Boards of Trustees of the Sheet Metal Workers Pension Trust of Northern California et al v. CER Mechanical Corporation, No. 3:2020cv03462 - Document 32 (N.D. Cal. 2021)
Court Description: ORDER GRANTING 23 MOTION FOR DEFAULT JUDGMENT. Signed by Judge William H. Orrick on 04/09/2021. (jmdS, COURT STAFF) (Filed on 4/9/2021)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 BOARDS OF TRUSTEES OF THE SHEET METAL WORKERS PENSION TRUST OF NORTHERN CALIFORNIA, et al., 7 8 v. 10 Re: Dkt. No. 23 CER MECHANICAL CORPORATION, 11 United States District Court Northern District of California ORDER GRANTING MOTION FOR DEFAULT JUDGMENT Plaintiffs, 9 Case No. 20-cv-03462-WHO Defendant. 12 13 Before me is plaintiffs’ motion for default judgment seeking to collect unpaid 14 15 contributions, liquidated damages, interest on unpaid or delinquent contributions, and attorneys’ 16 fees and costs.1 Defendant CER Mechanical Corporation (“CER”) has not appeared in this case 17 and no opposition to the motion has been filed. I find this motion is suitable for decision without 18 oral argument and VACATE the hearing scheduled for April 14, 2021. See Civ. L. R. 7-1(b). 19 Plaintiffs satisfy the standard for default judgment and demonstrate that the requested relief is 20 appropriate. Their motion for default judgment is GRANTED. BACKGROUND 21 The Sheet Metal Workers Pension Trust of Northern California, Sheet Metal Workers 22 23 Local 104 Health Care Trust, Sheet Metal Workers Local 104 Supplemental Pension Fund, Sheet 24 Metal Workers Local 104 Vacation-Holiday Savings Fund, and Sheet Metal Workers Local 104 25 26 27 28 1 Plaintiffs are Boards of Trustees of the Sheet Metal Workers Pension Trust of Northern California, Sheet Metal Workers Local 104 Health Care Trust, Sheet Metal Workers Local 104 Supplemental Pension Fund, Sheet Metal Workers Local 104 Vacation-Holiday Savings Fund, Sheet Metal Workers Local 104 And Bay Area Industry Training Fund, Trustee Rick Werner and Trustee Sean O’Donoghue. United States District Court Northern District of California 1 and Bay Area Industry Training Fund, are employee benefit plans as defined in the Employee 2 Retirement Income Security Act of 1974 (“ERISA”) § 3(3), 29 U.S.C. § 1002(3) and are multi- 3 employer plans as defined by ERISA § 3(37)(A), 29 U.S.C. §1002(37)(A). Complaint (“Compl.”) 4 [Dkt. No. 1] ¶ 1. The Boards of Trustees of the Sheet Metal Workers are the named fiduciaries of 5 plaintiffs’ Trust Funds under ERISA §402(a), 29 U.S.C. §1002(a). Id. Rick Werner and Sean 6 O’Donoghue are Trustees of the Trust Funds with authority to act on behalf of all Trustees. Id. 7 According to the Sheet Metal Workers International Association Local Union No. 104’s 8 (“Union”) records, CER is a signatory to and bound by the terms of the Standard Form of Union 9 Agreement (“Bargaining Agreement”) between the Union and the Sheet Metal and Air 10 Conditioning Contractors National Association’s (“SMACNA”) Bay Area Chapter. Id. ¶ 9. The 11 Bargaining Agreement incorporates the terms of the Trust Agreements establishing the Trust 12 Funds. Id.; Declaration of R. Werner in Support of Motion for Default Judgment (“Werner 13 Decl.”) [Dkt. No. 26], Ex. A (Bargaining Agreement) at Addendum No. 1, Item 5, Section F 14 (incorporating the terms of the Trust Agreements into the Bargaining Agreement); id., Ex. D 15 (Trust Agreements). The Bargaining and Trust Agreements require CER to make payment of 16 employer contributions to plaintiffs’ ERISA Trust Funds, to the Union for union dues, and to the 17 other plans more fully described in the Bargaining Agreement, based on the hours worked by 18 CER’s employees. Werner Decl. ¶ 8. Plaintiffs are third-party beneficiaries of the Bargaining 19 Agreement, which authorizes plaintiffs’ Boards of Trustees to collect and distribute the 20 contributions due under the Bargaining Agreement. Compl. ¶ 10. The Board of Trustees are also 21 authorized to establish Collection Procedure Guidelines to set rules and regulations as may be 22 necessary in the administration of the Trusts. See Trust Agreement at sections III.E and V.D.2; 23 Werner Decl., Ex. E (Collection Procedure Guidelines). 