                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                           )
MICHAEL R. FANNING,                        )
as Chief Executive Officer of the Central  )
Pension Fund of the International Union of )
Operating Engineers and Participating      )
Employers,                                 )
                                           )
       Plaintiff,                          )                Civil Action No. 13-1367 (ESH)
                                           )
              v.                           )
                                           )
WARNER CENTER, L.P.,                       )
                                           )
       Defendant.                          )
_________________________________________ )


                                 MEMORANDUM OPINION

       Plaintiff Michael R. Fanning, as Chief Executive Officer of the Central Pension Fund of

the International Union of Operating Engineers and Participating Employers (“Central Pension

Fund”), brings this action against defendant Warner Center, L.P., under the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1132(a)(3), (g) & 1145.

Before the Court is plaintiff’s motion for default judgment, asking the Court to enter judgment in

the amount of $4,275.00 and to order defendant to submit to an audit of its payroll records for the

period of January 2012 to the present. (Mot. for Default Judgment, Nov. 25, 2013 [ECF No. 7].)

For the reasons stated herein, the motion will be granted and a default judgment entered in favor

of the Central Pension Fund and against defendant Warner Center, L.P.

                                        BACKGROUND

       The Central Pension Fund is a multiemployer employee benefit plan as those terms are

defined in Sections 3(1) and 3(37) of ERISA, 29 U.S.C. §§ 1002(1), & (37). (Am. Compl. ¶ 1.)
It “was established and is maintained according to the provisions of its Restated Agreement and

Declaration of Trust.” (Id. ¶ 1.) Pursuant to a “Collective Bargaining Agreement with

International Union of Operating Engineers Local Union No. 95 and Participating Agreements

with the Central Pension Fund,” defendant “agreed to pay certain sums of money to the Central

Pension Fund for certain hours worked by employees of the defendant performing work covered

by the Agreements.” (Id. ¶¶ 6-7.) “[A]n employer who fails to pay required contributions is

liable for liquidated damages in the amount of 20% of the total contributions owed,” “interest at

the rate of 9% simple interest per annum,” and “all attorneys' fees, costs and audit fees.” (Id. ¶¶

10-12.)

          Defendant self-reported the number of hours worked by its employees with a document

known as a “Remittance Report.” (Fanning Decl. ¶ 11.) In May 2013, a payroll audit found that

for the period of January 2010 through December 2012, defendant had failed to pay all the

contributions it owed to the Central Pension Fund. (Am. Compl. ¶ 17.) Based on the audit’s

findings, plaintiff filed the original complaint in this action on September 10, 2013, seeking to

collect unpaid contributions, interest, liquidated damages, audit fees, attorneys’ fees and costs.1

(Compl., Sept. 10, 2013 [ECF No. 1].) (Compl. ¶¶ 15-19.) After the lawsuit was filed,

defendant paid $6,841.79 to the Central Pension Fund, which resolved the outstanding

contributions, interest and liquidated damages owed, but did not cover the audit fee of $2,200.00

or the attorney’s fees and costs expended in bringing the lawsuit. (Fanning Decl. ¶15.)

          Plaintiff filed an Amended Complaint on October 14, 2013 (Am. Compl., Oct. 14, 2013

[ECF No. 3]), seeking to recover the audit fee and attorneys’ fees and costs. (Id. ¶ 20.) In

addition, as defendant has failed to submit remittance reports since March 2012, plaintiff seeks

1
 Plaintiff is “a designated fiduciary in accordance with the [Agreement] and as defined in
Section 3(21) of ERISA, 29 U.S.C. § 1002(21).” (Am. Compl. ¶ 1.)
                                                  2
an updated audit of defendant’s payroll records from January 2012 to the present, and depending

on the results of the audit, unpaid contributions, interest, liquidated damages, attorneys’ fees and

costs. (Id. ¶¶ 14-16, 19, 23, 24.)

       The Amended Complaint was served on October 28, 2013, and defendant’s answer was

due on November 18, 2013. (Aff. of Service, Nov. 6, 2013 [ECF No. 4].) On November 19,

2013, pursuant to Federal Rules of Civil Procedure Rule 55(a), plaintiff requested the Clerk to

enter a default against defendant (Aff. for Entry of Default, Nov. 19, 2013 [ECF No. 5]), which

the Clerk did on November 20, 2013. (Clerk’s Entry of Default, Nov. 20, 2013 [ECF No. 6].)

