United States District Court, D. Colorado
EIGHTH DISTRICT ELECTRICAL PENSION FUND, EIGHTH DISTRICT ELECTRICAL PENSION FUND ANNUITY PLAN, JAMES MANTELE, as Chairman of the Delinquency Committee for the Eighth District Electrical Pension Fund and Eighth District Electrical Pension Fund Annuity Plan, NATIONAL ELECTRICAL BENEFIT FUND, and MOUNTAIN STATES LINE CONSTRUCTORS AREA JOINT APPRENTICESHIP AND TRAINING TRUST FUND, Plaintiffs,
POWER FOUNDATIONS, LLC, Defendant.
ORDER GRANTING PLAINTIFFS' MOTION FOR DEFAULT
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs Eighth District
Electrical Pension Fund, Eighth District Electrical Pension
Fund Annuity Plan, James Mantele, National Electrical Benefit
Fund, and Mountain States Line Constructors Area Joint
Apprenticeship and Training Trust Fund's Motion for Entry
of Default Judgment Against Defendant Power Foundations, LLC.
(Doc. # 16.) Defendant has not responded to Plaintiffs'
Motion. For the reasons that follow, the Court
grants Plaintiffs' Motion.
bring this suit to collect delinquent fringe benefit
contributions from Defendant pursuant to the Employee
Retirement Income Security Act (“ERISA”) and
collective bargaining agreements (“CBAs”) with
International Brotherhood of Electrical Workers Local Union
No. 57 (“Local 57”). (Doc. # 1 at 1.) There are
five Plaintiffs: (1) Eighth District Electrical Pension Fund
(“Pension Fund”); (2) Eighth District Electrical
Pension Fund Annuity Plan (“Annuity Plan”); (3)
James Mantele; (4) National Electric Benefit Fund
(“NEBF”); and (5) Mountain States Line
Constructors Area Joint Apprenticeship and Training Trust
Fund (“JATC”). (Id. at 2-3.) Except for
Mantele, the other Plaintiffs (hereafter “Funds”)
are each an “employee benefit plan” within the
meaning of 29 U.S.C. § 1002(3) and a
“multiemployer plan” within the meaning of 29
U.S.C. § 1002(37). (Id. at 2-3.) The Funds were
established and operate pursuant to a written agreement
and/or declaration of trust (“Trust Agreement”).
(Id. at 4.)
Power Foundations, LLC is a limited liability company
incorporated in Utah and with its principal place of business
in St. George, Utah. (Id. at 3.) Plaintiffs assert
that Defendant is an employer within the meaning of 29 U.S.C.
§ 1002(5). (Id.) Defendant has agreed to one or
more CBAs with Local 57. (Id.) These CBAs govern the
terms and conditions of employment of Defendant's
employees performing work covered by the CBAs. (Id.
at 3-4.) Plaintiffs assert that every month Defendant is
obligated under the CBAs and Trust Agreements to
“timely submit reports and fringe benefit
contributions” to the Funds. (Id.) Payments
not made by the 15th day of the following month are deemed
allege that Defendant failed to make contributions to the
Funds for the hours of covered work performed by its
employees under the CBAs during the months of November 2017
and December 2017. (Id. at 4-5.) Therefore,
Plaintiffs assert that Defendant effectively breached the
CBAs and Trust Agreements, as well as its obligations under
ERISA, 29 U.S.C. § 1145. (Id. at 5.) Because of
this breach, Plaintiffs assert that Defendant is liable to
Plaintiffs for the delinquent payments in the amount of $15,
020.09, interest on the delinquent payments accruing both pre
and post judgment, liquidated damages in the amount of $1,
578.78, and reasonable attorney's fees. (Id.)
filed their Complaint on April 2, 2019. (Id. at 1.)
Plaintiffs assert that they properly served Defendant by
certified mail (Doc. # 16-1); however, Defendant did not file
a Response. On June 13, 2019 and June 27, 2019, Plaintiffs
filed Motions for Entry of Default and Default Judgment.
(Doc. ## 12, 14.) The Clerk of the Court declined to docket
an Entry of Default on both occasions because Plaintiffs
failed to attach proof of service of process to their
Motions. (Doc. ## 13, 15.) On August 7, 2019, Plaintiffs
filed a renewed Motion for Entry of Default and Default
Judgment (Doc. # 16), and on August 9, 2019, the Clerk of the
Court docketed an Entry of Default (Doc. # 17).
STANDARD OF REVIEW
to the Federal Rules of Civil Procedure, courts must enter a
default judgment against a party that has failed to plead or
otherwise defend an action brought against it. Fed.R.Civ.P.
55(b)(2). Default judgment may be entered by the clerk of
court if the claim is for “a sum certain, ”
Fed.R.Civ.P. 55(b)(1), in all other cases, “the party
must apply to the court for a default judgment.”
[D]efault judgment must normally be viewed as available only
when the adversary process has been halted because of an
essentially unresponsive party. In that instance, the
diligent party must be protected lest he be faced with
interminable delay and continued uncertainty as to his
rights. The default judgment remedy serves as such a
In re Rains, 946 F.2d 731, 732-33 (10th Cir. 1991)
(internal quotation marks and citation omitted).
default amounts to an admission of liability, and all
well-pleaded allegations in the complaint pertaining to
liability are deemed true. See Greyhound Exhibitgroup,
Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d
Cir. 1992) (internal citation omitted); Lyons P'ship,
L.P. v. D&L Amusement & Entm't, Inc., 702
F.Supp.2d 104, 109 (E.D.N.Y. 2010). “The Court also
accepts as undisputed any facts set forth by the moving party
in affidavits and exhibits.” Bricklayers &
Trowel Trades Int'l Pension Fund v. Denver
Marble Co., No. 16-CV-02065-RM, 2019 WL 399228, at *2
(D. Colo. Jan. 31, 2019) (citing Purzel Video GmbH v.
