UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRICKLAYERS & TROWEL TRADES INTERNATIONAL PENSION FUND,

Plaintiff,

v. Civil Action No. 23-1890 (TJK)

OHIO BUILDING MAINTENANCE LEASING, INC.,

Defendant,

MEMORANDUM OPINION

Plaintiff, a multiemployer pension fund administered in the District of Columbia, sued

Defendant, an Ohio corporation employing members of the pension fund, for failing to make

certain contributions to the fund and payments to the local union, as well as for failing to provide

remittance reports required by the governing collective bargaining agreements, the fund’s

collection policy and trust agreement, and the Employee Retirement Income Security Act of 1974.

To date, Defendant has failed to answer or otherwise defend this action. Thus, Plaintiff moves for

default judgment and asks the Court to award damages for Defendant’s delinquent contributions

plus interest, liquidated damages, attorney’s fees and costs, and injunctive relief. For the following

reasons, the Court will grant the motion for default judgment and award most of the relief

requested.

I. Background

Plaintiff Bricklayers & Trowel Trades International Pension Fund is a multiemployer

employee benefit plan within the meaning of the Employee Retirement Income Security Act

(“ERISA”). ECF No. 1 (“Compl.”) ¶ 1 (citing

(37)). Plaintiff is administered by

1 its Board of Trustees, a designated fiduciary of the pension fund as defined under ERISA.

(citing

(21)). Defendant Ohio Building Maintenance Leasing, Inc. is a

corporation located within the state of Ohio and is an “employer in an industry affecting

commerce” as defined by ERISA.

¶ 2 (citing

(5), (11), (12)).

Defendant is a party to a collective bargaining agreement with the Northern & Southern

Ohio District Council of International Union of Bricklayers and Allied Craft Workers. See

generally ECF No. 11-3 at 21–26. This agreement requires Defendant to abide by conditions of

employment about wages, benefit contributions, and working conditions set forth by a local

agreement negotiated by the International Union of Bricklayers and Allied Craft Workers Local

Union No. 55 Ohio. See

, 22–24; Compl. ¶ 6. Under these two collective bargaining

agreements (“the CBAs”), Defendant was bound by the pension fund’s Amended and Restated

Agreement and Declaration of Trust (the “trust agreement”). See Compl. ¶¶ 1, 6–7, 9–10; see also

ECF No. 11-3 at 22–23, 30. These agreements also obligated Defendant to make certain payments

to Plaintiff and to the local union under the trust agreement’s collection policy. ECF No. 11-3 at

4. Under the CBAs and trust agreement, if Defendant fails to make such contributions, Plaintiff

may seek interest of 15% per year on untimely contributions and liquidated damages of the greater

between either a second award of interest or liquidated damages at a rate of 20%.

, 16–

17, 19; see also Compl. ¶ 15. These agreements also give Plaintiff authority to sue on behalf of

the various funds and local union, which are party to the CBAs. See Compl. ¶ 1; see also ECF No.

11-3 at 3–4, 16.

In June 2023, Plaintiff sued Defendant for delinquent contribution payments and un-

submitted remittance reports in violation of the CBAs, the collection policy, and ERISA. Compl.

¶¶ 15–17, 19–21. The Complaint alleges that Defendant reported—but failed to pay—

2 contributions owed to the Fund and payments known as dues checkoffs owed to the local union

between June 2021 and October 2022, in violation of its contractual duty.

It also alleges that

Defendant failed to provide required remittance reports from November 2022 through January

2024.

.

Defendant did not respond to the Complaint, so Plaintiff requested an entry of default,

which the Clerk of Court entered. See ECF Nos. 6, 7. In February 2024, Plaintiff moved for

default judgment, seeking judgment for: (1) monetary damages of $23,142.40 in unpaid

contributions and dues checkoffs, $3,290.98 in interest through April 20, 2023, $4,050.72 in

liquidated damages, and $5,199.00 in attorney’s fees and costs; and (2) an injunction requiring

Defendant to submit all remittance reports owed from November 2022 through January 2024 and

to comply with its obligation to pay contributions to the pension fund for hours worked by covered

employees over that same period. ECF No. 11-1 at 12–15.

