UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JOHN FLYNN et al. , : : Plaintiffs, : Civil Action No.: 09-0396 (RMU) : v. : Re Document No.: 6 : OLD WORLD PLASTER, LLC, : : Defendant. : MEMORANDUM OPINION G RANTING THE P LAINTIFFS ’ M OTION FOR D EFAULT J UDGMENT I. INTRODUCTION This matter is before the court on the plai ntiffs’ motion for entry of default judgment pursuant to Federal Rule of Civ il Procedure 55(b)(2). The plaintiffs are the fiduciaries of the Bricklayers and Trowel Trades International Pension Fund a nd the International Masonry Institute (collectively, “the Plans”), which are “employee benefit plans” and “multiemployer plans” within the meaning of the Employment Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq . The plaintiffs commenced this action on February 26, 2009, alleging that the defendant failed to make contributions to th e Plans as required by ERISA and the applicable collective bargaining agreements. The plaintiffs served the defendant with a copy of the complaint on April 29, 2009. To date, the defendant has not responded to the complaint or otherwise participated in this action. As a re sult, the court grants the plaintiffs’ motion for default judgment and awards them $252,058.66 in damages.2 II. FACTUAL & PROCEDURAL BACKGROUND The complaint states that representatives of the International Uni on of Bricklayers and Allied Craftsmen and its affiliated local unions entered into a collective bargaining agreement with the defendant. Compl. ¶ 8. Pursuant to the agreement, the defendant was required to provide monthly reports to the pl aintiffs’ representatives and rem it regular contributions to the Plans based on the number of hours worked by the defendant’s unionized employees. Id. ¶ 9; see generally Compl., Ex. A (“CBA”). The plaintiffs a ssert that the defendant failed to make monthly payments to the Plans, in violation of the collective bargaining agreement and ERISA. Compl. ¶¶ 1, 11, 14. The plaintiffs allege that an independent accounting firm performed an audit of the defendant’s books and records and determined th at during the period fr om January 2003 through December 2004, 1 the defendant failed to submit the re quired reports and contributions to the Plans. Id. ¶ 11. According to the plaintiffs, the u npaid contributions for this period total $12,983.99. Id. ¶ 12. The plaintiffs further allege that although the defendant did provide monthly reports for May 2006 and February 2007 through April 2008, it failed to make $123,213.72 in required contributio ns for those months. Id. ¶¶ 14-15. On February 26, 2009, the plaintiffs initiat ed this action to recover delinquent contributions to the Plans. See generally id. The plaintiffs also seek interest on the delinquent

1 Although the claims arising out of the period from January 2003 to December 2004 could be barred by the three-year statute of limitations applicable to ERISA claims in this district, Connors v. Hallmark & Son Coal Co. , 935 F.2d 336, 341 (D.C. Cir. 1991), the statute of limitations is not a jurisdictional issue and the court will not address it sua sponte , Day v. McDonough , 547 U.S. 198, 205 (2006) (stating that “[a] statute of limita tions defense . . . is not ‘jurisdictional,’ hence courts are under no obligation to raise the time bar sua sponte ”); Davis v. Bryan , 810 F.2d 42, 44 (2d Cir. 1987) (observing that “[i]f a defendant fa ils to assert the statute of limitations defense, the district court ordinarily should not raise it sua sponte ”)

.3 contributions, liquidated damages, attorney’s fees and costs. Id. ¶¶ 18-19. On April 29, 2009, the plaintiffs served the de fendant with the summons and complaint. Pls.’ Aff. of Service. After the defendant failed to submit a timely respons e to the complaint, the Clerk of the Court entered defa ult against the defendant on June 10, 2009. Entry of Default. Consistent with Federal Rule of Civil Procedur e 55, the plaintiffs then filed this motion for default judgment on May 21, 2010. See generally Pls.’ Mot. Thr oughout this period, the defendant has not pleaded or otherwis e defended itself against this action.

