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denying plaintiffs the relief sought in a declaration in support of its motion for default judgment and limiting relief to what was pled in the complaint
Summary of this case from Trs. of the Plumbers & Pipefitters Nat'l Pension Fund v. JTL Air Conditioning & Refrigeration, Inc.Opinion
Civil Action No.: 1:04cv1109.
June 1, 2005
REPORT AND RECOMMENDATION
On April 22, 2005, U.S. Magistrate Judge Barry R. Poretz heard Plaintiffs' Motion for Entry of Default Judgment (Dkt. no. 7) pursuant to 28 U.S.C. Section 636. Plaintiffs appeared through Counsel, and Defendant did not appear or otherwise defend the Motion. The Magistrate Judge took Plaintiff's Motion under advisement pending issuance of this Report and Recommendation. For the reasons stated herein, the Magistrate Judge recommends a default judgment in the amount of $11,449.10 plus interest.
I. Procedural History
Plaintiffs filed their Complaint on September 20, 2004 alleging, inter alia, that Defendant violated the Employee Retirement Income Security Act of 1974 ("ERISA") and the Labor Management Act. (Compl., Dkt. no. 1). In the Complaint, Plaintiffs allege three counts and pray for "at least the sum of $3,387.68" for the period "August 2001 to the present" (Count 1); an audit of Defendant's records relative to owing contributions (Count 2); and a permanent injunction on Defendant to perform fully its contractual obligations (Count 3). (Dkt. no. 1).
Plaintiffs served Defendant's authorized agent by private process server with a Summons and a copy of the Complaint on October 4, 2004. (Dkt. no. 3). Defendant has not filed an answer or otherwise filed a responsive pleading in this action. Upon Plaintiffs' request, the Clerk properly entered a Default for Plaintiffs on October 27, 2004. (Dkt. no. 6).
In their instant Motion, Plaintiffs request an award of $66,820.36 based on its allegations that Defendant owes (a) $47,269.66 in contributions for the periods from February 2001 through August 2001 and from April 2004 through February 2005, (b) $3,714.07 in accrued interest, (c) $9,453.86 in liquidated damages, (d) $1,006.03 in late fees, (e) $5,018.00 in attorney's fees, and (f) $358.74 in costs. (Mot., Dkt. no. 7). On April 22, 2005, Plaintiffs filed an Amended Declaration increasing their claim for attorney's fees from $5,018.00 to $7,665.00 and for costs from $358.74 to $396.52. (Bahuriak Am. Decl., Dkt. no. 10).
II. Plaintiff's Averments
A. Complaint 1. The Parties
The Plaintiffs are (i) Sheet Metal Workers' National Pension Fund ("NPF"), (ii) International Training Institute for the Sheet Metal and Air Conditioning Industry ("ITI") (f/k/a National Training Fund for the Sheet Metal and Air Conditioning Industry), (iii) Sheet Metal Workers' International Association Scholarship Fund ("SMWIASF") (collectively referred to as the "Funds"). (Compl., Dkt. no. 1, ¶ 4). The Funds are administered in Alexandria, Virginia. (Compl., Dkt. no. 1, ¶ 4).
Defendant, Frank Torrone Sons, Inc. a/k/a Frank Torrone Sons a/k/a Torrone Signs ("Company") is a New York corporation with its principal place of business at 400 Broadway, Staten Island, New York. (Compl., Dkt. no. 1). Defendant employs employees represented for the purposes of collective bargaining by Sheet Metal Workers' International Association Local Union No. 137 ("Local 137"). (Compl., Dkt. no. 1, ¶¶ 5, 9).
2. Cause of Action
Plaintiffs bring this action under 29 U.S.C. Sections 1132, 1145, and 185 to enforce Defendant's obligation to contribute to the Funds and to enforce their rights arising out of Defendant's violation of a collective bargaining agreement ("CBA") and certain "terms of agreements and declarations of trust" ("Trust Agreement"). (Compl., Dkt. no. 1, ¶¶ 6-7).