II. Legal Standard

“A court has the power to enter default judgment when a defendant fails to defend its case

appropriately or otherwise engages in dilatory tactics.” Boland v. Elite Terrazzo Flooring, Inc.,

, 66–67 (D.D.C. 2011) (citing Keegal v. Key W. & Caribbean Trading Co.,

, 375 n.5 (D.C. Cir. 1980)). But “[b]ecause courts strongly favor resolution of disputes

on their merits,” a default judgment “usually is available ‘only when the adversary process has

been halted because of an essentially unresponsive party.’”

at 67 (quoting Jackson v. Beech,

(D.C. Cir. 1980)).

Federal Rule of Civil Procedure 55 provides a “two-step procedure” for obtaining a default

judgment. Ventura v. L.A. Howard Constr. Co.,

(D.D.C. 2015). First,

after a defendant “has failed to plead or otherwise defend,” the plaintiff may request the Clerk of

3 Court enter default against that defendant. Fed. R. Civ. P. 55(a). Second, after default is entered,

the plaintiff may move for a default judgment. Fed. R. Civ. P. 55(b)(2). “By providing for a two-

step process, Rule 55 allows the defendant the opportunity to move the court to set aside the default

before the court enters default judgment.” Int’l Painters & Allied Trades Indus. Pension Fund v.

Zak Architectural Metal & Glass, LLC,

, 23 n.1 (D.D.C. 2009); see also Fed.

R. Civ. P. 55(c).

An entry of default “establishes the defaulting party’s liability for the well-pleaded allega-

tions of the complaint.” Elite Terrazzo,

(collecting cases). But this “does

not automatically establish liability in the amount claimed by the plaintiff.” Carazani v. Zegarra,

(D.D.C. 2013). Rather, “the court is required to make an independent

determination of the sum to be awarded,” and it is afforded “considerable latitude” in making that

determination. Pescatore v. Palmera Pineda,

(D.D.C. 2018) (citations

omitted). A plaintiff moving for default judgment must therefore prove to the Court the requested

damages “to a reasonable certainty.” Elite Terrazzo,

. In support, the plaintiff

may offer “detailed affidavits or documentary evidence” on which the court may rely and is

“entitled to all reasonable inferences from the evidence offered.” Int’l Painters & Allied Trades

Indus. Pension Fund v. R.W. Amrine Drywall Co.,

(D.D.C. 2002). The

court may conduct a hearing to determine damages, Fed. R. Civ. P. 55(b)(2), but need not do so

“as long as it ensures that there is a basis for the damages specified in the default judgment.” Elite

Terrazzo,

(cleaned up).

III. Analysis

As explained below, the Court will grant the motion for default judgment and award most

of the relief requested. First, the Court finds that it has personal jurisdiction over Defendant.

4 Second, the Court finds that Plaintiff has adequately alleged its claims for liability. Third, the

Court will award monetary damages, interest, liquidated damages, and attorney’s fees and costs.

Fourth, the Court will order Defendant to submit the required remittance reports from November

2022 to January 2024, but will decline to order Defendant to pay contributions for hours worked

by covered employees over that same period.

A. Personal Jurisdiction

“[A] court should satisfy itself that it has personal jurisdiction before entering judgment

against an absent defendant.” Safex Found., Inc. v. Safeth, Ltd.,

, 7 (D.D.C.

2021) (cleaned up). An ERISA action may be brought “in the district where the plan is

administered, where the breach took place, or where a defendant resided or may be found, and

process may be served in any other district where a defendant resides or may be found.”

(e)(2). “ERISA’s venue provision has been interpreted to authorize nationwide service of

process.” Mazzarino v. Prudential Ins. Co. of Am.,

(D.D.C 2013) (quotation

omitted). When a statute allows for nationwide service of process, “minimum contacts with the

United States suffice” for a court to exercise personal jurisdiction over a defendant.

(citing

SEC v. Bilzerian,

, 1006 n.8 (D.C. Cir. 2004)).