24 Under the Bargaining and Trust Agreements, contributions are due on the twenty-second 25 (22nd) day of the month following the month during which hours were worked and are considered 26 delinquent if not received by that day. Compl. ¶ 11; Trust Agreement at section III.D; Collection 27 Procedure Guidelines at section II.C. The Bargaining and Trust Agreements require CER to pay 28 liquidated damages and interests on delinquent contributions. Liquidated damages are calculated 2 1 at five percent (5%) of the delinquent contributions or $100.00, whichever is greater, plus ten 2 percent (10%) interest per annum, calculated from the day contributions become delinquent until 3 paid. Trust Agreement at sections III.D and III.F; Collection Procedure Guidelines at section II.C; 4 Declaration of S. Guzman in Support of Motion for Default Judgment (“Guzman Decl.”) [Dkt. 5 No. 25] ¶ 6. If contributions are not received by the fifteenth (15th) day of the month following the United States District Court Northern District of California 6 7 month in which they were due, the matter is referred to collection counsel. If contributions are not 8 paid by the twenty-second (22nd) day of the month following the month in which they were due, 9 liquidated damages increase to twenty percent (20%) of the delinquent contributions, plus ten 10 percent (10%) interest per annum, calculated from the day contributions become delinquent until 11 paid. See Trust Agreement at sections III.D and III.F; Collection Procedure Guidelines at section 12 II.C. Guzman Decl. ¶ 6. The Bargaining and Trust Agreements also require CER to reimburse for 13 the reasonable attorneys’ fees and costs incurred in connection with the collection of delinquent 14 contributions. See Trust Agreement at section III.G; Collection Procedure Guidelines at section 15 II.D. On May 12, 2020, plaintiffs filed the Complaint, alleging that that CER failed and refused 16 17 to pay contributions for hours worked by its employees for the months of October 2018 and 18 November 2018 and also failed and refused to pay liquidated damages and interest incurred on its 19 late-paid contributions for the month of December 2018. Compl. ¶¶ 13–14. They seek to recover 20 unpaid contributions and all liquidated damages and interest on the delinquent or unpaid 21 contributions. Id. ¶ 15. The Complaint and summons were served on CER by substitute service 22 on August 13, 2020. Proof of Service [Dkt. No. 13]; see Cal. Civ. Proc. Code § 415.20(a). On 23 October 15, 2020, the Clerk of the Court entered default against CER. Entry of Default [Dkt. No. 24 16]. 25 On March 5, 2021, plaintiffs filed their motion for default judgment, seeking $33,512.82 in 26 unpaid contributions, liquidated damages and interest for the unpaid contributions in October 2018 27 and November 2018, as well as $100.15 in liquidated damages and interest for the late-paid 28 contribution in December 2018. Motion for Default Judgment (“Mot.”) [Dkt. No. 23] 1. Plaintiffs 3 1 also seek $9,940.50 in attorneys’ fees and $1,999.19 in costs. Id. CER has not filed an opposition to 2 the motion. LEGAL STANDARD 3 Federal Rule of Civil Procedure 55(b)(2) permits a court to enter a final judgment in a case 4 5 following a defendant’s default. Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 6 995, 999 (N.D. Cal. 2001). Whether to enter a judgment lies within the court’s discretion. Id. 7 (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)). Before assessing the merits of a default judgment, a court must confirm that it has subject United States District Court Northern District of California 8 9 matter jurisdiction over the case and personal jurisdiction over the parties, as well as ensure the 10 adequacy of service on the defendant. