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CORCORAN v. WALTER ROWE

United States District Court, E.D. Pennsylvania


May 24, 2004.

KATHEEEN M. CORCORAN, as Administrator and Fiduciary of the International Union of Operating Engineers Local No. 542 Pension, Welfare, Apprenticeship, Training and Safety, Supplemental Unemployment Benefit and Annuity Fund; and International Union of Operating Engineers, Local No. 542
v.
WALTER ROWE, INC

The opinion of the court was delivered by: THOMAS RUETER, Magistrate Judge

REPORT AND RECOMMENDATION

Presently before the court is plaintiffs Request for Entry of Default, pursuant to Fed.R.Civ.P. 55(a). (Doc. No. 4.)*fn1 After a hearing held on May 20, 2004, and upon review of the entire record, this court recommends that the court enter a default against the defendant, Walter Rowe, Inc.

I. BACKGROUND

  Plaintiff, Kathleen M. Corcoran, ("Corcoran") as administrator of the International Union of Operating Engineers Local No. 542 Pension, Welfare Apprenticeship, Training and Safety, Supplemental Unemployment Benefit and Annuity Fund ("the Fund") filed this ERISA action against defendant, Walter Rowe, Inc. Plaintiff alleges that defendant failed to make contributions to the Fund, and also failed to file the required contribution reports for the months of June and December 2002 and for the months of July and August 2003. As relief, plaintiff sought $59,273.28 in total unpaid contributions, court costs and attorney fees. (Doc. No. 1 at 6-9; Ex. "C" Statement of Damages.) On May 3, 2004, plaintiff filed the Request for Default Judgment. (Doc. No. 4.) On May 5, 2004, the Honorable Eduardo C. Robreno scheduled a hearing on plaintiff's request for default judgment. Defendant failed to appear for this hearing. At the hearing, counsel for plaintiff, Thomas J. McGoldrick, Esquire, reiterated plaintiff's demand for $59,273.28.

 II. DISCUSSION

  When an application is made to the court under Rule 55(b)(2) for entry of a judgment by default, the court must exercise sound judicial discretion in determining whether the judgment should be entered. Kocenko v. Buskirk, 56 F.R.D. 14, 16 (E.D. Pa. 1972); 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2685 at 30 (1998) (hereinafter "Wright & Miller"). In exercising its discretion, the court should consider "the amount of money potentially involved; whether material issues of fact or issues of substantial public importance are at issue; whether the default is largely technical; whether plaintiff has been substantially prejudiced by the delay involved; and whether the grounds for default are clearly established or are in doubt. Furthermore, the court may consider how harsh an effect a default judgment might have, or whether the default was caused by a good-faith mistake or by excusable or inexcusable neglect on the part of the defendant." Wright & Miller § 2685 at 32-38.

  After a court finds that a judgment by default should be entered, it must determine the amount of damages to be awarded. "If defendant does not contest the amount prayed for in the complaint and the claim is for a sum certain that can be made certain by computation, the judgment generally will be entered for that amount without any further hearing." Wright & Miller § 2688 at 63.

  The record shows that this case is an ERISA action. Defendant failed to make contributions to the Fund, as per its agreement with the union. The amount of money demanded by plaintiff is not unreasonable, and there appears to be no material issue of fact. Defendant has neither contested its obligation to plaintiff nor the amount due to it. Defendant has been most derelict in its obligation to respond to the complaint. Defendant has not answered or responded to the complaint since it was served almost four months ago.*fn2 No attorney has entered an appearance to represent defendant's interests. The court scheduled the May 20, 2004 hearing on May 5, 2004, and defendant did not request a continuance of the same. This court finds that plaintiff will be substantially prejudiced by further delay.

  The Affidavit of Amount Due supplied by plaintiff establishes that the amount owed is a sum certain in the amount of $59,273.28.*fn3 Accordingly, for all the above reasons, this court makes the following: RECOMMENDATION

  AND NOW, this 24th day of May, 2004, it is RECOMMENDED that plaintiff's Request for Entry of Default be GRANTED.


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