The Court has personal jurisdiction over Defendant. Plaintiff sued in this District, where

the fund is administered, Compl. ¶ 1; see also

(e)(2), and served Defendant in

Ohio by leaving the summons and Complaint with Defendant’s registered agent’s granddaughter

at the registered agent’s listed address. ECF No. 5-1; Compl. ¶ 2. The Federal Rules of Civil

Procedure permit service on a corporation in accordance with those rules, the rules of the state

where the suit is brought, or the rules of the state where a defendant is served. See Fed. R. Civ. P.

4(h)(1)(A) (permitting service on corporations under Rule 4(e)(1), which in turn, permits service

5 in accordance with rules of the state where a defendant is served); see also Fed. R. Civ. P.

4(h)(1)(B) (permitting service by delivering summons and complaint to officer or agents of

corporation authorized to accept service). And while neither the Federal Rules of Civil Procedure

nor the District of Columbia’s civil procedure rules permit service on a corporation by leaving it

with someone not authorized to receive service, see, e.g., Lemma v. Hisp. Nat’l Bar Ass’n,

, 25–26 (D.D.C. 2018), the Ohio rules permit service to be accomplished in that way,

see

(H)(1)(a) (permitting service on corporation by “delivering a

copy of the process . . . to the address of the agent in [Ohio] as contained in the records of the

secretary of state.”). And as a corporation residing and operating within the state of Ohio, Compl.

¶ 2, Defendant has sufficient “minimum contacts with the United States” to give rise to personal

jurisdiction in this Court. See Mazzarino,

; see also, e.g., Bricklayers &

Trowel Trades Int’l Pension Fund v. Kel-Tech Constr., Inc.,

(D.D.C.

2018).

B. Liability

Next, the Court finds that Defendant is a “totally unresponsive party.” See SEUI Indus.

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

(D.D.C.

2017); see also Elite Terrazzo, 763 F. Supp. 2d at 67–68. Defendant was served in July 2023.

Since then, it has failed to respond to the Complaint, move to set aside the default entered by the

Clerk, oppose Plaintiff’s motion for default judgment, or otherwise defend this action in any way.

See ECF Nos. 5, 7. Defendant is thus liable for the well-pleaded allegations in the Complaint.

Elite Terrazzo,

; see also, e.g., Bricklayers & Trowel Trades Int’l Pension

Fund v. KAFKA Constr., Inc.,

(D.D.C. 2017). Upon review of Plaintiff’s

6 factual allegations and the relevant law, the Court finds that Plaintiff’s allegations are, in fact, well-

pleaded and will enter default judgment for Plaintiff as to Defendant’s unpaid contributions.

“ERISA requires employers to make contributions to multiemployer plans ‘in accordance

with the terms and conditions of’ the relevant collective bargaining agreements.” Boland v. Smith

& Rogers Constr. Ltd.,

, 147–48 (D.D.C. 2016) (quoting

).

Here, Plaintiff alleges that Defendant entered into the CBAs requiring certain payments to Plaintiff

and the local union for hours worked by covered employees. Compl. ¶¶ 6–7; see also ECF No.

11-3 ¶¶ 7–9.1 It also alleges that Defendant has failed to make the required contributions and

checkoff dues between June 2021 and October 2022, as required by the CBAs. See Compl. ¶¶ 8–

9, 15–16; see also ECF No. 11-3 ¶ 11. Finally, Plaintiff alleges that Defendant has failed to submit

remittance reports or pay the contributions required since November 2022, as required by the

CBAs. Compl. ¶ 10; see also ECF No. 11-3 ¶ 12. Thus, Plaintiff has adequately alleged that

Defendant is liable under ERISA and the CBAs for unpaid contributions to Plaintiff, for dues

checkoffs to the local union, and for failing to submit required remittance reports under the CBAs.

Because Defendant has failed to appear, the Court will enter default judgment for Plaintiff

on these claims.

C. Monetary Damages

When a court enters default judgment against a defendant for failure to make contributions

to pension funds that are required by collective bargaining agreements, “Section 502(g)(2) of

‘ERISA provides that the court must award: (1) the unpaid contributions; (2) interest on the unpaid

contributions; (3) liquidated damages; and (4) reasonable attorney’s fees and costs of the action.’”

