243 F.R.D. 25

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 4, et al., Plaintiffs, v. STANLEY EXCAVATION, Defendant.

No. CV-07-47-B-W.

United States District Court, D. Maine.

July 23, 2007.

*26Jeffrey Neil Young, McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A., Tops-ham, ME, for Plaintiffs.

ORDER ON MOTION FOR DEFAULT JUDGMENT

WOODCOCK, District Judge.

Having demonstrated that Stanley Excavation, an employer, failed to appear or otherwise defend this law suit, the Plaintiffs, a union and several union funds, are entitled to default judgment under Rule 55(b)(2) for amounts Stanley Excavation owes them under the terms of a collective bargaining agreement, including fringe benefit contributions, union dues, liquidated damages, and attorney’s fees and expenses.

1. STATEMENT OF FACTS

On April 9, 2007, the International Union of Operating Engineers, Local 4, and its several funds1 (collectively IUOE) filed suit against Stanley Excavation (Stanley),2 alleging inter alia a violation of the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (ERISA). The Complaint alleges that the IUOE entered into a collective bargaining agreement (CBA) with Stanley in which Stanley agreed for all hours worked after April 1, 2006 until April 1, 2007 to contribute $4.60 per hour to the IUOE’s Health and Welfare Fund, $2.70 per hour to the Pension Fund, $0.50 per hour to the Annuity Fund; and, $0.15 per hour for Union *27dues.3 Convpl. If 8. In the event of a failure to pay, the agreement provides that interest will be assessed “at a rate of one (1%) percent per month, except that interest due on late Annuity and Savings Plan 401(k) payments shall be assessed in accordance with the rules and regulations of the Department of Labor.” Corrupt, Ex. 1 at 5. The Complaint alleges that, despite numerous demands for payment, Stanley failed to make any payments under these provisions, and further failed to respond. Compt, HH11-14.

After the Complaint was served upon Stanley on May 15, 2007, Executed Summons Return (Docket # 2), Stanley failed to appear or otherwise defend the action, and the Clerk entered default on June 25, 2007. Order Granting Mot. for Entry of Default (Docket # 5). On July 2, 2007, IUOE moved for default judgment. Mot. for Default J. (Docket #6) {Pis.’ Mot). The IUOE seeks judgment in the principal amount of $4,104.05, liquidated damages in accordance with the terms of the collective bargaining agreement, attorney’s fees in the amount of $2,162.00, and costs in the amount of $408.88. Compl. at 5-6; Aff. of Jeffrey Neil Young, Esq. 1! 3 (Docket # 7). Stanley has not responded.

II. DISCUSSION

The IUOE properly served Stanley, who has failed to appear or otherwise defend, and the Clerk properly defaulted Stanley.4 However, “liability and the amount of damages are not necessarily established as a result of the default.” Katahdin Paper, 231 F.R.D. at 112. Although the facts alleged in the complaint are taken as true, Libertad v. Sanchez, 215 F.3d 206, 208 (1st Cir.2000), the facts must be sufficiently well pleaded to support the requested judgment; otherwise, the district court may require “such hearings ... as it deems necessary and proper____” Brockton Sav. Bank v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, 12 n. 8 (1st Cir.1985) (quoting Fed.R.Civ.P. 55(b)(2)). Damages “must be established by proof unless the damages involve a ‘sum certain’ or are for liquidated damages.’ ”5 Katahdin Paper, 231 F.R.D. at 113 (citations omitted).

Here, IUOE’s Complaint contains allegations sufficient to sustain Stanley’s liability for breach of the CBA. Turning to damages, the Complaint not only alleges that Stanley failed to pay a specific sum, $4,104.50, under the terms of the CBA, but attaches computations from actual reported wages that confirm the basis for the number. Compt Ex. B. The claim for liquidated damages is supported by the language in the agreement. Finally, the CBA contains a provision for the award of attorney’s fees and Mr. Young has submitted an affidavit, justifying his claim for attorney’s fees and expenses. Aff. of Jeffrey Neil Young, Esq. HH 1-5.

III. CONCLUSION

As the IUOE has complied with the requirements of Fed.R.Civ.P. 55(b)(2), the Court hereby ORDERS the entry of judgment in favor of Plaintiffs and against Defendant Stanley Excavating as follows:

*28(1) the principal sum of $4,104.05 for delinquent and non-payment of fringe benefit contributions and union dues;
(2) liquidated damages at a rate of one (1%) percent per month, except that interest due on late Annuity and Savings Plan 401(k) payments shall be assessed in accordance with the rules and regulations of the Department of Labor; and,
(3) attorney’s fees of $2,162.00 and expenses of $408.88, for a total of $2,570.88.

SO ORDERED.

International Union of Operating Engineers, Local 4 v. Stanley Excavation
243 F.R.D. 25

Case Details

Name
International Union of Operating Engineers, Local 4 v. Stanley Excavation
Decision Date
Jul 23, 2007
Citations

243 F.R.D. 25

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!