UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRICKLAYERS & TROWEL TRADES INTERNATIONAL PENSION FUND et al.,

Plaintiffs, Case No. 1:18-cv-0165-CRC

v.

JOANN BARRON d/b/a BARRON TILE COMPANY,

Defendant.

MEMORANDUM OPINION

Plaintiffs in this ERISA action—multiemployer employee benefit plans—seek to recover

unpaid contributions and associated damages from an Ohio-based tile company. Despite having

been properly served, the company has not responded to the complaint, the Clerk’s entry of

default, or the Court’s order to show cause why judgment should not be entered against it.

Plaintiffs now request a default judgment, monetary damages, and attorneys’ fees, as well as an

injunction requiring the company to submit to a payroll audit and make the required plan

contributions going forward. Because Plaintiffs have adequately established that the Defendant

is liable and that they are entitled to all of the requested relief, the Court will grant their motion

and enter judgment against the company.

I. Background

Plaintiffs—the Bricklayers & Trowel Trades International Pension Fund (“IPF”) and the

International Masonry Institute (“IMI”)—are “employee benefit plans” and “multiemployer

plans” under the Employee Retirement Income Security Act of 1974,

et seq.

(“ERISA”). The plans are funded by contributions made by employers who are signatories to

collective bargaining agreements. Ohio-based Defendant Joann Barron is an individual doing business under the trade name “Barron Tile Company” (“Barron”) and is one such employer. It

is required under its collection bargaining agreements and the plans’ written procedures

governing the collection of employer contributions (“Collection Procedures”) to submit monthly

reports and payments to the plans based on the number of hours worked by its employees in

covered job positions. David F. Stupar Supp. Pls.’ Mot. Default J. (“Stupar Decl.”) ¶ 7. If

Barron fails to make the required contributions, Plaintiffs are entitled to file suit to recover the

unpaid contributions; interest on the unpaid contributions; either an additional assessment of

interest on the unpaid contributions or liquidated damages provided for under the plan not in

excess of 20 percent, whichever is higher; reasonable attorneys’ fees and costs; and other legal or

equitable relief as the court deems appropriate.

(g)(2).

Plaintiffs allege that Barron failed to “report and pay all amounts owing to [them] as

required” by the applicable collective bargaining agreements and the plans’ Collection

Procedures. Compl. ¶ 10. Barron was properly served on January 31, 2018. Pls.’ Aff. Service.

It did not respond to the complaint, however, and the Clerk of the Court entered default on

February 26, 2018. Entry of Default. Plaintiffs now petition the Court to enter a default

judgment, seeking monetary judgement against Barron in the amount of $8,794.44, which

includes delinquent contributions, interest on delinquent payments, liquidated damages, process

server costs, filing fees, and attorneys’ fees. Stupar Decl. ¶¶ 9-13, 15-18.

Section 502(e)(2) of ERISA provides for federal jurisdiction “in the district where the

plan is administered.”

(e)(2). According to the complaint, both the IPF and the

IMI are administered in the District of Columbia. Compl. ¶¶ 1-2. The Court therefore has

jurisdiction over the case. Plaintiffs filed the complaint within ERISA’s three-year statute-of-

limitations period. See

.

2 II. Standard of Review

The standard for default judgment is a two-step procedure. See, e.g., Boland v. Cacper

Constr. Corp.,

(D.D.C. 2015). First, the plaintiff requests that the

Clerk of the Court enter default against a party who has “failed to plead or otherwise defend.”

Fed. R. Civ. P. 55(a). Second, the plaintiff must move for entry of default judgment. Fed. R.

Civ. P. 55(b). Default judgment is available when “the adversary process has been halted

because of an essentially unresponsive party.” Boland v. Elite Terrazzo Flooring, Inc.,

(D.D.C. 2011) (internal citation omitted). “Default establishes a defaulting

party’s liability for the well-pleaded allegations of the complaint.”

After establishing

liability, the court must make an independent evaluation of the damages to be awarded and has

“considerable latitude in determining the amount of damages.”

The court may hold a hearing

or rely on “detailed affidavits or documentary evidence” submitted by plaintiffs in support of

their claims. Boland v. Providence Constr. Corp.,

(D.D.C. 2014) (quoting

Fanning v. Permanent Sol. Indus., Inc.,

(D.D.C. 2009)).

III. Analysis

The Court must determine whether entry of default judgment is appropriate and, if Barron

is liable, whether Plaintiffs are entitled to the manner and amount of relief they request. The

Court concludes that the company breached its duties under ERISA and the Collection

Procedures and that Plaintiffs are entitled to both the monetary and injunctive relief requested.