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). If the 11 court finds these elements satisfied, it turns to the following factors (“the Eitel factors”) to 12 determine whether it should grant a default judgment: 13 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action[,] (5) the possibility of a dispute concerning material facts[,] (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decision on the merits. 14 15 16 17 18 19 20 21 Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986) (citation omitted). Upon entry of default, all factual allegations within the complaint are accepted as true, except those allegations relating to the amount of damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987). Where a default judgment is granted, the scope of relief “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed. R. Civ. 54(c). DISCUSSION 22 23 24 25 26 27 28 I. JURISDICTION When a court is considering whether to enter a default judgment it has “an affirmative duty to look into its jurisdiction over both the subject matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). This court has subject matter jurisdiction pursuant to 29 U.S.C. § 185 (granting labor union organizations power to sue employers in federal court) and 29 U.S.C. § 1132 (empowering ERISA plan fiduciaries to bring civil actions to enforce plan terms). Personal 4 1 jurisdiction also exists over CER, a California corporation and employer by virtue of ERISA § 2 3(5), 29 U.S.C. § 1002(5). Compl. ¶ 2. “ERISA Plaintiffs’ Trust Funds are administered in this 3 district at their principal place of business in San Ramon, California.” Id. ¶ 6. 4 II. United States District Court Northern District of California 5 SERVICE OF PROCESS Federal Rule of Civil Procedure 4(e)(1) allows for service following state law for serving a 6 summons in the state where the district court is located. California law provides that a defendant 7 “may be served by leaving a copy of the summons and complaint during usual office hours in his 8 or her office or, if no physical address is known, at his or her usual mailing address, other than a 9 United States Postal Service post office box, with the person who is apparently in charge thereof, 10 and by thereafter mailing a copy of the summons and complaint by first-class mail, postage 11 prepaid to the person to be served at the place where a copy of the summons and complaint were 12 left.” Cal. Civ. Proc. Code § 415.20(a). “When service is effected by leaving a copy of the 13 summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, 14 who shall be informed of the contents thereof.” Id. Service of a summons in this manner is 15 deemed complete on the tenth day after the mailing. Id. California’s statutes governing substitute 16 service “shall be liberally construed to effectuate service and uphold jurisdiction if actual notice 17 has been received by the defendant[.]” Ellard v. Conway, 94 Cal. App. 4th 540, 544 (2001) 18 (internal quotation marks and citation omitted). 19 Substitute service on CER was proper. CER’s business address was not an office, but 20 rather a private post office box rental store. See Proof of Service [Dkt. No. 13]. Plaintiffs’ 21 process server left the document with the mail store manager and thereafter mailed the documents 22 to the same address by first class, postage prepaid mail. Id.; see Ellard, 94 Cal. App. 4th at 547 23 (substitute service on defendant’s “usual mailing address, their private/commercial post office 24 box, was proper”); Hearn v. Howard, 177 Cal. App. 4th 1193, 1203 (2009) (“The purpose of 25 section 415.20 was achieved by service on the clerk at the post office box store where appellant 26 rented a post office box.”). 