The Boards of Directors of the Motion Picture Industry Pension Plan et al v. BZ Com Marketing, Inc., No. 2:2008cv02956 - Document 22 (C.D. Cal. 2008)
Court Description: ORDER GRANTING DEFAULT JUDGMENT for Plainiffs Motion Picture Industry Health Plan, The Boards of Directors of the Motion Picture Industry Pension Plan, The Motion Picture Industry Individual Account Plan against defendant BZ Com Marketing, Inc: BZ Co m is to pay to the Plans: $ 3,680.00 for reasonable attorneys fees incurred in prosecuting this action; $ 510.01 for costs of suit; and All costs incurred by Plaintiffs in conducting the audit for the period of January 23, 2005 to date.Judge Dean D. Pregerson. (Made JS-6. Case Terminated.) (lc)
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The Boards of Directors of the Motion Picture Industry Pension Plan et al v. BZ Com Marketing, Inc. Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 THE BOARDS OF DIRECTORS OF THE MOTION PICTURE INDUSTRY PENSION PLAN, THE MOTION PICTURE INDUSTRY INDIVIDUAL ACCOUNT PLAN, and THE MOTION PICTURE INDUSTRY HEALTH PLAN, 15 Plaintiffs, 16 17 v. BZ COM MARKETING, INC., a California corporation, 18 19 Defendant. ___________________________ 20 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 08-02956 DDP (JWJx) ORDER GRANTING DEFAULT JUDGMENT AGAINST BZ COM MARKETING, INC. [Motion filed on August 28, 2008] This matter comes before the Court on Plaintiffs’ Motion for 21 Default Judgment against Defendant BZ Com Marketing, Inc. (“BZ 22 Com”). After reviewing the materials submitted by the plaintiffs 23 and considering the arguments therein, the Court grants 24 Plaintiffs’ motion and adopts the following order. 25 I. 26 Background The plaintiffs in this action are the Boards of Directors of 27 the Motion Picture Industry Pension Plan, the Motion Picture 28 Industry Individual Account Plan, and the Motion Picture Industry Dockets.Justia.com 1 Health Plan (“Plans”). 2 pension plans under ERISA, 29 U.S.C. § 1002(1) & 2(A), and 3 multiemployer plans within the meaning of ERISA, 29 U.S.C. § 4 1002(37)(A). In March 2005, Defendant BZ Com entered into an 5 Agreement of Consent in which it agreed to be bound by the 6 Producer-IATSE Basic Agreement. It also executed an IATSE Trust 7 Acceptance acknowledging that it entered into the Basic Agreement 8 with IATSE and agreeing to become a party to the Health Plan, 9 Pension Plan, and Individual Account Plan. Also in March 2005, BZ The Plans are employee welfare benefit and 10 Com entered into International Cinematographers Guild (Publicists) 11 Local 600 Competitive Agency Agreement for the period August 1, 12 2004 through July 31, 2006. BZ Com entered into a successive 13 Publicist Agreement for August 1, 2006 through July 31, 2009. 14 The Basic Agreement provides that an employer’s weekly 15 contributions to the Plans are calculated by separately 16 determining total hours worked by or guaranteed to employees and 17 multiplying all such hours by the rates set forth in the Basic 18 Agreement and Trust Agreements. 19 Com is obligated to forward a single combined weekly remittance 20 report, together with contributions owed to the Plans by the last 21 day of the week following the week in which work was performed. 22 Contributions are delinquent if not received within five days from 23 the date they become due. 24 Plan Directors may audit the records of any employer in connection 25 with the contributions and reports. Gordon Decl. ¶ 10, Exs. 5-7 26 (Article III). If a party fails to make records available for an 27 audit or inspection, the Trust Agreements allow the Plans to take 28 “any action,” including bringing a lawsuit, to enforce the audit Pursuant to these agreements, BZ The Trust Agreements provide that the 2 1 provisions. 2 provide that, in such a circumstance, the party refusing the audit 3 will be liable for enforcement expenses. Id. at § 6(b). 4 E.g., Gordon Decl. Ex. 5, § 6. The Plans also The Plans determined that a number of BZ Com’s records must 5 be made available for inspection, and are necessary for the Plans 6 to determine whether contributions have been properly reported and 7 paid to the plans in accordance with the Basic Agreement and the 8 Trust Agreements. 9 requested that BZ Com submit its records for an audit from the For that purpose, in November 2007 the Plans 10 period of January 23, 2005 to date. 11 has failed and refused to comply. 12 The Plans allege that BZ Com On May 6, 2008, the Plans filed this action to enforce the 13 audit provisions of the Trust Agreement pursuant to § 502(g)(2)(E) 14 of ERISA, 29 U.S.C. § 1132(g)(2)(E), and § 301 of the Labor 15 Management Relations Act (“LMRA”), 29 U.S.C. § 185(a). The Plans 16 allege that BZ Com has breached the Basic and Trust Agreements by 17 refusing to submit to the audit. The Plans seek a judgment 18 ordering BZ Com to submit to the requested audit and to recover 19 the attorneys’ fees and costs incurred in bringing this 20 enforcement action, attorneys’ fees in the sum of $ 3,080 and 21 costs in the sum of $ 510.01. 