NPF, ITI, and SMWIASF are jointly trusteed funds established and maintained under 29 U.S.C. Section 186(c) and are "multiemployer plans" as defined in 29 U.S.C. Section 1002(37). (Compl., Dkt. no. 1, ¶ 4). Defendant, a party to a CBA and Trust Agreement with Local 137, is bound to certain rules and regulations adopted by the Funds' trustees and is a labor organization representing employees in an industry affecting interstate commerce. (Compl., Dkt. no. 1, ¶¶ 6-9).
Based on the CBA, Trust Agreements, and the adopted rules and regulations, Defendant must: (a) make full and timely payments on a monthly basis to the Funds, (b) file monthly remittance reports with the Funds detailing all employees or work for which contributions were required under the CBA, (c) produce, upon Plaintiffs' request, all books and records deemed necessary to conduct an audit of Defendant's records concerning its obligations to the Funds, and (d) pay liquidated damages, interest, costs of an audit, litigation costs, and reasonable attorney's fees expended in enforcing Defendant's obligations under the agreements. (Compl., Dkt. no. 1, ¶ 8). The completed remittance reports and accompanying contributions are due to the Funds by the twentieth (20th) day following the month in which the covered employment occurred. (Compl., Dkt. no. 1, ¶ 10).
In Count 1, Delinquent Contributions, Plaintiffs allege that Defendant failed to submit remittance reports and contributions for Defendant's covered employees from "August 2001 to the present [Complaint was filed on September 20, 2004]." (Compl., Dkt. no. 1, ¶ 12-13). For Defendant's failure to submit the required reports and contributions, Plaintiffs claim Defendant "owes at least $3,387.68." (Compl., Dkt. no. 1, ¶ 14).
Pursuant to Count 2, Audit, Plaintiffs allege that it has not audited Defendant to determine the precise amount due and owing, and that without such information, Plaintiffs are unable to determine "a participants eligibility for benefits or calculate the amount of benefits to which the participant is entitled." (Compl., Dkt. no. 1, ¶¶ 19-23).
In Count 3, Injunction, Plaintiffs aver that a "money judgment or other remedy available at law is inadequate" based on Defendant's consistent pattern of delinquencies or late contributions. (Compl., Dkt. no. 1, ¶ 27). Plaintiffs claim that Defendant's continued failure to submit reports and contributions will cause Plaintiffs irreparable harm. (Compl., Dkt. no. 1, ¶ 28).
B. Motion for Entry of Default Judgment
Plaintiffs support the factual averments presented in their instant Motion through the Declaration of Walter Shaw, NPF's Billing and Eligibility Manager. (Mot., Dkt. no. 7, ex. 1, Shaw Decl.). Upon his review of the Funds' records, Mr. Shaw concludes that Defendant has failed to submit the contractually-required monthly contributions to Local 137 for the periods of: (a) February 2001 through August 2001 and (b) April 2004 through February 2005. (Mot., Dkt. no. 7, ex. 1, Shaw Decl. at ¶ 4).
Mr. Shaw calculates the contributions owing for February 2001 through August 2001 as $3,167.70 based on Defendant's submitted reports. (Mot., Dkt. no. 7, ex. 1, Shaw Decl. at ¶ 4). For the period of April 2004 through February 2005, Mr. Shaw declares that Defendant failed to submit the contractually-required reports. (Mot., Dkt. no. 7, ex. 1, Shaw Decl. at ¶ 4). For this latter period, Mr. Shaw estimates the amounts owning at $44,101.96. (Mot., Dkt. no. 7, ex. 1, Shaw Decl. at ¶ 4).
Mr. Shaw derives this figure by (a) reviewing previously-submitted remittance reports for the 12-month period immediately prior to the month for which no report was submitted (b) selecting the month in this period that has the highest number of hours, and (c) multiplying these hours by the applicable contribution rates for each fund. (Mot., Dkt. no. 7, ex. 1, Shaw Decl. at ¶ 4). Based on his review, Mr. Shaw determines that May 2003 yielded the highest number of hours.
