Service Employees International Union National Industry Pension Fund v. Artharee , 942 F. Supp. 2d 27 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SERVICE EMPLOYEES
INTERNATIONAL UNION NATIONAL
INDUSTY PENSION FUND, et al.,
Plaintiffs, Civil Action No. 12-1233 (CKK)
v.
BERNADETTE ARTHAREE,
Defendant.
MEMORANDUM OPINION
(April 18, 2013)
The Service Employees International Union National Industry Pension Fund (“the SEIU
Pension Fund”) and ten Trustees of the fund (collectively, “Plaintiffs”), filed suit against
Bernadette Artharee, d/b/a Coast Janitorial Services and d/b/a Coast Industries, Inc., alleging the
Defendant failed to submit remittance reports and contributions to the fund for the months of
July 2010 and June 2011 through the filing of the complaint. The Plaintiffs further allege that
the Defendant owes liquidated damages, interest, and Pension Protection Surcharges for late
contributions for the months of August 2010 through May 2011. Presently before the Court is
the Plaintiffs’ [7] Motion for Partial Default Judgment. The Plaintiffs seek a default judgment
for amounts owed in connection with the late contributions for August 2010 through May 2011,
as well as attorney’s fees. The Plaintiffs also ask the Court to order the Defendant to submit the
delinquent remittance reports. Upon consideration of the pleadings, the relevant legal
authorities, and the record as a whole, the Plaintiffs’ motion is GRANTED IN PART and
DENIED IN PART. The Plaintiffs failed to provide sufficient proof to establish they are entitled
to a default judgment for amounts purportedly owed to the SEIU Pension Fund in connection
with the late contributions or as reasonable attorney’s fees and litigation costs. However, the
Court shall order the Defendant to submit outstanding remittance reports
I. BACKGROUND
The Defendant is a party to collective bargaining agreement (“CBA”) with the Service
Employees International Union, Local No. 49. Compl., ECF No. [1], ¶¶ 8-9. The CBA requires
the employers to make specific contributions to the SEIU Pension Fund, based on the number of
compensable hours worked by the Defendant’s employees. Compl., Ex. 1 (CBA), art. 22, § 4.
When the fund is in “critical status” (as determined by certain actuarial standards), a “Pension
Protection Surcharge” is added to all employer contributions. Compl., Ex. 4 (4/30/09 Notice of
Critical Status) at 2. Employers are also required to submit monthly remittance reports reflecting
the contributions owed to the fund. Compl., Ex. 1 (CBA), art. 22, § 4. If an employer like the
Defendant fails to timely remit its monthly contributions, the employer is liable for 10% annual
interest on the late contributions. Compl., Ex. 3 (SEIU Pension Fund Stmt. of Policy for
Collection of Delinquent Contributions) §§ 2(4), 5(1). If the fund files suit to collect late
payments, the employer is further liable for liquidated damages in the amount of 20% of the late
contributions, costs, and reasonable attorney’s fees. Id. § 5(2)-(4); accord 29 U.S.C.
§ 1132(g)(2).
The Plaintiffs filed suit alleging the Defendant failed to submit remittance reports or
contributions for the months of July 2010 and June 2011 through the filing of the Complaint in
July 2012. Compl. ¶ 22. The Plaintiffs also allege the Defendant owes the fund liquidated
damages, interest, and Pension Protection Surcharges due to late contributions for the months of
August 2010 through May 2011. Id. at 23. The Defendant was served with process but failed to
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file a timely response to the Complaint. The Clerk of Court entered a default against the
Defendant on September 21, 2012. The Plaintiff subsequently filed the present motion, seeking
an award for the amounts purportedly due in connection with the late contributions, attorney’s
fees and costs for prosecuting this action, and an order compelling the Defendant to produce the
missing remittance reports.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 55(a) provides that the Clerk of the Court must enter a
party’s request for a default “[w]hen 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). After a default has been entered by the Clerk, a party may
move the court for a default judgment. Fed. R. Civ. P. 55(b)(2). “The determination of whether
default judgment is appropriate is committed to the discretion of the trial court.” Int’l Painters &
Allied Trades Indus. Pension Fund v. Auxier Drywall, LLC, 531 F. Supp. 2d 56, 57 (D.D.C.
2008) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)).
Where, as here, 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.” Auxier Drywall, 531 F. Supp. 2d at 57 (citation omitted).
The Clerk of the Court entered a default as to the Defendant on September 12, 2012, therefore
the factual allegations in the Complaint are taken as true. Int’l Painters & Allied Trades Indus.
Pension Fund v. R.W. Amrine Drywall Co., Inc., 239 F. Supp. 2d 26, 30 (D.D.C. 2002). The
Court finds that Plaintiff’s Complaint sufficiently alleges facts to support their claims. The
Plaintiff is thus entitled to default judgment as to Defendant’s liability for her failure to pay
certain charges in connection with late contributions, and for her failure to submit remittance
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reports and contributions for July 2010 and June 2011 through the present.
