                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 INTERNATIONAL PAINTERS AND
 ALLIED TRADES INDUSTRY PENSION
 FUND,

 and

 GARY J. MEYERS, in his official capacity
 as a fiduciary,                                           Civil Action No. 09-1426 (CKK)

         Plaintiffs,

         v.

 LASALLE GLASS & MIRROR CO., d/b/a/
 LaSalle Glass & Mirror, d/b/a La Salle Glass
 & Mirror Co.,

         Defendant.


                                  MEMORANDUM OPINION
                                      (April 19, 2010)

       This action is brought by Plaintiffs International Painters and Allied Trades Industry

Pension Fund (the “Fund”) and Gary J. Meyers, a fiduciary on behalf of the Fund (collectively,

“Plaintiffs”) against Defendant LaSalle Glass & Mirror Company for legal and equitable relief

under the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended by the

Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. § 1145. Plaintiffs seek to

recover unpaid contributions, liquidated damages, interest, late fees as well as attorneys’ fees and

costs incurred by the Fund pursuant to 29 U.S.C. §§ 1132(g)(2)(A)-(D) and a collective

bargaining agreement entered into under 29 U.S.C. § 185. Although properly and timely served,

Defendant have failed to respond to Plaintiffs’ lawsuit, and the Clerk of the Court, upon request

by Plaintiffs, has since entered default against Defendant. See Clerk’s Entry of Default, Docket
No. [17]. Presently before the Court is Plaintiffs’ [18] Motion for Judgment by Default. Having

thoroughly considered the Amended Complaint, Plaintiffs’ submissions and attachments thereto,

the applicable case law, statutory authority, and the record of the case as a whole, the Court shall

GRANT Plaintiffs’ [18] Motion for Judgment by Default, for the reasons stated below.

                                       I. BACKGROUND

       The Fund is a trust fund established under 29 U.S.C. § 186(c)(5), and its Trustees are

fiduciaries and plan administrators for the International Painters and Allied Trades Industry

Pension Plan (“Pension Plan”) and International Painters and Allied Trades Industry Annuity

Plan (“Annuity Plan”) (collectively, with the Fund, the “ERISA Funds”). Am. Compl. ¶ 4. Both

the Pension Plan and the Annuity Plan are multiemployer employee benefit pension plans. Id. ¶¶

5-6. Plaintiff Meyers is a fiduciary of the ERISA Funds with respect to the collection of

contributions due. Id. ¶ 7.

       Plaintiffs filed the initial Complaint in the above-captioned matter on July 29, 2009.

Defendant failed to answer or otherwise respond to the original Complaint, and the Clerk of the

Court entered default against Defendant on October 6, 2009. See Clerk’s Entry of Default,

Docket No. [5]. Plaintiffs thereafter filed a Motion for Judgment by Default. See Docket No.

[7]. However, before the Court had the opportunity to rule on Plaintiffs’ Motion for Judgment by

Default, Plaintiffs voluntarily withdrew the motion and simultaneously moved to vacate the

Clerk’s Entry of Default. See Docket Nos. [8] & [9]. The Court granted Plaintiffs’ motion and

vacated the Entry of Default that had been previously entered against Defendant. See 2/24/10

Min. Order.

       Plaintiffs, with leave of the Court, subsequently filed an Amended Complaint on March


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10, 2010. See Am. Compl., Docket No. [13]. As set forth therein, Plaintiffs assert that

Defendant has entered into a collective bargaining agreement (“Labor Agreement”) with the one

or more local labor unions or district councils affiliated with the International Union of Painters

and Allied Trades, AFL-CIO, CLC (collectively, the “Union”). Id. ¶ 12 & Ex. 1 (Labor

Agreement). Plaintiffs also allege that Defendant has agreed to abide by an Agreement and

Declaration of Trust of the Fund (“Trust Agreement”) as well as plan documents for the ERISA

Funds. Id. ¶ 13 & Ex. 2 (Trust Agreement), Ex. 3 (copy of plan document for the Pension Plan).