III. ANALYSIS A. Legal Standard for Entry of Default Judgment Under Rule 55(b)(2) Federal Rule of Civil Procedure 55 specifies a two-step process for a party seeking to obtain a default judgment. First, the plaintiff must request that the Clerk of th e Court enter a default against the party who has “failed to plead or otherwise defe nd” against an action. F ED
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. P. 55(a). Second, if the plaintiff’s claim is not for a “sum certain,” the party must apply to the court for an entry of default judgment. Id. 55(b)(2). This two-step process gives a defendant an opportunity to move to set aside a defa ult before the court enters judgment. Id. 55(c); see also H. F. Livermore Corp. v. Ak tiengesellschaft Gebruder Loepfe , 432 F.2d 689, 691 (D.C. Cir. 1970) (stating that “[t]he notice requirement contained in Rule 55(b)(2) is . . . a device intended to protect those parties who, although delaying in a formal sens e by failing to file pleadings . . . have otherwise indicated to the moving pa rty a clear purpose to defend the suit”). A court has the power to enter default judgmen t when a defendant fails to defend its case appropriately or otherwise enga ges in dilatory tactics. Keegel v. Key W. & Caribbean Trading
Co. , 627 F.2d 372, 375 n.5 (D.C. Cir. 1980). Rule 55(a) of the Federal Rule s of Civil Procedure4 provides for entry of default “[w]hen a party agai nst whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules.” F ED
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. P. 55(a). Upon request of the party entitled to default, Rule 55(b)(2) authorizes the court to enter against the defendant a default judgment fo r the amount claimed and costs. Id. 55(b)(2). Because courts strongly favor resolution of disputes on their merits, and because “it seems inherently unfair” to use th e court’s power to enter judgment as a penalty for filing delays, modern courts do not favor default judgments. Jackson v. Beech , 636 F.2d 831, 835 (D.C. Cir. 1980). Accordingly, default judgment usually is av ailable “only when the adversary process has been halted because of an essentially unresponsiv e party . . . [as] the diligent party must be protected lest he be faced with interminable de lay and continued uncertainty as to his rights.” Id