27 The California Court of Appeal in Ellard distinguished Bonita Packing Co. v. O’Sullivan, 28 165 F.R.D. 610, 614 (C.D. Cal. 1995), which held that substituted service at a private post office 5 1 box was improper because a better method could have been employed by serving the defendant’s 2 attorney in accordance with federal law. Ellard, 94 Cal. App. 4th at 546. Here, plaintiffs’ counsel 3 contacted CER’s counsel prior to pursuing litigation to try to resolve the matter. See Declaration 4 of M. Misner in Support of Motion for Default Judgment (“Misner Decl.”) [Dkt. No. 24], Ex. A 5 (email exchange with attorney William C. Last). When this case was ultimately filed, plaintiffs’ 6 counsel advised CER’s counsel that the lawsuit had been filed and asked if he would accept 7 service. Id. CER’s counsel responded that he was not authorized to make a settlement offer and 8 was not willing to accept service. Id. Thus, there is no indication that a better method of service 9 was available to plaintiffs. CER had actual notice that this case had been filed. United States District Court Northern District of California 10 III. EITEL FACTORS 11 A. 12 The first Eitel factor considers whether plaintiffs will suffer prejudice if I deny their Factor One: Possibility of Prejudice to Plaintiffs 13 motion. If relief is not granted, plaintiffs would be unable to recover the plan contributions or 14 otherwise enforce the Bargaining Agreement against CER. This potential prejudice to plaintiffs 15 weighs in favor of granting a default judgment. 16 17 B. Factors Two and Three: Merits of Plaintiffs’ Substantive Claims and the Sufficiency of the Complaint The second and third Eitel factors consider the merits and sufficiency of plaintiffs’ claims. 18 These two factors are often analyzed together and require courts to consider whether a plaintiff has 19 stated a claim on which it may recover. With the exception of facts relating to damages, courts 20 must take as true all other factual allegations pleaded in the complaint. See TeleVideo Sys., Inc. v. 21 22 Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987). “ERISA requires employers to contribute to employee benefit plans in accordance with the terms of collectively bargained agreements.” 23 Trustees of Screen Actors Guild-Producers Pension & Health Plans v. NYCA, Inc., 572 F.3d 771, 24 774 (9th Cir. 2009) (citing 29 U.S.C. § 1145). When a benefit plan wins a judgment in an action 25 to enforce payment of contributions to a benefit plan, ERISA provides that the plan is entitled to 26 the unpaid contributions, interest thereon, liquidated damages, and reasonable attorneys’ fees and 27 costs. See 29 U.S.C. § 1132(g)(2). 28 6 United States District Court Northern District of California 1 The Complaint states cognizable claims for relief. Plaintiffs’ Trust Funds are multi- 2 employer benefit plans as defined by ERISA, 29 U.S.C. § 1002(37)(A). Compl. ¶¶ 1, 6. Plaintiffs 3 Board of Trustees are the named fiduciaries of the Trust Funds under ERISA, 29 U.S.C. § 1002(a). 4 Id. ¶ 1. Plaintiffs allege that CER failed to pay required contributions on time in December 2018 5 and failed to pay at all in October 2018 and November 2018. Id. ¶¶ 13–15. Pursuant to the terms 6 of the Bargaining Agreement, the Trust Agreements, and ERISA, 28 U.S.C. § 1132(g)(2), CER is 7 liable for the unpaid contributions, liquidated damages, interest, and reasonable attorneys’ fees and 8 costs. Id. ¶¶ 16–23. 9 Taking the allegations in the Complaint as true, and as supported by evidence, plaintiffs 10 have made a strong showing of likelihood of success on the merits. The second and third Eitel 11 factors weigh in favor of granting a default judgment. 