United States District Court, E.D. Virginia, Alexandria Division
BOARD OF TRUSTEES, SHEET METAL WORKERS' NATIONAL PENSION FUND, et al t Plaintiffs,
FIVE STAR KITCHEN INSTALLATIONS, INC., Defendant,
PROPOSED FINDINGS OF FACT AND
F. Anderson United States Magistrate Judge.
matter is before the court on plaintiffs' motion for
default judgment pursuant to Federal Rule of Civil Procedure
55(b)(2). (Docket no. 6). Plaintiffs arc the Board of
Trustees of the Sheet Metal Workers' National Pension
Fund ('"NPF"). the Board of Trustees of the
International Training Institute for the Sheet Metal and Air
Conditioning Industry ('ITI"), the Board of Trustees
for the Sheet Metal Workers' International Association
Scholarship Fund ("IASF"), the Board of Trustees of
the National Stabilization Agreement of the Sheet Metal
Industry Trust Fund ("SASMI”), the Board of
Trustees of the Sheet Metal Occupational Health Institute
Trust Fund (“SMOHIT"), and the Board of Trustees
of the National Energy Management Institute Committee
(“NEMIC”), and they seek a default judgment
against Five Star Kitchen Installations, Inc. ("Five
Star"). Pursuant to 28 U.S.C. § 636(b)(1)(C), the
undersigned magistrate judge is finding with the court his
proposed findings of fact and recommendations, a copy of
which will be provided to all parties.
March 25, 2019, the plaintiffs filed this action alleging
that the defendant is obligated to pay them for certain
delinquent contributions, liquidated damages, interest, audit
testing fees, and attorneys' fees and costs. (Docket no.
1). The summons and complaint were posted on the door of 16
Morton Avenue, East Rockaway, New York 11518, the residence
of Five Star's agent, James E. Draghi, on June 4, 2019
after four unsuccessful attempts to personally serve Mr.
Draghi at that address. (Docket no. 3). A copy of the summons
and the complaint were also mailed to that address by First
Class Mail (Id.). The plaintiffs filed a copy of the
executed return of service of process on June 18, 2019.
(Id.). In accordance with New York Civil Practice
Law § 308(4) and Federal Rule of Civil Procedure 12(a),
a responsive pleading was due no later than July 19, 2019,
which is 21 days after service by posting and mailing was
1, 2019, the plaintiffs filed their request for entry of
default on the grounds that defendant had not timely
responded to the summons and the complaint. (Docket no. 4).
The Clerk of Court entered default against the defendant
pursuant to Federal Rule of Civil Procedure 55(a) on July 3,
2019. (Docket no. 5). Later that day, the plaintiffs filed a
motion for default judgment with a supporting memorandum and
declarations from Kenneth Anderson, Jr., Diana Bardes, and
Lori Wood, and a notice of hearing for August 2, 2019 at
10:00 a.m. (Docket nos. 6-8). The motion for default
judgment, supporting memorandum, and notice of hearing were
served on the defendant by mail on July 3, 2019.
(Id.). On August 2, 2019, counsel for the plaintiffs
appeared at the hearing on the motion for default judgment
and no one appeared on behalf of the defendant.
following facts are established by the complaint (Docket no.
1) ("Compl."), the motion for default judgment
(Docket no. 6), and the memorandum and declarations filed in
support of the motion for default judgment (Docket nos. 7,
action is brought under Sections 502 and 515 of the Employee
Retirement Income Security Act of 1974 ("ERISA"),
29 U.S.C. §§ 1132 and 1145, and under Section 301
of the Labor Management Relations Act ("LMRA"), 29
U.S.C. § 185. (Compl. ¶ 1). Each of the plaintiffs
are "fiduciaries" with respect to their fund, as
defined in 29 U.S.C. § 1002(21)(A), and they are
empowered to bring this action pursuant to 29 U.S.C.
§§ 1132(a)(3) and 1132(g)(2). (Compl. ¶¶
5-10). NPF, ITI, IASF, and SASMI are jointly administered
trust funds created and maintained pursuant to 29 U.S.C.
§ 186(c) and "multiemployer plans" within the
meaning of 29 U.S.C. § 1002(37). (Compl. ¶¶
5-8). NEMIC and SMOHIT are organizations created and
maintained pursuant to 29 U.S.C. § 186(c). (Compl.
¶¶ 9-10). The funds for which the plaintiffs bring
this action are administered in Fairfax, Virginia. (Compl.
Star is a New York corporation with offices in Farmingville,
New York and is an employer in an industry affecting commerce
as defined by 29 U.S.C. § 152(2) and 29 U.S.C. §
1002(5), (11), and (12). (Compl. ¶ 12). Five Star
employs employees represented for the purposes of collective
bargaining by the International Association of Sheet Metal,
Air, Rail and Transportation Union (f/k/a the Sheet Metal
Workers' International Association), Local Union No. 28,
which is a labor organization representing employees in an
industry affecting interstate commerce ("Local Union No.
28"). (Compl. ¶ 13). Five Star was a signatory to
and bound by a collective bargaining agreement with Local
Union No. 28 (the "CBA"). (Compl. ¶ 14).
Pursuant to the CBA, Five Star is obligated to abide by the
terms and conditions of the Trust Agreements establishing
each of the funds, including any amendments thereto (the
"Trust Agreements"). (Compl. ¶ 15).
the CBA, Trust Agreements, and applicable law, Five Star is
obligated to submit monthly remittance reports and fringe
benefits contributions to the plaintiffs for all hours worked
or paid on behalf of the defendant's covered employees no
later than the twentieth day after the end of each month
during which covered work was performed. (Compl. ¶¶
14, 16, 18). When an employer fails to make a timely
remittance report and contribution payments and the funds
file a lawsuit to recover unpaid contributions, the employer
is obligated to pay interest on the delinquent contributions
at the rate of 0.0233% per day, late fees equal to the
greater of $50.00 or 10% of the contributions due for each
month of contributions paid after the due date and before any
lawsuit is filed, liquidated damages equal to 20% of the
delinquent contributions, and the attorneys' fees and
costs incurred in pursuing the delinquent amounts. (Compl.
complaint, the plaintiffs allege that a payroll audit for the
period of November 3, 2015 through November 13, 2018 revealed
that the defendant owes contributions in the amount of $180,
246.36 for the audit period, along with accrued interest in
the amount of $24, 995.05 calculated through March 22, 2019,
liquidated damages of $36, 049.67, and $5, 527.09 in audit
testing fees. (Compl. ¶¶ 24-25). The total amount
the plaintiffs claim they are owed is $246, 780.17, plus
attorneys' fees and costs. (Compl. ¶¶ 25-26).
motion for default judgment, plaintiffs state that they are
owed the amounts as detailed below. (Docket nos. 7, 7-1,
7-2). As described in the briefs in support of the motion for
default judgment and the declarations of Kenneth Anderson,
Jr. and Diana M. Bardes, the plaintiffs are seeking an award
of the underpaid contributions, accrued interest, liquidated
damages, and audit testing fees resulting from the audit
period of November 3, 2015 through November 13, 2018. (Docket
no. 7 at 9). The plaintiffs are also seeking an award of
their attorneys' fees and costs incurred in bringing this
Interest through 7/15/2019
Audit Testing Fees
Audit from November 3, 2015 to November 13, 2018