22 The Plans served the Summons and Complaint on BZ Com by 23 substituted service on June 13, 2008. 24 Plans, the clerk entered Default against BZ Com on July 30, 2008 25 pursuant to Federal Rule of Civil Procedure 55(a). The Plans now 26 move for Default Judgment pursuant to Rule 55(b). 27 /// 28 /// 3 At the request of the 1 2 II. Legal Standard for Default Judgment A party applies to the Court for an entry of default judgment 3 pursuant to Federal Rule of Civil Procedure 55(b)(2). A judgment 4 by default “shall not be different in kind from or exceed in 5 amount that prayed for in the demand for judgment.” Fed. R. Civ. 6 P. 54(c). 7 In the Central District of California, applications for 8 default judgment must be accompanied by a declaration that 9 identifies “(a) [w]hen and against what party the default was 10 entered; (b) [t]he 11 default was entered; (c) [w]hether the defaulting party is an 12 infant or incompetent party … ; (d) [t]hat the Servicemembers 13 Civil Relief Act (50 App. U.S.C. § 521) does not apply; and (e) 14 [t]hat notice has been served on the defaulting party[.]” Central 15 District of California Local Rule 55-1. The Plans have complied 16 with these requirements. See Jordan Decl. ¶¶ 2-7. 17 identification of the pleading to which A court grants default judgment in the exercise of its 18 discretion. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 19 1986); DirecTV, Inc. v. Hoa Huynh, 503 F.3d 847, 852 (9th Cir. 20 2007). 21 district court may consider the following factors, among others: In considering whether to grant a default judgment, a 22 (1) the possibility of prejudice to the plaintiff, (2) the 23 merits of a plaintiff’s substantive claim, (3) the 24 sufficiency of the complaint, (4) the sum of money at stake 25 in the action; (5) the possibility of a dispute concerning 26 material facts; (6) whether the default was due to excusable 27 neglect, and (7) the strong policy underlying the Federal 28 Rules of Civil Procedure favoring decisions on the merits. 4 1 Eitel, 782 F.2d at 1471-72. 2 III. Application 3 A. Default Judgment is Warranted 4 In this case, the Court finds that the factors weigh in favor 5 of the entry of default judgment. 6 the Court to consider whether the Plans will suffer prejudice if 7 default judgment is not entered. Without some form of judgment 8 from the Court, the Plans will be unable to enforce the audit 9 provisions of the pension plans or determine whether BZ Com has 10 11 The first Eitel factor calls on been properly contributing to them. The second two Eitel factors, substantive merits and 12 sufficiency of the complaint, call upon the Plans to state a claim 13 upon which that would allow recovery. 14 Cas, 238 F. Supp. 2d 1172, 1175 (C.D. Cal. 2002). 15 appear to state claims with potential substantive merit, see 16 Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980), and the 17 Complaint clearly indicates the particular Agreements and Dates at 18 issue. 19 the various Agreements. Beneficiaries and fiduciaries are 20 authorized to bring civil actions under ERISA to enforce 21 compliance with the terms of bargaining agreements. See 29 U.S.C. 22 §§ 1132, 1145. 23 that the object of the suit be the enforcement of rights 24 guaranteed by an agreement between an employer and a labor 25 organization, and not strictly that the suit itself be between a 26 labor union and an employer.” Audit Services, Inc. v. Rolfson, 641 27 F.2d 757, 760 (9th Cir. 1981). 28 the terms of the Agreements, which do include audit provisions, Pepsico, Inc. v. Cal. Sec. The Plans The Plans are appropriate parties to enforce violations of Additionally, § 301 of the LMRA “require[s] only The Plans allege a violation of 5 1 see Gordon Decl. Exs. 5-7; Compl. ¶ 17, and seek remedies 2 authorized both by ERISA and by the Agreements, see Compl. pp. 7-8 3 (prayer for relief); 29 U.S.C. § 1132(g); Gordon Decl. Ex. 5 §§ 4 5c, 6. 5 Additionally, the relief sought in this action favors default 6 judgment. The Plans primarily seek an order from the Court 7 directing BZ Com to comply with the audit provisions of the Basic 8 Agreement and Trust Agreements. They also seek attorneys’ fees in 9 the amount of $3,680, and costs for bringing this enforcement 10 action in the amount of $510.01. See Jordan Decl. Ex. 12. As noted 11 above, both the Trust Agreements and ERISA support this relief. 