12 C. 13 Under the fourth Eitel factor, courts consider the amount of money at stake in the 14 litigation. Eitel, 782 F.2d at 1472. Default judgment is discouraged when the amount is 15 unreasonable in light of the allegations in the complaint. Id. 16 Factor Four: The Sum of Money at Stake in the Action In their motion for default judgment, plaintiffs seek (i) interest and liquidated damages 17 totaling $100.15 for late contributions; (ii) unpaid contributions of $23,941.79, along with 18 $9,571.03 in interest and liquidated damages, for contributions which CER reported but did not 19 pay; and (iii) attorneys’ fees and costs in the amount of $11,939.69. The total amount sought is 20 $45,552.66. 21 As discussed below, plaintiffs demonstrate with supporting evidence that they are entitled 22 to these amounts. The amount of damages at stake is appropriate and reasonable and are 23 authorized under 29 U.S.C. § 1132, as well as the Bargaining Agreement and Trust Agreements. 24 See Idaho Plumbers & Pipefitters Health & Welfare Fund v. United Mech. Contractors, Inc., 875 25 F.2d 212, 215 (9th Cir. 1989); Northwest Administrators, Inc. v. Albertsons, Inc., 104 F.3d 253, 26 257–58 (9th Cir. 1996). The fourth Eitel factor weighs in favor of granting a default judgment. 27 D. 28 The fifth Eitel factor considers the possibility that materials facts are disputed. Eitel, 782 Factor Five: The Possibility of a Factual Dispute 7 1 F.2d at 1471–72. Upon entry of default, the defendant is “deemed to have admitted all well- 2 pleaded factual allegations” in the complaint. DirecTV, Inc. v. Hoa Huynh, 503 F.3d 847, 851 (9th 3 Cir.2007) (citing Fed. R. Civ. P. 55(a)). Here, plaintiffs properly effected service of process on 4 CER and CER was given ample opportunity to respond to the Complaint and participate in the 5 proceedings. CER’s “obligations under the collective bargaining agreement are clear,” and “the 6 possibility for any factual disputes is unlikely.” Bd. of Trustees of U.A. Loc. No. 159 Health & 7 Welfare Tr. Fund v. RT/DT, Inc., No. C 12-05111 JSW, 2013 WL 2237871, at *6 (N.D. Cal. May 8 21, 2013). The fifth Eitel factor weighs in favor of granting a default judgment. 9 E. The sixth Eitel factor considers whether a defendant’s default may have resulted from 10 United States District Court Northern District of California Factor Six: Excusable Neglect 11 excusable neglect. Eitel, 782 F.2d at 1472. As discussed above, CER was properly served with 12 the summons and Complaint. CER’s counsel was aware of this action as evidenced by the email 13 exchanges between plaintiffs’ counsel and CER’s counsel before this action was filed. See Minser 14 Decl., Ex. A. There is no indication that CER’s failure to defend the litigation is the result of 15 excusable neglect. This factor weighs in favor of granting a default judgment. 16 F. 17 Cases should be decided upon their merits whenever reasonably possible. See Eitel, 782 Factor Seven: Policy Favoring Decision on the Merits 18 F.2d at 1472. However, “this preference, standing alone, is not dispositive.” PepsiCo, Inc. v. 19 California Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002) (citation omitted); see also 20 Fed. R. Civ. P. 55(b) (providing that the “termination of a case before hearing the merits is 21 allowed whenever a defendant fails to defend an action.”). Because CER has not participated in 22 the proceedings, a decision on the merits would not otherwise be possible. In this situation, Rule 23 55(b) permits me to grant default judgment. In sum, the Eitel factors weigh in favor of granting plaintiffs’ motion for default judgment. 24 25 26 IV. RELIEF SOUGHT Once liability is established through a defendant’s default, a plaintiff is required to 27 establish that the requested relief is appropriate. Geddes v. United Financial Group, 559 F.2d 28 557, 560 (9th Cir. 1977). 8 1 A. Unpaid Contributions In an action to recover unpaid contributions pursuant to 29 U.S.C. § 1132, the court shall 2 award unpaid contributions, interest, and liquidated damages. 29 U.S.C. § 1132(g)(2)(A-C). 