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Trustees of the National Elevator Industry Pension v. Hughes Elevator Cab Co.

August 13, 2009



Before the court are plaintiffs' Motion for Entry of Final Judgment and Motion for Attorney's Fees and Costs. See Docket No. 29 (filed Feb. 4, 2009).*fn1 To date, defendant has filed no response to these motions. For the reasons that follow, I will grant the plaintiffs' motions by default.


Plaintiffs are the trustees of multi-employer employee benefit plans -- the National Elevator Industry Pension, Health Benefit, Educational Funds, Elevator Constructors Annuity and 401(k) Retirement Plan ("NEI Trust Funds") -- as that term is defined by the Employee Retirement Income Security Act ("ERISA"), Pub. L. 93-406. Defendant Hughes Elevator Cab Co., Inc. ("Hughes") is a corporation transacting business in the elevator industry.

Plaintiffs and defendant entered into a collective bargaining agreement (the "CBA") establishing the terms and conditions of employment for defendant's employees. Affidavit of Robert O. Betts, Jr. ("Betts Affidavit") at ¶ 2 (Docket No. 29, filed February 4, 2009). Under the CBA, Hughes must file monthly reporting forms indicating the number of hours worked by its employees and must then pay a corresponding contribution to the NEI Trust Funds. Id. at ¶ 5. Hughes filed these monthly report forms, indicating the exact amount of contributions due, during all the months between and including April 2004 and January 2005. Id. at ¶ 5; "Miscellaneous Assessment Report" (Docket No. 29 Exh. A, filed Feb. 4, 2009). However, Hughes failed to pay the reported charges, which amount to §32,577.87. Betts Affidavit at ¶ 7.

Interest for the unpaid contributions, calculated on the outstanding balance on the sixteenth of each month according to the Internal Revenue Service rate in effect during each month that a delinquency exists, amounts to $11,205.69. Id. at ¶¶ 8-9. Pursuant to the terms of the Agreements and Declarations of Trust of the NEI Trust Funds (the "Agreements"), defendant is obligated to pay liquidated damages of 20% of the unpaid monthly contributions, which amounts to $6,515.57. Id. at ¶ 10. Pursuant to those same Agreements, defendant is obligated to pay all necessary costs incurred by the Funds, including Attorneys' fees.

Plaintiffs' attorney Robert Curley, a partner with the law firm of O'Donoghue & O'Donoghue, has submitted an affidavit in support of plaintiffs' attorney's fees motion. See Curley Affidavit (Docket No. 29, filed Feb. 4, 2009). In that affidavit, Curley declares that, in 63 hours of work, his firm incurred total costs of $13,319.50. Id. at ¶ 9.*fn3


On February 1, 2006, I entered an order granting plaintiffs' Praecipe for Entry of Judgment By Default. See Docket No. 7. In that order, I directed Hughes to "fully cooperate with Plaintiffs' Auditor" and held that "Plaintiffs shall be entitled to receive any delinquent contributions uncovered by the ensuing audit, as well as attorney's fees, liquidated damages and costs, pursuant to 29 U.S.C. § 1132(g)." Id. at 2. The parties were instructed to "return to this court for entry of an order specifying the amount, if any, to be paid by the Defendants to the Plaintiffs." Id.

On March 17, 2006, plaintiffs moved this court for an Order to Show Cause Why Defendant Should Not be Held in Contempt of Court on the ground that defendant had not complied with the auditor's requests. See Docket No. 8. On January 30, 2007, I entered the requested order to show cause. See Docket No. 9. At a hearing held on March 13, 2008, I again directed defendant to comply with the audit, and the parties stated agreement, on the record in open court, that the audit would be conducted on April 17, 2008 and April 23, 2008.

Subsequent to that hearing, defendant's counsel moved this court for permission to withdraw as counsel for the defendant. See Docket No. 28 (filed November 19, 2008). In a certification attached to that motion, defendant's counsel Caren Litvin stated that she had "repeatedly requested" that defendant comply with the auditor's requests, but that defendant "failed to respond" to Litvin's requests to comply. See Certification of Caren Litvin at ¶ 5.

Plaintiff's auditor, meanwhile, has filed an affidavit with this court explaining that his company "has attempted to conduct an [sic] payroll audit of Hughes Elevator" since 2004, but has been unable to because "Jennifer Hughes, the President of Hughes Elevator[,] repeatedly refused to supply information to the Auditors." Affidavit of Daniel A. Winters ¶¶ 5-6 (Docket No. 30, filed July 1, 2009).

In the motions now before this court, plaintiffs request that I enter a final judgment*fn4 in the amount of $32,577.87 in reported but unpaid benefit contributions, $11,205.69 in interest due on the reported but unpaid benefit contributions, $6,515.57 in liquidated damages, and $13,319.50in attorney's fees and costs.


A party is in default when it "has failed to plead or otherwise defend." Fed. R. Civ. P. 55(a). Defendant Hughes has failed to answer plaintiffs' complaint, to respond to plaintiffs' motion for a final ...

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