A. Liability

Plaintiffs filed suit in January 2018 to recover the damages prescribed by ERISA and the

Collection Procedures. Compl. ¶ 1. Barron was served with the summons and complaint on

3 January 31, 2018. Pls.’ Mot. Default J. 1. The Clerk of the Court declared it to be in default on

February 26, 2018. Entry of Default. On June 12, 2018, the Court issued an Order to Show

Cause why judgment should not be entered for Plaintiffs and set June 28, 2018 as the deadline

for Barron to respond. Barron has not responded to either the complaint, the Clerk’s entry of

default, or the Court’s Order to Show Cause.

Because the Clerk of the Court has entered default and Barron has failed to respond, the

Court accepts Plaintiffs’ well-pleaded allegations and holds that it is liable and that entry of

default judgment is appropriate. See Elite Terrazzo Flooring, Inc.,

.

ERISA requires employers to make contributions to multiemployer plans “in accordance with the

terms and conditions of” the relevant collective bargaining agreements.

. The

IPF and IMI’s Collection Procedures specify that contributions are due “on or before the 15th

day of the month” after the month in which work was performed. Stupar Decl. ¶ 5. They further

provide that Barron will “submit monthly fringe benefit remittance reports and pay monthly

fringe benefit contributions to the IPF and IMI for each hour of covered work performed by its

employees within the work and geographic jurisdictions of the Agreement.” Stupar Decl. ¶ 7.

By failing to submit required reports and pay the required contributions to IMI and IPF for

covered work, Barron is liable for contractual and statutory damages.

The Court may enter default judgment when a defendant makes no request “to set aside

the default” and gives no indication of a “meritorious defense.” Fanning,

.

Barron, as noted above, has not responded to the complaint since being served in January 2018.

The Court thus concludes that entry of default judgment against the Defendant is appropriate.

4 B. Damages

The next issue before the Court is the amount of damages due: “[P]laintiffs must prove

these damages to a reasonable certainty.” Elite Terrazzo Flooring, Inc.,

.

Under ERISA, employers are required to pay any delinquent contributions, interest on unpaid

contributions, liquidated damages at a rate of up to 20 percent or an additional interest

assessment at the rate provided under the plan (whichever is higher), and legal fees.

(g)(2). When a defendant has failed to respond, the Court must make an independent

determination—by relying on affidavits, documentation, or an evidentiary hearing—of the sum

to be awarded as damages.

As support for their requested damages, Plaintiffs have submitted declarations from

David F. Stupar, the Executive Director of the IPF and an authorized representative of the IMI,

and Richard Hopp, Plaintiffs’ attorney of record and counsel at O’Donoghue & O’Donoghue

LLP. Both attest to having personal knowledge of the facts regarding the assessment of

contributions owed by Joann Barron, as well as the costs incurred in the current suit. Stupar

Decl. ¶ 1; Hopp Decl. ¶ 1. Courts in this district, including this one, have accepted similar

declarations in support of motions for default judgment regarding monetary damages owed to

IPF and IMI. See Cacper Constr. Corp.,

; Providence Constr.,

; Elite Terrazzo Flooring,

. Mr. Stupar’s declaration details the

amounts owed for delinquent contributions, interest on late paid payments, liquidated damages,

court fees, and the process server’s fee. Stupar Decl. ¶¶ 9-13, 15-18.

1. Cover Group 2

First, Mr. Stupar affirms that Barron reported but failed to pay all the contributions due to

IPF and IMI for covered work performed in Local Union No. 8 – Ohio, cover group 2, in August,

5 October and December 2016, and February, March, April, May, June, and September 2017.

Stupar Decl. ¶ 9. Barron owes the IPF contributions in the amount of $1,252.21, and the IMI

contributions in the amount of $780.68, interest on the delinquent contributions due to the funds

in the amount of $284.17, and liquidated damages in the amount of $406.64.

Barron also

failed to timely pay contribution dues to the IPF and IMI for covered work performed by cover

group 2 during the months of May, July, August, November and December 2016 and January,

April and December 2017 and January 2018. Stupar Decl. ¶ 16. Barron owes liquidated

damages in the amount of $933.60 to the IPF and IMI.

Second, Barron failed to report and pay all the contributions to the IPF and IMI for

covered work performed in Local Union No. 8 – Ohio, cover group 2, in July and August 2017,

and February and March 2018. Stupar Decl. ¶ 10. Without the reports, Plaintiffs are entitled to

judgment based on reasonable estimates of hours worked by employees in covered employment.

See, e.g., Nat’l Shopmen Pension Fund v. Builders Metal Supply Inc.,

(D.D.C.

2014). Plaintiffs estimate that $245.98 is owed each month to the IPF (for a total of $983.92)

and $148.98 is owed each month to the IMI (for a total of $595.92) based on the average hours

reported by Barron. The interest on these delinquent contributions is $44.59 to the IPF and

$27.01 to the IMI; liquidated damages are $147.60 to the IPF and $89.40 to the IMI. Stupar Decl.

¶ 11-12.

2. Cover Group 29

First, during March and May 2017, Barron reported but failed to pay to the IMI all

contributions owed for covered work performed in Local Union No. 8 – Ohio, cover group 29.

