1:12-cv-01238-JBM-JAG # 12 Page 1 of 8
Wednesday, 31 July, 2013 03:30:09 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
CENTRAL ILLINOIS CARPENTERS
HEALTH & WELFARE TRUST FUND,
CARPENTERS PENSION FUND OF
RETIREMENT SAVINGS FUND OF
ILLINOIS, MID-CENTRAL ILLINOIS
REGIONAL COUNCIL OF
ILLINOIS REGIONAL COUNCIL OF
FUND, INDUSTRY ADVANCEMENT
INTERNATIONAL TRAINING FUND,
CARPENTERS LABOR MANAGEMENT
EDUCATION & DEVELOPMENT
FUND, MID-CENTRAL ILLINOIS
REGIONAL COUNCIL OF
CARPENTERS PROMOTIONAL FUND,
CARPENTERS JOINT LABOR
MANAGEMENT SUBSTANCE ABUSE
TESTING FUND, BUILDING TRADES
FUND, CENTRAL ILLINOIS
RETIREMENT SAVINGS FUND, and
CARPENTERS LOCAL #183,
Case No. 12-cv-1238
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O P I N I O N & O R D E R
This matter is before the Court on Plaintiffs’ Motion for Default Judgment.
(Doc. 10).1 Responses to this Motion were due on May 31, 2013; none were filed. For
the reasons stated below, Plaintiffs’ Motion for Default Judgment is DEFERRED.
Plaintiffs Central Illinois Carpenters Health & Welfare Trust Fund,
Carpenters Pension Fund of Illinois, Carpenters Retirement Savings Fund of
Illinois, Mid-Central Illinois Regional Council of Carpenters Apprenticeship Fund,
Carpenters International Training Fund, Carpenters Labor Management Education
& Development Fund, and Central Illinois Retirement Savings Fund, are employee
benefit funds (“Funds”) administered pursuant to the terms and provisions of
related Agreements and Declarations of Trusts and are maintained in accordance
with the provisions of the Labor Management Relations Act (“LMRA”) and the
Employee Retirement Income Security Act of 1974 (“ERISA”). Plaintiffs Mid-
Central Illinois Regional Council of Carpenters, and Carpenters Local #183 are
labor organizations administered pursuant
to LMRA. Plaintiffs Industry
Advancement Fund, Mid-Central Illinois Carpenters Joint Labor Management
Substance Abuse Testing Fund, and Building Trades Fund are labor management
1 As explained below, Plaintiffs’ initial Motion for Default Judgment (Doc. 9) was
construed in part as a motion for default, and default was entered. Because of the
more recent Motion, the previous Motion (Doc. 9) is denied as moot.
2 Unless otherwise noted, this background information is drawn from Plaintiffs’
Complaint (Doc. 1). Upon a defendant’s default in federal court, the well-pleaded
facts relating to liability in a complaint are taken as true. Dundee Cement Co. v.
Howard Pipe & Concrete Products, Inc., 722 F.2d 1319, 1323 (7th Cir. 1983); Fed. R.
Civ. Pro. 8(b)(6). Default was entered in this matter on May 1, 2013. Therefore, the
allegations of the Complaint are deemed to be true.
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organizations administered pursuant to LMRA. The Central Illinois Carpenters
Health & Welfare Trust Fund is the authorized collection agent for other Plaintiffs.
Defendant, Becker Construction Contractors, is an “employer” within the terms of
ERISA. 29 U.S.C. § 1002(5). Defendant and Mid-Central Illinois Regional Council of
Carpenters entered into a recognition agreement, which bound Defendant to a
collective bargaining agreement that obligated Defendant to make contributions to
Plaintiffs’ Funds by the fifteenth day after the end of each month based on the
number of hours actually worked. (Doc. 1-5 at 16).
On July 20, 2012, Plaintiffs filed a Complaint against Defendant under
ERISA, 29 U.S.C §§ 1132 & 1145, charging that Defendant breached its obligations
to Plaintiffs because it has failed to make the required fringe benefit contribution
payments during the time period of October 1, 2009, through June 30, 2011. (Doc. 1
at 3, 8). Plaintiffs seek the contributions due, liquidated damages, interest, audit
cost, and attorney fees.
