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International Brotherhood of Electrical Workers Local Union No. 1249 Pension and Insurance Funds v. Phoenix Signal and Electric Corp.

January 4, 2008

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 1249 PENSION AND INSURANCE FUNDS, BY DANIEL R. DAFOE, AS ADMINISTRATOR; NATIONAL ELECTRICAL BENEFIT FUND, BY D.R. BORDEN, JR. AND JON F. WALTERS AS TRUSTEES; NEW YORK STATE LINEMAN'S SAFETY TRAINING FUND, BY RICHARD FRENCH, AS SAFETY DIRECTOR; NORTHEASTERN JOINT APPRENTICE AND TRAINING FUNDS, BY JAMES ATKINS, AS APPRENTICE DIRECTOR; AND I.B.E.W. LOCAL UNION NO. 1249, BY WILLIAM BOIRE, AS BUSINESS MANAGER, PLAINTIFFS,
v.
PHOENIX SIGNAL AND ELECTRIC CORP., AND ROBERT CRAIG, INDIVIDUALLY AND AS AN OFFICER OF PHOENIX SIGNAL AND ELECTRIC CORP. DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs International Brotherhood of Electrical Workers Local Union No. 1249 Pension and Insurance Funds, by Daniel R. Dafoe, as Administrator, National Electrical Benefit Fund, by D.R. Borden, Jr. and Jon F. Walters as Trustees, New York State Lineman's Safety Training Fund, by Richard French, as Safety Director; Northeastern Joint Apprentice and Training Funds, by James Atkins, as Apprentice Director; and I.B.E.W. Local Union No. 1249, by William Boire, as Business Manager, filed a complaint alleging that defendants Phoenix Signal and Electric Corp., and Robert Craig, individually and as an officer of Phoenix Signal and Electric Corp., failed to remit fringe benefit contributions and deductions to plaintiffs as required by the rules and regulations of the Funds' Board of Trustees and the terms and conditions of the plaintiffs'

Agreements and Declarations of Trust and the Collections Policy to which the parties are bound. Consequently, plaintiffs allege, the Employee Retirement Income Security Action of 1974 ("ERISA"), 29 U.S.C. §§ 1145 and 1132(g)(2), and the Agreements and Declarations of Trust and Collections Policy obligate defendants to remit the delinquent contributions and deductions, to pay interest, the greater of interest or liquidated damages, costs and fees of collection and attorney's fees. Defendants have not answered the complaint or otherwise appeared in connection with this action. For this reason, plaintiffs move pursuant to Rule 55(b) of the Federal Rules of Civil Procedure for entry of default judgment in their favor and an award of $75,293.25 in fringe benefit contributions and deductions, $14,504.33 in interest, $14,435 in liquidated damages, and $4,239.98 in attorney's fees and costs, including paralegal fees.

II. FACTS

The Court has taken the following facts from plaintiffs' pleadings and submissions: Defendant Phoenix Signal and Electric Corp., ("Phoenix Signal") is party to a collective bargaining agreement with Northeastern Line Constructors Chapter of NECA and International Brotherhood of Electrical Workers Local Union No. 1249 ("the Agreement"). Pursuant to the provisions of the Agreement, Phoenix Signal is obligated to remit fringe benefit contributions and deductions to plaintiffs for all hours worked by employees who are covered by the collective bargaining agreement, i.e., performing bargaining unit work. Defendant Robert Craig, president of Phoenix Signal, owned, controlled and dominated the affairs of Phoenix Signal and determined when, and if, to remit fringe benefit contributions and deductions to plaintiffs.

As referenced above, according to the complaint, defendants failed to remit fringe benefit contributions and deductions to plaintiffs from May 2006 through August 2006. Therefore, plaintiffs assert, under the terms of the Agreements and Declarations of Trust, Collections Policy, and ERISA, defendants are responsible for the delinquent fringe benefit contributions and deductions as well as interest, liquidated damages, costs and fees of collection, and attorney's fees.

Presently before the Court is plaintiffs' motion for default judgment. Based on defendants' failure to remit benefit contributions and deductions to plaintiffs from May 2006 to August 2006, plaintiffs contend that they are entitled to judgment as follows: $75,293.25 in fringe benefit contributions and deductions, $14,504.33 in interest, $14,435 in liquidated damages, and $4,239.98 in attorneys' fees and costs, including paralegal fees. Thus, plaintiffs seek judgment in the total amount of $108,473.50.

III. DISCUSSION

A. Standard -- Default Judgment Rule 55(b)

Under Rule 55(b) of the Federal Rules of Civil Procedure, default judgment shall be entered if a defendant has failed to plead or otherwise defend an action." Parise v. Riccelli Haulers, Inc., 672 F.Supp. 72, 74 (N.D.N.Y. 1987). Rule 55(b)(2) and Local Rule 55.2 set forth the procedural prerequisites plaintiffs must meet before their motion for default judgment may be granted. Plaintiffs must: (1) properly serve defendant with a summons and complaint (to which no response has been made); (2) obtain an entry of default; and (3) provide an affidavit setting forth the facts required by L.R. 55.2(a), including an affidavit showing that defendant is not an infant or incompetent, or in the military service. See Fed. R. Civ. P. 55(b)(2); N.Y.N.D.L.R. 55.1 and 55.2.

Rule 54(b) provides, in pertinent part, that "[w]hen more than one claim for relief is presented in an action . . . or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties . . .upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." See Advanced Magnetics v. Bayfront Partners, Inc., 106 F.3d 11, 16 (2d Cir. 1997). There is "no just reason for delay" "where a plaintiff might be prejudiced by a delay in recovering a monetary award." Id. (citing Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 11-12 (1980).

As referenced above, plaintiffs filed and served a summons and complaint. Defendants have not answered the complaint. Plaintiffs timely served defendants written notice of the application for judgment pursuant to Fed. R. Civ. P. 55(b)(2). Defendants never answered or otherwise moved with respect to the complaint. Plaintiffs received a clerk's entry of default on

March 29, 2007. On July 20, 2007, plaintiffs filed a motion for default judgment and submitted the required affidavits pursuant to Rule 55(b)(2). Pursuant to Rule 54(b), plaintiffs have shown that there is "no just reason for delay," since the corpus and income of plaintiffs' funds have been reduced. Further, plaintiffs have submitted an affidavit by their counsel showing that defendants are not infants or incompetent, and are not in the military service. Therefore, ...


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