Stupar Decl. ¶ 13. Barron owes the IMI contributions in the amount of $7.54, interest on the

6 delinquent contributions in the amount of $1.05, and liquidated damages in the amount of $1.51.

Second, Barron failed to report and pay all contributions to the IPF and IMI for covered

work performed in Local Union No. 8 – Ohio, cover group 29, in December 2016 and June,

August, September, October, November and December 2017, and January, February and March

2018. Stupar Decl. ¶ 14. Plaintiffs estimate that $6.82 is owed each month for December 2016

and $7.05 per month for June, August, September, October, November and December 2017, and

January, February and March 2018 to the IMI (for a total of $70.27) based on the average

monthly hours reported by Barron. Stupar Decl. ¶ 15. The interest on these delinquent payments

is $4.18 to the IMI; liquidated damages are $12.65 to the IMI. Id.

3. Court Fees

Additionally, Plaintiffs are entitled to recover court fees under ERISA Section

502(g)(2)(D). Here, Plaintiffs incurred a $400 court filing fee and a $185 process server fee.

Stupar Decl. ¶¶ 17-18.

The costs detailed above total $6,227.94.

C. Attorneys’ Fees

Aside from contractual damages, ERISA also requires defendants to pay plaintiffs’

reasonable attorney’s fees.

(g)(2)(D). O’Donoghue & O’Donoghue charged

Plaintiffs $295 an hour for 8.7 hours of work, totaling $2,566.50 in attorney’s fees for this case.

Hopp Decl. ¶ 2, 4. In support of the requested attorney’s fees, Mr. Hopp’s declaration details the

services provided to Plaintiffs. He attests that he has over 27 years of experience practicing

exclusively in the field of labor and employee benefits.

. He also notes that the firm has

7 charged reduced hourly rates in this case that fall “substantially below” the rate in the current

Laffey matrix.

.

Mr. Hopp’s declaration outlines the individual tasks he performed, from preparing the

complaint to drafting the motion for default judgment. Hopp Decl. Ex. 1. Because this

declaration constitutes the type of “detailed . . . documentary evidence” on which the Court may

rely, see Fanning,

, the Court concludes that Plaintiffs have justified the hours

expended in this case.

The Court likewise finds the requested rates to be reasonable. Mr. Hopp states that the

negotiated fee of $295 an hour is “below the usual and customary fee charged for this type of

work.” Hopp Decl. ¶ 4. Given that the firm charged below-market rates, the Court finds the

request to be reasonable. See, e.g., Providence Constr. Corp., 304 F.R.D. at 37 (holding that

“Funds are entitled to an attorneys-fee award calculated at market rates . . .”). The Court

therefore determines that Plaintiffs are entitled to $2,566.50 in attorney’s fees.

D. Equitable Relief

The final issue before the Court is whether Plaintiffs are entitled to their requested

equitable relief: an order directing Barron to submit an audit of its payroll records and an

injunction requiring Barron to 1) submit all remittance reports accurately to Plaintiffs no later

than the fifteenth day of the month following the month in which the Defendant’s employees

performed their work, and 2) pay the Plaintiffs all contributions owed no later than the fifteenth

day of the month following the month in which the Defendant’s employees performed their

work. Pls.’ Mot. Default J. 9–10.

ERISA permits courts to grant “other legal or equitable relief as [it] deems appropriate.”

(g)(2)(E). This may include “an injunction requiring a defendant to permit, and

8 cooperate with, an audit of its books and records.” Fanning v. AMF Mechanical Corporation,

No. CV 17-1514 (TJK),

, at *4 (D.D.C. May 24, 2018) (quoting Flynn v.

Mastro Masonry Contractors,

(D.D.C. 2002)). In similar situations with

non-responsive defendants, courts have awarded injunctions requiring an employer to comply

with its obligations under ERISA and collective bargaining agreements. See Boland v. Yoccabel

Constr. Co., Inc.,

(D.D.C. 2013); Int’l Painters & Allied Trades Industry

Pension Fund v. ZAK Architectural Metal & Glass, LLC,

(D.D.C. 2009);

Carpenters Labor-Mgmt. Pension Fund v. Freeman-Carder, LLC,

(D.D.C. 2007).

Guided by these prior cases, the Court grants Plaintiffs’ petition for an injunction

“because the defendant has demonstrated no willingness to comply with either its contractual or

statutory obligations or to participate in the judicial process.” ZAK Architectural Metal & Glass,

LLC,

(internal citation omitted). The Court directs Barron to submit to an

audit of its payroll records, file the reports required under the applicable collective bargaining

agreement, and pay all contributions to IPF and IMI that may become due after the entry of

judgment.

IV. Conclusion

For the foregoing reasons, the Court will grant Plaintiffs’ Motion for Entry of Default

Judgment. The Court will issue an order consistent with this opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: June 29, 2018

9