United States District Court, E.D. New York
TRUSTEES OF PAVERS AND ROAD BUILDERS DISTRICT COUNCIL WELFARE, PENSION, ANNUITY, AND APPRENTICESHIP, AND SKILL IMPROVEMENT AND SAFETY FUNDS, Plaintiff,
INTERCOUNTY PAVING ASSOCIATES OF NEW YORK, LLC, Defendant.
MEMORANDUM DECISION AND ORDER
M. Cogan, U.S.D.J.
an action brought by a union benefits fund for unpaid
contributions against a participating employer. Before me are
plaintiff's motion for a default judgment and
defendant's cross-motion to vacate the Clerk's entry
of default against it and to accept its untimely answer.
There is no reason to delay entry of judgment in this case,
and the motions are disposed of accordingly.
is a party to a collective bargaining agreement
(“CBA”) with plaintiff's originator, the
Highway, Road and Street Construction Laborers Local Union
1010. As is standard, the CBA required defendant to make
monthly contributions to plaintiff as part of its obligations
to union employees, and to file written reports showing on a
monthly basis the number of union employees it had working
and their hours. As is also standard, the CBA corresponds to
certain trust agreements to which plaintiff and defendant are
complaint alleges that defendant missed its monthly
contribution for June 2016 and for the months of January 2019
through May 2019. In addition, defendant failed to submit
employee reports for the same months in 2019 that would have
allowed a precise calculation of its contributions. When that
happens, under the trust agreements, plaintiff has the right
to apply its policy for making a substitute calculation based
on projections derived from prior reports.
complaint alleges claims under section 515 of the Employee
Retirement Income Security Act of 1974 (“ERISA”),
as amended, 29 U.S.C. § 1145, and section 301
of the Labor Management Relations Act of 1947
(“LMRA”), 29 U.S.C. § 185, to collect
delinquent employer contributions. Defendant failed to
respond to the summons and complaint despite valid service.
Accordingly, the Clerk of Court noted its default upon the
record, and thereafter, plaintiff moved for entry of a
default judgment, containing detailed proof of its damage
made no response for almost six weeks, and when it finally
responded, it did not oppose the motion for default judgment;
it simply filed an answer as if it were timely responding. I
entered an Order requiring defendant to show cause as to why
the answer should not be stricken as untimely and in light of
the entry of default. Defendant responded to that Order by
moving to vacate the entry of default and for acceptance of
its untimely answer.
Defendant's Motion to Vacate Entry of Default
55(c) of the Federal Rules of Civil Procedure provides that a
court may set aside an entry of default for “good
cause.” As this language suggests, “[t]he
dispositions of motions for entries of defaults ... are left
to the sound discretion of a district court because it is in
the best position to assess the individual circumstances of a
given case and to evaluate the credibility and good faith of
the parties.” Enron Oil Corp. v. Diakuhara, 10
F.3d 90, 95 (2d Cir. 1993). The scope of this discretion,
however, is limited by the Second Circuit's
“oft-stated preference for resolving disputes on the
merits.” Id. Nevertheless, the Second Circuit
has recognized that default procedures “provide a
useful remedy when a litigant is confronted by an
obstructionist adversary. Under such circumstances those
procedural rules play a constructive role in maintaining the
orderly and efficient administration of justice.”
Id. at 96.
maintain the balance between the two competing interests, the
Second Circuit has instructed district courts to consider,
along with other relevant factors, “(1) whether the
default was willful; (2) whether setting aside the default
would prejudice the adversary; and (3) whether a meritorious
defense is presented.” Id.These factors are
applied less leniently to a defendant after a default
judgment has been entered. Id.
motion to vacate its default is denied for two principal
reasons. First, no adequate excuse for the default has been
offered. All I have been given is an attorney's affidavit
stating that because defendant has been sued three other
times by other pension funds for delinquent contributions,
some unidentified person at defendant's office overlooked
this case. Nothing has been offered as to the procedures
defendant has in place to prevent this, let alone identifying
why those procedures failed.
excuse is also unpersuasive because, just as it ignored the
summons and complaint, it similarly ignored plaintiff's
motion for a default judgment, despite being mailed a copy.
Defendant only responded to the complaint, finally, by filing
an untimely answer without leave of court well after entry of
default against it and well after the time to respond to
plaintiff's motion for a default judgment had passed.
Defendant's failure to respond to either the summons and
complaint or the motion for a default judgment compels the
conclusion that its default was willful or in reckless
disregard of its legal obligations.
finding of willfulness is buttressed by the second, and more
important, reason that I am denying the motion to vacate,
namely, that defendant has failed to articulate a meritorious
defense. The only potential defense to which the
attorney's affidavit alludes is that the CBA under which
plaintiff is claiming delinquent contributions may have
expired. However, as defendant acknowledges, the CBA
continued by its express terms from year to year, unless
terminated by timely notice. Defendant has not even suggested
it gave notice, let alone annexing a copy of such notice, so
its defense fails as a matter of law. It would make little
sense for me to vacate the ...