3 Liquidated damages are equal to the interest on the unpaid contributions or the contract liquidated 4 5 damages rate, whichever is greater. Id. § 1132(g)(2)(C). Section 1132(g)(2) is “mandatory” when the following three requirements are met: “(1) the fiduciary obtains a judgment in favor of the 6 plan, (2) unpaid contributions exist at the time of suit, and (3) the plan provides for liquidated 7 damages.” Idaho Plumbers, 875 F.2d at 215; Northwest Administrators, 104 F.3d at 257. 8 Plaintiffs have satisfied these factors because CER was delinquent in its contributions at the time 9 this action was filed, the Bargaining Agreement provides for assessment of liquidated damages, 10 and, by virtue of this order, plaintiffs will obtain a judgment against CER. United States District Court Northern District of California 11 Under the Bargaining and Trust Agreements, and reiterated in the Trust Funds’ Collection 12 Procedure Guidelines, liquidated damages are assessed at 5% of unpaid contributions, with a 13 minimum of $100.00, on contributions received after the 22nd day of the month following the 14 month worked, plus 10% interest per annum (calculated from the delinquency date until paid). In 15 addition, if contributions are not paid by the 22nd day of the month following the month in which 16 they were due, liquidated damages increase to 20% of contributions, with a minimum of $100.00. 17 See Bargaining Agreement at Addendum No. 1, Item 5, Section F (incorporating the terms of the 18 Trust Agreements into the Bargaining Agreement); Trust Agreement at section III.D and III.F; 19 Collection Procedure Guidelines at section II.C. 20 Plaintiffs allege and demonstrate with supporting evidence that CER failed to pay its self21 reported contributions to the Trust Funds for the months of October 2018 and November 2018, in 22 the total amount of $23,941.79. See Guzman Decl. ¶ 7. They further allege and demonstrate with 23 supporting evidence that CER owes $4,782.68 in interest (calculated at 10% per annum interest 24 accrued through November 24, 2020) and $4,788.35 in liquidated damages (calculated at the rate 25 of 20%). Id. Accordingly, plaintiffs have sufficiently demonstrated that they are entitled to a total 26 amount of $33,512.82 in unpaid contributions, interest, and liquidated damages. 27 28 9 1. 1 United States District Court Northern District of California 2 Interest Accrued Through the Entry of Judgment and Post-Judgment Interest In their proposed judgment, in addition to the amounts discussed above, plaintiffs state 3 that: “Interest shall continue to accrue at the rate of 10.0% per annum on the principal unpaid 4 contributions from November 25, 2020 through entry of Judgment. Post-judgment interest shall 5 continue to accrue at the rate of 10.0% per annum on the principal unpaid contributions 6 ($23,941.79) and at the legal rate on the entire Judgment ($38,644.97) until satisfied.” Proposed 7 Judgment [Dkt. No. 23-1]. Plaintiffs fail to fully address this point in their motion for default 8 judgment and only mention in passing that “[i]nterest continues to accrue on the unpaid 9 contributions until the contributions have been paid in full.” Mot. 4 (quoting Guzman Decl. ¶7). 10 Plaintiffs who seek interest through the date of judgment typically provide a daily rate to 11 assist in calculating the interest. Plaintiffs have not done so here. At this time, I will not address 12 what daily rate interest has continued to accrue between November 25, 2020 through the entry of 13 judgment, but plaintiffs are not precluded from seeking such interest after judgment is entered. 