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Case 1:12-cv-00256-S-PAS Document 9 Filed 06/04/13 Page 1 of 6 PageID #: 49

UNITED STATES DISTRICT COURT

DISTRICT OF RHODE ISLAND



___________________________________
)
PLASTERERS’ AND CEMENT MASONS’ )
LOCAL 40 PENSION FUND, through its )
TRUSTEES; PLASTERERS’ AND CEMENT
)
MASONS’ LOCAL 40 ANNUITY FUND,
)
through its TRUSTEES; PLASTERERS’ )
AND CEMENT MASONS’ LOCAL 40 HEALTH )
AND WELFARE FUND, through its
)
TRUSTEES; PLASTERERS’ AND CEMENT )
MASONS’ LOCAL 40 APPRENTICESHIP
)
FUND, through its TRUSTEES;
)
PLASTERERS’ AND CEMENT MASONS’
)
)
LOCAL 40 INDUSTRY ADVANCEMENT
FUND, through its TRUSTEES;
)
PLASTERERS’ AND CEMENT MASONS’
)
LOCAL 40; and DONALD LAVIN, in his )
official capacity as
)

Co-Administrator of the Funds,
)




)



)

Plaintiffs,




)
v. )
)
)
D & M CONCRETE FINISHING A/K/A,
D & M CONCRETE FLOOR COMPANY, )

)
)
___________________________________)

ORDER


Defendant.










C.A. No. 12-256 S

WILLIAM E. SMITH, United States District Judge.


On April 5, 2012, Plaintiffs filed a three-count Complaint
alleging violations of the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. §§ 1132(a)(3) & 1145, the Labor Management
Relations Act (“LMRA”), 29 U.S.C. § 185, and the Rhode Island
Payment of Wages statute, R.I. Gen. Laws §§ 28-14-3 & 28-14-3.1.
(ECF No. 1.) The next day, Plaintiffs sent a copy of the Summons

Case 1:12-cv-00256-S-PAS Document 9 Filed 06/04/13 Page 2 of 6 PageID #: 50

and Complaint to Defendant’s registered agent for service via
certified mail, return receipt requested, and Defendant signed for
the Summons and Complaint on April 9. (Aff. in Supp. of Appl. to
Clerk for Entry of Default ¶ 2, ECF No. 3-1; see also Summons, ECF
No. 2.) Defendant never filed an Answer or in any other way
responded to the Complaint (Aff. in Supp. of Appl. to Clerk for
Entry of Default ¶ 2), so Plaintiffs subsequently filed a motion
for entry of default on May 2, 2012 (ECF No. 3). Because
Defendant still did not respond, the clerk entered the default on
June 6. (ECF No. 5.) Now before the Court is Plaintiffs’ Motion
for Entry of Judgment by Default. (ECF No. 8.) As with every
other stage of the case, Defendant has neither responded nor
objected. Therefore, for the reasons set forth below, the motion
is GRANTED.
I.
Facts

“On a motion for entry of default judgment, the facts alleged
in the complaint are taken as true.” Queally v. Estate of Hoviss,
C.A. No. 10-002-S, 2011 WL 6026593, at *1 (D.R.I. Dec. 2, 2011)
(citing Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 62-63 (1st Cir.
2002)). Plaintiffs Plasterers’ and Cement Masons’ Local 40
Pension Fund; Plasterers’ and Cement Masons’ Local 40 Annuity
Fund; Plasterers’ and Cement Masons’ Local 40 Health and Welfare
Fund; Plasterers’ and Cement Masons’ Local 40 Apprenticeship Fund;
and Plasterers’ and Cement Masons’ Local 40 Industry Advancement

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Fund (collectively, the “Funds”) are multi-employer pension plans
within the meaning of ERISA “established to provide various types
of benefits, including retirement, medical, and employment
training, to members of” Plasterers’ and Cement Masons’ Local 40
(“Local 40”), a labor union within the meaning of ERISA and the
LMRA. (Compl. ¶¶ 2-6, 8, 12.) These benefits are financed in
part by employer contributions set by the collective bargaining
agreements between Local 40 and each employer. (Id. ¶ 13.) Per
the collective bargaining agreements, each employer is required to
submit contributions to the Funds based on the number of hours of
covered employment worked by its employees. (Id.) The rights and
obligations of the Funds and each employer are set forth in the
various Agreement and Declaration of Trusts (“Trust Agreements”).
(Id. ¶ 14.)