. at 836 (quoting H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe , 432 F.2d 689, 691 (D.C. Cir. 1970)). Default establishes the defaulting party’s liab ility for the well-pleaded allegations of the complaint. Adkins v. Teseo , 180 F. Supp. 2d 15, 17 (D.D.C. 2001); Avianca, Inc. v. Corriea , 1992 WL 102999, at *1 (D.D.C. Apr. 13, 1992); see also Brock v. Unique Racquetball & Health Clubs, Inc. , 786 F.2d 61, 65 (2d Cir. 1986) (noting that “d efault concludes the liability phase of the trial”). Default does not, however, establis h liability for the amount of damage that the plaintiff claims. Shepherd v. Am. Broad. Cos., Inc. , 862 F. Supp. 486, 491 (D.D.C. 1994), vacated on other grounds , 62 F.3d 1469 (D.C. Cir. 1995). In stead, “unless the amount of damages is certain, the court is re quired to make an independent determination of the sum to be awarded.” Adkins , 180 F. Supp. 2d at 17; see also Credit Lyonnais Secs. (USA), Inc. v. Alcantara , 183 F.3d 151, 155 (2d Cir. 1999) (stating that the court must conduct an inquiry to ascertain the amount of damages with reasonable cer tainty). The court has considerable latitude5 in determining the amount of damages. Jones v. Winnepesaukee Realty , 990 F.2d 1, 4 (1st Cir. 1993). To fix the amount, the court may conduct a hearing. F ED
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. P. 55(b)(2). The court is not required to do so, however, “as long as it en sure[s] that there [is] a basis for the damages specified in the default judgment.” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc. , 109 F.3d 105, 111 (2d Cir. 1997). B. The Court Grants the Plaintiffs’ Motion for Entry of Default Judgment 1. The Defendant is Liable to the Plaintiffs The plaintiffs assert that default judgment is appropr iate in this case given the defendant’s failure to respond to the complaint or otherwise defend itself against this action. Pls.’ Mot. at 2. As previously noted, the plai ntiffs served the defendant with a copy of the complaint on April 29, 2009. Id. at 1. Having concluded that the defendant failed to plead or otherwise defend itself against the action, the Cl erk of the Court entered default on June 10, 2009, pursuant to Federal Rule of Civil Procedure 55. Id. , Ex. C. Since that time, the defendant has not responded to either the in itial complaint or this motion, de spite being served with copies of both documents. See generally Pls.’ Mot. Given the defendant’s failure to respond, the entry of default judgment is appropriate. See, e.g. , H. F. Livermore Corp. , 432 F.2d at 691 (holding that default judgment is appropriate when “the adversary process has been halted because of an essentially unresponsive party”). The defendant’s default constitutes an ad mission of liability for the well-pleaded allegations in the complaint. Int’l Painters & Allied Trades Indus . Pension Fund v. R.W. Amrine Drywall Co. , 239 F. Supp. 2d 26, 30 (D.D.C. 2002); see also Black v. Lane , 22 F.3d 1395, 1399 (7th Cir. 1994); Trans World Airlines, Inc. v. Hughes , 449 F.2d 51, 63 (2d Cir. 1971), rev’d on other grounds, 403 U.S. 363 (1973). ERISA requires that “[ e]very employer who is obligated to6 make contributions to a multiemployer plan . . . ma ke such contributions in accordance with the terms and conditions of such plan or such agreem ent.” 29 U.S.C. § 1145. The plaintiffs allege that the defendant failed to make contributions to the employee be nefit plans as required by the parties’ collective bargaining ag reements. Compl. ¶¶ 11, 14. Accordingly, the court deems these well-pleaded allegations admitted and must now determine the appropriate relief. 2. The Plaintiffs Are Entitled to Mo netary Relief in the Amount of $252,058.66 The plaintiffs claim that the defendant’s fail ure to make the require d contributions to the employee benefit plans entitles them to a total of $252,058.66 in monetary relief. Pls.’ Mot. at 1. Specifically, the plaintiffs request: (1) $12,983.99 in delinquent contributions for the period between January 2003 through December 2004; (2) $2,692.06 in interest payable on the delinquent contributions fo r the period between January 2003 through December 2004, calculated at a rate of fift een percent per annum through Ap ril 21, 2005; (3) an additional $2,692.06 in interest calculated in the same manner , for delinquent contributions for the period between January 2003 through December 2004; (4 ) $123,213.72 in delinquent contributions for May 2006 and the months of February 2007 th rough April 2008; (5) $51,443.09 in interest payable on the delinquent contributions for Ma y 2006 and the months of February 2007 through April 2008, calculated at a rate of fifteen pe rcent per annum through April 26, 2010; (6) an additional $51,443.09 in interest calculated in the sa me manner, for delinquent contributions for May 2006 and the months of February 2007 through April 2008; (7) $350.00 in filing fees; (8) $181.85 representing the process server’s fee; (9 ) $570.30 for the cost of conducting an audit; and (10) $6,488.50 in attorney’s fees. See generally Pls.’ Mot., Ex. B (Decl . of Charles Mehler III (“Mehler Decl.”)). ERISA provides that, in an action brought by a fiduciary of an employee benefit plan7 under 29 U.S.C. § 1145, 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 . . . of the amount determined by the court in subparagraph (A), (D) reasonable attorney’s fees and costs of the action, to be paid by the defendant, and (E) such legal or equitable relief as the court deems appropriate. 29 U.S.C. § 1132(g)(2). Addressing each of these provisions in order, ERISA first entitles the plaintiffs to the defendant’s unpaid contributions. Id. § 1132(g)(2)(A). The plaintiffs’ entitlement to delinquent contributions is derived from two sources. See Pls.’ Mot., Ex. A (Decl. of David Stupar (“Stupar Decl.”)) ¶¶ 8-12. First, the plaintiffs are entitled to $12,983.99 in delinquent contributions discovered during an audit of the defendant’s books and records for the period from January 2003 through December 2004. See Fanning v. Big Warrior Corp. , 2010 WL 1573807, at *4 (D.D.C. Apr. 21, 2010) (granting the plaintiff unpaid contributions discover ed during an audit). Second, the plaintiffs are enti tled to unpaid contributions for the months of May 2006 and February 2007 through April 2008. See 29 U.S.C. § 1132(g)(2). Using the reports provided by the defendant for those months, th e plaintiffs have calculated that the defendant failed to make $123,213.72 in contributions for this pe riod. Stupar Decl. ¶¶ 8-9. The court accepts the plaintiffs’ calculat ion of delinquent contributions as both reasonable and accurate. Accordingly, the cour t awards the plaintiffs $12,983.99 in delinquent contributions for the period of January 2003 through December 2004 and $123,213.72 in delinquent contributions for the months of May 2006 and February 2007 through April 2008,8 yielding a total sum of $136,197.71. ERISA also entitles the plaintiffs to intere st on the defendant’s unpaid contributions. 29 U.S.C. § 1132(g)(2)(B). The Trustees of the Pl ans adopted collection pro cedures that govern the collection of delinquent employer contributions. Stupar Decl. ¶ 4. These procedures set the interest rate on delinquent contributi ons at fifteen percent per annum. See Compl. ¶¶ 13, 16; Stupar Decl. ¶ 5; Stupar Decl., Ex. 1. Applying this interest rate, the plaintiffs have calculated that the defendant owes interest in the am ount of $2,692.06 on the delinquent contributions for period January 2003 through December 2004. Stupar Decl. ¶ 13; Mehler Decl. ¶ 4. This amount is calculated from the due date of th e unpaid contributions through April 21, 2005. Id. The plaintiffs have also calculat ed that the defendant owes in terest in the amount of $51,443.09 on the delinquent contributions for May 2006 and the months of Februa ry 2007 through April
2008. 2 Stupar Decl. ¶ 10; Mehler Decl. ¶ 4. The cour t grants the plaintiffs’ request for interest on the delinquent contributions for both periods in the total amount of $54,135.15. Pursuant to 29 U.S.C. § 1132(g)(2)(C), the court also grants the plain tiffs’ request for an additional interest award of $54,135.15. See 29 U.S.C. § 1132(g)(2)(C) (stating that a successful plaintiff is entitled to an a dditional award in the amount of the interest on the unpaid contributions if that amount is greater than the liquidated damages provided for in the plan). Furthermore, the plaintiffs are entitled to r ecover their filing fees a nd service costs in the amounts of $350.00 and $181.85, respectively. See id. § 1132(g)(2)(D). The plaintiffs are also entitled to recover $570.30 in cost s incurred in connection with the independent audit of the defendant’s books and records. See CBA, Art. XVII, § 9 (providing that “an Employer

2 This interest amounts are calculated from the due date of the unpaid contributions through April 26, 2010. Stupar Decl. ¶ 4; Mehler Decl. ¶ 4.9 determined to be delinquent in its payments . . . may be liable for . . . audit fees and other expenses incurred incidental to collecti on of contributions due to the Fund”); cf. 29 U.S.C. § 1132(g)(2)(E) (providing that plaint iffs are entitled to recover “suc h legal or equitable relief as the court deems appropriate”). Finally, the court must determine whether the plaintiffs’ request for attorney’s fees is reasonable. 29 U.S.C. § 1132(g)(2)(D). The cour t concludes that the plaintiffs’ request for $6,488.50 in attorney’s fees is reasonable based on the itemized billing schedule provided by the plaintiffs’ counsel. See Mehler Decl. ¶ 14. In total, the court awards the plaintiffs monetary relief in the amount of $252,058.66.

IV. CONCLUSION For the foregoing reasons, the court grants the plaintiffs’ motion for default judgment. The defendant shall pay $252,058.66 representing unpaid contributions, interest, damages, costs and attorney’s fees. An Order consistent wi th this Memorandum Opinion is separately and contemporaneously issued this 4th day of October, 2010.

RICARDO M. URBINA United States District Judge