The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently pending before the Court in this Employee Retirement Income Security Act ("ERISA") action filed by the ten above-captioned unions and union trust funds ("Plaintiffs") against Western New York Contractors, Inc. and Robert A. Valerino ("Defendants") is Plaintiffs' motion for partial default judgment. (Dkt. No. 1.) For the reasons stated below, Plaintiffs' motion is granted in part, and denied in part without prejudice.
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 various union pension plans; (2) Defendants failed to timely remit contributions and deductions; (3) Defendants impermissibly used the assets and interest of Plaintiffs' fiduciaries, participants and beneficiaries; and (4) Defendants have continuously failed to comply with their obligations to Plaintiffs, despite Plaintiffs' demand for compliance. (Id.)
B. Plaintiffs' Service of Complaint and Defendants' Answer
On April 15, 2009, Plaintiffs properly served their Complaint on each Defendant. (Dkt. No. 5, 6.) On May 8, 2009, Defendants filed an Answer to Plaintiffs' Complaint. (Dkt. No. 7.)
On December 24, 2009, Defendant Valerino' attorney, Ralph Horton, filed a letter with the Court indicating, inter alia, that Defendant Valerino consented to the entry of default judgment against him. (Dkt. No. 19.)
C. Clerk's Office's Entry of Default
On January 4, 2010, Magistrate Judge David E. Peebles issued a Report-Recommendation recommending that (1) Defendant Valerino's Answer be stricken from the record, and (2) the Clerk of the Court enter default against Defendant Valerino. (Dkt. No. 20.) On March 12, 2012, this Court accepted and adopted Magistrate Judge Peebles' Report-Recommendation in its entirety. (Dkt. No. 21.) On that same day, the Clerk of the Court entered default against Defendant Valerino, pursuant to Fed. R. Civ. P. 55(a). (Dkt. No. 22.)
D. Plaintiffs' Motion for Partial Default Judgment and Defendants' Non-Response
On March 18, 2010, Plaintiffs filed a motion for partial default judgment against Defendant Valerino, pursuant to Fed. R. Civ. P. 55(b). (Dkt. No. 23.)*fn2 As of the date of this Decision and Order, Defendant Valerino has filed no response to that motion. (See generally Docket Sheet.)
Generally, in support of their motion for partial 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) Defendant Valerino, as a corporate officer and fiduciary of Defendant Western New York Contractors, Inc., is individually liable for failing to deliver contributions; (3) Defendant Valerino is contractually obligated to pay interest, liquidated damages and attorneys' fees and costs in connection with the late payment of contributions, regardless of whether those contributions are paid prior to or subsequent to commencement of a lawsuit; and (4) 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. 23, ...