12 Moreover, because the facts at the heart of the claim 13 surround the alleged failure to allow an audit upon a request 14 authorized by the Agreements, the claim is unlikely to involve a 15 dispute of material fact. There is no indication of excusable 16 neglect. 17 The final Eitel factor stems from the policy of the Federal 18 Rules of Civil Procedure favoring decisions on the merits. 19 Although the Court favors decisions on the merits, at times this 20 is not practicable. 21 complaint makes a decision on the merits impractical, if not 22 impossible. 23 requirement; under Rule 55(a), a termination of a case before a 24 hearing on the merits is allowed whenever a BZ Com fails to defend 25 an action. 26 does not preclude a court from granting default judgment.” 27 Pepsico, 238 F. Supp. 2d at 1177. 28 Here, BZ Com’s failure to answer the The preference for rulings on the merits is not a Thus, “the preference to decide cases on the merits Accordingly, the Court finds that Default Judgment is 6 1 warranted in this case. 2 discussed in further detail below. The form of such judgment will be 3 B. 4 The Court also finds the requested relief warranted in this 5 Relief Sought case. 6 1. 7 Allow the Plans to Perform Audit As noted above, the Plans seek an order from the Court 8 directing BZ Com to submit to an audit, including (1) making 9 available the appropriate books and records, (2) affording the 10 Plans ample time and opportunity to examine those books and 11 records, and (3) supplement missing records. The Court finds this 12 relief warranted. See 29 U.S.C. § 1132(g). 13 2. 14 Attorneys Fees and Costs The Plans also request (1) attorneys’ fees and costs incurred 15 in bringing this enforcement action and (2) in conducting the 16 audit. The Court finds this request appropriate. The Plans have 17 filed a Motion pursuant to Local Rule 55-3 requesting the 18 attorneys’ fees. Having reviewed the provisions of the Agreement 19 providing for a reimbursement of costs incurred, see, e.g., Gordon 20 Decl. Ex. 5, § 6(b), and the documented attorneys’ fees and costs, 21 see Jordan Decl. Exs. 10 & 12, the Court finds the requested 22 relief appropriate. 23 IV. Conclusion For the foregoing reasons, the Court enters default judgment 24 25 against Defendant for the relief and amounts in Plaintiffs’ 26 motion. 27 1. 28 Defendant BZ Com is hereby ordered to: A. Make available to the Plans all of the books and records 7 1 concerning the classification of the employees of BZ Com, their 2 names, social security numbers, the amount of wages paid to each, 3 and the hours worked, including, but not limited to, Individual 4 Time Cards and/or start slips; Individual payroll ledger; 5 Quarterly returns filed with each state in which work was 6 performed or filed with any other state agency; Accounts 7 Payable/Cash Disbursement Journals (or canceled checks in lieu 8 thereof); Quarterly returns filed with the Federal Government 9 (Form 941); Cash Disbursement Journal; Cancelled checks and the 10 check stub register; Invoices and backup for Cash Disbursement 11 Journal, cancelled checks and the check stub register; Forms W-2 12 and W-3; Forms 1096’s and 1099’s; Workers’ compensation carrier 13 reports; General Ledger; Accounts Receivables and such other 14 records as may be necessary in the opinion of the Plans’ auditor, 15 and any other records or information that the Plans require to 16 examine for the period of January 23, 2005 to date. 17 B. Afford to the Plans both ample time and opportunity to 18 examine all of BZ Com’s materials specified above, without 19 harassment, at such time and at such place as shall be convenient 20 to the authorized representative of the Plans. 21 2. 22 the Plans are required to examine, BZ Com is ordered to 23 participate in record reconstruction, where BZ Com shall have 14 24 days to: 25 In the event BZ Com cannot produce all of the records which A. Apply to the Federal and State agencies with which BZ 26 Com previously filed periodic reports pertaining to employees for 27 copies of BZ Com’s reports to them for the periods for which BZ 28 Com cannot produce records; and 8 1 B. Subsequently make available to the Plans all such copies 2 of BZ Com’s periodic reports to the Federal and State agencies 3 under the Conditions set forth in 1(B), above. 4 3. 5 6 BZ Com is further ordered to pay to the Plans: A. prosecuting this action; 7 B. 8 C. 9 10 $ 3,680.00 for reasonable attorneys’ fees incurred in $ 510.01 for costs of suit; and All costs incurred by Plaintiffs in conducting the audit for the period of January 23, 2005 to date. IT IS SO ORDERED. 11 12 13 Dated: October 3, 2008 DEAN D. PREGERSON United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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