Mr. Shaw's Declaration provides that under the Funds' Agreements and Declarations of Trust and pursuant to 29 U.S.C. Section 1132(g)(2), delinquent employers must pay NPF, ITI, and SMWIASF (i) interest on the delinquent contributions, (ii) liquidated damages in an amount equal to the greater of the interest accrued on the delinquent contributions or twenty percent (20%) of the delinquent contributions, (iii) late fees, equal to the greater of fifty dollars ($50.00) or an amount equal to ten percent (10%) of the contributions paid, for each monthly contribution not submitted when due or as required by the Funds, but which have been received by the Funds prior to the filing of this action, and (iv) all attorney's fees and costs incurred. (Mot., Dkt. no. 7, ex. 1, Shaw Decl. at ¶ 5).
Mr. Shaw estimates that Defendant further owes the Funds $3,714.07 in interest (accrued to March 30, 2005) and $9,453.86 in liquidated damages. Plaintiffs' Counsel, Jennings Sigmond, P.C., in its Motion alleges late fees of $1,006.03 and cites Mr. Shaw's Declaration in support, but Mr. Shaw does not attest to any accrued late fees in his Declaration. ( Compare Mot., Dkt. no. 7 at 7 with its ex. 1, Shaw Decl. at ¶ 8).
Plaintiffs' Motion does not state with particularity the grounds for Defendant's liability on Count 2, Audit, and Count 3, Injunction. (Mot., Dkt. no. 7). However, the Magistrate Judge can infer from the Motion that Plaintiffs seek liability pursuant to Count 1, Delinquent Contributions, based on the arguments presented in the Motion. For Defendant's failure to submit contributions from February 2001 to August 2001 and April 2004 to February 2005, Plaintiffs' Motion seeks an award of $69,505.14 as comprised of $47,269.66 in contributions, $3,714.07 in interest, $9,453.86 in liquidated damages, $1,006.03 in late fees, $396.52 in costs, and $7,665.00 in legal fees. (Mot., Dkt. no. 7 Bahuriak Decl., Dkt. no. 10).
C. Summary of Damage Request
To summarize the damage requests, in its Complaint Plaintiffs seek (a) an award of "at least $3,387.68" for delinquent contributions from August 2001 to the present [Complaint filed on September 20, 2004] plus unspecified liquidated damages, interest, costs and attorney's fees, (b) an audit, and (c) an injunction requiring Defendant to perform its contractual obligations. (Compl., Dkt. no. 1). Through its Motion, Plaintiffs request (a) an award of $47,269.66 for owing contributions from February 2001 to August 2001 and from April 2004 to February 2005, (b) $3,714.07 in interest, (c) $9,453.86 in liquidated damages, (d) $1,006.03 in late fees, (e) $396.52 in costs, and (f) $7,665.00 in legal fees. (Mot., Dkt. no. 7 Bahuriak Decl., Dkt. no. 10).
III. Findings of Fact and Conclusions of Law
A. Jurisdiction, Process, Default
Subject matter jurisdiction in this action is based on federal question jurisdiction under 28 U.S.C. Section 1331 because Plaintiffs' claims arise under 29 U.S.C. Section 1132. This Court has personal jurisdiction over Defendant because the Funds are administered in the Eastern District of Virginia. See 29 U.S.C. Section 1132(e)(2) ("Where an action under this subchapter is brought in a district court of the United States, it may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found.").
