UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRICKLAYERS & TROWEL TRADES INTERNATIONAL PENSION FUND,

Plaintiffs, Case No. 1:19-cv-03552 (TNM) v.

NY BIG APPLE CONSTRUCTION CORPORATION,

Defendant.

MEMORANDUM OPINION

Plaintiff Bricklayers & Trowel Trades International Pension Fund (the “Pension Fund”)

has pursued this action under the Employee Retirement Income Security Act (“ERISA”) for

nearly a year. Defendant NY Big Apple Construction Corporation (“Big Apple Construction”),

has never responded. The Pension Fund now moves for default judgment, and for the following

reasons the motion will be granted.

I.

The Penson Fund is an employee benefit plan organized under ERISA that provides

retirement benefits to certain individuals working in the construction industry. See Pls.’ Mot. for

Default J. (“Pls.’ Mot.”) Ex. 1 (“Pl.’s Mem.”) at 2, ECF No. 10-1. 1 The Pension Fund receives

required payments, called “contributions,” from employers who have signed collective

bargaining agreements with local unions affiliated with the International Union of Bricklayers

and Allied Craftworkers. Id.

1 All page citations refer to the pagination generated by the Court’s CM/ECF system and all exhibit numbers refer to the numbered attachments to the CM/ECF filings. One such employer is Big Apple Construction. Under the collective bargaining

agreement (“CBA”) it joined, Big Apple Construction agreed to pay contributions to the Pension

Fund based on each hour its employees performed certain work within the geographic

jurisdiction covered by the local union. Compl. ¶ 7, ECF No. 1; Pl.’s Mot. Ex. 3 at 20, 26–27,

ECF No. 10-3. The CBA also incorporates the union’s Amended Restated Agreement and

Declaration of Trust. Pl.’s Mem. at 3; id. Ex. 3 at 27. These agreements require contributions to

be paid on the fifteenth day of each month following a month when covered work was

preformed, as well as require reporting of the hours of work performed. Compl. ¶ 9; Pl.’s Mem.

at 3. Delinquent contributions generate interest at a rate of 15 percent a year from the missed

due date and incur the greater of either additional interest (calculated at the same 15 percent a

year) or liquidated damages (calculated at the rate of 20 percent of the delinquent contributions),

plus associated attorney’s fees and costs. Compl. ¶¶ 10–12.

Beginning in February 2019, Big Apple Construction failed to report hours and pay

contributions owed to the Pension Fund. Id. ¶ 9. In November 2019, the Pension Fund sued

under ERISA and the parties’ agreements seeking to recover delinquent contributions and

resulting damages. See id. ¶¶ 3, 13–26. Despite timely service of the Complaint, Big Apple

Construction never responded. The Clerk of the Court entered default against Big Apple

Construction at the Pension Fund’s request. See Req. for Clerk’s Entry of Default, ECF No. 8;

Default, ECF No. 9. Big Apple Construction has not moved to set aside the default. The

Pension Fund filed this default judgment motion, which is now ripe.

II.

Federal Rule of Civil Procedure 55 establishes a two-step process for default judgments.

First, the Clerk of Court enters a default on the docket if the “party against whom a judgment for

2 affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). Then

the plaintiff moves for a default judgment under Rule 55(b).

Whether a default judgment is appropriate under Rule 55(b)(2) is committed to the sound

discretion of the reviewing court. Boland v. Yoccabel Constr. Co.,

(D.D.C.

2013). But courts must conduct an inquiry into both liability and damages. The liability

assessment is limited: After the entry of default, the defaulting defendant is considered to admit

every well-pleaded allegation in the complaint. Adkins v. Teseo,

(D.D.C.

2001). If the court establishes liability, it then “must make an independent evaluation of the sum

to be awarded unless the damages are certain.” Serv. Emps. Int’l Union Nat’l Indus. Pension

Fund v. Liberty House Nursing Home of Jersey City, Inc.,

(D.D.C. 2017).

III. A. Big Apple Construction has failed to contest its liability in this suit. It did not respond to

the Complaint or this default judgment motion, nor has it moved to set aside the Clerk’s entry of

default. So the Court need only determine whether the allegations in the Complaint are well-

pleaded. Fanning v. AMF Mech. Corp.,

, 14 (D.D.C. 2018).

They are. ERISA requires employers to contribute to multiemployer pension plans in

line with their collective bargaining agreements.

. The Pension Fund alleged

and provided documentation showing that Big Apple Construction signed the CBA, which

requires contributions to the Pension Fund based on the hours of certain work its employees

performed. Compl. ¶ 7; Pl.’s Mot. Ex. 3 at 8, 31. Yet despite performing covered work as early

as February 2018, Big Apple Construction stopped remitting contributions beginning in February

2019. Compl. ¶¶ 7–8. This failure continued through July 2020.

3 Beyond the allegations in the Complaint, David F. Stupar, the Executive Director of the

Pension Fund, attests to the missing contributions. See Pl.’s Mot. Ex. 3 at 3. He also confirms

that Big Apple Construction previously submitted contributions and reports in accordance with

the CBA, showing the company’s awareness of its obligations.

The allegations are well-

pleaded, and along with the supporting documentation establish Big Apple Construction’s

liability. Entry of default judgment against the company is warranted. See AMF Mech. Corp.,

326 F.R.D. at 14.

B.

