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PERISHABLE FOOD INDUSTRY PENSION FUND v. AMERICAN BANANA

July 1, 2003

PERISHABLE FOOD INDUSTRY PENSION FUND, BY ITS TRUSTEES: WILMA ARTAU-BANDA, JAMES BEVILACQUA, PAUL GREENSPAN, JAMES HUNT, BURTON KLEIN, RICHARD LANIGAN, DENNIS SCANLON, LEWIS SHERMAN AND DANA TABACK, PLAINTIFF,
v.
AMERICAN BANANA CO., INC., DEFENDANT.



The opinion of the court was delivered by: Ronald Ellis, United States District Magistrate Judge

REPORT AND RECOMMENDATION

I. INTRODUCTION

This matter was referred to the undersigned for an inquest on damages following an entry of default judgment by The Honorable Lawrence M. McKenna against defendant on January 11, 2002. On March 7, 2001, Perishable Foods Industry Pension Fund ("the Fund") filed the instant action against defendant employer, American Banana Company, Inc. ("American"), for failure to contribute five out of forty-eight monthly payments and reports as established in a collective bargaining agreement ("CBA"). The Fund seeks damages pursuant to the Employee Retirement Income Security Act ("ERISA") of 1974, as amended, 29 U.S.C. § 1145 and § 1132(g)(2), including attorney's fees and costs. Based on the following facts presented to the Court by way of affidavits and a memorandum of law from the Fund, the Court recommends as follows:

(1) American pay to the Fund $3,611.40 for the five missed contribution payments under the CBA;

(2) American pay $541.95 in interest on the total amount of unpaid contributions as of June 30, 2003. Interest shall continue to accrue at the quarterly underpayment rate, as determined by the Internal Revenue Service under 26 U.S.C. § 6621, until American pays the amount of contributions owed in full. Determination of Interest Rate, 26 C.F.R. § 301.6621-1 (2003). The interest rate for the July 1, 2003-September 30, 2003 period is five percent (5%). IRS News Release IR-2003-75 (June 9, 2003).

(3) American pay $541.95 to the Fund as liquidated damages;

(4) American pay the Fund's attorney fees in the amount of $9,250, plus costs in the amount of $200, a total of $9,450.

II. BACKGROUND

The Perishable Food Industry Pension Fund is an "employee pension benefit fund" within the meaning of 29 U.S.C. § 1002(2). It was established as a result of the CBA formed pursuant to 29 U.S.C. § 186(c)(5), between the Office Employees International Union, Local 153 and certain employers, including American. See Complaint ("Compl.") at ¶ 2. American is engaged in the business of produce distribution, an industry affecting commerce, and is therefore an employer within the meaning of 29 U.S.C. § 152. Id.

On March 7, 2001, the Fund filed a complaint against American alleging failure to contribute monthly payments to the Fund as required by 29 U.S.C. § 1145. The claim is based on the CBA entered into by the parties, which was effective for the period of March 1, 1998, through February 28, 2001. Id.

The CBA establishes the Fund and specifies the rates at which monthly contributions are determined. See Plaintiffs Brief ("Pl. Br.") at ¶ 1. The Fund claims that the formula for the rate is found in its Restated Agreement and Declaration of Trust ("Trust Agreement"), Compl. at ¶ 3, but did not provide the Court with a copy of the agreement. The CBA also established that monthly reports accompany payments. Pl. Br. at ¶ 1. These reports contain the names of employee participants of the Fund, the hours worked by such employees, and the rate of contribution. Id. The Fund has submitted an affidavit by Vera Mariano ("Mariano Aff."), the bookkeeper for Basil Castrovinci Associates, Inc., the Fund's accountants and auditors. The affidavit includes the last monthly report from American, dated September 2000, which the Fund submits to support its method of calculating the unpaid contributions and interest. See Mariano Aff. at ¶ 1. It claims that American owes $13,633.80 for the unpaid contributions, corresponding to four covered employees from October 2000 through February 2002. Id. at ¶¶ 1-2.

American was served with a summons and complaint on March 23, 2001. Proof of service was entered on March 26, 2001. American failed to respond or appear. On January 11, 2002, Judge McKenna entered a default judgment against American pursuant to Federal Rule of Civil Procedure 55. This Court held an inquest hearing on March 11, 2002, and American again failed to appear. On March 26, 2002, the Fund submitted materials supporting its claim for damages, including the Mariano affidavit and affidavits from attorneys Roger H. Madon ("Madon") and James Kane McMahon ("McMahon"), setting forth their experience and expertise as counsel. On August 19, 2002, the Fund submitted an amended statement of damages, an affidavit on the calculation of interest, and a supplemental affidavit of legal services.

III. DISCUSSION

A. Statutory Framework

Section 1145 of Title 29 of the United States Code, Delinquent ...


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