United States District Court, D. New Jersey
TRUSTEES OF THE NEW JERSEY B.A.C. HEALTH FUND, et al., Plaintiffs,
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.
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE.
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,
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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)).
Proof of Service
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.
Cause of Action
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 ...