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Onondaga County Laborers' Health and Welfare, Pension, Annuity and Training Funds v. Maxim Construction Service Corp.

June 9, 2008

ONONDAGA COUNTY LABORERS' HEALTH AND WELFARE, PENSION, ANNUITY AND TRAINING FUNDS, BY JANET M. MORO, AS FUND ADMINISTRATOR; AND CONSTRUCTION AND GENERAL LABORERS' LOCAL UNION NO. 633, BY GABRIEL ROSETTI, AS BUSINESS MANAGER, PLAINTIFFS,
v.
MAXIM CONSTRUCTION SERVICE CORP.; BARBARA SLATE, INDIVIDUALLY AND AS AN OFFICER OF MAXIM CONSTRUCTION SERVICE CORP.; AND JAMES MALVASI, INDIVIDUALLY AND AS AN OFFICER OF MAXIM CONSTRUCTION SERVICE CORP., DEFENDANTS.



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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs commenced this action on October 15, 2007. See Dkt. No. 1. On October 18, 2007, and October 20, 2007, Plaintiffs served copies of the summons and complaint on Defendants by personal service. See Affidavit of Jennifer A. Clark, sworn to January 31, 2008 ("Clark Aff."), at ¶ 5 & Exhibit "B" attached thereto. The time within which Defendants could answer or otherwise move as to the complaint expired on November 7, 2007, and November 9, 2007. See id. at ¶ 6. On November 14, 2007, the Clerk of the Court entered a Notice of Default against Defendants for failure to appear or otherwise move as to the complaint. See id. at ¶ 8 & Exhibit "C" attached thereto.

Defendants are party to collective bargaining agreements with Construction and General Laborers' Local Union 633 ("Union"), formerly known as Laborers International Union of North America, Local Union No. 433 ("Agreements"). Defendants are bound by Plaintiffs' Agreements and Declarations of Trust, required to pay stipulated amounts to Plaintiffs, and, in the event of a delinquency, to pay interest, liquidated damages, attorney's fees and costs. See id. at ¶ 10; Affidavit of Janet M. Moro, sworn to January 30, 2008 ("Moro Aff."), at Exhibit "G" attached thereto; Affidavit of Gabriel M. Rosetti, Jr., sworn to January 30, 2008 ("Rosetti Aff."), at ¶¶ 10-14.

Furthermore, Defendants Barbara Slate and James Malvasi were officers, directors and shareholders of Defendant Maxim Construction Service Corp. ("Maxim"), an employer of employees who were covered by employee benefit plans and a party in interest with respect to Plaintiffs. See Clark Aff. at ¶ 11 & Exhibit "A" attached thereto at ¶¶ 10-13. Defendants Slate and Malvasi had managerial discretion and control over Defendant Maxim, made decisions on behalf of Defendant Maxim, and signed contracts governing Defendant Maxim. See id. at ¶ 12 & Exhibit "A" attached thereto at ¶¶ 50-51. In this capacity, Defendants Slate and Malvasi determined which bills Defendant Maxim would pay, determined which of Defendant Maxim's employees would be reported to Plaintiffs, determined the number of hours upon which contributions would be reported as owing to Plaintiffs, determined when Defendant Maxim would pay Plaintiffs, determined how much money Defendant Maxim would pay Plaintiffs, and exercised control over money due and owing to Plaintiffs, i.e., the Plan Assets, and, therefore, Defendants Slate and Malvasi were fiduciaries. See id. at ¶ 13 & Exhibit "A" attached thereto at ¶¶ 50-51. Moreover, Defendants Slate and Malvasi commingled Plaintiffs' assets with Defendant Maxim's general assets and used Plaintiffs' assets to pay other creditors of Defendant Maxim rather than forwarding the assets to Plaintiffs. See id. at ¶ 14 & Exhibit "A" attached thereto at ¶ 52. Finally, Defendants Slate and Malvasi transferred, applied, used or diverted or permitted the transfer, application, use or diversion of Plaintiffs' trust assets to purposes other than Plaintiffs' purposes without first making payment to Plaintiffs. See id. at ¶ 15 & Exhibit "A" attached thereto at ¶¶ 53-57.

Based upon Defendants' remittance reports, Defendants owed $86,660.04 in fringe benefit contributions to Plaintiff Onondaga County Laborers' Health and Welfare, Pension, Annuity and Training Funds ("Funds") and $11, 533.24 in deductions to Plaintiff Union for work performed under the collective bargaining agreement during the period September 2006 through August 2007. See Moro Aff. at ¶¶ 15-16. Defendants untimely remitted $98,183.29 in contributions and deductions for this period in partial satisfaction of their obligations, but they have not paid the remaining contributions, interest, liquidated damages, attorney's fees and costs due in connection with the untimely payment. See id. at ¶ 17. Therefore, Defendants still owe $9.99 in contributions, $3,333.27 in interest, and $7,811.20 in liquidated damages to Plaintiff Funds and $444.24 in interest and $1,049.75 in liquidated damages to Plaintiff Union. See id. at ¶¶ 19-20; Affidavit of Linda L. DeMacy, sworn to January 31, 2008 ("DeMacy Aff."), at ¶ 8 & Exhibit "A" attached thereto.

Currently before the Court is Plaintiffs' motion for entry of a default judgment, pursuant to Rule 55 of the Federal Rules of Civil Procedure, against Defendants.

II. DISCUSSION

A. Standard of Review

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). This inquiry "involves two tasks: [1] determining the proper rule for calculating damages on such a claim, and [2] assessing plaintiff's evidence supporting the damages to be determined under this rule." Id. Finally, in calculating damages, the court "need not agree that the alleged facts constitute a valid cause of action . . . ." Au Bon Pain, 653 F.2d at 65 (citation omitted).

Section 1145 of Title 29 of the United States Code provides that

[e]very employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement.

29 U.S.C. § 1145.

If an employer violates § 1145, 29 U.S.C. § ...


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