Defendant, as a party to one of these collective bargaining
agreements (the “CBA”), is required to remit union dues to Local
40 for each hour worked by members of Local 40. (Id. ¶¶ 15, 18.)
In addition, the CBA binds Defendant to the terms of the Trust
Agreements. (Id. ¶ 15.) Accordingly, Defendant “shall submit
timely payroll reports indicating the number of hours worked by
its covered employers and [sic] well as the amount of
contributions owed, promptly pay said contributions, and pay
penalties and interest when in default.” (Id. ¶ 16.) When in
default, the outstanding contributions accrue interest at one

Case 1:12-cv-00256-S-PAS Document 9 Filed 06/04/13 Page 4 of 6 PageID #: 52

percent (1%) per month. (Id. ¶ 17.) Since August 2011, Defendant
has failed to remit dues to Local 40, to make any contributions to
the Funds, and to “otherwise [] comply with the terms and
conditions of the Trust Agreements.” (Id. ¶ 19.)
II. Discussion
“Once the clerk enters default, ‘the Court may grant a

judgment in the plaintiff’s favor on all claims supported by
'well-pleaded allegations in [the] . . . Complaint.'’” Queally,
2011 WL 6026593, at *1 (quoting SEC v. Locke Capital Mgmt., Inc.,
726 F. Supp. 2d 105, 106 (D.R.I. 2010)) (alterations in original).
Here, Plaintiffs have adequately pleaded that Defendant’s failure
to contribute to the Funds and to remit dues to Local 40 are
violations of the Trust Agreements and the CBA, and thus
violations of ERISA, the LMRA, and the Rhode Island Payment of
Wages statute. (See generally Compl.) Because Defendant has
still not responded to the default entered on June 6, 2012,
judgment in the Plaintiffs’ favor is appropriate.

judgment. According to 29 U.S.C. § 1132(g)(2),

The only remaining issue, therefore, is the amount of the

In any action under this subchapter by a fiduciary
for or on behalf of a plan to enforce section 1145 of
this title in which a judgment in favor of the plan is
awarded, the court shall award the plan --

(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

Case 1:12-cv-00256-S-PAS Document 9 Filed 06/04/13 Page 5 of 6 PageID #: 53

(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.

Plaintiffs believe they are entitled to $48,170.33 and provide a
detailed accounting in support of their request. After reviewing
the calculations, the Court agrees. Accordingly, Plaintiffs are
due a total of $48,170.33, comprised of the following amounts:

(A) The unpaid contributions from June 2011 through July
2012 totaling $28,100.58. (See Aff. of Donald Lavin in Supp. of
J. by Default Ex. A-1, ECF No. 8-1.)

(B) The interest on these unpaid contributions, calculated
per the Trust Agreements at one percent (1%) per month, amounting
to $4,979.03. (See id.)

(C) Liquidated damages, calculated per the Trust Agreements
as a twenty percent (20%) penalty on all unpaid contributions,
equaling $5,620.12. (See id.)

(D) Attorney’s fees and costs of $4,279. (See Aff. of
Elizabeth Wiens ¶ 8, ECF No. 8-2.) From March 30, 2012 through
March 12, 2013, Plaintiffs’ attorneys spent fifteen hours on this
matter at a rate of $240 per hour, for a total fee of $3,600.
(See id. ¶¶ 5, 7 & Ex. B-1.) They also incurred $679 in costs.

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(See id. Ex. B-1.) The Court finds these amounts to be reasonable
in these circumstances.

(E) Finally, $4,421.25 in union dues that Defendant deducted
from its members’ paychecks from June 2011 through July 2012 but
failed to remit to Local 40, as well as an additional $770.35 in
interest (calculated at one percent (1%), accrued monthly) on
those dues. (See Aff. of Donald Lavin in Supp. of J. by Default
Ex. A-1.) Though payment of dues and interest on those dues are
not explicitly provided for in § 1132(g)(2) or any of the other
statutes at issue, the failure to remit due payments was a breach
of the CBA, and thus these amounts are effectively damages for a
breach of contract. Alternatively, the Court believes they
appropriately qualify as “such other legal or equitable relief”
contemplated by 29 U.S.C. § 1132(g)(2)(E).
III. Conclusion

For the aforementioned reasons, Plaintiffs’ Motion for Entry
of Judgment by Default is GRANTED. Judgment is hereby entered in
Plaintiffs’ favor in the amount of $48,170.33.
IT IS SO ORDERED.

/s/ William E. Smith
William E. Smith
United States District Judge
Date: June 4, 2013