As the record reveals, Plaintiffs properly served Defendant's authorized agent, Arlene Torrone, Defendant's Office Manager, at 400 Broadway, Staten Island, New York with a Summons and a copy of the Complaint on October 4, 2004. (Dkt. no. 3). After receiving service of process, Federal Rule of Civil Procedure 12 required Defendant to defend the action by serving an answer or other responsive pleading within twenty (20) days. Because Defendant did not serve an answer or other responsive pleading by October 25, 2004, Plaintiffs were entitled to request the Clerk of this Court to enter a default under Rule 55(a). Upon Plaintiff's Request for Entry of Default on October 27, 2004 (Dkt. no. 4), the Clerk promptly entered Defendant's Default. (Dkt. no. 6). Consequently, the Magistrate Judge concludes that Defendant is in default for the purposes of the instant Motion.
B. Defendant's Liability
The Magistrate Judge finds that Defendant admits Plaintiffs' averments in the Complaint. As a general rule, a defendant in default admits the factual allegations in the complaint:
Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.
Fed.R.Civ.Pro. 8(d); See e.g., Globalsantafe Corp. v. Globalsantafe.com, 250 F. Supp. 2d 610, 612 n. 3 (E.D. Va. 2003) ("Upon default, facts alleged in the complaint are deemed admitted."); Music City v. Alfa Foods, Ltd., 616 F. Supp. 1001, 1002 (E.D. Va. 1985) ("the averments, not denied, contained in plaintiffs' complaint are deemed to be admitted"). Because no responsive pleading is required in response to a motion for default judgment, a court must take the averments in the motion as denied. Fed.R.Civ.Pro. 8(d); See also, Fed.R.Civ.Pro. 5(a) ("No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4"). However, when a plaintiff's claim against a defendant is for a sum certain in a default judgment action, proof of the amount of damages may be established by plaintiff's affidavit where the defendant defaults for failing to appear. Fed.R.Civ.Pro. 55(b).
1. Liability on Count 1
The Magistrate Judge finds that Defendant admits the factual allegations in the Complaint. Defendant admits that from "August 2001 to the present" it failed to submit certain contributions to Plaintiffs. (Compl., Dkt. no. 1, ¶¶ 12-13). Because the Complaint was filed on September 20, 2004, the Magistrate Judge finds that the "present" constructively means September 20, 2004. Therefore, by operation of law, Defendant admits that it failed to submit contributions, reports, or both for certain periods from August 2001 to September 20, 2004.
The Magistrate Judge cannot find that Defendant admits, by defaulting, that it violated the terms of the CBA beyond the filing date of the Complaint. The speculative allegation in the instant Complaint that Defendant will fail to submit contributions for future periods ( i.e., from September 20, 2004 to February 2005) does not relate to a "transaction or occurrence" and is not sufficiently direct pursuant to the Federal Rules of Civil Procedure. Rule 8(e) requires that all pleadings, like complaints, be simple, concise, and direct. Furthermore, Rule 11(b) requires that all representations to the court in a complaint must have some evidentiary support, and Rule 10 provides that averments of a claim must relate to a "set of circumstances" and be based on a "transaction or occurrence." Notwithstanding the Rules, it would frustrate the ends of justice if plaintiffs were allowed to file claims against individuals for "possible" future violations that had yet to occur.
Plaintiffs, however, through the Declaration of Mr. Shaw request the Court to find that Defendant failed to submit contributions for the period of February 2001 to August 2001 and failed to submit monthly reports and contributions for the period of April 2004 to February 2005. (Mot., Dkt. no. 7, ex. 1, Shaw Decl.). By comparing the Complaint and Mr. Shaw's Declaration supporting the Motion, it is readily apparent to the Magistrate Judge that the Complaint omitted any allegation that Defendant failed to submit contributions for the period from February 2001 to July 2001. Therefore, the Magistrate Judge cannot find that Defendant admits violations for the period from February 2001 to July 2001, but instead, finds that Defendant denies any such allegation by operation of law. See Fed.R.Civ.Pro. 8(d) ("Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.").
