                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                            )
MICHAEL R. FANNING, Chief Executive Officer )
of the Central Pension Fund,                )
                                            )
               Plaintiff,                   )
                                            )
        v.                                  )                 Civil Action No. 07-2182 (PLF)
                                            )
LANGENFELDER MARINE, INC.,                  )
                                            )
               Defendant.                   )
__________________________________________)


                                   MEMORANDUM OPINION

               This matter is before the Court on plaintiff Michael R. Fanning’s motion for

summary judgment. After careful review of the parties’ papers, the relevant statutory and case

law, and the entire record in this case, the Court will grant the plaintiff’s motion and enter

judgment in favor of the plaintiff in the amount of $32,043.13.


                                        I. BACKGROUND

               Plaintiff Michael R. Fanning is the chief executive officer of the Central Pension

Fund of the International Union of Operating Engineers and Participating Employers (“the

Central Pension Fund”), a pension benefit plan organized under and governed by the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. Plaintiff’s Motion for

Summary Judgment (“MSJ”) at 2. In 2005 and 2006, defendant Langenfelder Marine, Inc.

(“Langenfelder”) entered into collective bargaining agreements with local affiliates of the
International Union of Operating Engineers. Id. Those agreements obligated Langenfelder to

make contributions to the Central Pension Fund. Id.

               On December 4, 2007, the Central Pension Fund filed this action, alleging that

Langenfelder had failed to pay $101,951.50 in contributions due for the months of April through

September 2007. Complaint ¶ 16; Declaration of Michael R. Fanning (attached to MSJ)

(“Fanning Decl.”) ¶ 7. Langenfelder denied those allegations, see Answer ¶ 16, and on June 23,

2008, the Central Pension Fund filed a motion for summary judgment. Based on the parties’

representations that they intended to settle most of the disputed issues raised by the complaint,

the Court denied the original motion for summary judgment as moot on March 24, 2009. On

March 31, 2009, the parties stipulated that, after the filing of the plaintiff’s motion for summary

judgment, Langenfelder had paid the delinquent contributions owed to the Central Pension Fund.

Stipulation ¶ 1. On April 15, 2009, Mr. Fanning filed the currently pending motion for summary

judgment, which addresses the only disputed issues remaining in this case: the amount of

interest, liquidated damages, and attorneys’ fees and costs that must be paid to the plaintiff by the

defendant. MSJ at 1-2.


                                         II. DISCUSSION

               Because Langenfelder has paid to the Central Pension Fund the $101,851.50 owed

in delinquent contributions, the plaintiff nows seeks only ancillary relief: $20,390.30 in

liquidated damages, MSJ at 4-5; $11,605 in attorneys’ fees and costs, id. at 6; and $47.83 in

unpaid interest. Id. at 7. Langenfelder does not contest the claim for unpaid interest and

concedes that it must pay $8,725 in attorneys’ fees and costs to the plaintiff, but contends that it



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is not obligated to pay liquidated damages or the remaining $2,880 in fees and costs claimed by

Mr. Fanning. Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment (“Opp.”)

at 2.


                                     A. Liquidated Damages

               The relevant provision of ERISA states:

                       In any action under this subchapter by a fiduciary for or on
               behalf of a plan to [collect delinquent contributions] in which a
               judgment in favor of the plan is awarded, the court shall award the
               plan —

                              ....

                              (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. . . .

29 U.S.C. § 1132(g)(2). The Central Pension Fund’s Restated Agreement and Declaration of

Trust provides for liquidated damages equal to twenty percent of unpaid contributions. Fanning

Decl., Ex. A at 12-13. Mr. Fanning thus argues that Langenfelder owes the Fund twenty percent

of the contributions that were delinquent when this case was filed, or $20,390.30. MSJ at 5.

               Langenfelder does not dispute the facts underlying Mr. Fanning’s argument, but

instead argues that “the liquidated damages provision of [29 U.S.C. § 1132(g)(2)] applies only

when there are unpaid contributions when judgment is entered.” Opp. at 3-4. Langenfelder

relies for this proposition on Michigan Carpenters Council Health & Welfare Fund v. C.J.

Rogers, Inc., 933 F.2d 376, 388 (6th Cir. 1991), in which the Sixth Circuit held that liquidated


                                                 3
damages may be awarded under 29 U.S.C. § 1132(g)(2) “only if there were unpaid contributions

on the date of the award.”