Now to step two: The Court’s independent assessment of damages. The plaintiff must

prove the damages sought “to a reasonable certainty.” Boland v. Elite Terrazzo Flooring,

(D.D.C. 2011). Courts may rely on “detailed affidavits or documentary

evidence” provided by plaintiffs in their assessment. Boland v. Providence Const. Corp.,

(D.D.C. 2014) (cleaned up).

ERISA authorizes these damages in actions to recover delinquent contributions owed

under a collective bargaining agreement: (1) unpaid contributions; (2) interest on the unpaid

contributions; (3) a penalty amount equal to the greater of either interest on the unpaid

contributions or liquidated damages; (4) reasonable attorney’s fees and costs; and (5) other

appropriate relief.

(g)(2). The first three are “sums certain” based on the

parties’ contractual agreements. Flynn v. Mastro Masonry Contractors,

(D.D.C. 2002). Attorney’s fees are not because “the reasonableness of the fees requested by the

plaintiff is a judgment call” that only the court can make.

(cleaned up).

The Pension Fund seeks $40,039.75 in damages, which includes $25,123.11 in estimated

delinquent contributions, $2,810.02 in interest, $5,024.62 in liquidated damages, and $7,082 in

4 attorney’s fees and costs. See Pl.’s Mem. at 10–13; Pl.’s Mot. Ex 2, ECF No. 10-2. The Pension

Fund’s evidence proves each of these sums to a reasonable certainty.

On the delinquent contributions, Big Apple Construction owes for each missing month

the number of hours worked by its employees multiplied by the applicable hourly contribution

rate set forth by the CBA. Pl.’s Mem. at 9. Big Apple Construction, however, not only failed to

pay required contributions starting in February 2019 but also failed to submit reports containing

the number of hours of work performed. Compl. ¶ 9, 14.; Pl.’s Mot. Ex. 3 at 5. In such

circumstances, the Court may rely on reasonable estimates of work performed based on past

contributions by the employer. See Nat’l Shopmen Pension Fund v. Builders Metal Supply, Inc.,

(D.D.C. 2014).

To estimate the hours, the Pension Fund used the average hours of covered work reported

per month by Big Apple Construction from February 2018 through January 2019, which is the

twelve-month period immediately preceding the company’s failure to report and pay

contributions. Pl.’s Mem. at 10–11; Pl.’s Mot. Ex. 3 at 5. The Court approves of this estimation

as reasonable. Cf. Nat’l Shopmen Pension Fund, 304 F.P.D. at 50 (permitting plaintiffs to use

“the highest amount of hours reported . . . in any month during the preceding 12-month period”);

Int’l Painters & Allied Trades Indus. Pension Fund v. LaSalle Glass & Mirror Co.,

(D.D.C. 2010) (accepting estimate based on average of the three months before the

failure to report). Given the estimate of 1,178.38 hours of covered work performed per month,

multiplied by the delinquent 18 months from February 2019 through July 2020 and the

contribution rate applicable during those months, Big Apple Construction owes $25,123.11 in

unpaid contributions. See Pl.’s Mot. Ex. 3 at 5–6. The Court will award that amount in full.

5 The Pension Fund may also collect prejudgment interest on the outstanding contributions

at a rate determined by the governing CBA. See

(g). Big Apple Construction

agreed by joining the CBA that delinquent contributions will be assessed at an annual interest

rate of 15 percent. See Pl.’s Mot. Ex. 3 at 4, 9, 12–13. The Pension Fund has adequately

demonstrated based on the supporting documentation that Big Apple Construction owes

$2,810.02 in interest on the $25,123.11 in estimated unpaid contributions. See

at 5–6.

The Pension Fund next requests liquidated damages due under ERISA and the terms of

the CBA. The Pension Fund is entitled to the greater of another round of interest or 20 percent

of the delinquent contributions. See

(g)(2)(c); Pl.’s Mot. Ex. 3 at 14–15. The

Court will award the latter—20 percent of the estimated $25,123.11 in unpaid contributions—

which totals $5,024.62. See Pl.’s Mot. Ex. 3 at 6.

Finally, the Court will grant attorney’s fees and costs. See Pls.’ Mem. at 12-13;

(g)(2)(D). The Pension Fund’s counsel submitted an invoice showing 20.4 hours

of work at an hourly rate $295/hour until Apri1 1, 2020, and $310/hour thereafter. Pl.’s Mot. Ex.

3 at 35–36. The rates are well within the norm for similar services rendered in this district. See

Boland v. Smith & Rogers Constr. Ltd.,

(D.D.C. 2016) (awarding

attorney’s fees in default judgment action where counsel charged $615/hour and paralegal

charged $170/hour for 34.1 hours of work); Bricklayers & Trowel Trades Int’l Pension Fund v.

Kel-Tech Constr., Inc.,

, 345 n.8 (D.D.C. 2018) (same where counsel

charged $295/hour for 12.2 hours of work). The Pension Fund also submitted bills for $860

incurred in service of process and filing the complaint. Pl.’s Mot. Ex. 3 at 38–42. Counsel

attested that the hours and fees reflected in the invoices were accurate,

at 32–33, and based on

the documentation, the Court finds that the $7,082 in costs and attorney’s fees are justified.

6 IV.

For these reasons, the motion for default judgment will be granted. A separate Order will

issue. 2020.11.12 17:17:15 -05'00' Dated: November 12, 2020 TREVOR N. McFADDEN, U.S.D.J.

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