1 Plaintiff alleges that it is “authorized to file suit on behalf of the . . . [local union]” to recover the unpaid dues checkoffs. See Compl. ¶ 1; see also ECF No. 11-3 at 11. 7 Kel-Tech, 319 F. Supp. 3d at 343–44 (emphasis in original) (quotation omitted); see also

(g)(2)(A)–(D). The Court addresses each in turn.

First, the Court finds that Plaintiff has, to a reasonable certainty, proven that Defendant

owes $23,142.40 in unpaid contributions to Plaintiff and dues checkoffs to the union from June

2021 through October 2022. See Elite Terrazzo,

. To support this request,

Plaintiff submitted the declaration of Lester W. Kauffman, III, Plaintiff’s Executive Director. ECF

No. 11-3 at 3–8; see also R.W. Armine,

(“[C]ourt[s] may rely on detailed

affidavits or documentary evidence to determine the appropriate sum for the default judgment.”).

Kauffman attached to his declaration a spreadsheet detailing the calculation of unpaid sums owed

to the fund and local union based on hours reported by Defendant for the months of June 2021

through October 2022 and the requisite contribution rate in the CBAs. ECF No. 11-3 at 6–7, 44.

The Court, after reviewing the relevant CBAs and spreadsheet, finds that this evidence provides a

reasonably certain calculation of the unpaid contributions owed to Plaintiff. See ECF No. 11-3 at

10–44 (relevant CBAs defining duties of Defendant vis-à-vis contributions to Plaintiff and dues to

the local union and spreadsheet detailing calculations for months of work reported and

contributions unpaid). As a result, the sum of the certain unpaid monies is $23,142.40, which the

Court will award in monetary damages.

Second, the Court finds that Plaintiff has adequately proven the interest that has accrued

on Defendant’s unpaid contributions owed to it. See

(g)(2)(B). ERISA provides

“interest on unpaid contributions shall be determined by using the rate provided under the plan, or,

if none, the rate prescribed under [

].”

(g). Plaintiff’s collection

policy, which, as the Court has noted, binds Defendant, calculates interest at a rate of 15% per year

from the date the payment is due to the date paid. See ECF No. 11-3 at 11, 16–17, 19. Kauffman’s

8 declaration also details the interest owed on those unpaid contributions, ECF No. 11-3 at 7, and

the attached spreadsheet calculates the interest owed on each unpaid contribution from the date

due through to April 30, 2023, see

. The total interest, Plaintiff calculates, is $3,290.98.

Id.; see also ECF No. 11-3 at 7. The Court finds this amount to be reasonably certain and will

award Plaintiff interest of $3,290.98.2

Third, Plaintiff has adequately supported its request for liquidated damages on the unpaid

contributions owed to it. ERISA entitles Plaintiff to a liquidated damages award of “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” of unpaid contributions determined by the

Court.

(g)(2)(C). Moreover, the CBAs provide “the employer may be assessed

. . . Liquidated Damages at 20% of the delinquent contributions.” ECF No. 11-3 at 11; see also

at 16–17 (providing that the trustees may “impose and receive from [a delinquent employer]

the higher of an additional computation of interest . . . or liquidated damages (at the rate of twenty

(20%) percent of the delinquent contributions.[)]”);

(“the Trustees are authorized and

empowered to impose and receive from such Employer interest . . . and/or liquidated damages,

calculated at the rate of 20% of the contributions paid late.”). Twenty percent of the total unpaid

contributions, totaling $20,253.60, is $4,050.72, which would be greater than a second award of

interest. Thus, the Court will award Plaintiff $4,050.72 in liquidated damages.

2 This award of interest, as with the award of liquidated damages, is based solely on the $20,253.60 in contributions owed to Plaintiff and excludes the $2,888.80 in unpaid dues checkoffs owed to the local union. See ECF No. 11-3 at 44 (breaking down unpaid monies between payment to various pension funds and dues checkoffs to local union). ERISA and the CBAs provide for interest and liquidated damages on the former, but not the latter. See

(g)(2)(B)– (C); see also ECF No. 11-3 at 11, 16–17, 19.

