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Int'l Bhd. of Elec. Workers Local No. 43 Pension, Annuity and Health v. Kay-R Elec. Corp.; Kevin M. O'connor

July 21, 2011

INT'L BHD. OF ELEC. WORKERS LOCAL NO. 43 PENSION, ANNUITY AND HEALTH AND WELFARE FUNDS; CENT. NEW YORK JOINT APPRENTICESHIP AND TRAINING COMM. FOR THE ELEC. INDUS.; NAT'L ELEC. BENEFIT FUND; CENT. NEW YORK LABOR-MGMT. COOPERATION COMM.; NECA-IBEW NAT'L LABOR-MGMT. COOPERATION COMM. TRUST FUND; I.B.E.W. LOCAL UNION NO. 43; AND FINGER LAKES NEW YORK CHAPTER, NAT'L ELEC. CONTRACTORS ASS'N, PLAINTIFFS,
v.
KAY-R ELEC. CORP.; KEVIN M. O'CONNOR, INDIVIDUALLY AND AS AN OFFICER OF KAY-R ELECTRIC CORP.; PHILLIP O'CONNOR, INDIVIDUALLY AND AS AN OFFICER OF KAY-R ELECTRIC CORP.; AND JEFFREY HANRETTY, INDIVIDUALLY AND AS AN OFFICER OF KAY-R ELECTRIC CORP., DEFENDANTS.



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 the seven above-captioned unions and union trust funds ("Plaintiffs") against Kay-R Electric Corporation, Kevin M. O'Connor, Phillip O'Connor and Jeffrey Hanretty, ("Defendants") is Plaintiffs' motion for default judgment with regard to Plaintiffs' First, Second,*fn1 Third, and Fourth Causes of Action on the issue of damages against Defendants Kay-R Electric Corporation, Kevin O'Connor and Phillip O'Connor (hereinafter "the defaulting Defendants"). (Dkt. Nos. 24, 30.)*fn2 For the reasons stated below, Plaintiffs' motion is granted in part and denied in part, and Plaintiffs' Fifth Cause of Action is deemed voluntarily withdrawn.

I. RELEVANT BACKGROUND

Because the Court discussed in detail in the January Order the claims asserted by Plaintiffs in their Complaint, as well as the procedural history of this lawsuit, the Court need not, and does not, recite those claims, or that history, in this Decision and Order, which is intended primarily for the review of the parties. Rather, the Court refers the reader to the January Order. (Dkt. No. 26.)

However, for purposes of deciding this motion for partial default judgment, the Court finds that two points are worth noting. First, Plaintiffs' motion for default judgment on the issue of damages was denied in the January Order for three reasons: (1) Defendant Jeffrey Hanretty had filed an answer to the Complaint contesting its merits, and Defendants could be held jointly and severally liable for the same damages; (2) the Court was not convinced that there was a high risk that, if default judgment were not entered against the defaulting Defendants, assets that were then-currently accessible would no longer be recoverable; and (3) Plaintiffs would inevitably move for attorney's fees again in the event that they succeeded on their claims against Defendant Jeffrey Hanretty, and deferring consideration of damages would avoid the drafting and issuance of multiple lengthy decisions on the issue of attorney's fees. (Id.)

Second, after the Court's issuance of the January Order, Plaintiffs filed a stipulation of discontinuance against Defendant Jeffrey Hanretty, which the Court approved on February 7, 2011. (Dkt. No. 28.)

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 the defaulting party so that it has an opportunity to show cause why the court should not enter a default judgment." Id. (citing Fed. R. Civ. P. 55[b][2]).

Moreover, Fed. R. Civ. P. 54(b) provides that, "[w]hen an action presents more than one claim for relief . . . , the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties . . . if the court expressly determines that there is no just reason for delay."

When a court considers a motion for the entry of a default judgment, it must "accept[ ] as true all of the factual allegations of the complaint . . . ." Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) (citations omitted). "However, the court cannot construe the damages alleged in the complaint as true." Eng'rs Joint Welfare, Pension, Supplemental Unemployment Benefit and Training Funds v. Catone Constr. Co., Inc., 08-CV-1048, 2009 WL 4730700, at *2 (N.D.N.Y. Dec. 4, 2009) (Scullin, J.) (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 [2d Cir. 1999] [citations omitted]). "Rather, the court must 'conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.'" Eng'rs Joint Welfare, Pension, Supplemental Unemployment Benefit and Training Funds, 2009 WL 4730700, at *2 (quoting Alcantara, 183 F.3d at 155 [citation omitted]). This inquiry "involves two tasks: [1] determining the proper rule for calculating damages on such a claim, and [2] assessing plaintiff's evidence supporting the damages to be determined under this rule." Alcantara, 183 F.3d at 155. Finally, in calculating damages, the court "need not agree that the alleged facts constitute a valid cause of action . . . ." Au Bon Pain, 653 F.2d at 65 (citation omitted).

III. ANALYSIS

Before turning to an analysis to Plaintiffs' request for monetary relief, the Court pauses to briefly discuss Plaintiffs' Fifth Cause of Action, which seeks injunctive relief based on Defendants' current and anticipated future violation of ERISA and breach of the collective bargaining agreements, the Trust Agreements and the Collection Policy, enjoining Defendants from failing to remit contributions, deductions and monthly remittance reports. (Dkt. No. 1.) Plaintiffs' counsel has indicated a desire to withdraw Plaintiffs' Fifth Cause of Action as moot, due to the fact that Defendant Kay-R Electric Corporation is no longer in business. Under the circumstances, Plaintiffs' Fifth Cause of Action is conditionally dismissed, unless, within thirty (30) days of the filing date of this Decision and Order, Plaintiffs file a letter brief indicating their intent to pursue this cause of action, along with an explanation as to why (1) they failed to seek previously seek default judgment regarding this cause of action, and (2) the cause of action is meritorious.

Turning to Plaintiffs' request for monetary relief, Plaintiffs seek entry of judgment in the amount of $216,929.26. (Dkt. No. 30.) More specifically, Plaintiffs request $67,567.19 in contributions and deductions for the period of January 2004 through January 2008, $47,352.10 in interest, $51,943.02 in liquidated damages, $16,215.28 in audit fees and costs, and $33,851.70 in attorney's fees and costs accrued in pursuing collection of Defendants' debts. (Id.)

"An employer's failure to contribute an agreed upon amount to a benefit plan pursuant to a collective bargaining agreement is an ERISA violation creating a right of action for the benefits due." Masino v. A to E, Inc., 07-CV-3462, 2009 WL 5184340, at *2 (E.D.N.Y. Dec. 21, 2009) (quotation marks omitted). Section 502(g)(2) of ...


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