UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

David Guitard

v. Civil No. 24-cv-296-LM Opinion No.

P A.R. Couture Construction Corporation

ORDER

Plaintiff David Guitard brings suit against A.R. Couture Construction

Corporation (“A.R. Couture”), his former employer, under the Employee Retirement

Income Security Act of 1974 (ERISA). See

et seq. A.R. Couture has

not responded to Guitard’s complaint, and the clerk of the court has entered a

default against A.R. Couture. Presently before the court is Guitard’s motion for

default judgment. Doc. no. 4. For the following reasons, the motion (doc. no. 4) is

granted.

STANDARD OF REVIEW

When default has been entered and the relief sought includes anything other

than a “sum certain,” a “party must apply to the court for a default judgment.” Fed.

R. Civ. P. 55(b)(1) & (b)(2); see also KPS & Assocs., Inc. v. Designs by FMC, Inc.,

, 19 (1st Cir. 2003).

The defaulted party is “taken to have conceded the truth of the factual

allegations in the complaint.” Ortiz–Gonzalez v. Fonovisa,

(1st

Cir. 2002) (quoting Franco v. Selective Ins. Co.,

, 9 n.3 (1st Cir. 1999)). The defaulted party does not, however, “admit the legal sufficiency of [the] claims.”

United States v. Sullender, Civ. No. 16-cv-523-LM,

, at *1 (D.N.H.

Mar. 16, 2018) (quoting 10 James Wm. Moore, Moore's Federal Practice § 55.32[1][b]

(3d ed. 2013)). “In other words, before entering default judgment, the court must

determine whether the admitted facts state actionable claims.” Id.; see also Ramos-

Falcón v. Autoridad de Energía Electríca,

(1st Cir. 2002) (on a motion

for default judgment the court “may examine a plaintiff’s complaint, taking all well-

pleaded factual allegations as true, to determine whether it alleges a cause of

action.”).

Additionally, when “[f]aced with a motion for default judgment, a district

court must exercise sound judicial discretion in determining whether the judgment

should be entered.” Sullender,

, at *1 (quoting Fin. of Am.

Reverse, LLC v. Carmona-Vargas, No. 16-1661,

, at *1 (D.P.R. Jan.

23, 2018)).

BACKGROUND1

Guitard was an employee of A.R. Couture for approximately thirty-seven

years. Starting on or around May 1, 1998, and continuing until the end of his

employment on or around June 1, 2023, Guitard was a participant in the A.R.

Couture Construction Corp. Retirement Plan (the “Plan”). Guitard was a member of

the Plan for approximately 25 years.

1 The facts are drawn from the complaint and are deemed admitted due to A.R.

Couture’s default. Fonovisa, 277 F.3d at 62–63.

2 The Plan is an employee benefit profit-sharing plan governed by ERISA.

(2)(A), 1003(a).2 The terms of the Plan are established in a Summary

Plan Description (the “Plan Document”), as required by ERISA. At all relevant

times, Arthur Couture was: (1) the sole owner of A.R. Couture; (2) the president of

A.R. Couture; and (3) the trustee of the Plan’s assets. Also throughout the relevant

period, A.R. Couture was the “Plan Administrator” of the Plan.

(16)(A). Both Arthur Couture and A.R. Couture were fiduciaries to the Plan.

(21)(A).

Guitard received annual statements regarding the Plan for some years but

not others. In particular, he did not receive any statements for Plan years ending in

2016-2020, or 2022-2023.3 Guitard required annual plan statements to understand

any changes to the plan assets that occurred within a given year, and to understand

the total sum of benefits he would be entitled to receive upon his retirement.

After numerous unsuccessful attempts to obtain the missing statements from

A.R. Couture, Guitard retained counsel to assist in obtaining the statements.

Guitard’s counsel wrote a letter to A.R. Couture in its capacity as the Plan

Administrator on October 27, 2023, formally requesting that A.R. Couture provide

2 The fact that the Plan is governed by ERISA is apparent given the allegations

that the Plan was established by A.R. Couture as an employer for purposes of providing ongoing retirement benefits to its employees.

