UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRICKLAYERS & TROWEL TRADES INTERNATIONAL PENSION FUND, Plaintiff, Civil Action No. 22-0047 (CKK) v. CROWE CONSTRUCTION INC., Defendant.

MEMORANDUM OPINION (July 18, 2023)

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

filed a [1] Complaint against Defendant Crowe Construction Inc. (“Crowe” or “Defendant”),

alleging that Defendant failed to submit monthly remittance reports and pay monthly benefit

contributions to Plaintiff as prescribed by the Collective Bargaining Agreements and IPF’s

Restated Agreement and Declaration of Trust. Although Defendant was properly served,

Defendant failed to respond to the Complaint in a timely manner. Accordingly, Plaintiff filed a

[11] Motion for Entry of Default and the Clerk entered [12] Default against Defendant on August

12, 2022. Now pending before the Court is Plaintiff’s [15] Motion for Default Judgment (“Mot.

for Default J.”). Upon consideration of Plaintiff’s submissions, the attachments thereto, 1 the

1 The Court’s consideration has focused on the following documents: • Plaintiff’s Complaint, ECF No. 1 (“Compl.”); • Plaintiff’s Motion for Entry of Default, ECF No. 11 (“Mot. for Entry of Default”); • Plaintiff’s Motion for Default Judgment, ECF No. 15 (“Mot. for Default J.”); • Declaration of David F. Stupar, ECF No. 15-3 (“Stupar Decl.”); • Declaration of Attorney’s Fees and Legal Costs, ECF No. 15-3 (“Decl. of Attorney’s Fees). In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). 1 relevant legal authorities, and the record as a whole, the Court shall GRANT Plaintiff’s Motion

for Default Judgment.

I. BACKGROUND

Plaintiff provides retirement and related benefits to individuals working in the

construction industry as bricklayers and related tradespersons; it is organized under the

provisions of the Employee Retirement Income Security Act of 1974 (“ERISA”),

(1). Compl. ¶ 1; Mot. for Default J. at 3. The benefits that IPF provides are financed by

contributions from employers who are parties to collective bargaining agreements with the

International Union of Bricklayers and Allied Craftworkers (“BAC”) and its local unions. Mot.

for Default J. at 3 (citing Stupar Decl. ¶ 3). One such employer is Defendant Crowe

Construction Inc., a contractor or subcontractor in the construction industry.

A series of

agreements, collectively known as the Collective Bargaining Agreements, govern Crowe’s

responsibility to submit monthly remittance reports and pay monthly benefit contributions to IPF

for each hour of covered work its employees perform within the geographic jurisdictions of BAC

Local Union No. 5 Ohio (“Local 5, Ohio”) and BAC Local Union No. 7 Ohio (“Local 7, Ohio”).

Stupar Decl. ¶¶ 7–8; Mot. for Default J. at 4.

The Collective Bargaining Agreements incorporate the Amended Restated Agreement and

Declaration of Trust (“Trust Agreement”), which is one of several documents that governs IPF.

Compl. ¶ 1; Stupar Decl. ¶ 2. Pursuant to the Trust Agreement, the Trustees of IPF have adopted

the General Collection Procedures for the Central Collection Unit of the Bricklayers and Allied

Craftworkers (“Collection Procedures”) to govern the collection of employer contributions and

reports. Stupar Decl. ¶ 4. Per the Trust Agreement, the Collection Procedures, and ERISA, if

Defendant fails to make these contributions by the fifteenth day of the month following the work

2 month, then it is required to pay interest at a rate of fifteen percent per annum from the due date

of each monthly payment, plus the greater of either an additional computation of interest

(calculated at the same fifteen percent per annum) or liquidated damages (calculated at the rate

of twenty percent of the delinquent contributions), plus the attorneys’ fees and costs incurred

recovering the delinquent amounts. Compl. ¶¶ 13–14; Stupar Decl. ¶ 5.