The Magistrate Judge can find, however, that Defendant admits violations for the period from August 2001 to September 20, 2004. In this respect, the Magistrate Judge finds that Defendant admits to failing to submit contributions for the month of August 2001, and further admits to failing to submit reports and contributions for the period from April 2004 to September 20, 2004. Consequently, at this time, the Magistrate Judge concludes that Defendant is only liable pursuant to Count 1 for failing to submit contributions for the month of August 2001 and for failing to submit reports and contributions for the period from April 2004 to September 20, 2004.
2. Liability for Counts 2 3
The Magistrate Judge cannot enter any findings or conclusions with respect to Plaintiffs' claims for an Audit (Count 2) and an Injunction (Count 3) in the Complaint. All motions filed with the court "shall state with particularity the grounds" for the requested relief. Fed.R.Civ.Pro. 7(b)(1). Although by Local Rule, a motion for a default judgment need not be accompanied by a brief in this Court, the motion must still "state with particularity the grounds" for the requested relief. Compare Local Civ. R. 7(F) with 7(A). Consequently, this Court thoroughly examines the factual and legal bases advanced in support of a motion for default judgment.
Although a defaulting defendant generally admits to the factual allegations in a complaint, the court may make an investigation into any matter — including whether "to determine the amount of damages or to establish the truth of any averment by evidence." Fed.R.Civ.Pro. 55(b)(2). Such determinations necessarily include whether there are sound legal and factual bases for entry of default judgment for the counts asserted in the plaintiff's complaint. See, AOL, Inc. v. Hawke, No. 1:04cv259 (E.D. Va. May 2, 2005) (Ellis, J.) (unpublished disposition).
In AOL, Inc. v. Hawke, for example, plaintiff asserted nine counts in its complaint, and certain defendants defaulted by failing to answer or otherwise appear. Id. In its motion for default judgment, plaintiff requested entry of default judgment on all nine counts, but only reasoned, supported, and argued defendants' liability as to count I. Id. U.S. Magistrate Judge Barry R. Poretz in his Report and Recommendation to U.S. District Judge T.S. Elliot, III held that he could not recommend a finding as to defendants' liabilities as to counts II through IX because plaintiff failed to state with particularity in its motion the grounds for its requested relief on those counts. Id., dkt. no. 55, Rep. and Recomm. Plaintiff timely objected to Judge Poretz's findings regarding the defendants' liabilities on counts II through IX, but Judge Ellis concurred with, and adopted, Judge Poretz's analysis:
Plaintiff's initial memorandum of law in support of its motion for a default judgment does not discuss the statutory provision and common-law authority underlying the causes of action set forth in Counts II-IX. Additionally, the damages sought in that memorandum are based entirely on a finding of liability on Count I. The Magistrate Judge's decision not to enter a finding of liability with respect to Counts II-IX was therefore correct.Id., dkt. no. 61, Judgment Order.
Like the plaintiffs in AOL, Plaintiffs here do not state with particularity the grounds for any requested relief on Counts 2, Audit, and 3, Injunction, in their instant Motion. Plaintiffs provide no statutory analysis, case law, or other grounds for the Magistrate Judge to enter a finding and recommend a disposition as to Counts 2 and 3. Moreover, pursuant to Local Civil Rule 7(A), the Magistrate Judge will disregard any statements suggestive of relief in Plaintiffs' proposed default judgment and order and in the Declaration of Mr. Shaw.
Plaintiffs' proposed default judgment and order does request an audit and certain injunctive relief. However, Plaintiffs'motion must "state with particularity the grounds" for this requested relief. Second, those statements made by Mr. Shaw in his Declaration which could be construed as Plaintiffs' legal position relative to Counts 2 and 3 cannot be considered by the Magistrate Judge. ( See e.g., Shaw Decl., Dkt. no. 7 at ¶ 10 ("The Defendant in this case, therefore, should be required to submit timely current contributions and remittance reports in the future and to immediately submit all remittance reports and contributions that are outstanding on the date judgment is entered in the present proceeding."). Mr. Shaw is not authorized to practice law or advance any legal arguments before this Court. In essence, Plaintiffs' Counsel cannot, and should not, boot strap its legal arguments supporting the requested relief for their clients in the declarations submitted in support of their Motions. The legal bases for their requested relief should be fully analyzed in the body of their motion, with supporting statutory analysis, case law, and rationale.