(2)(A), 1003(a); see, generally Wickman v. Nw. Nat. Ins. Co.,

(1st Cir. 1990) (discussing the criteria for determining whether an employee benefit program is subject to ERISA).

3 The Plan year ran from May 1 to April 30. Annual plan statements were dated

April 30 of each year.

3 the missing statements. In that letter, Guitard’s counsel explained that Guitard

was entitled to the statements under the terms of the Plan as articulated in the

Plan Document. Guitard’s counsel sent the letter to the Plan Administrator (A.R.

Couture) at the address designated in the Plan Document, and requested a response

within 10 business days. As with Guitard’s prior requests, that letter went

unanswered. Guitard’s counsel sent a follow-up letter to the designated address on

November 27, 2023, which also went unanswered.

Unable to obtain a response from the designated Plan Administrator,

Guitard’s counsel identified the attorney listed as the registered agent of A.R.

Couture in the New Hampshire Secretary of State’s public register. Guitard’s

counsel contacted A.R. Couture’s registered agent on December 12, 2023, and

repeated Guitard’s request for the missing statements. A.R. Couture’s registered

agent responded on December 14, 2023, indicating that he would forward the

request to Arthur Couture and follow-up when he had additional information.

These emails were the beginning of an exchange of correspondence that

spanned from December 2023 to September 2024. Initially, A.R. Couture’s

registered agent explained that A.R. Couture would provide the requested

statements, but that, in order to do so, it would need to first conduct a census of the

account. Between February and March of 2024, Guitard’s counsel repeatedly

inquired as to the status of the census, and A.R. Couture’s registered agent

repeatedly replied that it was not yet completed. This pattern continued throughout

4 the spring and summer of 2024, with Guitard’s counsel repeatedly seeking updates

on the census and the requested statements, and A.R. Couture’s registered agent

repeatedly responding that the census had not been completed, and the statements

could not yet be provided.

Following nearly 10 months of such correspondence that had not yielded any

indication of when the required census would be completed, or when the requested

statements would be provided, Guitard’s counsel made a final request for the

statements on September 4, 2024. In an email to A.R. Couture’s registered agent,

Guitard’s counsel stated that if Guitard did not receive the requested statements by

September 12, 2024, he would file a lawsuit in federal court. Guitard did not receive

the requested statements by September 12, and Guitard’s counsel filed a complaint

initiating this action on September 20, 2024.

The same attorney that served as A.R. Couture’s registered agent executed a

waiver of service on November 13, 2024, which was filed on the docket. That waiver

of service included the following statement:

I . . . understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 within 60 days from 11/13/2024, the date when this request was sent . . . . If I fail to do so, a default judgment will be entered against me or the entity I represent.

Doc. no. 3. The 60-day deadline to answer the complaint passed on January 13,

2025, without any further filings from A.R. Couture. The clerk of the court entered a

default against A.R. Couture on April 23, 2025.

5 DISCUSSION

Guitard seeks a default judgment granting three forms of relief: (1) an order

from the court directing A.R. Couture to provide the requested statements; (2)

statutory damages in the amount of $45,000; and (3) reasonable attorney fees and

costs. The court may grant default judgment and award the requested relief,

without a hearing, where the court “has jurisdiction over the subject matter and

parties, the allegations in the complaint state a specific, cognizable claim for relief,

and the defaulted party had fair notice of its opportunity to object.” Universitas

Educ., LLC v. Granderson,

, 378 (1st Cir. 2024) (quoting In re The

Home Rests., Inc.,

(1st Cir. 2002)).

I. The Court Has Jurisdiction Over the Subject Matter and the Parties

The court has federal question jurisdiction over the subject matter of this

action because Guitard’s claims arise under ERISA. Alexandre v. Nat'l Union Fire

Ins. Co. of Pittsburgh,

, 269 (1st Cir. 2022);

. The court

has personal jurisdiction over A.R. Couture because A.R. Couture is a corporation

with its primary place of business in Berlin, New Hampshire.