In violation of the Collective Bargaining Agreements, Defendant reported but failed to

pay Plaintiff a total of $34,030.30 in contributions for work performed in the jurisdictions of

Local 7, Ohio and Local, 5 Ohio during various months within the period of April 2019 to

February 2022. Mot. for Default J. at 8. Further, Defendant failed to report and pay

contributions to Plaintiff for work performed during various months between July 2020 to

September 2022 in the jurisdictions of Local 5, Ohio and Local 7, Ohio. Stupar Decl. ¶¶ 11, 13.

On January 7, 2022, Plaintiff commenced the present action against Defendant. Mot. for

Default J. at 2; see also Compl. In addition to the unpaid contributions Plaintiff claims it is

owed, Plaintiff also contends it is entitled to prejudgment interest of fifteen percent per annum

from the due date of each unpaid monthly contribution, pursuant to Section 502(g)(2)(B) of

ERISA,

(g)(2)(B), the Trust Agreement, and the Collection Procedures. Mot.

for Default J. at 9. Next, Plaintiff argues it is also entitled to an award of the greater of either

additional interest (calculated at the rate of fifteen percent per annum from the due date of each

payment) or liquidated damages (calculated at the rate of twenty percent of the delinquent

contributions), as well as reasonable attorneys’ fees and costs, pursuant to ERISA, the Trust

Agreement, and the Collection Procedures.

. Finally, Plaintiff asks the Court to compel

Defendant to submit outstanding remittance reports and any corresponding contributions for

3 work performed in Local 7, Ohio and Local 5, Ohio for a variety of months during the period of

July 2020 to September 2022. Stupar Decl. ¶¶ 11, 13.

On June 1, 2022, Defendant’s statutory registered agent was served. Mot. for Default J.

at 2; see also Affidavit of Service, ECF No. 9. After Defendant failed to respond to the

Complaint by the deadline, Plaintiff filed a [11] Motion for Entry of Default Judgment on August

11, 2022, and the Clerk of Court entered default against Defendant on August 12, 2022. See ECF

No. 12. On October 21, 2022, Plaintiff filed the pending Motion for Default Judgment,

requesting that the Clerk enter judgment by default against Defendant in the amount of

$58,177.33. See Mot. for Default J. at 2.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 55(a) provides that the clerk of the court “must enter [a]

party’s default” when a “party against whom a judgment for affirmative relief is sought has failed

to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” Fed. R. Civ. P.

55(a). Once a default has been entered by the clerk, a court may enter a default judgment against

that party pursuant to Rule 55(b). See Fed. R. Civ. P. 55(b). To warrant default judgment, the

defendant “must be considered a ‘totally unresponsive’ party, and its default plainly willful,

reflected by its failure to respond to the summons and complaint, the entry of default, or the

motion for default judgment.” Int’l Painters & Allied Trade Indus. Pension Fund v. Auxier

Drywall, LLC,

(D.D.C. 2008) (ESH) (quoting Gutierrez v. Berg

Contracting Inc., No. 99-3044 (TAF),

, at *1 (D.D.C. Mar. 20, 2000)). Where

there is a complete “absence of any request to set aside the default or suggestion by the

defendant that it has a meritorious defense, it is clear that the standard for default judgment has

been satisfied.”

(internal quotation marks and citation omitted); see United States v. Bentley,

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(D.D.C. 2010) (CKK) (same). Then, the “determination of whether default

judgment is appropriate is committed to the discretion of the trial court.” Auxier Drywall, LLC,

(citing Jackson v. Beech,

(D.C. Cir. 1980)).

Upon entry of default by the clerk of the court, the “defaulting defendant is deemed to

admit every well-pleaded allegation in the complaint.” Int’l Painters & Allied Trade Indus.

Pension Fund v. R.W. Armine Drywall Co.,

(D.D.C. 2002)

(RMU) (citation omitted). “Although the default establishes a defendant’s liability, the court is

required to make an independent determination of the sum to be awarded unless the amount of

damages is certain.”

