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Upstate New York v. the Mbe Group

March 4, 2011

UPSTATE NEW YORK CARPENTERS PENSION FUND AND THE EMPIRE STATE CARPENTERS WELFARE, ANNUITY AND APPRENTICE TRAINING FUNDS, BY PATRICK MORIN AND LLOYD MARTIN, AS TRUSTEES, AND THE EMPIRE STATE REGIONAL COUNCIL OF CARPENTERS, REGION 3, CARPENTERS LOCAL NO. 747, BY GARY TOTH, SENIOR COUNCIL REPRESENTATIVE. PLAINTIFFS,
v.
THE MBE GROUP, INC., KNOFI MCCLARY, PAC & ASSOCIATES OF OSWEGO, INC. AND LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

This is an action under the Employee Retirement Income Security Act of 1974, ("ERISA"), 29 U.S.C. § 1001 et seq and the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 141 et seq. In their amended complaint (Dkt. No. 8), plaintiffs claim that defendants failed to make timely contributions and deductions to ERISA-covered employee benefit plans in accordance with the terms of a collective bargaining agreement. See 29 U.S.C. §§ 1132(g)(2); 1145.

Familiarity with the background in this case is assumed based on this Court's previous Memorandum-Decisions and Orders. See Upstate New York Carpenters Pension Fund and the Empire State Carpenters Welfare, Annuity and Apprentice Training Funds, by its Trustees, et. al. v. The MBE Group, Inc., Knofi McClary, PAC & Associates of Oswego, Inc. and Liberty Mutual Insurance Company, 08-CV-0129, Dkt. No. 28 (September 28, 2009) (Memorandum-Decision and Order) and Upstate New York Carpenters Pension Fund and the Empire State Carpenters Welfare, Annuity and Apprentice Training Funds, by its Trustees, et. al. v. The MBE Group, Inc., Knofi McClary, PAC & Associates of Oswego, Inc. and Liberty Mutual Insurance Company, 08- CV-0129, Dkt. No. 34 (September 29, 2010) (Memorandum-Decision and Order). In the Memorandum-Decision and Order dated September 28, 2009, the Court granted plaintiffs' motion for default judgment against The MBE Group, Inc. ("MBE") and Knofi McClary ("McClary"). However, due to insufficient evidence, the Court directed plaintiffs to reapply for an award of damages on or before November 1, 2009. In the Memorandum-Decision and Order dated September 29, 2010, the Court denied plaintiffs' second motion for a default judgment due to insufficient evidence and conflicting submissions. Accordingly, plaintiffs were directed to make a proper motion and incorporate all papers and exhibits.*fn1

N A M

II. DISCUSSION

On December 10, 2010, plaintiffs filed a Notice of Renewal of Motion for Entry of Default Judgment. (Dkt. Nos. 40, 41). Plaintiffs seek an entry of judgment, in their favor, in the amount of $16,879.89. In support, plaintiffs provide the Declaration of Nathan T. Bradley, the Collections Coordinator of the Empire State Carpenters Pension, Welfare, Annuity, Charitable Trust, Scholarship, Apprenticeship Training, and Labor-Management Cooperation Funds. In the Notice of Motion, counsel also incorporates, by reference, the Attorney Affidavit of John H. Byington and the exhibits annexed thereto.*fn2

This is the third application in support of plaintiffs' request for damages. Defendants have failed to respond to any application.

In relevant part, 29 U.S.C. § 1132(g)(2) provides: In any action under this title by a fiduciary for or on behalf of a plan to enforce section 515 [29 USCS § 1145] in which a judgment in favor of the plan is awarded, the court shall award the plan-

(A) the unpaid contributions,

(B) interest on the unpaid contributions,

(C) an amount equal to the greater of--

(i) interest on the unpaid contributions, or (ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of ...


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