               The court of appeals in this circuit has yet to rule on this question of law, but the

Court notes that the conclusion reached by the Sixth Circuit has been rejected by every other

court of appeals that has considered the question. See United Auto Workers Local 259 Soc. Sec.

Dep’t v. Metro Auto Center, 501 F.3d 283, 288-89 (3d Cir. 2007); Operating Eng’rs Local 139

Health Benefit Fund v. Gustafson Constr. Corp., 258 F.3d 645, 654 (7th Cir. 2001); Nw. Adm’rs,

Inc. v. Albertson’s, Inc., 104 F.3d 253, 257 (9th Cir. 1996); Iron Workers Dist. Council v.

Hudson Steel Fabricators & Erectors, Inc., 68 F.3d 1502, 1507 (2d Cir. 1995); Carpenters

Amended & Restated Health Ben. Fund v. John W. Ryan Constr. Co., 767 F.2d 1170, 1172

(5th Cir. 1985); see also Carpenters & Joiners Welfare Fund v. Gittleman Corp., 857 F.2d 476,

478 (8th Cir. 1988). The Court is persuaded by the reasoning of the Second, Third, Fifth,

Seventh, Eighth, and Ninth Circuits and concludes that relief is available under 29 U.S.C.

§ 1132(g)(2) as to all contributions that were delinquent at the time this enforcement action was

filed. “Permitting delinquent employers to avoid paying § 1132 penalties after suit is filed . . .

would largely thwart the purpose of § 1332(g)(2) to provide plan fiduciaries with an effective

weapon against delinquent employers.” Iron Workers Dist. Council v. Hudson Steel Fabricators

& Erectors, Inc., 68 F.3d at 1508.

               As Langenfelder does not dispute, see Opp. at 1, it owed the plaintiff

$101, 951.50 in delinquent contributions at the time this suit was filed. MSJ at 4. Consequently,

Langenfelder is liable to the plaintiff for twenty percent of that amount pursuant to 29 U.S.C.

§ 1132(g)(2). The Court therefore will enter judgment for the plaintiff as to this claim.


                                                  4
                                    B. Attorneys’ Fees and Costs

               ERISA requires that “reasonable attorney’s fees and costs” be awarded to

prevailing plan fiduciaries in enforcement actions. 29 U.S.C. § 1132(g)(2)(D). Langenfelder

does not dispute that the plaintiff is entitled to an award of attorneys’ fees and costs in this

action, but insists that the award should amount only to the $8,725 requested by the plaintiff in

his first motion for summary judgment, not the $11,605 now sought. Opp. at 2. Langenfelder’s

entire argument against the plaintiff’s request for an additional $2,880 in fees and costs consists

of the conclusory assertion that “the additional $2,880 . . . is entirely applicable to rebriefing the

liquidated damages issue which had already been completely briefed and on which Defendant

should prevail.” Id.

               The plaintiff has submitted a detailed affidavit showing that since June 2008,

when he submitted his first motion for summary judgment, he has incurred fees and costs that

resulted from his counsel’s “reviewing the Defendant’s original opposition to the Plaintiff’s

[original] Motion for Summary Judgment, preparing the original reply brief, participating in . . .

subsequent Court conferences, drafting and negotiating a stipulation of dismissal, and preparing

the Amended Motion for Summary Judgment.” Reply in Support of Amended Motion for

Summary Judgment at 4; see Declaration of Richard Hopp (attached to MSJ), Ex. D at 2-4. In

response, the defendant has submitted no evidence whatsoever, nor has it explained why the

tasks performed in this case by plaintiff’s counsel since June 2008 have been anything other than

necessary and reasonable. Furthermore, the defendant has failed to explain — and the Court

doubts that it could — why the plaintiff is not entitled to fees and costs incurred during the



                                                   5
rebriefing of the liquidated damages issue simply because the defendant (wrongly) feels that it

“should prevail” on that issue. The Court therefore will enter judgment in favor of the plaintiff

on the question of attorneys’ fees and costs.


                                       III. CONCLUSION

               For the foregoing reasons, the Court will grant the plaintiff’s motion for summary

judgment and enter judgment against the defendant in the amount of $32,043.13. An Order

consistent with this Opinion shall issue this same day.

               SO ORDERED.


                                                /s/_______________________________
                                                PAUL L. FRIEDMAN
                                                United States District Judge
DATE: March 29, 2010




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