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Central New York Laborers' Health and Welfare, Pensions, Annuity and Training Funds v. Five Star Construction Services

June 17, 2010

CENTRAL NEW YORK LABORERS' HEALTH AND WELFARE, PENSIONS, ANNUITY AND TRAINING FUNDS, BY JANET M MORO, AS FUND ADMINISTRATOR; OSWEGO LABORERS' LOCAL 215 PENSION FUND, BY DAVID HENDERSON, AS ADMINISTRATOR; AND LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 633, BY GABRIEL M. ROSETTI, III, AS BUSINESS MANAGER, PLAINTIFFS,
v.
FIVE STAR CONSTRUCTION SERVICES, INC.; ANGELO COKER, INDIVIDUALLY AND AS AN OFFICER OF FIVE STAR CONSTRUCTION SERVICES, INC.; AND STEVEN COKER, INDIVIDUALLY AND AS AN OFFICER OF FIVE STAR CONSTRUCTION SERVICES, INC., DEFENDANTS,



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Court Judge

DECISION and ORDER

Currently before the Court in this Employee Retirement Income Security Act of 1974 ("ERISA") action filed by Central New York Laborers' Health and Welfare, Pensions, Annuity and Training Funds, Oswego Laborers' Local 215 Pension Fund and Laborers' International Union of North America, Local Union No. 633 ("Plaintiffs") against Five Star Construction Services, Inc., Angelo Coker and Steven Coker ("Defendants") is Plaintiffs' motion for partial default judgment. (Dkt. No. 15.) For the reasons stated below, Plaintiffs' motion is granted in part and denied in part without prejudice.

I. RELEVANT BACKGROUND

A. Plaintiffs' Complaint

Liberally construed, Plaintiffs' Complaint asserts the following claims against Defendants: (1) violation of 29 U.S.C. §1145; (2) violation of 29 U.S.C. §1104; (3) violation of 29 U.S.C. §1106; and (4) violation of 29 U.S.C. §1109.*fn1 (See generally Dkt. No. 1.) Generally, in support of those claims, Plaintiffs' Complaint alleges as follows: (1) Defendants failed to make contributions to multi-employer plans; (2) Defendants failed to timely remit contributions and deductions; (3) Defendants impermissibly used the assets and interest of the Plaintiffs' fiduciaries, participants and beneficiaries; and (4) Defendants have continuously failed to comply with their obligations to Plaintiffs, despite demand for compliance. (Id.)

B. Plaintiffs' Service of Complaint and Defendants' Failure to Answer

Between May 13, 2009 and June 3, 2009, Plaintiffs properly served their Complaint on each Defendant. (See Dkt. No. 5, 7, 8.) As of the date of this Decision and Order, Defendants have filed no Answer to that Complaint. (See generally Docket Sheet.)

C. Clerk's Office's Entry of Default and Defendants' Non-Appearance

On August 3, 2009, Plaintiffs filed a request for entry of default. (Dkt. No. 9.) On August 4, 2009, the Clerk of the Court entered default against Defendants pursuant to Fed. R. Civ. P. 55(a). (Dkt. No. 11.) As of the date of this Decision and Order, Defendants have not appeared and attempted to cure that entry of default. (See generally Docket Sheet.)

D. Plaintiffs' Motion for Partial Default Judgment and Defendants' Non-Response

On March 15, 2010, Plaintiffs filed a motion for partial default judgment pursuant to Fed. R. Civ. P. 55(b). (Dkt. No. 15.)*fn2 As of the date of this Decision and Order, Defendants have filed no response to that motion. (See generally Docket Sheet.)

Generally, in support of their motion for default judgment, Plaintiffs argue as follows: (1) a delay in allowing Plaintiffs to enforce their claim and to collect the debt may result in the debt being uncollectible; (2) Defendants must be compelled to produce their books and records for Plaintiffs' review and audit (and pay the cost and expense of such audit including all attorneys' and paralegal fees and costs incurred in obtaining the audit) to ensure compliance with contributions required under an ERISA covered plan;*fn3 and (3) Plaintiffs are statutorily entitled to an award of the attorneys' fees and costs incurred in connection with the collection of the fringe benefit contributions and deductions. (Dkt. No. 15.) A greater familiarity with the grounds for Plaintiffs' motion for partial default judgment is assumed in this Decision and Order, which is intended primarily for review of the parties.

II. LEGAL STANDARD GOVERNING MOTION FOR DEFAULT JUDGMENT

"Federal Rule of Civil Procedure 55 provides a two-step process that the Court must follow before it may enter a default judgment against a defendant." Robertson v. Doe, 05-CV-7046, 2008 WL 2519894, at *3 (S.D.N.Y. June 19, 2008). "First, under Rule 55(a), when a party fails to 'plead or otherwise defend . . . the clerk must enter the party's default.'" Robertson, 2008 WL 2519894, at *3 (quoting Fed. R. Civ. P. 55[a]). "Second, pursuant to Rule 55(b)(2), the party seeking default judgment is required to present its application for entry of judgment to the court." Id. "Notice of the application must be sent to ...


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