Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Upstate New York Carpenters Pension v. McCarey Contracting Group

June 30, 2006

UPSTATE NEW YORK CARPENTERS PENSION, HEALTH, AND ANNUITY FUNDS, BY EARL HALL AND GARY TOTH, AS TRUSTEES; EMPIRE STATE CARPENTERS APPRENTICESHIP COMMITTEE, BY JOHN J. FUCHS AND JOSEPH OLIVERI, AS TRUSTEES; AND EMPIRE STATE REGIONAL COUNCIL OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, REGION 3, CARPENTERS LOCAL NO. 747, BY GARY TOTH, AS SENIOR COUNCIL REPRESENTATIVE, PLAINTIFFS,
v.
MCCAREY CONTRACTING GROUP, INC. AND CHERYL S. SMITH, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. BACKGROUND

Defendant McCarey Contracting Group, Inc. ("Defendant Corporation") is a domestic business corporation incorporated under the laws of New York State. Defendant Cheryl S. Smith ("Defendant Smith") was President, Manager, and/or controlling shareholder of Defendant Corporation at all times relevant to this action. Defendant Corporation is a party to a Collective Bargaining Agreement ("CBA") with Empire State Regional Council of Carpenters, Local Union No. 747 ("the Union").*fn1

Under the terms of the CBA, Defendant Corporation was required to pay stipulated amounts to the Upstate New York Carpenters Pension, Health, and Annuity Funds ("the Funds") for each hour that its employees who were covered by the CBA worked. The CBA further required Defendant Corporation to deduct from each employee's wages a specified amount of money and then send that money to the Union as member dues. Plaintiffs contend that, in violation of the CBA, Defendant Corporation and Defendant Smith (collectively "Defendants") did not remit the aforementioned deductions and dues from January 2004 through December 2005.

As a result of Defendants' failure to remit payment, Plaintiffs filed this action on August 15, 2005, see Dkt. No. 1, seeking not only the amount of the contributions and deductions that Defendants failed to remit during the relevant period but also (1) interest on unpaid and untimely paid Pension, Health, and Annuity Funds contributions, at the rate of twelve percent (12%) per annum, compounded daily from the date the contributions were due; plus (2) the greater of interest on the unpaid and untimely paid . . . Funds contributions or liquidated damages equal to twenty percent (20%) of those delinquent contributions; plus (3) interest on unpaid and/or untimely paid Training Fund contributions at the best interest rate charged by Fleet Bank or such bank determined by the Trustees or the Funds' depository to be substantial and responsible commercial borrowers as of the date of the Employer's default in contributions to the Training Fund provided, however, that such rate shall not be less than 6% per annum; plus (4) liquidated damages equal to the greater of interest on those unpaid Training Fund contributions or liquidated damages in an amount of twenty percent (20%) of the unpaid contributions; plus (5) interest on the unpaid dues deductions, I.A.P. and U.B.C. monies, at the rate of nine percent (9%) per annum; plus (6) costs and fees of collection, auditing fees and attorneys' and paralegal fees and costs.

See id. at ¶ 22.

In total, Plaintiffs seek a judgment against Defendants, jointly and severally, in the amount of $94,323.75 and an additional amount of $18,503.31 against Defendant Corporation, plus post-judgment interest on the entire judgment in accord with 28 U.S.C. § 1961(a).

Plaintiffs served Defendants with the summons and complaint on September 2, 2005. See Dkt. No. 4. Defendants failed to respond; and, on October 14, 2005, Plaintiffs requested and the Clerk of the Court entered notice of Defendants' default. See Dkt. Nos. 5, 7. Currently before the Court is Plaintiffs' motion for entry of a default judgment.

II. DISCUSSION

A. Default Judgment

Under Rule 55(b), a court may enter a default judgment where a party fails to respond to a plaintiff's complaint. See Fed. R. Civ. P. 55(b). As a prerequisite to the court granting a default judgment, the clerk of court must enter a notice of default. See id. Moreover, when a court enters a default judgment against a defendant, "the defendant is deemed to have admitted to the truth of the well-pleaded allegations [in] the compliant." Eng'rs Joint Welfare, Pension, Supplemental Unemployment Benefit & Training Funds v. B.B.L. Constructors, Inc., 825 F. Supp. 13, 17 (N.D.N.Y. 1993) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080, 113 S.Ct. 1049, 122 L.Ed. 2d 357 (1993)).

B. ERISA

Under ERISA's statutory framework, "[e]very employer who is obligated to make contributions to a mulitemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall . . . make such contributions in accordance with the terms and conditions of such plan or agreement." 29 U.S.C. § 1145. When an employer fails to make such required contributions, multiemployer-plan fiduciaries can file a civil action to enforce the provisions of the plan and to obtain equitable relief. See 29 U.S.C. § 1132. Moreover, ERISA provides that, where a violation of § 1145 occurs, the court must award the mulitemployer plan delinquent contributions, interest, liquidated damages, costs, and attorney's fees. See 29 U.S.C. § 1132(g)(2).

The CBA required Defendant Corporation to pay stipulated amounts to Plaintiffs' mulitemployer plans for each hour that its employees who were covered by the CBA worked. See Plaintiffs' Complaint at ¶ 19. Additionally, the CBA required Defendant Corporation to deduct from its employees' wages a specified amount of money which Defendants were then required to remit to the Union as fringe-benefit contributions, union dues, and I.A.P. and U.B.C. monies. See id. at ¶ 20. According to Plaintiffs, Defendant Corporation has failed to remit these contributions, deductions and other monies owed to Plaintiffs as required under the CBA, the Trusts, and the Collections Policy. See id. at ¶ 21.

In light of Plaintiffs' well-pleaded allegations, the Court finds that Defendants were bound by the terms of the CBA, the Trusts, and the Collections Policy; and, therefore, the Court will rely upon these documents to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.