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Re: Trustees of the Local 7 Tile Industry Welfare Fund, et al. v. Giacomelli Tile

January 4, 2012

RE: TRUSTEES OF THE LOCAL 7 TILE INDUSTRY WELFARE FUND, ET AL.
v.
GIACOMELLI TILE, INC., ET AL.



The opinion of the court was delivered by: William J. Martini Judge

MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE 50 WALNUT STREET, P.O. BOX 419 NEWARK, NJ 07101-0419 (973) 645-6340

LETTER OPINION

Dear Counsel:

This matter comes before the Court on Plaintiffs' motion for default judgment. There was no oral argument. Fed. R. Civ. P. 78. For the reasons set forth below, Plaintiffs' motion is GRANTED.

I. BACKGROUND

The following facts are established by the Complaint, the motion for default judgment, and the exhibits attached thereto. Plaintiffs are the trustees of the Local 7 Tile Industry Welfare Fund, the Local 7 Tile Industry Annuity Fund, and the Tile Layers Local Union 52 Pension Fund (collectively, the "Local Funds") and the trustees of the Bricklayers & Trowel Trades International Pension Fund and the International Masonry Institute (collectively, the "International Funds") (the Local Funds and International Funds shall be referred to collectively as the "Funds"). Defendants are a tile installation contractor, Giacomelli Tile, Inc. ("GTI"); its owner Warren Giacomelli; and two tile installation companies, Colvere Tile, Inc. ("Colvere") and J&J Tile, Inc. ("J&J").

At all relevant times, GTI was a party to a collective bargaining agreement (the "CBA") with the Tile Setters and Tile Finishers Union of New York and New Jersey, Local Union No. 7 of the International Union of Bricklayers and Allied Craftworkers (the "Union"). Declaration of Christopher Guy ("Guy Decl.") ¶ 2, ECF No. 9-1. The CBA required GTI to make certain monetary contributions to the Funds for all work performed in the trade and geographical jurisdiction of the Union ("Covered Work"). Guy Decl. ¶ 3. Since 2005, there have been two audits of GTI's books and records. The first audit covered the period of January 1, 2005 through June 30, 2006,*fn1 and the second audit covered the period of July 1, 2006 through December 31, 2009 (collectively, the "Audits"). Declaration of Fred Moss ("Moss Decl.") ¶¶ 3-4, ECF No. 9-2. The Audits revealed that GTI had failed to make $144,907.93 in required contributions to the Funds. Moss Decl. ¶¶ 6-7.

Plaintiffs commenced this action on March 31, 2011. Compl., ECF No. 1. On April 8, 2011, Plaintiffs' agent served three Summonses and three copies of the Complaint to Michelle Nallen, the managing agent of GTI, Colvere, and J&J. See ECF Nos. 3, 5-6. On April 8, 2011, Plaintiffs' agent also served a Summons and Complaint to Warren Giacomelli, by serving Raya Sorane, a household member of suitable age and discretion residing in the usual place of abode of Mr. Giacomelli. See ECF No. 4. Defendants were required to file an Answer or otherwise move with respect to the Complaint no later than April 29, 2011. Fed. R. Civ. P. 12(a)(1)(A)(i). To date, all four Defendants have failed to answer or otherwise respond to the Complaint. Accordingly, the Clerk entered a Default against Defendants on May 6, 2011. Clerk's Entry of Default, ECF No. 8. Plaintiffs filed the instant motion for default judgment on October 17, 2011. This motion was served on October 17, 2011. Cert. of Service, ECF No. 10. To date, no opposition has been filed.

II. DISCUSSION

A.Standard of Review

Federal Rule of Civil Procedure 55 governs default. After the Clerk's entry of default pursuant to Rule 55(a), a plaintiff may then seek the Court's entry of default pursuant to Rule 55(b)(2). See Doug Brady, Inc. v. N.J. Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008). "Before imposing the extreme sanction of default, district courts must make explicit factual findings as to: (1) whether the party subject to default has a meritorious defense, (2) the prejudice suffered by the party seeking default, and (3) the culpability of the party subject to default." Id. (citing Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987)). To make these determinations, the Court should accept as true the well-pleaded factual allegations of the complaint, although the Court need not accept the moving party's legal conclusions or allegations relating to the amount of damages. Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir.1990); Chanel, Inc. v. Gordashevsky, 558 F. Supp. 2d 532, 535-36 (D.N.J. 2008).

B.Default Judgment is Appropriate

After review of the record, the Court determines that Plaintiffs have satisfied the requirements for default judgment. The record shows that Defendants have been properly served pursuant to Federal Rules of Civil Procedure 4(h)(1)(B) and 4(e)(2)(B). See ECF Nos. 3-6. Defendants have failed to respond to the Complaint and the deadline for answering the Complaint or filing a responsive motion has passed. See Clerk's Entry of Default, ECF No. 8. When a defendant has "failed to answer, move, or otherwise respond to the complaint, the entry of a default judgment against him is appropriate." See Palmer v. Slaughter, No. 99-899, 2000 U.S. Dist. LEXIS 22118, 2000 WL 1010261, at *2 (D. Del. July 13, 2000).

An analysis of the Doug Brady factors compels an entry of default judgment. First, review of the record reveals that Plaintiffs have a legitimate cause of action and none of the four Defendants has a meritorious defense. GTI was contractually and legally obligated to contribute to the Funds during the time periods covered by the Audits. See Exhibit A, GTI CBA, Article IX Section III, ECF No. 9-5; 29 U.S.C. ยง 1145 ("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."). The findings of the Audits determined that GTI failed to make contributions in the principal ...


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