9 Fourth, the Court finds Plaintiff’s request for attorney’s fees and costs are both supported

and reasonable. ERISA provides, in cases like this one, the Court must award “reasonable

attorney’s fees and costs of the action, to be paid by the defendant.”

(g)(2)(D).

Plaintiff requests $5,199.00 in attorney’s fees, and costs (inclusive of filing fees and costs for

service of process). See ECF No. 11-1 at 14. In support of this request, Plaintiff submits a

declaration from Charles W. Gilligan, counsel of record for Plaintiff. See ECF No. 11-3 at 45–46.

Attached to his declaration are documents that support his asserted costs for service of process,

filing fees, and amounts billed to Plaintiff for his and his associate’s services. See

at 48–53.

Plaintiff’s request of $4,522.00 for 13.3 hours of work at a rate of $340 an hour is reasonable. See

at 45–46 (detailing total request, number of hours worked, and rate charged by attorney); see

also

(providing attorney billing details); see also, e.g., Smith & Rogers,

(finding attorney’s fees reasonable based on hourly rates as high as $615 for plaintiff’s

attorney); SEUI Nat’l Indus. Pension Fund v. Metro Man I, Inc., 22-cv-748 (TJK),

, at *5 (finding hourly rates of $300 for senior attorneys and $200 for junior attorneys

reasonable). The request for $677 in costs based on the filing fee and cost of service of process is

also reasonable. ECF No. 11-3 at 46. Thus, the Court will award attorney’s fees and costs of

$5,199.00.

In sum, the Court will award Plaintiff the following monetary damages: (1) $23,142.40 in

unpaid contributions to Plaintiff and dues checkoffs to the local union; (2) $3,290.98 in interest;

(3) $4,050.72 in liquidated damages; and (4) $5,199.00 in attorney’s fees and costs.

D. Injunctive Relief

Plaintiff also asks for an injunction requiring Defendant to (1) submit all outstanding

remittance reports between November 2022 through January 2024; and (2) comply with its

10 obligation to pay contributions to the pension fund for hours worked by covered employees over

that same period. ECF No. 11-1 at 14–20. The Court will enter an injunction granting the first

request but not the second.

“[A] party seeking a permanent injunction must show the following: (1) that it has suffered

an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate

to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff

and defendant, a remedy in equity is warranted; and (4) that the public interest would not be

disserved by a permanent injunction.” SEIU Nat’l Indus. Pension Fund v. Hebrew Homes Health

Network, Inc., 17-cv-1215 (TNM),

, at *19 (D.D.C. Sept. 12, 2019) (quoting

Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau,

(D.C. Cir. 2015)).

Plaintiff is entitled to their first request, for an injunction requiring Defendant to submit all

outstanding remittance reports to Plaintiff from November 2022 through January 2024. Trustees

of benefit plans have “the right to review the records of employers contributing to such plans”

under ERISA. Int’l Painters & Allied Trades Indus. Pension Fund v. Exec. Painting, Inc.,

(D.D.C. 2010). ERISA authorizes courts to grant “such other legal or equitable

relief as the court deems appropriate.”

(g)(2)(E). In addition, the collection

policy here required Defendant to submit remittance reports—detailing covered hours worked or

owed, contributions owed, and contributions paid—on the 15th of the month following the month

in which the hours were worked. Compl. ¶ 7; see also ECF No. 11-1 at 9; ECF No. 11-3 at 10.

Courts regularly find injunctive relief appropriate when, in circumstances like these, “the

defendant has demonstrated no willingness to comply with either its contractual or statutory

obligations or to participate in the judicial process.” Hebrew Homes,

, at *19;

see, e.g., Exec. Painting,

(“Because the defendant has not complied with the

11 CBAs or ERISA and has remained unresponsive throughout the judicial process, the court grants

the plaintiffs’ request for injunctive relief” and orders the defendant to “complete and file all

outstanding remittance reports.”); Fanning v. AMF Mech. Corp.,

, 16 (D.D.C. 2018)

(similar). Because Defendant has failed to provide remittance reports for November 2022 through

January 2024 and has otherwise been unresponsive throughout this case, the Court finds it

appropriate to require Defendant to submit those outstanding remittance reports, which are

necessary for Plaintiff to ensure accurate contributions are paid. See Compl. ¶ 19; see also ECF

No. 11-3 at 7–8.