Based on the foregoing, the Magistrate Judge concludes that Plaintiffs' have supported a finding of Defendant's liability as to Count 1 for Defendant's failure to submit contributions for August 2001, and for Defendant's failure to submit remittance reports and contributions for the period from April 2004 to September 20, 2004.
C. Measure of Damages
The Magistrate Judge finds that Defendant should pay its contribution for August 2001, and pay an estimated contribution for April 2004 to September 20, 2004 plus interest, costs, and reasonable attorney's fees subject to the limits imposed by Rule 54(c).
For ERISA actions involving delinquent contributions, fund administrators are entitled to unpaid contributions, liquidated damages, interest, costs, and attorney's fees:
In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title 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 the amount determined by the court under subparagraph (A),
(D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court deems appropriate.29 U.S.C. § 1132(g)(2). Despite the general entitlement to certain relief, plaintiffs still bear the burden of proving damages, which if proven, are subject to the limitations of Rule 54(c). Fed.R.Civ.Pro. 55(d) ("In all cases a judgment by default is subject to the limitations of Rule 54(c).").
Rule 54(c) expressly limits the amount of damages in a default case to the amount pled in the complaint:
A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings.
Fed.R.Civ.Proc. 54(c) (emphasis added). This Rule operates to protect a defendant who chooses to default:
The theory of this provision is that the defending party should be able to decide on the basis of the relief requested in the original pleading whether to expend the time, effort, and money necessary to defend the action. It would be fundamentally unfair to have the complaint lead defendant to believe that only a certain type and dimension of relief was being sought and then, should defendant attempt to limit the scope and size of the potential judgment by not appearing or otherwise defaulting, allow the court to give a different type of relief or a larger damage award . . . If defendant chooses not to proceed, liability cannot be increased. This principle seems applicable whether or not defendant appears at the damage hearing and therefore should not turn on when the default occurs.
10 Fed. Prac. Proc. Civ. 3d § 2663. In considering the scope of Rule 54(c), the U.S. Court of Appeals for the Fourth Circuit has held that in default cases, there can be no recovery over the amount pled in the complaint, and that the complaint must pray for a specific monetary amount. See Eddins v. Medlar, Nos. 87-2602, 89-2910, 881 F.2d 1069, 1989 WL 87630 at *1, 3 (4th Cir. July 21, 1989) ("[Rule 54(c)] expressly protects a defaulting party from a judgment in excess of that demanded in the complaint.") (unpublished opinion); Compton v. Alton Steamship Co., 608 F.2d 96, 105 (4th Cir. 1979) ("[T]he relief available on default [should] be such as is within the fair scope of the allegations of the complaint and, when money judgment is sought, the specific amount demanded.") (internal citations omitted) (emphasis added). In variance with Rule 54(c) and its interpretation in the Fourth Circuit, Plaintiffs' Complaint, which seeks a money judgment, does not specify the amount demanded.
Here, Plaintiffs' Complaint prays for a monetary award for owing contributions of "at least $3,387.68," and unquantified liquidated damages, interest, attorney's fees, costs, and certain injunctive relief. In its Motion, Plaintiffs substantially increases its request for a monetary award to include (a) an award of $47,269.66 for owing contributions from February 2001 to August 2001 and from April 2004 to February 2005, (b) $3,714.07 in interest, (c) $9,453.86 in liquidated damages, (d) $1,006.03 in late fees, (e) $396.52 in costs, and (f) $7,665.00 in legal fees. (Mot., Dkt. no. 7 Bahuriak Decl., Dkt. no. 10).
