United States District Court, E.D. Virginia, Alexandria Division
BOARD OF TRUSTEES, SHEET M WORKERS' NATIONAL PENSION FUND, Plaintiff,
AFFORDABLE COMFORT CONSTRUCTION/HVAC, INC., Defendant.
PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS
JOHN F. ANDERSON, Magistrate Judge.
This matter is before the court on plaintiffs motion for default judgment pursuant to Fed.R.Civ.P. 55(b)(2). (Docket no. 7). Plaintiff is the Board of Trustees of the Sheet M Workers' National Pension Fund ("National Pension Fund") and it seeks a default judgment against defendant Affordable Comfort Construction/HVAC, Inc. ("Affordable"). Pursuant to 28 U.S.C. § 636(b)(1)(C), the undersigned magistrate judge is filing with the court his proposed findings of fact and recommendations, a copy of which will be provided to all parties.
On July 8, 2014, the National Pension Fund filed this action alleging that Affordable is obligated to pay the National Pension Fund $341, 679.20 for withdrawal liability and seeking an award for liquidated damages, interest, attorney's fees and costs. (Docket no. 1). A summons was issued on July 8, 2014 (Docket no. 3) and the summons and complaint were served on the James Johnson, Sr., the president of Affordable, by personal service on August 1. 2014 (Docket no. 4). In accordance with Fed.R.Civ.P. 12(a), a responsive pleading was due on August 22, 2014, which is 21 days after Affordable was served with the summons and complaint. Affordable failed to file a responsive pleading and on September 2, 2014, the National Pension Fund filed its request for entry of default. (Docket no. 5). The Clerk of Court entered default against Affordable pursuant to Fed.R.Civ.P. 55(a) on September 3, 2014. (Docket no. 6).
On September 10, 2014, the National Pension Fund filed a motion for default judgment, a memorandum in support, declarations from Alex Dyer and Christopher Leins, and a notice of hearing for October 3, 2014 at 10:00 a.m. (Docket nos. 7-11). The motion for default judgment, supporting memorandum, declarations and notice were served on the defendant by first class mail on September 10, 2014. ( Id. ). On October 3, 2014, counsel for the National Pension Fund appeared at the hearing on the motion for default judgment and no one appeared on behalf of the defendant.
The following facts are established by the complaint (Docket no. 1) ("Compl."), the memorandum in support of the motion for default judgment (Docket no. 8) and the declarations filed in support of the motion for default judgment (Docket nos. 9, 10).
The National Pension Fund is comprised of individual trustees who are fiduciaries of a multi-employer benefit plan as defined by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1002(37) and 1301(a)(3). (Compl. ¶¶ 3, 4). The National Pension Fund is administered in Fairfax, Virginia. (Compl. ¶ 6). Affordable is an Illinois corporation with its principal place of business in South Holland, Illinois and was an employer in an industry affecting commerce as defined by 29 U.S.C. §§ 1002(5), (11) and (12). (Compl. ¶¶ 7, 8).
The National Pension Fund brings this action under ERISA, as amended by the Multiemployer Pension Plan Amendments Act ("MPPAA"), seeking a judgment awarding withdrawal liability as a result of an employer's withdrawal from the Sheet M Workers' National Pension Fund. (Compl. ¶ 1). Until the date of its withdrawal from the National Pension Fund on or about December 1, 2013, Affordable employed employees represented for the purposes of collective bargaining by Sheet M Workers' International Association Local Union No. 73 ("Local Union No. 73"). (Compl. ¶¶ 10, 15). Affordable was a signatory to and bound by a Collective Bargaining Agreement ("Agreement") with Local Union No. 73 which required Affordable to make contributions to the National Pension Fund on behalf of its employees who were covered by the Agreement. (Compl. ¶¶ 11, 12). The Agreement obligated Affordable to abide by the terms and conditions of the Agreement and Declaration of Trust establishing the National Pension Fund. (Compl. ¶ 13). The National Pension Fund determined that on or about December 1, 2013, Affordable effected a "complete withdrawal" from the National Pension Fund as defined in 29 U.S.C. § 1383. (Compl. ¶ 15).
The National Pension Fund calculated Affordable's withdrawal liability to be $341, 679.20 pursuant to 29 U.S.C. § 1381(b). (Compl. ¶ 16). On or about December 6, 2013, Affordable received a notice and demand for payment of withdrawal liability in accordance with 29 U.S.C. §§ 1382(2) and 1399(b)(1). (Compl. ¶ 17). This notice and demand informed Affordable that its withdrawal liability was $341, 679.20 payable in eleven quarterly payments of $32, 523.31 and a final payment of $7, 093.87 with the first quarterly payment due on or before January 1, 2014. (Compl. ¶ 18). On May 7, 2014, Affordable through counsel received a letter notifying Affordable that it was delinquent in making its first quarterly withdrawal liability payment and that it had 60 days to cure the delinquency or it would be in default within the meaning of 29 U.S.C. § 1399(c)(5). (Compl. ¶ 19). In addition to not making any quarterly payments for liability withdrawal, Affordable has not requested plan sponsor review of the withdrawal liability assessment or initiated arbitration of the withdrawal liability assessment, and the time period for doing so under 29 U.S.C. §§ 1399(b)(2)(A) and 1401(a)(1) has expired. (Compl. ¶¶ 20-22).
The National Pension Fund alleges that 29 U.S.C. § 1451(b) provides that failure to make any withdrawal liability payment within the time prescribed shall be treated as a delinquent contribution under 29 U.S.C. § 1145. (Compl. ¶ 24). Pursuant to 29 U.S.C. § 1132(g)(2), the National Pension Fund claims that it is entitled to a judgment against Affordable awarding: (1) the full amount for the remaining withdrawal liability; (2) liquidated damages; (3) interest; and (4) the reasonable attorney's fees and costs incurred in this action. (Compl. ¶ 26).
In the motion for default judgment, the National Pension Fund states that it is owed the amounts as detailed below.
Plaintiff Withdrawal Liquidated Interest Liability Damages through 9/10/2014 National Pension Fund $341, 679.20 $68, 335.84 $20, 648.98 ...