14 I will also not address whether plaintiffs are entitled to post-judgment interest, and if so, 15 the amount. If plaintiffs choose to seek post-judgment interest after judgment is entered, they 16 must set forth the authority and evidence that would support such a finding. See U.A. Loc. 342 17 Joint Lab. - Mgmt. Comm. v. Airteks Mech. Servs., Inc., No. C-04-2531 SBA (WDB), 2006 WL 18 8460256, at *10 (N.D. Cal. Jan. 19, 2006), report and recommendation adopted, 2006 WL 19 8460257 (N.D. Cal. Feb. 8, 2006) (plaintiffs who “opted not to pursue post-judgment interest” at 20 the time of judgment “[did] not waive their right to seek post-judgment interest at a later date”); 21 see also Crosthwaite v. Tim Kruse Constr., Inc, No. C 13-00496 JSW, 2014 WL 4683719, at *7 22 (N.D. Cal. Sept. 17, 2014) (finding “the post-judgment interest rate applicable in this action should 23 be the rate governed by 28 U.S.C.1961(a), not the 10% interest rate applicable to delinquencies” 24 where plaintiffs relied upon contractual provisions that “do not expressly state that the parties 25 agree to a specified post-judgment interest rate, nor expressly state that the parties agree to 26 contract around 28 U.S.C. § 1961(a)”). 27 B. 28 Plaintiffs allege that CER’s December 2018 contribution payment in the total amount of Late Contributions 10 1 $558.40 was received one day late, on January 23, 2019. Guzman Decl. ¶ 8. Liquidated damages 2 on contributions paid before the lawsuit is filed, are permitted under federal common law pursuant 3 to a contract when: (1) “the harm caused by a breach [is] very difficult or impossible to estimate,” 4 and (2) “the amount fixed [is] a reasonable forecast of just compensation for the harm caused.” 5 Idaho Plumbers, 875 F.2d at 217. United States District Court Northern District of California 6 Where, as here, “an employer is delinquent in paying contributions into a fringe benefit 7 trust fund, the fund suffers some kinds of harms that are very difficult to gauge.” Bd. of Trustees 8 v. Udovch, 771 F. Supp. 1044, 1049 (N.D. Cal. 1991); Trustees of Bricklayers Loc. No. 3 Pension 9 Tr. v. Huddleston, No. 10-1708 JSC, 2013 WL 2181532, at *6 (N.D. Cal. May 20, 2013). “To 10 determine whether the parties reasonably forecasted the compensation for breach, courts look to 11 the parties’ intentions and a good faith effort to determine the amount of damages.” Bd. of 12 Trustees of Laborers Health & Welfare Tr. Fund for N. California v. Lopez, No. 18-CV-00809- 13 DMR, 2019 WL 2183376, at *7 (N.D. Cal. Jan. 21, 2019), report and recommendation adopted, 14 2019 WL 2183366 (N.D. Cal. Feb. 11, 2019) (citing Idaho Plumbers, 875 F.2d at 217). The 15 parties’ intentions determine whether the second requirement has been satisfied. “They must have 16 made a ‘good faith effort to set an amount equivalent to the damages they anticipate.’” 17 Huddleston, 2013 WL 2181532, at *6 (quoting Udovch, 771 F. Supp. at 1048). 18 The Bargaining Agreement states: “It would be extremely difficult and impractical to fix 19 the actual expense and damage to the Trust resulting from any Employer’s default, over and above 20 attorney’s fees for each Employer’s default.” See Bargaining Agreement at section III.D. By 21 signing the agreement, CER agreed to pay “Liquidated Damages of 5% of the total contributions 22 within a minimum charge of $100.00 plus 10% interest per annum calculated from the due date, if 23 received by the 20th of the month following the month originally due.” Id. 24 Pursuant to the Bargaining and Trust Agreements, and reiterated in the Collection 25 Procedure Guidelines discussed above, 5% liquidated damages and 10% interest were assessed on 26 CER’s late December 2018 contribution payment in the total amount of $558.40. Because 5% of 27 the total contributions for December 2018 equates to $27.97, plaintiffs seek liquidated damages at 28 the minimum amount of $100.00. They seek interest in the amount of $0.15 (calculated at 10% 11 United States District Court Northern District of California 1 per annum interest accrued through January 23, 2019). Werner Decl. ¶ 8. Plaintiffs have 2 sufficiently demonstrated that they are entitled to $100.15 in liquidated damages and interest on 3 the late contribution payment. 4 C. 5 A plaintiff who obtains a judgment for an ERISA claim under 29 U.S.C. § 1145 for unpaid Attorneys’ Fees and Costs 6 contributions is entitled to “reasonable attorney’s fees and costs of the action, to be paid by the 7 defendant[.]” 