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Gesualdi v. MMK Trucking

August 24, 2010

THOMAS GESUALDI, LOUIS BISIGNANO, ANTHONY PIROZZI, DOMINICK MARROCCO, ANTHONY D'AQUILA, FRANK FINKEL, JOSEPH FERRARA, SR., MARC HERBST, THOMAS PIALI AND DENISE RICHARDSON, AS TRUSTEES AND FIDUCIARIES OF THE LOCAL 282 WELFARE, PENSION, ANNUITY, JOB TRAINING, AND VACATION AND SICK LEAVE TRUST FUNDS, PLAINTIFFS,
v.
MMK TRUCKING, INC., ROAD SAVERS, INC., FTU LEASING CORP., DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge

REPORT AND RECOMMENDATION

I. PRELIMINARY STATEMENT

Plaintiffs Thomas Gesualdi, Louis Bisignano, Anthony Pirozzi, Dominick Marrocco, Anthony D'Aquila, Frank Finkel, Joseph Ferrara, Sr., Marc Herbst, Thomas Piali and Denise Richardson (collectively "Plaintiffs"), as Trustees and Fiduciaries of the Local 282, Welfare, Pension, Annuity, Job Training, and Vacation and Sick Leave Trust Funds, bring this action against Defendants MMK Trucking, Inc. ("MMK"), FTU Leasing Corp. ("FTU") and Road Savers Inc., for the collection of unpaid and delinquent contributions and attendant damages pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1132(a)(3) and 1145.

Defendant Road Savers filed an Answer on August 19, 2009 denying the allegations asserted against it. See DE 3. Defendants MMK and FTU never responded to the Complaint nor did they seek additional time to respond to the Complaint after being properly served with the same. Thus, Plaintiffs moved for a Default Judgment as to Defendants MMK and FTU. See DE 11.

By Order dated April 7, 2010, Judge Townes referred Plaintiff's motion for Default Judgment for a Report and Recommendation.

II. PERTINENT FACTS

The Funds at issue are employee benefit plans established pursuant to the terms of various collective bargaining agreements between labor organization Local 282 and various employers who are required to make contributions to the Funds on behalf of their covered employees. Compl. ¶ 6. Defendants MMK and Road Savers, who transport asphalt and other paving materials, have employed at least one employee covered by the collective bargaining agreement with Local 282.

Id., ¶¶ 8-11. Defendant FTU is in the business of supplying trucks to MMK and Road Savers. Id., ¶¶ 12-13. Defendant MMK has been a signatory to collective bargaining agreements with Local 282 from at least July 1, 2002, through June 30, 2011. Id., ¶ at 14. MMK failed to report and pay contributions for all hours its employees worked in covered employment from January 1, 2006, though June 30, 2008. Id., ¶ 18. Plaintiffs further allege that MMK, Road Savers and FTU are all affiliated and are part of a business constituting a single employer sharing common control with each other. Id., ¶¶ 23-24. Indeed, Plaintiffs maintain that MMK has used Road Savers and FTU to avoid its obligations under its collective bargaining agreement with Local 282. Id., ¶¶ 43-49.

III. APPLICABLE STANDARD

A default constitutes an admission of all well-pleaded factual allegations in the complaint and the allegations as they pertain to liability are deemed true. Joe Hand Promotions, Inc. v. El Norteno Rest. Corp., No. 06-CV-1878, 2007 WL 2891016, at *2 (E.D.N.Y. Sept. 28, 2007) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080 (1993)). A default judgment entered on the well-pleaded allegations in the complaint establishes a defendant's liability. See Garden City Boxing Club, Inc. v. Morales, No. 05-CV-0064, 2005 WL 2476264, at *3 (E.D.N.Y. Oct. 7, 2005) (citing Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 854 (2d Cir. 1995)). The only question remaining, then, is whether Plaintiffs have provided adequate support for the relief they seek. Greyhound Exhibitgroup, Inc., 973 F.2d at 158.

For a movant to obtain a default judgment, it must complete a two-step process. "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend... and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." Fed. R.. Civ. P. 55(a); see FashionTV.com GMBH v. Hew, No. 06-CV-3200, 2007 WL 2363694, at *2 (S.D.N.Y. Aug. 17, 2007). Once the clerk's certificate of default is issued, the moving party may then make an application for entry of a default judgment, pursuant to Fed. R. Civ. P. 55(b), as Plaintiffs have done here. See Kieit Constructors, Inc. v. Franbuilt, Inc., No. 07-CV-121A, 2007 WL 4405029 at *2 (W.D.N.Y. Dec. 14, 2007); FashionTV.com, 2007 WL 2363694, at *2. The Clerk of the Court noted the default of Defendants M MK and FTU but judgment has not been entered for Plaintiffs. See DE 16.

Rule 55(b)(2) provides that, except in cases in which "the plaintiff's claim is for a sum certain or a sum that can be made certain by computation" (see Rule 55(b)(1)), "the party must apply to the court for a default judgment." The determination of a motion for default judgment is left to the sound discretion of the district court. See Shah v. New York State Dep't of Civil Serv., 168 F.3d 160, 615 (2d Cir. 1999).

In determining whether to grant a default judgment, the court may consider "numerous factors, including 'whether plaintiff has been substantially prejudiced by the delay involved [ ] and whether the grounds for default are clearly established or in doubt.'" O'Callahan v. Sifre, 242 F.R.D. 69, 73 (S.D.N.Y. 2007) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2685 (3d ed.1998)). As the Second Circuit has observed, the Court is guided by the same factors which apply to a motion to set aside entry of a default. See Enron Oil Corp. v. Diakuhara, 90, 96 (2d Cir. 1993); Pecarsky v. Galaxiworld.com, Ltd., 249 F.3d 167, 170-171 (2d Cir. 2001). These factors are (1) "whether the defendant's default was willful; (2) whether defendant has a meritorious defense to plaintiff's claims; and (3) the level of prejudice the non-defaulting party would suffer as a result of the denial of the motion for default judgment." Mason Tenders Dist. Council v. Duce Constr. Corp., 2003 WL 1960584, No. 02 Civ. 9044, at *2 (S.D.N.Y. Apr. 25, 2003) (citation omitted); see also Basile v. Wiggs, No. 08-CV-7549, 2009 WL 1561769, at *4 (S.D.N.Y. May 29, 2009) (listing factors for court's consideration including defaulting party's bad ...


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