For Plaintiff’s second request—an injunction ordering Defendant to comply with its

obligations to make payments to Plaintiff over this same period—it has failed to establish an

irreparable injury. See Compl. ¶¶ 20–21; see also ECF No. 11-1 at 14–20. When a “monetary

judgment might serve to alter the defendant’s conduct as effectively as a permanent injunction

would,” an injunction may be “unnecessary.” Kel-Tech,

. Thus, substantial

but recoverable economic loss “alone will rarely constitute irreparable harm . . . because economic

injuries are generally reparable with monetary damages in the ordinary course of litigation.”

Hebrew Homes,

, at *19 (citations and internal quotation marks omitted);

(“[T]his reasoning is especially applicable [where] the claims at issue arise under a statutory

framework that provides for penalties and attorney’s fees” and “protects funds from ‘the high cost

of litigation and collective expenses.’” (quoting Serv. Employees Int’l Union Nat’l Indus. Pension

Fund v. Bristol Manor Healthcare Ctr., Inc., 12-cv-1904 (RC),

, at *2)). To

establish irreparable injury to support an injunction, a plaintiff must instead go beyond economic

loss to show, for example, that such loss “threaten[s] the . . . very existence” of their business. Kel-

Tech,

(citations omitted) (suggesting also risk of compromising “the

12 actuarial soundness of the fund” or a defendant’s “‘precarious financial condition’ [that] le[aves]

the plan unlikely to recover its losses” could support an injunction for timely contributions).

Plaintiff is not entitled to their second request because it has not shown it will suffer

irreparable injury or that monetary damages for violations would be inadequate. See Hebrew

Homes,

, at *19; see also Morgan Drexen, Inc.,

(“Failing to

satisfy any factor [required for a permanent injunction] is grounds for denying relief.”). Plaintiff

does not claim—nor does the record reflect—that it will suffer any loss exceeding what the Court

may redress through future awards of monetary damages. For example, it does not claim that any

unpaid contributions by Defendant “threaten the . . . very existence” of the fund. See Kel-Tech,

.

To the extent this request for injunctive relief is a request for monetary damages Plaintiff

would be owed based on the hours Defendant reports over this period, the Court is similarly unable

to provide that relief. The Court must have a record sufficient to calculate damages under ERISA

“to a reasonable certainty.” Elite Terrazzo,

. Plaintiff has provided no basis

for the Court to calculate damages under ERISA for that period. Indeed, Plaintiff acknowledges

that it cannot accurately calculate the damages it seeks. See ECF No. 11-1 at 20 (“Once the

Defendant complies with the Court’s Default Judgment, the Plaintiff will have the remittance

reports and corresponding contributions – if any are owed – for the months outlined herein”)

(emphasis added); see also ECF No. 11-3 at 8 (“Because [Defendant] failed to submit reports for

these months, the Plaintiff cannot calculate the contributions and attendant amounts owed for work

performed during that period.”). The Court cannot grant such a request, given the inherent

uncertainty about what amounts, if any, Plaintiff is owed. See Kel-Tech,

13 (Where plaintiff failed to provide calculations of damages owed “they ha[d] failed to show . . .

damages due ‘to a reasonable certainty.’”).

Therefore, the Court will grant an injunction requiring Defendant to submit to Plaintiff all

outstanding remittance reports for November 2022 through January 2024, but it will deny the

request for an injunction requiring Defendant to pay any contributions owed for those months.

IV. Conclusion

For all the above reasons, the Court will grant Plaintiff’s motion for default judgment and

award monetary damages and issue an injunction requiring Defendant to provide Plaintiff

remittance reports for all months between November 2022 through January 2024. The Court will

deny the motion to the extent it seeks an injunction requiring payments or an award of damages

under ERISA for that same period. A separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: September 11, 2024

14