29 U.S.C. § 1132(g)(2)(D). The Trust Agreement here also provide that CER must 8 reimburse plaintiffs for attorneys’ fees, audit fees, costs, and all other expenses incurred in 9 connection with the collection of delinquent contributions. See Trust Agreement at section III.G 10 (section on collection actions stating that “The Employer shall reimburse the Trust, or its assignee, 11 for all reasonable attorneys’ fees, audit fees, court costs, investigator fees, collection agency fees, 12 and all other reasonable expenses of whatever nature incurred in connection with such suit or 13 claim”). 14 Plaintiffs’ counsel request attorneys’ fees in the amount of $9,940.50, representing 55.4 15 hours of work billed (33.4 hours by attorneys and 22 hours by paralegals) between December 11, 16 2018 through January 31, 2021. Misner Decl. ¶ 15. Plaintiffs have provided timesheets showing 17 the time spent and tasks performed by each of the four attorneys and one paralegal (Misner at 18 $215 an hour; Stafford at $220 an hour; Mendoza at $215 an hour; Schechter at $215 an hour; and 19 Cotterill at $125 an hour) and have described in a declaration their level of experience and 20 education. Id. ¶¶ 9(a)–(e); id., Ex. B (billing records). 21 I find that the hours expended are reasonable, and that the hourly rates charged are 22 reasonable rates for ERISA claims. See Sheet Metal Workers Loc. 104 Health Care Tr. v. Nichols 23 Plumbing & Heating, Inc., No. 15-CV-04260-KAW, 2016 WL 8313928, at *9 (N.D. Cal. Dec. 19, 24 2016), report and recommendation adopted, 2017 WL 713144 (N.D. Cal. Feb. 23, 2017) (finding 25 130.5 hours of work reasonable because “[t]he hours include work performed over a period of 26 more than two years, including time spent compelling Defendants to comply with their obligations 27 under the Bargaining and Trust Agreements, such as the submission to an audit”). Plaintiffs’ 28 attorneys’ hourly rates, including paralegal hourly rates, have been found reasonable by other 12 1 judges in this District. See, e.g., Operating Engineers Health & Welfare Tr. Fund for N. 2 California v. Kino Aggregates, Inc., No. 16-CV-02795-HSG-DMR, 2017 WL 743658, at *8 (N.D. 3 Cal. Jan. 30, 2017), report and recommendation adopted, 2017 WL 733092 (N.D. Cal. Feb. 24, 4 2017); United States District Court Northern District of California 5 Plaintiffs submit that they have incurred $1,999.19 in costs in this action. Misner Decl. ¶ 6 16. These costs include the Complaint filing fee, messenger service for the summons and the 7 Complaint, legal research fees and investigative fees. Id. These costs are reasonable. Courts have 8 routinely awarded costs for service, messenger services, and investigatory fees in actions brought 9 under 29 U.S.C. § 1132 (g)(2)(D). See, e.g., Nichols Plumbing & Heating, 2016 WL 8313928, at 10 *9 (finding $400 filing fee, $258.45 messenger service, and $1,035.00 investigative fees 11 reasonable); Pension Plan for Pension Trust Fund for Operating Eng’rs v. J & K Sweeping, No. C 12 14-1179 CW, 2014 WL 4626008, at *8 (N.D. Cal. Sept. 15, 2014) (“With respect to Plaintiffs’ 13 request for costs for messenger service, legal research, and investigation, such costs are available 14 on the basis that they are generally billed as attorneys’ fees.”). CONCLUSION 15 16 Plaintiffs’ motion for default judgment is GRANTED. Plaintiffs are entitled to $33,612.97 17 in damages and $11,939.69 in reasonable attorneys’ fees and costs. As stated above, plaintiffs are 18 not precluded from seeking, at a later date, additional interest accrued on the principal unpaid 19 contributions from November 25, 2020 through entry of judgment and any post-judgment interest. 20 21 IT IS SO ORDERED. Dated: April 9, 2021 22 23 William H. Orrick United States District Judge 24 25 26 27 28 13
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