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ENGINEERS JOINT WELFARE

June 22, 1993

ENGINEERS JOINT WELFARE, PENSION, SUPPLEMENTAL UNEMPLOYMENT BENEFIT AND TRAINING FUNDS, by Robert H. VanDyke, as Administrator; CENTRAL PENSION FUND OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS, by Frank Gould, as Administrative Manager; and INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL UNION NO. 545, by Jack Webb, as Business Manager, Plaintiffs,
v.
B.B.L. CONSTRUCTORS, INC., Defendant.


Hurd


The opinion of the court was delivered by: DAVID N. HURD

United States Magistrate Judge

 MEMORANDUM DECISION AND ORDER

 On August 10, 1992, U.S. District Court Judge Con. G. Cholakis issued an Order referring the above captioned case to this court for all further proceedings and the entry of judgment in accordance with 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 with the consent of the parties. Engineers Joint Welfare, Pension, Supplemental Unemployment Benefit and Training Funds, et al., ("plaintiffs") filed its motion on February 26, 1993, for a Default Judgment pursuant to Fed. R. Civ. P. 55. On April 8, 1993, this court heard oral arguments regarding plaintiffs' motion. The court reserved decision at that time.

 FACTS

 B.B.L. Constructors, Inc. ("defendant") was a party to a collective bargaining agreement between Labor Relations Division, Central New York Region, Associated General Contractors of America, New York State Chapter, Inc., and Certain Independent Employers and International Union of Operating Engineers-Local 545 ("Agreement"). Pursuant to the Agreement, the defendant was obliged to remit certain fringe benefit contributions and deductions to the plaintiffs. These contributions and deductions were to be remitted for all hours worked by employees who were covered by the Agreement.

 Pursuant to the Agreement, the amount of contributions that defendant should remit to the Welfare Fund, the Pension Fund, the Supplemental Unemployment Benefit Fund, the Training Fund and the Central Pension Fund was determined by multiplying the total number of hours worked by its employees by the contribution rates for each multi-employer plan, as set forth in the Agreement. The amount of dues deductions defendant should remit was determined by multiplying the amount of gross wages of the defendant's employees by the percentage rate set forth in the Agreement. Defendant should also contribute to the Voluntary political Action Fund ("V.P.A.F.") of the unions. The amount of V.P.A.F. monies was determined by multiplying the total number of hours worked by employees of the defendant by the V.P.A.F. rate set forth in the Agreement.

 The Agreement, the Agreements and Declarations of Trust of the Engineers Joint Welfare-Pension-Supplemental Unemployment Benefit and Training Funds, the Engineers Joint Benefit Funds Collections Policy, the Agreement and Declaration of Trust of the Central Pension Fund of the International Union of Operating Engineers and Participating Employers, and 29 U.S.C. § 1132(g)(2)(b) obligated the defendant, if it was delinquent in remitting contributions and deductions, to pay interest and/or liquidated damages, plus the cost and fees of collection and attorney's fees.

 Defendant's Reply Affidavit does not dispute liability for failing to remit fringe benefit contributions and deductions, the amounts due for interest and liquidated damages, or the award of attorney's fees. However, defendant, through its president, Blase Larroca, does dispute the $ 20,852.27 figure as being the amount due for fringe benefit contributions and deductions. Defendant claims that this figure should to be $ 17,642.00 for a difference of $ 3,210.27. Specifically, defendant claims that as January 1, 1992, the amount due was $ 9,425.82, and on September 19, 1992, the amount due and payable was $ 13,083.02; for a TOTAL of $ 22,508.84. From this total, defendant alleges that it is due the credit of $ 4,866.84; for a TOTAL of $ 17,642.00. Defendant alleges that this difference is attributable to the fact that plaintiffs reduced a lien claim on one project by $ 3,454.76, and then failed to include that reduction in their calculations, thus overstating the figure by $ 3,210.27.

 In their reply affidavit, plaintiffs allege that defendant received its credit for the reduction of the Route 481 mechanic's lien of $ 3,454.76 (above), which it claims was included in the $ 4,866.84 credit from the $ 25,719.11 figure above. They allege that the $ 3,210.27 difference is due to the fact that after commencement of the lawsuit and after a review of certified payroll records submitted by defendant, the Assistant Plan Administrator, Daniel P. Harrigan ("Assistant Plan Administrator"), determined that an additional $ 2,864.86 in fringe benefit contributions was due for the period September 1991, through November 1991, on behalf of employees who were not included on his original Audit Recap Sheet. He also determined that defendant was not required to remit fringe benefit contributions and deductions on behalf of some of the hours shown on his original Audit Recap Sheet. Therefore, the amount due for this same period was reduced by $ 835.54. Based on the foregoing, defendant allegedly owes $ 11,455.14 ($ 9,425.82 $ 2,864.86 - $ 835.54) not $ 9,425.82 in fringe benefit contributions and deductions for this period.

 Additionally, plaintiffs allege that baked upon pay stubs submitted by defendant's employees they are due $ 14,263.97, not $ 13,083.02 in fringe benefit contributions and deductions for the period May 1992, through September 1992. In the end, plaintiffs allege that defendant still owes a TOTAL of $ 20,852.27 [($ 9,425.82 $ 2,864.86 - $ 835.54) $ 14,263.97 - $ 4,866.84] in fringe benefit contributions and deductions. Therefore, the only issue currently before this court on the plaintiffs' motion for default judgment is whether plaintiffs are due the additional $ 3,210.27 ($ 20,852.27 - $ 17,642.00) in fringe benefit contributions and deductions.

 DISCUSSION

 As an initial matter, this court notes that an entry of default is a prerequisite to a default judgment under Rule 55(b). Lee v. Brotherhood of Maintenance of Way Employees, 139 F.R.D. 376, 380 (D.Minn. 1991). The grant of a party's motion for entry of a default judgment lies within the sound discretion of the trial court. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332, 336 (N.D.Ga. 1975). Entry of default judgment on the issue of liability does not necessarily establish as a fact every imputation in an affidavit which relates to the extent of damages. Baccaro v. Pisa, 252 F. Supp. 900, 905 (S.D.N.Y. 1966). Regardless, this court finds that an entry of ...


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