Biby, 13 F.Supp.3d 1127, 1135 (D. Colo. 2014)). It
“remains for the court to consider whether the
unchallenged facts constitute a legitimate cause of action,
since a party in default does not admit conclusions of
law.” Leider v. Ralfe, No. 01 Civ. 3137 (HB)
(FM), 2004 WL 1773330, at *7 (S.D.N.Y. July 30, 2004)
(quoting In re Indus. Diamonds Antitrust Litig., 119
F.Supp.2d 418, 420 (S.D.N.Y. 2000)).
courts are required to make an independent determination of
the amount of damages to be awarded, unless the amount of
damages is certain. Ullico Cas. Co. v. Abba Shipping
Lines, Inc., 891 F.Supp.2d 4, 7 (D.D.C. 2012) (citing
Int'l Painters & Allied Trades Indus. Pension
Fund v. Davanc Contracting, Inc., 808 F.Supp.2d 89, 94
(D.D.C. 2011)). “In instances where the amount of
damages is not certain, the court may hold a hearing, but is
not required to do so as long as there is a basis for
determining damages for purposes of the default
judgment.” Id. (citing Flynn v. Extreme
Granite, Inc., 671 F.Supp.2d 157, 160 (D.D.C. 2009)).
instance, courts need not conduct a hearing “if the
amount claimed is a liquidated sum or one capable of
mathematical calculation.” Eighth Dist. Elec.
Pension Fund v. Campbell Elec., Inc., No.
16-cv-03040-CMA, 2017 WL 1243059, at *2 (D. Colo. Mar. 17,
2017) (quoting Hunt v. Inter-Globe Energy, Inc., 770
F.2d 145, 148 (10th Cir. 1985)). In making an independent
determination of the amount of damages, “the court may
rely on detailed affidavits or documentary evidence.”
Id. (quoting Breaking the Chain Found., Inc. v.
Capitol Educ. Supp., Inc., 589 F.Supp.2d 25, 28 (D.D.C.
2008)); Lopez v. Highmark Constr., LLP, No.
17-cv-01068-CMA-MLC, 2018 WL 1535506, at *3 (D. Colo. Mar.
29, 2018) (same).
context of a default judgment, a plaintiff “must . . .
establish that on the law it is entitled to the relief it
requests, given the facts as established by the
default.” PHL Variable Ins. Co. v. Bimbo, No.
17-CV-1290 (FB) (ST), 2018 WL 4691222, at *2 (E.D.N.Y. Aug.
30, 2018), report and recommendation adopted, No.
17-CV-1290 (FB) (ST), 2018 WL 4689580 (E.D.N.Y. Sept. 28,
2018) (quoting Trs. of the Plumbers Local Union
No. 1 Welfare Fund v. Generation II Plumbing & Heating,
Inc., No. 07CV5150 (SJ) (SMG), 2009 WL 3188303, at *2
(E.D.N.Y. Oct. 1, 2009)).
a clerk's entry of default, courts follow two steps
before granting default judgment. First, a court must ensure
it has subject matter and personal jurisdiction. 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) (holding that default judgment against
defendant over whom court has no personal jurisdiction is
void). Second, courts must consider whether the well-pleaded
allegations of fact-which are admitted by a defendant upon
default-support a judgment on the claims against the
defaulting defendant. See Tripodi v. Welch, 810 F.3d
761, 764 (10th Cir. 2016) (plaintiff in a default action did
not need to prove complaint's factual allegations;
however, the judgment must be supported by a sufficient basis
in the pleadings).
Subject Matter Jurisdiction
assert that the Court has federal question jurisdiction over
this matter pursuant to 29 U.S.C §§ 185(c), 1132,
and 1145 due to its ERISA claims. (Doc. # 1 at 3.) Federal
question jurisdiction is governed by 28 U.S.C. § 1331,
which provides in pertinent part that “[t]he district
courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” Because Plaintiffs' ERISA cause of
action arises under federal law, this Court has jurisdiction.
Court must also determine that Plaintiffs have made a
prima facie case that exercising personal
jurisdiction over Defendant is proper. Dennis Garberg and
Assocs., Inc. v. Pack-Tech Int'l. Corp., 115 F.3d
767, 773 (10th Cir. 1997). An analysis of personal
jurisdiction involves a two-step inquiry. First, the Court
must determine “whether any applicable statute
authorizes the service of process on [the] Defendant.”
Dudnikov v. Chalk & Vermilion Fine Arts, Inc.,
514 F.3d 1063, 1070 (10th Cir. 2008). Second, the Court must
examine whether the exercise of such statutory jurisdiction
comports with constitutional due process demands.
Service of Process
Court must first address the adequacy of service in deciding
whether it has personal jurisdiction over Defendant.
Reg'l Dist. Council v. Mile High Rodbusters,
Inc., 82 F.Supp.3d 1235, 1241 (D. Colo. 2015).
Plaintiffs' Complaint identifies Defendant as a
corporation. (Doc. # 1 at 3.) Therefore, the Court analyzes
the adequacy of service pursuant to Fed.R.Civ.P. 4(h), which
establishes the requirements for service on a corporation,
partnership, or association. Such an organization may be
served “in the manner prescribed by Rule 4(e)(1) for
serving an individual.” Fed.R.Civ.P. 4(e)(1). Pursuant
to Rule 4(e)(1), “[u]nless otherwise provided by
federal law, ...