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LaBarbera v. MMK Trucking

February 25, 2008


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


Plaintiffs Gary LaBarbera and Frank Finkel, Trustees of Local 282 International Brotherhood of Teamsters Welfare, Pension, Annuity, Job Training and Vacation Sick Leave Trust Funds (the "Funds"), commenced this action against MMK Trucking, Inc. ("MMK"), to recover payments for unpaid fringe benefit contributions and delinquency charges, along with interest on the contributions, pursuant to the provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. §1001 et. seq, and the terms of the collective bargaining agreement ("CBA") and the Declaration of Trust ("Trust Agreement") between Local 282 of the International Brotherhood of Teamsters and MMK. Plaintiffs also seek liquidated damages pursuant to ERISA, injunctive relief and an award of attorney's fees and costs. Now before the Court is defendant's motion to vacate the entry of default pursuant to Federal Rule of Civil Procedure 55(c).*fn1 For the reasons set forth below, defendant's motion is granted.


The following facts are drawn from the complaint and the parties' submissions in connection with this motion. Disputes are noted.

The Funds are employee benefit plans organized under ERISA, 29 U.S.C. §10001 et seq., which provide various benefits, including fringe benefits, to covered employees. The Funds are operated pursuant to the terms of the CBA and Trust Agreement. Under the terms of the CBA and Trust Agreement, defendant was required to make fringe benefit contributions to the Funds, but failed to do so.

Defendant MMK is a corporation doing business in Suffolk County, New York. According to defendant, its place of business is 58 Holbrook Street, North Patchogue, NY.

Plaintiffs filed a complaint on December 15, 2006 and served a copy of the summons on defendant at the address of 614 Union Avenue, Holtsville, NY. Defendant acknowledges that it has received mail at the Holtsville address because of problems with the delivery of mail to the North Patchogue address.

Plaintiffs have two other actions (06-CV-1329 and 03-CV-1508) against defendant, both of which are being litigated in the Eastern District of New York. Defendant is represented by the same counsel in all three actions. The parties dispute whether the action currently before this Court is related to the other actions.

After defendant failed to appear or otherwise defend this action, plaintiffs moved for default judgment and on February 22, 2007, the clerk entered a default against defendant. On July 6, 2007, I referred the matter to Magistrate Judge Matsumoto for an inquest on damages and a report and recommendation. Defendant filed its motion to vacate the entry of default on December 20, 2007,*fn2 prior to the issuance of a report and recommendation by the Magistrate Judge.


Federal Rule of Civil Procedure 55(a) provides that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend . . . the clerk shall enter the party's default." Fed. R. Civ P. 55(a). After an entry of default has been made, the defendant may move to set aside the default entry for "good cause shown." Fed.R.Civ.P. 55(c).

There are three criteria used to establish good cause, which are: (1)whether the default was willful; (2) whether the defendant has a meritorious defense; and (3) whether setting aside the default would prejudice the party who secured its entry. Marziliano v. Heckler, 728 F.2d 151, 156 (2d Cir. 1984). In addition, the Court may also consider equitable factors, including "whether the failure to follow a rule of procedure was a mistake made in good faith and whether the entry of default would bring about a harsh or unfair result." Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993).

An entry of default is not favored and is considered an "extreme sanction" which "must remain a weapon of last, rather than first, resort." Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). Any "doubt should be resolved in favor of the defaulting party." Enron, 10 F.3d at 96.

With respect to the first good cause factor, willfulness "refer[s] to conduct that is more than merely negligent or careless" and may be found where the conduct of the defaulting "was egregious and was not satisfactorily explained." S.E.C. v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998), cert. denied, 525 U.S. 931 (1998). Here, defendant argues that plaintiffs should have served the motion for default judgment on its counsel and at defendant's principal place of business in North Patchogue. Although defendant does not offer an explanation of when it learned of this action or whether it still receives mail at the Holtsville address, given the ...

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