CARPENTERS SAVINGS FUND OF

PHILADELPHIA AND VICINITY and

EDWARD CORYELL in his capacity

as a fiduciary, 

Plaintiffs,

v.

ALICIN KULOSZEWSKI,

Defendant.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HONORABLE JOSEPH E. IRENAS

CIVIL ACTION NO. 11-2978 

(JEI/JS)

ORDER GRANTING DEFAULT JUDGMENT

(Dkt. No. 6)

APPEARANCES:

JENNINGS SIGMOND

Judith Ann Sznyter

510 Walnut Street

16 Floor th

Philadelphia, PA 19106

Counsel for Plaintiffs

IRENAS, Senior District Judge:

This matter having appeared before the Court on Plaintiff’s

Motion for Entry of Default Judgment (Dkt. No. 6); the Court

having reviewed Plaintiff’s submission; Defendant having made no

appearance; and for good cause appearing;

1. On May 24, 2011, Plaintiff filed this action alleging an

accidental overpayment from an ERISA governed individual account

pension plan. David Kuloszewski named his two daughters as fifty

percent plan beneficiaries. However, upon his passing, Plaintiff

paid the entire death benefit amount to Defendant. 

2. On February 24, 2011, Plaintiff sent Defendant a letter

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alerting her to the overpayment. On June 23, 2011, service of

the Summons and Complaint were made at Defendant’s usual place of

abode. Copies were left with Defendant’s boyfriend, Keith

Dessin. To date, Defendant has not made an appearance in this

case. On August 18, 2011, the Clerk of the Court filed an entry

of default against Defendant. 

3. Plaintiffs presently request this Court to make an entry

of default judgment against Defendant pursuant to Fed. R. Civ. P.

55(b)(2). Defendant has not made any attempt to contest the

Motion for Default Judgment or respond in any way to the Summons

and Complaint. 

4. Plaintiffs request restitution in the amount of

$13,687.80 and legal fees. Plaintiffs further request this Court

to deem Defendant a plan fiduciary and assess damages based on an

accounting of any earnings and profits made from the overpayment. 

5. “A person is a fiduciary with respect to a plan to the

extent (i) he exercises any discretionary authority or

discretionary control respecting management of such plan or

exercises any authority or control respecting management or

disposition of its assets.” 29 U.S.C. § 1103(21)(A); see also

Bd. of Trustees of Bricklayers and Allied Craftsmen of NJ Welfare

Fund v. Wettlin Associates, Inc., 237 F.3d 270, 272 (2001). The

plain language of this statute encompasses those who knowingly

and unlawfully retain plan assets to which they are not entitled

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as the undisputed facts here indicate. See Int’l Painters and

Allied Trades Indus. Pension Fund v. Aragones, 643 F.Supp.2d

1329, 1336 (M.D.Fla. 2008).

6. Accordingly, the Motion for Default will be granted. 

However, the Court will not order an accounting of earnings on

unlawfully retained funds that may no longer exist. Instead,

interest on the judgment shall run from the date of overpayment

at the rate set by 28 U.S.C. § 1961.

7. Furthermore, the Court declines to award discretionary

legal fees pursuant to 29 U.S.C. § 1132(g)(1). Defendant’s

failure to appear tips several of the factors against such an

award. Specifically, Plaintiff cannot demonstrate: (1) the

ability of the offending party to satisfy the award, (2) a

deterrent effect of an award of attorneys’ fees against the

offending party, or (3) a benefit conferred on members of the

pension plan as a whole. See Ursic v. Bethlehem Mines, 719 F.2d

670, 673 (3d Cir. 1983) (setting out a total of five factors to

consider in an award of attorneys’ fees pursuant to 20 U.S.C. §

1132(g)(1)).

IT IS, on this 28th day of November, 2011, 

ORDERED THAT

(1) Plaintiff’s Motion for Default Judgment is hereby 

GRANTED in the amount of $13,687.80. 

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(2) Interest shall run on the judgment from the date of the

overpayment in the amount set by 28 U.S.C. § 1961.

(3) Plaintiff’s Motion with respect to attorneys’ fees is

hereby DENIED.

(4) Plaintiff shall serve a copy of this Order and

accompanying Judgment on Defendant in accordance with

Fed.R.Civ.P. 4. 

 /s/ Joseph E. Irenas 

JOSEPH E. IRENAS, S.U.S.D.J.

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