The Magistrate Judge finds that Plaintiffs' award for owing contributions should be limited to $3,387.68. Although Plaintiffs use the prefatory words "at least" when praying for a monetary amount in its Complaint, the Magistrate Judge concludes that these words have no legal meaning when considering an award of monetary damages in a default judgment case.
The prefatory words "at least" violate Rule 8(e) by not rendering the prayer either simple, concise, or direct. Indeed, these prefatory words are speculative, and further vitiate the Fourth Circuit's requirement that when a money judgment is sought, a specific monetary amount must be pled. Worse, these words undermine the just determination of an action because they fail to put a defendant on notice as to the exact amount plaintiff seeks. In the interests of a speedy and inexpensive determination of every action, a defendant should be able decide on the basis of the complaint whether to expend the resources to defend the action. For these reasons, the Magistrate Judge concludes that Plaintiffs should not be able to recovery any amount for contributions in excess of $3,387.68.
The Magistrate Judge is aware of U.S. Magistrate Judge Peck's Report and Recommendation in a Southern District of New York ERISA action where he determined that using the words "at least" to describe a demand for a monetary amount in an ERISA complaint was appropriate. Mason Tenders Dist. Counc. Welfare Fund v. I.M.I. Constr. Corp., No. 99civ12105, 2004 WL 17006615 at *1 (S.D.N.Y. July 30, 2004) (unpublished disposition) ("Plaintiffs here should not be limited to the dollar figures in the complaint because of the words surrounding the dollar figures: the amounts were stated as 'at least . . .' and the complaint also specifically refers to other (unquantified) amounts to be determined by subsequent audit). In I.M.I., plaintiffs performed an audit after filing the complaint that, in large measure, served as the basis for the monetary request in the motion for default judgment. Id. I.M.I. does not bind this Court, and is inapposite to the case at bar (Plaintiffs here have not audited Defendant's through court process or otherwise). More importantly, I.M.I. provides no rationale justifying why the prefatory words "at least" can pierce the express mandate of Rule 54(c). Rule 54(c) means what it says, and the Fourth Circuit Court of Appeals has addressed its scope and application. Moreover, Plaintiffs' Counsel has been significantly on notice that the application of Rule 54(c) has been at issue in this case. (Apr. 22, 2005 H'rg on Motion (Poretz, J.) (advising Plaintiffs' Counsel that there was a delta of approximately $60,000 between the amount pled in the Complaint and the amount requested in the Motion and suggesting that Counsel take a "hard look" at whether it had complied with Rule 54(c)).
Pursuant to Rule 55(b)(2), the Magistrate Judge has reviewed independently the reports submitted by Plaintiffs summarizing the contributions owing, which were relied upon by Mr. Shaw. (Mot., Dkt. no. 7, ex. 2). Plaintiff has substantiated the following contribution amounts due and owing for the prescribed periods:
NPF ITI SMWIST
August 2001 $867.15 $4.23 $2.11 April 2004 $3,767.85 $12.50 $6.25 May 2004 $3,767.85 $12.50 $6.25 June 2004 $3,767.85 $12.50 $6.25 July 2004 $4,074.02 $12.50 $6.25 August 2004 $4,074.02 $12.50 $6.25 September 2004 $4,074.02 $12.50 $6.25( See Mot., Dkt. no. 7, ex. 2, pgs 1-6). Based on these reports, as summarized by the table above, the Magistrate Judge concludes that Plaintiffs have substantiated their request for contributions in the amount of $3,387.68.
With respect to liquidated damages and late fees, these amounts were susceptible to determination at the time Plaintiffs filed their Complaint for the periods at issue. Because Plaintiffs did not plead a specific monetary award for liquidated damages and late fees in their Complaint, the Magistrate Judge does not find that, pursuant to Rule 54(c), Plaintiffs are entitled to an award for liquidated damages or late fees. Additionally, the Magistrate Judge further notes that Plaintiffs even failed to calculate and summarize its request for late fees in Mr. Shaw's Declaration. Furthermore, the Complaint did not include any specific averments relating to the calculation of liquidated damages or late fees; and the Motion, as opposed to Mr. Shaw, further failed to set forth with particularity why this Court should award liquidated damages and late fees. Consequently, the Magistrate Judge cannot find that Plaintiffs are entitled to liquidated damages and late fees.