Under the Labor Agreement, the Trust Agreement, and the plan documents for the ERISA Funds,

Defendant agreed to: make certain contributions to the ERISA Funds based on its employees’

work; file monthly remittance reports with the ERISA Funds detailing all employees’ work for

which contributions were required; produce records necessary to permit the ERISA Funds to

conduct an audit; and pay certain costs associated with litigation if Defendant failed to comply

with its obligations. Id. ¶ 14. Plaintiffs allege that Defendant has failed to make the required

monthly payments through January 2010 and that Defendant has otherwise failed to make

contributions required under the agreements. Id. ¶¶ 17-38.

       Pursuant to the terms of those agreements, Plaintiffs assert that they are therefore entitled

to: a monetary award for violation of 29 U.S.C. § 1145 in the amount of the unpaid contributions

to the ERISA Funds, liquidated damages, interest on the unpaid contributions and late fees as

well as costs, audit expenses, and attorneys’ fees (Count I); a monetary award for breach of the

Labor Agreement (and its incorporated agreements) in the amount of unpaid contributions owed,

including liquidated damages, late fees, interest, costs, and reasonable attorneys’ fees (Count II);

an audit of Defendant’s records to determine the amounts owed (Count III); after an audit, a


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monetary award for violation of 29 U.S.C. § 1145 in the amount of the contributions found due

and owing by the audit, together with late charges, interest, liquidated damages, costs, and fees

(Count IV); a monetary award for breach of the Labor Agreement (and its incorporated

agreements) for unpaid funds found due and owing by the audit (Count V); and a permanent

injunction enjoining Defendant from further violations of the parties’ agreements and, in

particular, from violating requirements under those agreements providing for the timely filing of

remittance reports and timely payment of contributions to the ERISA Funds (Count VI). Id. ¶¶

17-38.

         Plaintiffs, in their instant motion, have moved for default judgment seeking: (1) a

judgment for $42,930.15 in unpaid contributions, interest, liquidated damages, late fees, and

attorneys’ fees and costs; (2) an order declaring that the judgment shall continue to bear interest

until the date of actual payment; (3) an order requiring Defendant to provide all outstanding

remittance reports with all required information to the Fund and to submit to an audit of its wage,

payroll, and personnel records within twenty days of entry of judgment; and (4) an order

enjoining Defendant to submit to an audit of its wage, payroll, and personnel records. See Pl.’s

Proposed Order.1



         1
         Plaintiffs’ Motion for Judgment by Default and its attached Proposed Order are silent as
to Counts IV and V of the Amended Complaint, which seek monetary damages after conclusion
of the requested audit. In addition, the Court notes that Plaintiffs have not requested that the
Court retain jurisdiction over this matter in order to permit additional or supplement judgments
upon conclusion of the audit; to the contrary, Plaintiffs’ Proposed Order requests only that the
Court make clear that any final “judgment shall not preclude collection of any additional
delinquency reported in new forms or discovered in the audit.” See Proposed Order ¶ 7(c).
Accordingly, the Court understands that Plaintiffs are not seeking default judgment as to Counts
IV and V of the Amended Complaint and shall therefore DISMISS Counts IV and V WITHOUT
PREJUDICE.

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        Defendant was served with the Amended Complaint on March 10, 2010. See Cert. of

Service, Docket No. [14]. Pursuant to Federal Rule of Civil Procedure 15(a)(3), Defendant was

required to file an answer or otherwise respond to the Amended Complaint by no later than

March 24, 2010. Defendant failed to do so, however, and, at Plaintiffs’ request, the Clerk of the

Court once again entered default against Defendant on March 29, 2010. See Clerk’s Entry of

Default, Docket No. [17]. On April 6, 2010, Plaintiffs filed the now-pending Motion for

Judgment by Default. See Pl.’s Mot. for Def. J., Docket No. [18]. As of the date of this

Memorandum Opinion, Defendant has not entered an appearance nor filed any pleadings in this

case.