Service of the Complaint and summons was made on Defendant’s registered
agent on March 21, 2013. (Doc. 8). Defendant failed to appear, plead or otherwise
defend the lawsuit. On April 26, 2013, Plaintiffs moved for entry of default
judgment, which the court construed as a motion for default. On May 1, 2013,
default was entered against Defendant. (Docket Entries, May 1, 2013). On May 13,
2013, Plaintiffs filed the instant Motion for Default Judgment, asking the Court to
order Defendant to pay: (1) $1,546.34 in contributions that Plaintiffs failed to make
and liquidated damages and interest on those contributions, and $1,867.25 in
attorney’s fees, to Carpenters Pension Fund of Illinois and the Carpenters
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Retirement Savings Fund of Illinois; and (2) $2,740.84 in contributions, liquidated
damages and interest, and $1,795.00 in attorneys’ fees to Central Illinois
Carpenters Health & Welfare Trust Fund. (Doc. 10 at 3-4). Although response was
due by May 31, 2013, Defendant entered no objection thereto. Pursuant to Local
Rule 7.1(B)(2), any party opposing a motion must file a response within fourteen
days, otherwise the court will presume that there is no opposition and rule without
further notice. Accordingly, the Court presumes that Defendant does not oppose
default judgment being entered against it in this action.
Under ERISA, employers who are obligated under the terms of a plan or
collectively bargained agreement to make contributions to the plan must “make
such contributions in accordance with the terms and conditions of such plan or
agreement.” 29 U.S.C. § 1145. Plaintiffs are entitled to bring suit to enforce this
provision and the plan’s terms under 29 U.S.C. § 1132. Defendant has failed to
make its contributions in accordance with the terms of the relevant Collective
Bargaining Agreement and Agreements and Declarations of Trusts for the Funds.
Therefore, Defendant is liable to Plaintiffs under 29 U.S.C. § 1145.
Granting or denying default judgment is within the Court’s sound discretion.
See Swaim v. Moltan Co., 73 F.3d 711, 716 (7th Cir. 1996). While the pleadings in a
complaint are taken to be true upon the entering of a default judgment, allegations
regarding damages are not automatically taken as true. Dundee v. Cement Co. v.
Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir. 1983). “The
district court must instead conduct an inquiry in order to ascertain the amount of
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damages with reasonable certainty.” In re Catt, 368 F.3d 789, 793 (7th Cir. 2004)
(quoting Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.
Here, Plaintiffs have submitted audit reports prepared by independent
accountants. (Doc. 9-3). The audit report shows that, for the period of October 1,
2009, through June 30, 2011, Defendant owes $880.00 in contributions to
Carpenters Pension Fund of Illinois and Carpenters Retirement Savings Fund of
Illinois, and $1,616.00 to Central Illinois Carpenters Health & Welfare Fund. (Doc.
9-3 at 4, 12). Therefore, Plaintiffs will be awarded $2,496.00 in unpaid contributions
under 29 U.S.C. § 1132(g)(2)(A). However, the amount of interest accrued from the
unpaid contributions is not properly substantiated.
Under ERISA, Plaintiffs are entitled to interest on the unpaid contributions.
See Operating Eng’rs Local 139 Health Benefit Fund v. Gustafson Constr. Corp., 258
F.3d 645, 652 (7th Cir. 2001). If the plan does not provide an interest rate, the
Court may award Plaintiffs interest under 26 U.S.C. § 6621.3 See 29 U.S.C. §
1132(g). Here, neither the relevant trust agreements nor the audit reports specify
an interest rate. Since Plaintiffs have provided no documentary evidence of how it
arrived at its figure for the interest accrued on unpaid contributions, the Court will
give the Plaintiffs a window of time in which to file supplemental materials
indicating the interest rate.
3 This rate will be determined by adding three percentage points to the Federal
short-term rate. 26 U.S.C. § 6621(a)(2).
