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Chao v. Azon Employees Retirement Plan

December 4, 2007

ELAINE L. CHAO, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, PLAINTIFF,
v.
AZON EMPLOYEES RETIREMENT PLAN, DEFENDANT.



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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court is Plaintiff's motion for a default judgment against Defendant Employees Retirement Plan ("Defendant Plan") and for the appointment of an independent fiduciary to Defendant Plan.

II. BACKGROUND

Plaintiff filed her complaint in this action on August 21, 2006, seeking to enjoin acts and practices that violate the provisions of Title I of Employee Retirement Income Security Act ("ERISA") and to obtain appropriate equitable relief to redress these violations and enforce the provisions of Title I pursuant to 29 U.S.C. § 1132(a)(5). See Complaint at ¶ 1.

According to Plaintiff's complaint, Azon Corporation, Inc., the employer of the employees whom Defendant Plan covers, sponsored Defendant Plan. See id. at ¶ 3. Defendant Plan has been without a trustee since July 2002, when Azon Corporation ceased business operations. See id.

James L. Donovan and Mark A. Rapp were the trustees of Defendant Plan and were fiduciaries to Defendant Plan with responsibilities for its day-to-day management and operation. See id. at ¶ 5. Since Azon Corporation ceased operations, however, Mr. Donovan and Mr. Rapp have not been discharging their responsibilities as Plan fiduciaries and have not ensured the appointment of a fiduciary to oversee the distribution of Defendant Plan's assets. See id. at ¶¶ 6-7. Since no individual or entity has taken fiduciary responsibility for the operation and administration of Defendant Plan and its assets, Defendant Plan's participants and beneficiaries have been unable to gain access to or information about their individual account balances. See id. at ¶ 8. Moreover, Defendant Plan has not been terminated. See id. at ¶ 9. T. Rowe Price is the custodian of Defendant Plan's funds. See id. at ¶ 11. The funds that T. Rowe Price holds had a value of approximately $841,415.29 as of March 2006, and $2,500 in a forfeiture account. See id.

Plaintiff alleges that, because Defendant Plan does not have named fiduciaries or trustees with exclusive authority and discretion to manage and control its assets as ERISA requires, there is no one other than the Court with the authority to appoint a new trustee. See 29 U.S.C. §§ 1102(a), 1103(a). Moreover, Plaintiff states that, at this time, participants of Defendant Plan are unable to access their account balances, either to reinvest them in other tax-qualified retirement savings vehicles before retirement or to draw them down upon retirement. See Complaint at ¶ 13. Finally, Plaintiff contends that, "[b]ecause the basis upon which payments are made from the plan are not and cannot be specified without a trustee, the plan exists in violation of ERISA . . . 29 U.S.C. § 1102(b)(4)." See id.

Pursuant to 29 U.S.C. § 1132(a)(5), Plaintiff seeks the appointment of an independent fiduciary to administer Defendant Plan and to effectuate the distribution of Defendant Plan's assets to the participants and beneficiaries and to terminate Defendant Plan.

Plaintiff served Defendant Plan on October 6, 2006, by means of waiver of service that Mr. Donovan, the last known Plan trustee, signed. See Declaration of Marc G. Sheris, dated January 8, 2007, at ¶ 2. Defendant has not answered or otherwise appeared in this action. See id. at ¶ 4. Plaintiff requested an Entry of Notice of Default on December 15, 2006, which the Clerk of the Court entered on December 20, 2006. See id. at ¶ 5. Plaintiff now requests that the Court enter a default judgment against Defendant Plan and appoint Jacqueline M. Carmichael as the independent fiduciary of Defendant Plan.*fn1

III. DISCUSSION

Rule 55 of the Federal Rules of Civil Procedure provides that when a party fails to defend itself the Clerk of the Court shall enter that party's default. See Fed. R. Civ. P. 55(a). The plaintiff may then seek a default judgment. See Fed. R. Civ. P. 55(b).

When a court considers a motion for the entry of a default judgment, it must "accept[] as true all of the factual allegations of the complaint . . . ." Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) (citations omitted). However, the court cannot construe the damages alleged in the complaint as true. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citations omitted). Rather, the court must "conduct an inquiry in order to ascertain the amount of damages with reasonable certainty." Id. (citation omitted).

Plaintiff alleges that, because Mr. Donovan and Mr. Rapp have ceased performing their fiduciary duties without ensuring the appointment of a fiduciary to control and manage the operation and administration of Defendant Plan, ...


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