                                    II. LEGAL STANDARD

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

party’s 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 of the court, a court may enter a

default judgment pursuant to Rule 55(b). FED . R. CIV . P. 55(b). “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)). 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 Trades Indus. Pension Fund v. R.W. Armine Drywall

Co., Inc., 239 F. Supp. 2d 26, 30 (D.D.C. 2002) (internal citation omitted). “Although the

default establishes a defendant’s liability, the court is required to make an independent


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determination of the sum to be awarded unless the amount of damages is certain.” Id. (citing

Adkins v. Teseo, 180 F. Supp. 2d 15, 17 (D.D.C. 2001)). Accordingly, when moving for a default

judgment, the plaintiff must prove its entitlement to the amount of monetary damages requested.

Id. “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.” Id.

                                        III. DISCUSSION

       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, LLC, 531 F. Supp. 2d at 57 (internal

quotation marks omitted). The Clerk of the Court entered Defendant’s default, and the factual

allegations in the Amended Complaint are therefore taken as true. See R.W. Armine Drywall Co.,

Inc., 239 F. Supp. 2d at 30. The Court finds that Plaintiffs’ Amended Complaint sufficiently

alleges facts to support their claims. Plaintiffs are thus entitled to default judgment as to

Defendant’s liability for its failure to timely pay contributions to the ERISA Funds and to timely

submit the remittance reports and other documentation, as required under the terms of Labor

Agreement, the Trust Agreement, the plan documents for the ERISA Funds. Plaintiffs seek both

monetary and injunctive relief based upon Defendant’s failure to timely pay the required

contributions and to timely submit the required documents to the Fund. The Court considers

each request in turn below.

       A.      Monetary Damages

       Although the default establishes a defendant’s liability, the Court must make an

independent determination of the sum to be awarded in the judgment unless the amount of


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damages is certain. Adkins, 180 F. Supp. 2d at 17. Under ection 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.” 29 U.S.C. § 1145.

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.

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

prescribed by 26 U.S.C. § 6621. Id. In addition to the remedies available under ERISA, a

benefit trust fund may, as a third-party beneficiary, recover for breach of a collective bargaining

agreement under 29 U.S.C. § 185(a). See Hudson County Carpenters Union Local Union No. 6.

v. V.S.R. Constr. Corp., 127 F. Supp. 2d 565, 568 (D.N.J. 2000) (“It is well-established that the

failure to make contributions to a union trust fund as required by a collective bargaining

agreement constitutes a violation of ERISA § 515 and a violation of [29 U.S.C. § 185].”); see


                                                   7
also Bugher v. Feightner, 722 F.2d 1356, 1357-60 (7th Cir. 1983) (explaining that ERISA

remedies are intended to supplement rather than supersede rights existing under 29 U.S.C. §

185(a)).

       Plaintiffs have provided the Court with affidavits to support a damages award of

$42,930.15. As set forth in the Declaration of Thomas Montemore, Assistant to the Fund

Administrator for the Fund, Plaintiffs have calculated that Defendant owes $20,136.20 in unpaid

contributions for September 2009 and for the period of November 2009 through January 2010.

See Pls.’ Mot. for J. by Default, Ex. 1 (Decl. of Thomas Montemore) ¶ 9(a). Because of

Defendant’s failure to submit both contributions and remittance reports to the Fund, this amount

is an estimate of the unpaid contributions due each of the months at issue based on an average of

the three previous months for which reports were submitted multiplied by four months. See id.

The Court approves this calculation as a reasonable estimate of the unpaid contributions. Cf.

Int’l Painters & Allied Trades Indus. v. Advanced Pro Painting Servs., __ F. Supp. 2d __, Civ.

Act. No. 09-313, 2010 WL 1069161, * 4 (D.D.C. Mar. 24, 2010) (accepting plaintiffs estimate of

damages based on an average of unpaid contributions reported in previous two months); Flynn v.

Extreme Granite, Inc., 671 F. Supp. 2d 157, 162 (D.D.C. 2009) (“In light of the defendant’s

failure to provide periodic reports or allow the plaintiffs access to the defendant’s books and

records, the court accepts the plaintiffs’ estimation of delinquent contributions as accurate as

possible under the circumstances.”); R.W. Armine Drywall Co., Inc., 239 F. Supp. 2d at 31-32

(granting request for damages based in part on estimates of money owed based on prior

remittance reports).