(citing Adkins v. Teseo,

(D.D.C. 2001) (RMU)).

In ruling on such a motion, “the court may rely on detailed affidavits or documentary evidence to

determine the appropriate sum for the default judgment.”

(citing United Artists Corp. v.

Freeman,

(5th Cir. 1979)). The moving party is “entitled to all reasonable

inferences from the evidence offered.”

(citation omitted).

III. DISCUSSION

In the present case, the Clerk of the Court entered default against Defendant, and

therefore the factual allegations in the Complaint are taken as true. See R.W. Amrine Drywall

Co.,

. The Court finds that Plaintiff’s Complaint sufficiently alleges facts to

support its claim against Defendant. Plaintiff is thus entitled to default judgment as to

Defendant’s liability for its failure to timely submit remittance reports and pay contributions to

Plaintiff, as required under the terms of the Collective Bargaining Agreements. Plaintiff seeks

both monetary and equitable relief; the Court considers each request in turn below.

5 A. Monetary Damages

Pursuant to Section 515 of ERISA, “[e]very 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 . . . make such contributions in accordance with the terms

and conditions of such plan or such agreement.”

. When an employer fails to

make such contributions, ERISA provides that the fiduciary for a plan may bring an action and

obtain a mandatory award for the plan consisting of:

(A) the unpaid contributions, (B) interest on the unpaid contributions, (C) an amount equal to the greater of – (i) interest on the unpaid contributions; or (ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the Court under Subparagraph (a), (D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and (E) such other legal or equitable relief as the court deems appropriate.

§ 1132(g)(2). Interest is calculated using the rate provided under the plan, or, if none, the rate

prescribed by

.

Plaintiff has provided the Court with affidavits to support a damages award of

$58,177.33. See Stupar Decl.; Decl. of Attorney’s Fees. First, Plaintiff has sufficiently

demonstrated that it is entitled to $34,030.30 in unpaid contributions for work performed during

various months between April 2019 and February 2022. See Mot. for Default J. at 8. This

includes $21,558.56 in contributions for work performed in the jurisdiction of Local 7, Ohio, and

$12,471.74 in contributions for work performed in the jurisdiction of Local 5, Ohio.

The

specific amount of contributions owed was determined based on the hours and contributions

Defendant reported, but failed to pay, and was summarized by Plaintiff in calculation sheets

included as exhibits to the Declaration of David F. Stupar. See Stupar Decl. Ex. 5–6.

6 In addition, Plaintiff has sufficiently demonstrated that it is entitled to $8,262.42 in

prejudgment interest on unpaid contributions pursuant to Section 502(g)(2)(B) of ERISA,

(g)(2)(B), the Trust Agreement, and the Collection Procedures. See Mot. for

Default J. at 9. This amount is based on an interest rate of fifteen percent per annum, as provided

for in the Trust Agreement and the Collection Procedures, and is calculated from the due date of

the unpaid contributions through October 6, 2022. Stupar Decl. ¶¶ 10, 12. This includes

$4,312.52 in interest on reported but unpaid contributions for work performed in the jurisdiction

of Local 7, Ohio, and $3,949.90 in interest on reported but unpaid contributions in the

jurisdiction of Local 5, Ohio.

Plaintiff has also demonstrated that it is entitled to $8,261.61 in additional interest on the

unpaid contributions. See Mot. for Default J. at 10. Pursuant to Section 502(g)(2)(C) of ERISA,

(g)(2)(C)(ii), the Trust Agreement, and the Collection Procedures, Plaintiff is

entitled to an award of the greater of either additional interest (calculated at the rate of fifteen

percent per annum from the due date of each payment) or liquidated damages (calculated at the

rate of twenty percent of the delinquent contributions). Stupar Decl. ¶ 5. Plaintiff is owed

$3,949.90 in additional interest for work performed in the jurisdiction of Local 5, Ohio, as that

amount is greater than the liquidated damages.2 Plaintiff also seeks $4,311.71 in liquidated

damages for the work performed in Local 7, Ohio.