Plaintiff now moves for entry of default judgment pursuant to Federal Rule of Civil Procedure

55(b)(2).2 To date, defendant has failed to answer or otherwise defend this action.

                                            ANALYSIS

       The determination of whether default judgment is appropriate is committed to the

discretion of the trial court. Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980). For default

judgment, 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. Gutierrez v. Berg Contracting Inc., No. 99-3044, 2000 WL

331721, *1 (D.D.C. March 20, 2000) (citing Jackson, 636 F.2d at 836). Given “the 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.3 Id.


2
  Federal Rule of Civil Procedure 55 specifies a two-step process for a party seeking to obtain a
default judgment. First, the plaintiff must request that the Clerk of the Court enter a default
against the party who has “failed to plead or otherwise defend” against an action. Fed. R. Civ. P.
55(a). Second, if the plaintiff's claim is not for a “sum certain,” the party must apply to the court
for an entry of default judgment. Fed. R. Civ. P. 55(b)(2).
3
 The Court has subject matter jurisdiction pursuant to 29 U.S.C. §§ 1132(a)(3), (g), 1145, and
personal jurisdiction over the defendant pursuant to 29 U.S.C. § 1132(e)(2). Venue is proper
                                                3
       Although the default establishes a defendant’s liability for the well-pleaded allegations of

the complaint, the Court makes an independent determination of the sum to be awarded in the

judgment unless the amount of damages is certain. Adkins v. Teseo, 180 F. Supp. 2d 15, 17

(D.D.C. 2001). Pursuant to 29 U.S.C. § 1132(g)(2), the Court shall award plaintiffs: (A) the

unpaid contributions; (B) interest on the unpaid contributions; (C) liquidated damages in an

amount equal to the greater of (i) interest on the unpaid contributions, or (ii) 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; and (E)

such other legal or equitable relief as the court deems appropriate. The Court may rely on

detailed affidavits or documentary evidence to determine the appropriate sum for default

judgment. Flynn v. Mastro Masonry Contractors, 237 F. Supp. 2d 66, 69 (D.D.C. 2002).

       Plaintiff has filed the declarations of Michael R. Fanning, on behalf of the Central

Pension Fund, and R. Richard Hopp, plaintiff’s attorney, in support of the motion for default

judgment. Based on these declarations, the Court finds that plaintiff has established that

defendant owes $2,200.00 for the unpaid auditor’s fee and $2,075.00 in attorney’s fees and costs.

(Fanning Decl. ¶¶ 15-16; Hopp Decl. ¶¶ 4-5.)

       In addition, plaintiff is entitled to the requested injunctive relief. (Am. Compl., Prayer

for Relief.) “Equitable relief in this context includes ‘an injunction requiring a defendant to

permit, and cooperate with, an audit of its books and records.’” Int’l Painters & Allied Trades

Indus. Pension Fund v. ZAK Architectural Metal & Glass LLC, 635 F. Supp. 2d 21, 26 (D.D.C.

2009) (quoting Flynn v. Mastro Masonry Contractors, 237 F. Supp. 2d at 70 (D.D.C. 2002)).

Here, equitable relief is warranted because defendant “has demonstrated no willingness to



pursuant to 29 U.S.C. § 1132(e)(2).
                                                  4
comply with either its contractual or statutory obligations or to participate in the judicial

process.” Id. (internal quotations omitted).

                                          CONCLUSION

       Accordingly, and for the reasons stated above, judgment will be entered for the Central

Pension Fund in the amount of $4,275.00 and defendant will be ordered to comply with

plaintiff’s request for an audit of the time period from January 2012 to the present, and to remit

any outstanding contributions discovered as a result of that audit, and pay any late charges,

interest and liquidated damages consistent with this Memorandum Opinion as well as the cost of

the audit. A separate Order and Judgment accompanies this Memorandum Opinion.



                                                                  /s/
                                                       ELLEN SEGAL HUVELLE
                                                       United States District Judge

Date: November 26, 2013




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