting in a

representative capacity”). 

CONCLUSION 

For reasons stated above, we AFFIRM the judgment of the District Court insofar as it (1)

concluded that Romanowicz was not an ERISA fiduciary and thus was not jointly and severally

liable for Whiffen’s failure to remit timely contributions to the 401(k) fund and (2) did not hold a

hearing prior to dismissing the Joint Board’s breach-of-fiduciary-duty claim. We REVERSE the

judgment of the District Court insofar as it held that Romanowicz is not personally liable for the

dishonored checks at issue pursuant to N.Y. U.C.C. § 3-403. On remand, the District Court shall

enter a default judgment in favor of the Joint Board with respect to the dishonored checks. The

District Court shall also calculate the amount of damages to reflect any payments by Whiffen or

Romanowicz during the pendency of this litigation to satisfy the amounts owed therefrom. 

Defendant-appellee Romanowicz shall bear the costs of this appeal. See Fed. R. App. P.

39(a)(4).