II. Guitard has Stated a Claim for Relief Under

(c)(1)

ERISA provides that an administrator of any covered plan that “fails or

refuses to comply with a request for any information which such administrator is

required by [ERISA] to furnish to a participant . . . within 30 days after such

request” may be liable to the participant “in the amount of up to $100 a day from

the date of such failure or refusal.”

(c)(1)(B). ERISA further

6 provides that the plan administrator “shall, upon written request of any

participant . . . furnish a copy of . . . the latest annual report.”

(b)(4).

The facts alleged in Guitard’s complaint are sufficient to establish that A.R.

Couture is liable under

(c)(1). Guitard has alleged that he made a

written request for the missing annual statements, via counsel, to A.R. Couture by

way of the October 27, 2023 letter. He has further alleged that A.R. Couture failed

to furnish copies of the requested statements within 30 days. Guitard also plausibly

alleges that the Plan is covered by ERISA, and that A.R. Couture is the Plan

administrator. These allegations are sufficient to state a claim.

III. A.R. Couture Had Fair Notice of its Opportunity to Object

A.R. Couture filed a waiver of service in this action, which, among other

things, contained an explicit affirmation that A.R. Couture received notice of

Guitard’s complaint and that it understood its obligation to file a responsive

pleading within 60 days. Doc. no. 3. While that filing alone is sufficient to establish

that A.R. Couture had fair notice, A.R. Couture has subsequently received

additional notice of both the entry of default (see doc. no. 7) and the motion for

default judgment (see doc. no. 4). Despite this additional notice, A.R. Couture has

failed to make a single filing on the docket apart from the waiver of service.

IV. Guitard’s Requested Relief Against A.R. Couture is Appropriate

Guitard’s request for damages in the amount of $45,000 is reasonable and

appropriate under the circumstances. Guitard calculates the requested damages by

7 computing the number of days that elapsed between the passage of the 30-day

deadline under

(c)(1), which took place on November 26, 2023, and

the filing of the motion for default judgment, which took place on February 18,

2025. Guitard then multiplied the number of days—450—by the maximum daily

statutory damages amount established in

(c)(1)—$100. While

ERISA establishes only a maximum ceiling on damages for failure respond to a

request for documents, it is within the court’s discretion to assess damages up to the

maximum amount allowed under the statute. McDonough v. Aetna Life Ins. Co.,

(1st Cir. 2015) (“The statutory. . . maximum is a ceiling on the

amount of any daily penalty that may be imposed. . . . the amount of the penalty

has been left by Congress to the sound discretion of the district court.”). Here,

damages in the amount of $100 per day are appropriate given: (1) the considerable

length of the delay (which is, to the court’s knowledge, ongoing); (2) the fact that

Guitard has a pressing need for the missing statements, because he needs them to

understand the amount he is entitled to as a participant in the Plan; (3) the fact

that A.R. Couture has engaged in a pattern of actions that could support a

reasonable inference of dilatory intent; and (4) the fact that A.R. Couture has

offered no explanation or defense for the delay. See Zann Kwan v. Andalex Grp.

LLC,

(2d Cir. 2013) (identifying length of delay, prejudice to

beneficiary, and evidence of bad faith as appropriate factors for consideration in

determining penalty under § 1132(c)(1)).

8 Guitard’s request for an order requiring that A.R. Couture provide the

missing annual Plan statements and participant account statements is also

reasonable and appropriate. ERISA provides that, in addition to damages, the court

may “in its discretion order such other relief as it deems proper.”

(c)(1)(B). Guitard requires the missing statements to understand the amount

to which he is entitled as a participant in the plan, and thus, an order requiring

their provision is appropriate in addition to the imposition of statutory damages.4

V. Guitard is Entitled to an Award of Reasonable Attorney Fees

ERISA provides that a court may, in its discretion, award reasonable

attorney fees and costs to either party in an action under the statute. See Gross v.

Sun Life Assur. Co. of Canada,

(1st Cir. 2014);

(g)(1) (“In any action under this subchapter. . . the court in its discretion may

allow a reasonable attorney’s fee and costs of action to either party.”). To be eligible

for an award of attorney fees, a party must “show some degree of success on the

merits.” Gastronomical Workers Union Loc. 610 & Metro. Hotel Ass'n Pension Fund

v. Dorado Beach Hotel Corp.,

(1st Cir. 2010) (quoting Hardt v.

