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New York State Teamsters Conference Pension and Retirement Fund v. C & S Building Materials

June 22, 2010

NEW YORK STATE TEAMSTERS CONFERENCE PENSION AND RETIREMENT FUND, BY ITS TRUSTEES, GARY STARING, JOHN BULGARO, RONALD G. LUCAS, FREDRICK J. CARTER, MICHAEL S. SCALZO, SR., DANIEL W. SCHMIDT AND TOM J. VENTURA, PLAINTIFF,
v.
C & S BUILDING MATERIALS INC., DEFENDANT,



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

MEMORANDUM DECISION and ORDER

Currently pending before the Court in this Employee Retirement Income Security Act ("ERISA") action filed by New York State Teamsters Conference Pension and Retirement Fund ("Plaintiff") against C & S Building Materials, Inc. ("Defendant") is Plaintiff's motion for default judgment. (Dkt. No. 9.) For the reasons stated below, Plaintiff's motion is granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Liberally construed, Plaintiff's Complaint asserts that Defendant violated ERISA, subjecting it to withdrawal liability. (See generally Dkt. No. 1.) Generally, in support of that claim, Plaintiff's Complaint alleges as follows: (1) Defendant completely withdrew from the multi-employer pension plan; (2) by failing to make a timely request for arbitration, Defendant agreed to the total withdrawal liability assessment demanded; and (3) Defendant failed to make interim payments when due. (Id.)

B. Plaintiff's Service of Complaint and Defendant's Failure to Answer

On July 14, 2009, Plaintiff properly served its Complaint on Defendant by serving a copy of the Summons and Complaint and Filing Order on the Secretary of State. (Dkt. No. 5.) On September 14, 2009, Plaintiff again properly served its Complaint on Defendant by serving a copy of the Summons and Complaint and Filing Order on Joan Lamareux, a Principal of Defendant. (Dkt. No. 6.) As of the date of this Decision and Order, Defendant has filed no Answer to that Complaint. (See generally Docket Sheet.)

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

On November 11, 2009, Plaintiff filed a request for entry of default. (Dkt. No. 7.) On November 12, 2009, the Clerk of the Court entered default against Defendant pursuant to Fed. R. Civ. P. 55(a). (Dkt. No. 8.) As of the date of this Decision and Order, Defendant has not appeared and attempted to cure that entry of default. (See generally Docket Sheet.)

D. Plaintiff's Motion for Default Judgment and Defendant's Non-Response

On March 24, 2010, Plaintiff filed a motion for default judgment pursuant to Fed. R. Civ. P. 55(b). (Dkt. No. 9.) As of the date of this Decision and Order, Defendant has filed no response to that motion. (See generally Docket Sheet.)

Generally, in support of its motion for default judgment, Plaintiff argues as follows: (1) Defendant waived all defenses to the assessment of withdrawal liability according to 29 U.S.C. § 1401(a)(1) by failing to timely demand arbitration; (2) the entire employer-withdrawal liability assessment demanded by Plaintiff is accelerated and immediately due because Defendant failed to timely demand arbitration; and (3) Plaintiff is statutorily entitled to an award of interest, attorney's fees and costs incurred in connection with the collection of the withdrawal liability. (Dkt. No. 9.) Familiarity with the particular grounds in support of these arguments is assumed in this Decision and Order, which is intended primarily for review of the parties.

II. RELEVANT LEGAL STANDARD

"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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