. Per the Court’s calculations, the

2 Defendant owes Plaintiff contributions in the amount of $12,471.74 for work performed in the jurisdiction of Local 5, Ohio, as noted above. Stupar Decl. ¶ 12. Additional interest, calculated as fifteen percent per annum on the unpaid contributions from the due date through October 6, 2022, equals $3,949.90, whereas liquidated damages, calculated as twenty percent of the delinquent contributions, equals $2,494.34.

Since Plaintiff is entitled to the greater of the two values, Plaintiff will be awarded additional interest totaling $3,949.90, in lieu of liquidated damages.

7 amount of additional interest is greater than liquidated damages by eighty-one cents,3 yet

Plaintiff asks for the smaller amount of liquidated damages. See id.; Mot. for Default J. at 10.

This appears to be done in error; however, in light of Plaintiff’s request, and considering the

small, almost negligible monetary difference between the two amounts, the Court will award

Plaintiff the amount expressly sought in their Motion: $4,311.71 in liquidated damages for the

work performed in Local 7, Ohio.

Finally, Plaintiff has adequately demonstrated it is entitled to $7,623.00 in attorneys’ fees

and costs, pursuant to Section 502(g)(2)(D) of ERISA,

(g)(2)(D), the Trust

Agreement, and the Collection Procedures. See Mot. for Default J. at 10. Plaintiff provided a

[15-3] Declaration of Attorneys’ Fees and Legal Costs demonstrating that its attorneys expended

20.4 hours on this action at an hourly rate of $320.00 through March 31, 2022, and at a rate of

$330.00 from April 1, 2022 through the present, and incurred $402.00 in filing fees and $550.00

for service of process. Decl. of Attorney’s Fees at 2. These hourly rates are significantly below

the applicable $914.00 and $465.00 hourly rates established in the current Laffey matrix. See

(citing Salazar v. District of Columbia,

(D.D.C. 2000) (GK)). Therefore,

the Court finds that these rates are reasonable for the services rendered and shall award the

attorneys’ fees and costs requested.

B. Equitable Relief

Plaintiff also seeks equitable relief in the form of an order requiring Defendant to submit

all outstanding reports and contributions to Plaintiff, pursuant to Section 502(g)(2)(E) of ERISA,

3 Defendant owes Plaintiff $21,558.56 for work performed in the jurisdiction of Local 7, Ohio. Stupar Decl. ¶ 10. Additional interest, calculated as fifteen percent per annum on the delinquent contributions from the due date through October 6, 2022, equals $4,312.52, whereas liquidated damages, calculated as twenty percent of the delinquent contributions, equals $4,311.71. See

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(g)(2)(E). Mot. for Default J. at 12. Per the Collective Bargaining Agreements,

the Trust Agreement, and the Collection Procedures, Defendant is required to submit remittance

reports and contributions to the Plaintiff on a monthly basis. See

. Defendant is aware of

this obligation, as it has previously submitted remittance reports and contributions to Plaintiff.

See Stupar Decl. ¶ 9. Accordingly, the Court finds that Plaintiff has demonstrated that it is

entitled to the requested equitable relief under the terms of the relevant agreements. The Court

shall therefore order Defendant to submit remittance reports and any corresponding contributions

for work performed in the jurisdiction of Local 7, Ohio during the months of July 2020 through

July 2021 and March 2022 through September 2022, and in the jurisdiction of Local 5, Ohio

during the months of March 2022 through September 2022.

IV. CONCLUSION

For the reasons set forth above, the Court shall GRANT Plaintiffs’ [15] Motion for

Judgment by Default. The Court shall award damages in the amount of $58,177.33, as well as

order that Defendant provide Plaintiff with outstanding remittance reports and any corresponding

contributions. An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

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