III. DISCUSSION
While the entry of default establishes the Defendant’s liability, the Court is required to
make an independent determination of the amount of damages to be awarded, unless the amount
of damages is certain. Int’l Painters & Allied Trades Indus. Pension Fund v. Davanc
Contracting, Inc., 808 F. Supp. 2d 89, 94 (D.D.C. 2011). In this case, because the Defendant
failed to submit remittance reports for July 2010 and June 2011 through the present, the specific
amount of damages owed to the SEIU Pension Fund cannot be determined for those months.
Pursuant to the CBA, the Defendant was obligated to submit the monthly reports indicating the
contributions owed to the fund. Compl., Ex. 1 (CBA), art. 22, § 4. As of October 26, 2012, the
Defendant had yet to submit the remittance reports for July 2010 and June 2011 through the
present. Anderson Decl., ECF No. [7-7], ¶ 14 (“Defendant has failed to submit the required
remittance reports tor July 2010 and June 2011 through the present. . . . Without these
remittance reports, the Fund is unable to calculate the amount owed by [Defendant] for July 2010
and June 2011 through the present.”). The Court is satisfied that the Plaintiffs are entitled to the
requested records. Therefore the Court shall order the Defendant to submit the reports to the
fund and conduct an accounting for all past-due contributions.
With respect to the charges associated with the late contributions for August 2010
through May 2011, the Plaintiffs offer the declaration of Kenneth J. Anderson, Jr., an Assistant
Contribution Compliance Manager for the SEIU Pension Fund. See generally Anderson Decl.,
ECF No. [7-7]. Mr. Anderson averred in relevant part that “[t]he Fund’s records reflect that the
Defendant owes $340.08 in liquidated damages, $12.27 in interest, and $10.32 in [Pension
Protection] surcharges due from late contributions for the work months of August 2010 through
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May 2011, totaling $363.03 as of October 26,2012.” Id. at ¶13. Mr. Anderson did not attach any
supporting documentation to his declaration, and the Plaintiffs did not offer any other evidence
to establish the amount of damages owed. In the absence of any supporting documentation apart
from Mr. Anderson’s declaration, in its discretion, the Court declines to enter a default judgment
for these amounts. See Perkinson v. Gilbert/Robinson, Inc., 821 F.2d 686, 691 (D.C. Cir. 1987).
The Plaintiffs also request $2,832.50 in attorney’s fees and $442 for costs associated with
attempting to collect the amounts owed by the Defendant. The Plaintiffs are entitled to
reasonable attorney’s fees and costs for pursuing this action. Compl., Ex. 3 § 5(3); 29 U.S.C.
1132(g)(2)(D). To establish the amount of fees and costs owed by the Defendant, the Plaintiffs
offer the declaration of Richard C. Welch, lead attorney for the Plaintiffs in this action. See
generally Welch Decl., ECF No. [7-8]. Mr. Welch explained that
From December 2011 to November 2012, the following attorneys billed the
following number of hours in this case: Diana Bardes, associate attorney, billed
12.4 hours; Richard Welch, partner, billed 2.9 hours; and Quinlan O’Connor, law
clerk, billed 0.8 hours. Services included drafting and filing the complaint and
exhibits and communicating with the Fund’s office regarding the Defendant’s
delinquencies. Services also included preparing demand letters prior to
commencing the lawsuit and assembling and reviewing exhibits to the complaint.
Id. at ¶ 4. With respect to rates, Mr. Welch averred that
Prior to June 22, 2012, in preparing demand letters to the Defendant and other
pre-litigation activities, attorneys were billed at $150.00 per hour. On and after
June 22, 2012, in preparation of filing and filing the lawsuit, associate attorneys
were billed at $195.00 per hour and lead attorneys and partners were billed at
$220.00 per hour. Law clerks were billed at $75.00 per hour.
Id. at ¶ 5. Like Mr. Anderson, Mr. Welch failed to submit any supporting documentation.
Without additional information as to the experience of each attorney at issue, as well as the work
performed by each attorney for specific periods of time, the Court cannot determine whether the
rates and hours billed by the Plaintiffs’ attorneys were reasonable. In its discretion, the Court
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also declines to enter a default judgment for the costs identified by the Plaintiffs absent
documentation to establish the fee for service of process was actually incurred. Therefore, the
Court shall deny the Plaintiff’s motion for attorney’s fees and costs without prejudice.
IV. CONCLUSION
For the foregoing reasons, the Court finds the Plaintiffs failed to provide sufficient
documentation to support their request for damages, attorney’s fees, and costs. However, the
Plaintiffs are entitled to remittances reports for the months of July 2010 and June 2011 through
the present. Accordingly, the Plaintiffs’ [7] Motion for Partial Default Judgment is GRANTED
IN PART and DENIED IN PART as set forth above.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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