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Trustees of New Jersey B.A.C. Health Fund v. Thurston F. Rhodes, Inc.

United States District Court, D. New Jersey

August 9, 2017

TRUSTEES OF THE NEW JERSEY B.A.C. HEALTH FUND, et al., Plaintiffs,
v.
THURSTON F. RHODES, INC. d/b/a J & M CONCRETE & GENERAL CONTRACTING, Defendant.

          Milania Dostanitch, Esq. Nicole Marimon, Esq. Virginia & Ambinder, LLP Attorneys for Plaintiffs Trustees of the New Jersey B.A.C. Health Fund, Trustees of the New Jersey B.A.C. Annuity Fund, Trustees of the B.A.C. Local 5 Pension Fund, Trustees of the New Jersey BM&P Apprentice and Education Fund, Trustees of the Bricklayers & Trowel Trades International Pension Fund, Trustees of the International Masonry Institute, and Richard Tolson, as Administrator of B.A.C Administrative District Council of New Jersey.

          OPINION

          RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court upon the renewed Motion for Default Judgment [Docket No. 14] by Plaintiffs Trustees of the New Jersey B.A.C. Health Fund, Trustees of the New Jersey B.A.C. Annuity Fund, Trustees of the B.A.C. Local 5 Pension Fund, Trustees of the New Jersey BM&P Apprentice and Education Fund (the “Local Funds”), Trustees of the Bricklayers & Trowel Trades International Pension Fund (“IPF”), Trustees of the International Masonry Institute (“IMI” and, together with IPF and the Local Funds, the “Funds”), and Richard Tolson, as Administrator of B.A.C Administrative District Council of New Jersey (the “Union” and, together with the Funds, the “Plaintiffs”), seeking the entry of default judgment against Defendant Thurston F. Rhodes, Inc. d/b/a J & M Concrete & General Contracting (the “Defendant”), pursuant to Federal Rule of Civil Procedure 55(b)(2). For the following reasons, the Plaintiffs' motion will be granted, in part, and denied, in part.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On February 18, 2016, Plaintiffs commenced the instant litigation against Defendant, seeking to recover amounts owed to Plaintiffs pursuant to a collective bargaining agreement and Sections 502(a)(3) and 515 of the Employee Retirement Income Security Act (“ERISA”) of 1974, 29 U.S.C. §§ 1332(a)(3), 1145, and Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. Compl. ¶¶ 1, 16-23 [Docket No. 1]. As alleged in the Complaint, Defendant did not pay certain required contributions and dues check-offs owed to its employees for work performed on the Yard House, Moorestown Mall project between August 27, 2015 and October 16, 2015 (the “Mall Project”). Compl. ¶ 14.

         The Defendant was served with the Summons and Complaint on February 24, 2016. Marimon Decl. Ex. B [Docket No. 16-2]. The time for Defendant to respond to the Complaint expired on March 16, 2016. To date, Defendant has not answered or otherwise responded to the Complaint. The Clerk of the Court, upon request by Plaintiffs, entered default against Defendant on July 14, 2016 [Docket Nos. 5, 6]. Thereafter, Plaintiffs filed a Motion for Default Judgment [Docket No. 6], which the Court denied without prejudice on January 10, 2017 due to Plaintiffs' failure to establish sufficient proof of service upon Defendant and to adequately support their entitlement to the relief sought [Docket No. 12]. At the Court's direction, Plaintiffs served Defendant with a copy of the January 10, 2017 Memorandum Opinion and Order. Marimon Decl. Ex. E [Docket No. 16-5]. Plaintiffs filed the renewed Motion for Default Judgment against Defendant on February 9, 2017 [Docket No. 14] and served Defendant [Docket No. 18]. Defendant has not opposed or otherwise responded to the instant motion or appeared in the litigation.

         Plaintiffs now request that default judgment be entered in Plaintiffs' favor and against Defendant in the total amount of $18, 297.93, representing (1) contributions of $5, 593.15; (2) interest thereon of $948.31; (3) liquidated damages of $1, 118.63; (4) dues check-offs of $607.50; and (5) attorneys' fees and costs of $10, 030.34, plus interest from February 7, 2017 through the date of the entry of default judgment.

         II. LEGAL STANDARD

         “Before granting a default judgment, the Court must determine (1) whether there is sufficient proof of service, (2) whether a sufficient cause of action was stated, and (3) whether default judgment is proper.” Teamsters Health & Welfare Fund of Phila. & Vicinity v. Rock Canyon, Inc., 2015 WL 881694, at *1 (D.N.J. Mar. 2, 2015) amended on reconsideration, 2015 WL 1321722 (D.N.J. Mar. 24, 2015) (quoting Teamsters Health & Welfare Fund of Phila. & Vicinity v. Dubin Paper Co., 2012 WL 3018062, at *2 (D.N.J. July 24, 2012)). The propriety of default judgment depends on (1) whether a plaintiff will be prejudiced if default is not granted, (2) whether a defendant has a meritorious defense, and (3) whether the defendant's delay is the result of culpable misconduct. Butler v. Pennsylvania Bd. of Prob. & Parole, 613 F. App'x 119, 122 (3d Cir. 2015) (quoting Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000)).

         III. ANALYSIS

         A. Proof of Service

         The Summons and Complaint were served personally upon Jesus Mendoza, a managing agent authorized to accept service on behalf of Defendant, on February 24, 2016. Marimon Decl. ¶ 4 [Docket No. 16]; Marimon Decl. Ex. B. When Defendant failed to timely respond to the Complaint, Plaintiffs properly sought entry of default pursuant to Federal Rule of Civil Procedure 55(a) [Docket No. 5]. Likewise, Plaintiffs have served Defendant with the original Motion for Default Judgment, the Court's Memorandum Opinion and Order, and the renewed Motion for Default Judgment. Marimon Decl. Exs. C, E [Docket Nos. 16-3, 16-5]; Aff. of Serv. [Docket No. 18]. Accordingly, the Court finds that there has been sufficient proof of service upon the Defendant.

         B. Cause of Action

         “Under ERISA, an employer who is obligated to contribute to a plan under the terms of a collective bargaining agreement must make such contributions in accordance with the terms and conditions of that agreement.” Laborers Int'l Union of N. Am. Local No. 199 Welfare, Pension, Apprenticeship & Training Annuity v. RAMCO Solutions, 2013 WL 4517935, at *4 (D.N.J. Aug. 26, 2013) (“LIUNA”) (citing ERISA Section 515, 29 U.S.C. § 1145); see also Rock Canyon, 2015 WL 881694, at *1. ERISA Section 502(a) allows a plan fiduciary to sue an employer for failure to make required contributions to a benefit fund. 29 U.S.C. § 1132(a); Dubin Paper Co., 2012 WL 3018062, at *3. If a court grants default judgment in favor of the plan fiduciary, ERISA Section 502(g)(2) requires the court to award (1) unpaid contributions; (2) interest on the unpaid contributions; (3) liquidated damages not to exceed ...


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