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Peterson v. Boyarsky Corp.

April 8, 2009

PETERSON, ET AL., PLAINTIFFS,
v.
BOYARSKY CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

Memorandum Order

This matter comes before the Court on an unopposed motion of Plaintiffs Michael Peterson, Rudolph Ricciardi, Robert Epifano, Joseph Speranza, Jr., Michael Schmerbeck, Jack Kocsis, Kenneth Simone, John F. Capo, Jeffrey Duffy, Donald Engelhardt, Kevin Duncan, and Richard Tolson, as Trustees of the New Jersey B.A.C. Health Fund, James R. Prisco Jr., Rudolph Riccardi, Joseph Speranza, Jr., John F. Capo, Jeffrey Duffy, Donald Engelhardt and Leon Jones, Jr., as Trustees of the New Jersey BM&P Apprentice and Education Fund, John Flynn, James Boland, Gerald O'Malley, Ken Lambert, Gerard Scarano, H.J. Bramlett, Eugene George, Robert Hoover, Matthew Aquiline, Gregory R. Hess, Michael Schmerbeck, Vincent DeLazzero, Benjamin Capp, and William McConnell as Trustees of, and on behalf of, the Bricklayers and Trowel Trades International Pension Fund, Jim Allen, Matthew Aquiline, Lon Best, James Boland, Ted Champ, Raymond Chapman, Vincent DeLazzero, Bruce Dexter, John Flynn, Eugene George, Gregory Hess, Fred Kinateder, Dan Kwiatkowski, Ken Lambert, Santo Lanzafame, Dick Lauber, William McConnell, Edward Navarro, Gerald O'Malley, John Phillips, Charles Raso, Mark Rose, Kevin Ryan, Gerard Scarano, Michael Schmerbeck, Paul Songer, Joseph Speranza, and Fred Vautour as Trustees of, and on behalf of, the International Masonry Institute, and Richard Tolson, as Administrator of BAC Administrative District Council of New Jersey (collectively, "Plaintiffs") seeking entry of default judgment pursuant to Fed. R. Civ. P. 55 against Defendant Boyarsky Corporation ("Boyarsky"). The Court has considered the submissions of the Plaintiffs and notes that Defendant has not responded to the motion. For the reasons stated below, Plaintiffs motion will be granted.

Factual History

The individual Plaintiffs fall into several groups, with some having membership in multiple groups. The New Jersey B.A.C. Health Fund ("N.J. BAC Health Fund") is a multi-employer, labor-management trust fund, organized pursuant to various collective bargaining agreements in accordance with Section 302 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 186. (Complaint ¶ 3.) As defined in Section 3 (1) and 3(37)(A) of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq. ("ERISA"), 29 U.S.C. § § 1002(1) and (37)(A), the NJ BAC Health Fund is an employee welfare plan. (Id.)

The New Jersey BM&P Apprentice and Education Fund (the "Apprentice Fund") is a multi-employer, labor-management trust fund, organized pursuant to various collective bargaining agreements in accordance with Section 302(c)(5) of the Taft-Hartley Act, 29 U.S.C. § 186(c)(5). (Id.) As defined in Section 3 (1) and 3(37)(A) of ERISA, 29 U.S.C. § § 1002(1) and (37)(A), the Apprentice Fund is an employee benefit plan. (Id.)

The Bricklayers and Trowel Trades International Pension Fund("IPF") is a multi-employer, labor-management trust fund organized pursuant to various collective bargaining agreements in accordance with 302(c)(5) of the Taft-Hartley Act, 29 U.S.C. § 186(c)(5). (Complaint ¶ 4.) The IPF is an employee benefit plan within the meaning of Section 3 (1) and 3(37)(A) of ERISA, 29 U.S.C. § § 1002(1) and (37)(A).

The International Masonry Institute("IMI") is a multi-employer benefit plan as defined in Section (3)(3) of ERISA, 29 U.S.C. § 1002(3), and is multi-employer plan under Section 3(37) ERISA, 29 U.S.C. § 1002(37). (Complaint ¶ 5.)

Plaintiff Richard Tolson is the Administrator of BAC Administrative District Council of New Jersey (the "Union"). The Union is a labor organization under the meaning given in Section 301 of the LMRA, 29 U.S.C. § 142 and represents employees in an "industry affecting commerce" as defined in Section 502 of the LMRA, 29 U.S.C. § 142, and Section 3(4) of ERISA, 29 U.S.C. § 1002 (4). (Complaint ¶ 5.)

The Plaintiffs NJ BAC Health Fund and the Apprentice Fund (collectively the "Local 2 Benefits Funds"), the IPF and the IMI provide employee fringe benefits to members of the Union. Defendant Boyarsky is a signatory on the Collective Bargaining Agreement ("CBA") with the Union, which established the terms and conditions of employment for the employees of Boyarsky. (Complaint ¶ 6.) The CBA applies to employees working as bricklayers, cement masons, plasterers, pointer caulkers, cleaners, fire proofers, stone masons, brick pavers and exterior marble masons (known collectively as "Covered Work") within the geographical jurisdiction of the Union. (Id.)

According to the CBA, Boyarsky agreed to pay the Funds fringe benefit contributions and forward dues checkoffs for each hour worked by its employees. (Complaint ¶ 6.) To date, Boyarsky has failed to pay their fringe benefit contributions to the Funds or to remit dues checkoffs and other contributions deducted from wages paid to Boyarsky employees who perform covered work under the CBA. (Id.) The Complaint alleges that Boyarsky has failed to pay a total of $13,848.73, which is broken down as follows: "(1) benefit contributions to the Plaintiffs Local 2 Benefit Funds in the amount of $3,458.04; (2) benefit contributions to the Plaintiffs IPF and IMI in the amount of $4,783.80 and (3) dues checkoffs to the Union in the amount of $893.84; and (4) additional amounts for interest and liquidated damages accrued on the principal amount of contributions." (Complaint ¶ 7.)

Procedural History

On April 11, 2008 Plaintiffs filed a Complaint alleging Boyarsky violated the CBA with the Union, the respective Trust Agreements with the funds, and the ERISA, 29 U.S.C. § 1001 et seq. by failing to pay and submit the required monetary contributions and reports to the funds and to remit dues checkoffs and other contributions to the Union when due. (Complaint ¶ 2; Pl.' s Mot. at 3.) The Plaintiffs seek unpaid fringe benefit contributions, interest on the unpaid contributions, liquidated damages, attorneys' fees and costs and disbursements incurred in the action, pursuant to Section 502(g) of ERISA in violation of Section 515 of ERISA. (Pl.'s Mot. at 3.)

The initial Summons and the Complaint for this matter were served upon Boyarsky on May 13, 2008. (Docket Entry # 3.) On June 17, 2008 Plaintiffs requested Entry of Default as to Boyarsky. (Docket Entry # 4.) The Clerk entered default the next day. (Id.) On August 1, 2008 Plaintiffs moved for default judgment against Boyarsky. (Id. at 6; Affirmation In Support of Pl.'s Mot. for Default J.) Due to a technical error, Plaintiff re-filed their Motion for Default Judgment with this Court, on February 5, 2009. (Docket Entry # 7.) On the same day, Boyarksy was served with the Notice of Motion, Proposed Default Judgment, and Affirmation. (Docket ...


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