UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
JAMES BOLAND, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 11-1569 (ESH)
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SHOUN-ALLEN MASONRY, INC., )
)
Defendant. )
__________________________________________)
MEMORANDUM OPINION
Before the Court is plaintiffs’ motion for entry of default judgment against defendant
Shoun-Allen Masonry, Inc. (Mot. for Default Judgment, Nov. 20, 2012 [ECF No. 13].) For the
reasons stated herein, the motion will be granted and judgment entered for plaintiffs and against
defendant.
This case is an action for legal and equitable relief under the Employee Retirement
Income Security Act of 1974 (“ERISA”), as amended by the Multiemployer Pension Plan
Amendments Act of 1980, 29 U.S.C. § 1145. Defendant was served with the complaint on
September 7, 2011. Defendant, through counsel, filed an answer on October 18, 2011 [ECF No.
8], and, on December 1, 2011, the Court held an Initial Scheduling Conference and entered a
Scheduling Order [ECF No. 6]. After discovery closed on August 7, 2012, defendant’s counsel
moved to withdraw. (Mot. to Withdraw, Aug. 16, 2012 [ECF No. 8].) The Court granted the
motion on August 27, 2012. (Order, Aug. 27, 2012 [ECF No. 9].) At that time, the Court
advised defendant that before the next status conference it must “obtain new counsel since a
corporation cannot legally proceed pro se” or plaintiffs would be able to move for a default
judgment. (Id.) Defendant did not appear at the status conference on September 27, 2012, and,
to date, no counsel has entered an appearance on defendant’s behalf.
After defendant failed to appear at the status conference, at the request of plaintiffs and
pursuant to the Court’s direction, the Clerk entered a default against defendant. (Clerk’s Entry of
Default, Oct. 11, 2012 [ECF No. 5].) Pursuant to the Court’s order (see Minute Order, Nov. 7,
2012), plaintiffs filed their motion for entry of default judgment pursuant to Fed. R. Civ. P.
55(b)(2) on November 20, 2012 and served a copy on defendant. Ten days later, defendant has
not responded to the motion nor moved to set aside the default.
The determination of whether default judgment is appropriate is committed to the
discretion of the trial court. Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980). For default
judgment, defendant must be considered a “totally unresponsive” party and its default plainly
willful, reflected by its failure to respond to the summons and complaint, the entry of default, or
the motion for default judgment. Gutierrez v. Berg Contracting Inc., No. 99-3044, 2000 WL
331721, *1 (D.D.C. March 20, 2000) (citing Jackson, 636 F.2d at 836). Although defendant was
initially represented by counsel, who filed an answer to the complaint, since counsel’s
withdrawal in August 2012, defendant has been totally nonresponsive, despite being given
multiple opportunities by the Court. Accordingly, given this record, the Court is persuaded that
the standard for default judgment has been satisfied. Id.
Although the default establishes a defendant’s liability, the Court makes an independent
determination of the sum to be awarded in the judgment unless the amount of damages is certain.
Adkins v. Teseo, 180 F. Supp. 2d 15, 17 (D.D.C. 2001). Pursuant to 29 U.S.C. § 1132(g)(2), the
Court shall award plaintiffs: (A) the unpaid contributions; (B) interest on the unpaid
contributions; (C) liquidated damages in an amount equal to the greater of (i) interest on the
unpaid contributions, or (ii) 20 percent (or such higher percentage as may be permitted under
Federal or State law) of the amount determined by the court under subparagraph (A); (D)
reasonable attorney’s fees and costs of the action, to be paid by the defendant; and (E) such other
legal or equitable relief as the court deems appropriate. The Court may rely on detailed
affidavits or documentary evidence to determine the appropriate sum for default judgment.
Flynn v. Mastro Masonry Contractors, 237 F. Supp. 2d 66, 69 (D.D.C. 2002).
Plaintiffs have filed the declarations of David F. Stupar, Executive Director of the
Bricklayers & Trowel Trades International Pension Fund (“IPF” or “Fund”) and an authorized
representative to effect collections on behalf of the International Masonry Institute (“IMI”), and
Ira R. Mitzner, Esq., in support of the motion for default judgment. Based on the declarations,
the Court finds that plaintiffs have established the total amount by defendant for unpaid
contributions, interest, liquidated damages, attorney’s fees and costs to be $243,446.58.
(Stupor Decl. ¶¶ 9-17; Mitzner Decl. ¶¶ 7-25.)
Therefore, pursuant to 29 U.S.C. § 1132(g)(2), judgment will be entered for plaintiffs in
the amount of $243,446.58. A separate Order and Judgment will accompany this opinion.
SO ORDERED.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
DATE: November 30, 2012
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