       In addition, Plaintiffs have adequately demonstrated that Defendant owes interest on the


                                                 8
unpaid amounts through February 28, 2010, in the amount of $520.14, based on the total amount

of unpaid contributions indicated above and the fluctuating IRS interest rate as provided in

section 10 of the Pension Plan, which adopts the ERISA standard. Montemore Decl. ¶ 9(b); see

also Am. Compl., Ex. 3 (copy of plan document for the Pension Plan) § 10.12(b). Plaintiffs have

also calculated that they are entitled to liquidated damages as well in the amount of twenty

percent of the total unpaid contributions, as provided for both in 29 U.S.C. § 1132(g)(2) and in

section 10 of the Pension Plan, which amount equals $9,624.31. Montemore Decl. ¶ 9(c); see

also Am. Compl., Ex. 3 (copy of plan document for the Pension Plan) § 10.12(b). Additionally,

pursuant to 29 U.S.C. § 1132(g)(2) and section 10.12 of the plan documents, which both permit

an award of “other legal or equitable relief the Court deems appropriate,” Plaintiffs seek, and the

Court finds that they are entitled to, an award of late charges in the amount of $84.67 for the

period of March 2009 based on Defendant’s late payment of certain contributions that were paid

prior to litigation. Montemore Decl. ¶ 9(d); see also Am. Compl., Ex. 3 (copy of plan document

for the Pension Plan) § 10.12(b).

       Finally, Plaintiffs request an award of attorneys’ fees and costs in the amount of

$12,563.03. See Pls.’ Mot. for J. by Default, Ex. 5 (Decl. of Dawn M. Costa) ¶ 2. Plaintiffs have

attached supporting documentation showing that they have incurred $11,513.00 in attorneys’ fees

and $1,050.03 in costs in litigating this action. Id., Ex. 6 (time and expense detail). This is based

on 53.90 hours of attorney and paralegal time at rates of $220 per hour and $70 per hour,

respectively, plus expenses for the filing fee, photocopies, and various other items. See generally

id. Plaintiffs have provided documentation showing that these rates are reasonable for the

services rendered. Accordingly, the Court shall award the attorneys’ fees and costs requested.


                                                 9
Thus, the total money judgment for Plaintiffs shall be $42,930.15.

       B.      Injunctive Relief

       Plaintiffs also seek injunctive relief in the form of an order directing Defendant to

complete and provide to the Fund any and all outstanding remittance reports with supporting

information and to submit to an audit of its wage, payroll, and personnel records. As indicated

previously, under the terms of the relevant agreements, Defendant is obligated to submit monthly

remittance reports and corresponding fringe benefit contributions to the Fund. Montemore Decl.

¶ 8; see also Am. Compl., Ex. 2 (Trust Agreement), Art. VI, § 5. In addition, the relevant

agreements obligate Defendant to produce all of its payroll books and records and any other

financial records needed by the Fund’s auditors to conduct a contribution compliance audit to

determine the precise amount owed to the ERISA Funds. Montemore Decl. ¶¶ 11-12; see also

Am. Compl., Ex. 1 (Labor Agreement), Art. 20, § 3.3; id., Ex. 2 (Trust Agreement), Art. VI, § 6.

Accordingly, the Court finds that Plaintiffs have demonstrated that they are entitled to the

requested injunctive relief under the terms of the relevant agreements. The Court shall therefore

order Defendant to complete and submit to the Fund, within twenty days of the entry of the

Court’s Order, any and all outstanding remittance reports with all required information. In

addition, the Court shall order Defendant to submit to an audit of its wage, payroll, and personnel

records within twenty days of the date of the entry of the Court’s Order. Defendant shall bear the

costs of any such audit.

                                       IV. CONCLUSION

       For the reasons set forth above, the Court shall GRANT Plaintiffs’ [18] Motion for

Judgment by Default. The Court shall award damages in the amount of $42,930.15 as well as


                                                10
order that Defendant provide the Fund with all outstanding remittances and submit to an audit of

its records. An appropriate Order accompanies this Memorandum Opinion.

Date: April 19, 2010
                                                          /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    United States District Judge




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