United States District Court, D. Colorado
BRICKLAYERS AND TROWEL TRADES INTERNATIONAL PENSION FUND (IPF); BRICKLAYERS & ALLIED CRAFTWORKERS INTERNATIONAL HEALTH FUND IHF; COLORADO TROWEL TRADES JOINT APPRENTICESHIP AND TRAINING FUND; and INTERNATIONAL MASONRY INSTITUTE IMI, Plaintiffs,
THE DENVER MARBLE COMPANY, Defendant.
RAYMOND P. MOORE United States District Judge.
matter is before the court on Plaintiffs' Motion for
Entry of Judgment by Default and for Award of Attorneys'
Fees and Non-Taxable Costs (“Motion”) (ECF No.
23) filed pursuant to Fed.R.Civ.P. 55(b) and 54(d)(2). For
the reasons stated below, the Motion is denied without
clerk of court must enter a party's default when that
party has failed to plead or otherwise defend itself.
Fed.R.Civ.P. 55(a). Thereafter, upon the necessary showing,
default judgment must be entered by the clerk of court if the
claim is for “a sum certain”; in all other cases,
“the party must apply to the court for a default
judgment.” Fed.R.Civ.P. 55(b)(1)-(2). “[A] party
is not entitled to a default judgment as of right; rather the
entry of a default judgment is entrusted to the ‘sound
judicial discretion' of the court.” Greenwich
Ins. Co. v. Daniel Law Firm, No.
07-cv-2445-LTB-MJW, 2008 WL 793606, at *2 (D. Colo. Mar. 22,
2008) (citation omitted, brackets in original); Tripodi
v. Welch , 810 F.3d 761, 764 (10th Cir. 2016) (default
judgment committed to court's sound discretion).
the Court may grant a motion for default judgment, it must
take several steps. First, the Court has an affirmative duty
to ensure its jurisdiction over both the subject matter of
the action and the parties. Williams v. Life Sav. &
Loan, 802 F.2d 1200, 1203 (10th Cir. 1986); Marcus
Food Co. v. DiPanfilo, 671 F.3d 1159, 1166 (10th Cir.
2011) (default judgment against defendant over whom court has
no personal jurisdiction is void). Next, the Court should
consider whether the well-pled allegations of fact-which are
admitted by a defendant upon default-support a judgment on
the claims against the defaulting defendant. See
Tripodi, 810 F.3d at 764 (by his default, defendant
relieved plaintiff from having to prove complaint's
factual allegations; the judgment, however, must be supported
by sufficient basis in the pleadings).
an action for alleged unpaid contributions under ERISA, 29
U.S.C. 1132(g)(2)(A), and under a Collective Bargaining
Agreement (“CBA”). Specifically, Plaintiffs'
Complaint against Defendant The Denver Marble Company seeks
any unpaid contributions “as well as any other
contributions determined as due by audit, timecards, or
otherwise pursuant to ERISA”; liquidated damages on all
late-paid and unpaid contribution under the CBA and ERISA;
interest; reasonable attorneys' fees and costs, including
audit fees; injunctive relief; and the court to retain
jurisdiction pending compliance with any court order. (ECF
No. 1, pages 8-9.) Plaintiffs assert one claim for relief
based on ERISA and the CBA.
was served with the complaint, and other documents, on
September 5, 2016, but failed to timely answer or otherwise
respond. Upon Plaintiffs' motion for default, the Clerk
entered an order of default against Defendant. (ECF No. 17,
18.) Thereafter, Plaintiffs filed the Motion at issue.
Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. § 1331 and 29 U.S.C. §
1132(e) as this action arises under ERISA and supplemental
jurisdiction pursuant to 28 U.S.C. § 1367 to the extent
it also arises under state law. The Court has personal
jurisdiction over Defendant as it is a Colorado corporation
and has been personally served in Colorado. Accordingly, the
Court finds the jurisdictional requirements are met.
stated, Plaintiffs' Complaint seeks to recover unpaid
contributions, as well as other damages and injunctive
relief, under ERISA and the CBA. Plaintiffs' Motion,
however, fails to show default judgment may enter on their
the Motion only refers to recovery under ERISA, leaving open
the issue of recovery under the CBA, or the interplay between
the two sources upon which recovery is sought. The
Declaration of Mr. Stupar sheds light on the bases for
recovery, but it is not the obligation of the Court to piece
together the parties' arguments. See Mitchell v. City
of Moore, 218 F.3d 1190, 1199 (10th Cir. 2000)
(“The district court was not obligated to comb the
record in order to make [plaintiff's] arguments for
him.”). Next, Plaintiffs' Motion fails to
sufficiently establish that they may recover under ERISA.
Specifically, Plaintiffs fail to set forth (1) the elements
for recovery under 29 U.S.C. § 1132(g)(2)(A), and (2)
how their deemed admitted factual allegations, coupled with
Mr. Stupar's declaration, support such recovery. Finally,
Plaintiffs' Motion seeks an entry of judgment as to
unpaid contributions and other damages but leaves open for
resolution Plaintiffs' request for injunctive relief. It
is unknown if this request is now being withdrawn. And, if
the request is not being withdrawn, Plaintiffs fail to show
that such relief may be had. These issues may implicate