The exact amounts for interest, costs, and attorney's fees need not be pled specifically in the Complaint. However, Plaintiffs' analysis of the governing statutes and agreements relating to its entitlement for interest, costs, and attorney's fees in the instant Motion is scant at best. Yet, the Magistrate Judge, having taking into account the Declarations of Mr. Shaw and Mr. Bahuriak relative to the determination of the amount of damages under Rule 55(b)(2), concludes that Plaintiffs are entitled to interest on the owing contributions, reasonable attorney's fees, and costs.
With regard to the amount owing for interest, the Magistrate Judge is without sufficient information to calculate the interest owed on the delinquent contribution of $3,387.68 for the month of August 2001 and for the period from April 2004 to September 20, 2004. Based on Mr. Bahuriak's Declaration, and pursuant to 29 U.S.C. Section 1132(g), Plaintiffs have substantiated their request for $7,665.00 in attorney's fees and $396.52 in costs.
To summarize, in part, the foregoing analysis, the Magistrate Judge makes the following factual findings:
1. Defendant admits that it either failed to submit remittance reports or contributions from August 2001 to the "present," which means the Complaint's filing date of September 20, 2004.
2. Defendant does not admit to Plaintiffs' allegation in the instant Motion that it failed to submit contributions for February 2001 to July 2001, a period pre-dating the allegations in the Complaint.
3. Defendant does not admit to the prospective violation's period pled in the Complaint and attested to in the Motion of September 20, 2004 to February 2005.
4. Subject to the limits of Rule 54(c), Plaintiffs substantiated their claims for damages that Defendant failed to submit contributions for August 2001 and failed to submit reports and contributions for April 2004 to September 20, 2004.
5. The Magistrate Judge cannot enter any findings on Defendant's liability as to Count 2, Audit, and Count 3, Injunction.
6. Plaintiffs substantiated a recovery for owing contributions for the month of August 2001 and for April 2004 to September 2004 in the amount of $3,387.68.
7. Plaintiffs failed to specify the amount of determinable liquidated damages and late fees in the Complaint.
8. Plaintiffs are entitled to an unspecified amount of interest on the owing contributions of $3,387.68, attorney's fees in the amount of $7,665.00, and costs in the amount of $396.52 in costs.
9. The Magistrate Judge is unable to make a finding on the exact amount of accrued interest on the $3,387.68 in owing contributions.IV. Recommendation
The Magistrate Judge recommends that a default judgment be entered against Defendant pursuant to Count 1 of the Complaint, and that Plaintiffs receive an award in the amount of $11,449.10 plus a determinable amount of interest on the owing contribution. This award comprises (a) $3,387.68 in substantiated contributions for August 2001 and for the period from April 2004 to September 20, 2004, (b) $7,665.00 in reasonable attorney's fees, and (c) $396.52 for the costs incurred in this action.
With the amount of outstanding, but calculable interest, the Magistrate Judge recommends that Plaintiffs file a declaration reasoning an amount of interest based on 29 U.S.C. Section 1132(g) or its related agreements with Defendant for an owing contribution of $3,387.68 as applied to the month of August 2001 and for the period of April 2004 to September 20, 2004.
The Magistrate Judge does not recommend that Defendant's should be liable for, and be subject to, an audit (Count 2) or any additional injunctive relief (Count 3).
V. Notice
The parties are advised that objections to this Report and Recommendation pursuant to 28 U.S.C. Section 636 and Federal Rule of Civil Procedure 72(b) must be filed within ten (10) days after service. A failure to file timely objections waives appellate review of a judgment based on this Report and Recommendation.