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
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.
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
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
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.