Reliance Standard Life Ins. Co.,

(2010)). “The favorable result

must be more than a ‘trivial success’ or a ‘purely procedural victory.’” Gross,

(quoting Hardt,

). An “outcome that produces some

4 Guitard’s request for Arthur Couture to be held personally liable for damages

is not within the court’s power to grant because Arthur Couture is not a defendant in this action.

9 meaningful benefit for the fee-seeker” is sufficient to establish the requisite degree

of success.

(quoting Gastronomical Workers Union,

). Here,

Guitard has prevailed by obtaining the entirety of the relief sought in his complaint

and is thus eligible for an award of attorney fees under

(g)(1).

The First Circuit has articulated several “exemplary rather than exclusive”

factors that district courts can consider in exercising their discretion to award

attorney fees under

(g)(1):

(1) the degree of culpability or bad faith attributable to the non-movant; (2) the capacity of the non-movant to pay the award; (3) the extent to which the award requested would provide general deterrence to other parties; (4) the benefit that the movant’s success in her action has for other plan participants or beneficiaries; and (5) the relative merits of the parties’ positions.

Cook v. Liberty Life Assur. Co. of Bos.,

(1st Cir. 2003) (quoting

Cottrill v. Sparrow, Johnson & Ursillo, Inc.,

(1st Cir.

1996), abrogated on other grounds by Hardt,

). The first, third, and

fifth factors weigh in favor of an award of attorney fees. Guitard has been asking

A.R. Couture to provide documents to which he is entitled under ERISA for several

years, first on his own, and then through counsel. Despite the fact that A.R.

Couture’s registered agent repeatedly assured Guitard’s counsel from December

2023 through September 2024 that the missing statements would be forthcoming,

the statements still (to the court’s knowledge) have not been provided. The

connection between A.R. Couture’s failure to provide the statements prior to the

involvement of counsel, the pattern of delay in response to Guitard’s request via

10 counsel, and the failure to respond in this action, show both a high degree of

culpability on A.R. Couture’s behalf and that the relative merits favor Guitard.

Further, an award of fees, on these facts, would help to deter other plan

administrators from seeking to avoid accountability under ERISA by failing to

respond to proper requests and lawsuits. Regarding the fourth factor, other

members of the Plan stand to benefit from Guitard’s success in this action, because

other plan members will benefit from A.R. Couture’s performance of the Plan census

that will presumably be necessary to comply with the court’s order. Of the five

relevant factors, only the second factor is neutral, as the court has no information

regarding A.R. Couture’s capacity to pay an award. Given the foregoing

considerations, an award of reasonable attorney fees is merited.

VI. The Court Lacks Sufficient Information to Determine the Amount of Attorney Fees to be Awarded

While the court is satisfied that an award of attorney fees to Guitard is

merited, Guitard has not provided sufficient information from which the court can

determine the amount of that award. The court may award fees under the “lodestar

method”—whereby the award is generated by calculating “the product of the hours

reasonably worked times the reasonable hourly rates.” Gross,

(quoting Cent. Pension Fund of the Int'l Union of Operating Eng'rs & Participating

Emps. v. Ray Haluch Gravel Co.,

(1st Cir. 2014)).

11 Guitard is thus directed to file an affidavit with the court that contains the

information necessary for the court to determine the amount of attorney fees to be

awarded under the lodestar method.

CONCLUSION

Guitard’s motion for default judgment (doc. no. 4) is hereby granted. The

clerk is directed to enter judgment in favor of Guitard for $45,000, and A.R. Couture

is hereby ORDERED to provide Guitard with annual Plan statements and

individual participant account statements for the Plan years ending April 30, 2016;

April 30, 2017; April 30, 2018; April 30, 2019; April 30, 2022; and April 30, 2023.

Guitard is hereby directed to file an affidavit with the court containing sufficient

information to determine the amount of attorney fees to be awarded.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge May 22, 2025

cc: Counsel of Record

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