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Plaintiffs also seek $323.20 in liquidated damages to be paid to Central
Carpenters Health & Welfare Fund. 4 (Doc. 10 at 6; Doc. 9-3 at 13). The relevant
trust agreements provides for liquidated damages in the amount of 20% of the
unpaid contributions. (Doc. 1-8 at 3). Plaintiffs have provided documentary evidence
showing that for the period from October 1, 2009, through June 20, 2011, Defendant
owes them $323.20 in liquidated damages. (Doc. 9-3 at 13). Under 29 U.S.C. §
1132(g)(2)(C), the Court shall award the plan the greater of either the interest on
the unpaid contributions (in addition to the award of interest under § 1132(g)(2)(B))
or liquidated damages as provided for under the plan. However, due to the absence
of an interest rate, the Court is unable to determine which figure, the interest or the
liquidated damages, is greater.
In a suit for delinquent contributions, reasonable attorney’s fees and costs are
to be awarded to a prevailing plan trustee under 29 U.S.C. § 1132(g)(2)(D).
Plaintiffs’ attorney, John A. Wolters, submitted affidavits stating the hourly rate at
which Plaintiffs were billed, and provided itemized statement of the time spent on
each task the attorneys and paralegals performed. (Doc. 9-4; Doc. 9-5).
For ERISA litigation, Plaintiffs’ counsel’s firm charges $150.00 - $205.00 per
hour for attorneys’ work and $90.00 per hour for paralegals’ work. (Doc. 9-4 at 1, 6).
The Carpenters Pension Fund of Illinois and the Carpenters Retirement Savings
Fund of Illinois incurred $1,867.25 in attorneys’ fees and costs while the Central
Illinois Carpenters Health & Welfare Trust Fund incurred $1,795.00 in attorneys’
4 The Court notes that Plaintiffs Carpenters Pension Fund of Illinois and
Carpenters Retirement Savings Fund also seek liquidated damages for unpaid
contributions under the trust agreement, but the audit report does not provide the
amount of the liquidated damages. (Doc. 10 at 3; Doc. 9-3 at 4).
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fees and costs. (Doc. 9-4 at 3, 7). Plaintiffs therefore seek an award of $3,662.25 in
attorney’s fees and cost. (Doc. 15 at 4). Minus $392 in court costs, this award would
work out to an average rate of $179.19 for the 18.25 hours spent. Considering the
attorneys’ usual rate and the results obtained, the Court finds that this is a
reasonable hourly rate, and that the time spent on this matter by Plaintiffs’ counsel
was reasonable. See Anderson v. AB Painting & Sandblasting Inc., 578 F.3d 542,
544-46 (7th Cir. 2009) (In awarding fees under § 1132(g)(2)(D), court’s review is
limited to determining whether amount of time spent was reasonable.); Gusman v.
Unisys Corp., 986 F.2d 1146, 1150 (7th Cir. 1993) (“[T]he best measure of the cost
of an attorney's time is what that attorney could earn from paying clients.”).
Therefore, Plaintiffs will be awarded $3,662.25 in attorney’s fees and costs. In
addition, Defendant owes to Plaintiff $930.00 as reimbursement for the audit cost
incurred in assessing the unpaid contributions, interest and liquidated damages.5
(Doc. 10-1; Doc. 9-3 at 11).
As Plaintiffs failed to provide an interest rate, Plaintiffs’ Motion for Default
Judgment (Doc. 10) is DEFERRED. Plaintiffs’ first Motion for Default Judgment
(Doc. 9) is DENIED AS MOOT. Plaintiffs are ORDERED to file, within fourteen
days from the date of entry of this order, a Supplement to its Motion, in which it
adequately addresses the evidentiary deficiencies discussed above. If Plaintiffs fail
to file a supplement, the instant Motion will be granted in part and denied in part,
5 Defendant owes $465.00 each to Carpenters Pension Fund of Illinois and
Carpenters Retirement Savings Fund of Illinois, and Central Illinois Carpenters
Health & Welfare Fund, which works out to $930.00 in total.
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with default judgment being entered against Defendant without the interest
accrued on the unpaid contributions and without part of the liquidated damages. IT
IS SO ORDERED.
s/ Joe B. McDade
JOE BILLY McDADE
United States District Judge
Entered this 31st day of July, 2013.