United States District Court, E.D. Missouri, Eastern Division
PAINTERS DISTRICT COUNCIL NO. 58, et al., Plaintiffs,
JOSEPH CONSTRUCTION, et al., Defendants.
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on plaintiffs' motion for
default judgment against defendant Joseph Construction,
pursuant to Fed.R.Civ.P. 55(b)(2).
bring this action to collect delinquent fringe benefit
contributions pursuant to Section 301 of the Labor Management
Relations Act of 1974 (LMRA), as amended, 29 U.S.C. §
185, and pursuant to Section 502 of the Employee Retirement
Income Security Act of 1974 (ERISA), as amended, 29 U.S.C.
§ 1132. Plaintiffs are the Painters District Council No.
58 (the Union) and four employee benefit plans (the Pension,
Welfare, Vacation, and Apprenticeship Trusts) and their
trustees (collectively, the Funds). Defendant is an employer
in an industry affecting commerce within the meaning of the
LMRA and ERISA. Defendant is party to a collective bargaining
agreement with the Union, and is bound by various trust
agreements relating to the Funds. Plaintiffs allege that
defendant failed to make timely contributions to the Funds as
required by the terms of the collective bargaining agreement.
Plaintiffs seek a total of $38, 462.17 for unpaid
contributions, union dues, liquidated damages, and accounting
costs, plus $3, 971.18 for attorneys' fees and costs.
summons and a copy of the complaint were served on defendant
on June 18, 2016. Defendant did not file an answer or other
responsive pleading and, on July 28, 2016, the Clerk of Court
entered default against defendant.
provides that employers shall make contributions when
required by the terms of a collective bargaining agreement.
29 U.S.C. § 1145. Employers who fail to make the
required contributions may be liable for the unpaid
contributions, liquidated damages, interest, attorney's
fees, and costs. 29 U.S.C. § 1132(g)(2).
September 1, 2015, defendant entered into an agreement to be
bound by the terms of a collective bargaining agreement,
effective through August 31, 2016. [Docs. #20-5 (Agreement);
#20-6 (signature page)]. The collective bargaining agreement
requires defendant to remit dues and make contributions to
the funds for each hour worked by employees covered by the
agreement. Agreement, §§ 36-40. Failure to make
timely contributions subjects defendant to liquidated damages
of 10% for the first 30 days of delinquency, after which
liquidated damages are assessed at the rate of 1.5%,
compounded monthly; in addition, defendant is liable for
accounting costs, court costs, and attorneys' fees.
Id. § 4.
accounting firm of Grabel, Schneiders, Hollman & Co.,
P.C., conducted a payroll examination of defendant for the
period of September 1, 2015 through June 30, 2016. Charles
Kinder Aff. [Doc. #20-2]; Independent Accountants Report
[Doc.#20-7]. Based on that examination, it was determined
that defendant owes $31, 327.63 in unpaid contributions and
union dues and $6, 620.07 in liquidated damages. The cost for
completing the payroll examination was $514.47.
also submit the affidavits of attorney Matthew J. Gierse.
[Docs. #20-4; #22-1]. According to Mr. Gierse, his firm's
standard hourly billing rates for delinquency matters was
$180.00 until February 1, 2017, when it became $220.00.
Billing records establish that slightly more than 16.10
hours of legal services were performed, for a
total of $3, 320.17. The Court finds that the hourly rates
and hours expended are reasonable. In addition, the firm paid
$400.00 for the filing fee and $75.00 for service of process,
for a total of $475.00, to which plaintiffs are also
entitled. Plaintiffs fail to identify the purpose of an
additional $176.01 in costs and this amount will be
on the documentation and affidavits submitted by plaintiffs,
the Court finds that defendant Joseph Construction was bound
at all relevant times by a valid collective bargaining
agreement and that it breached its obligations by failing to
timely pay the required contributions and union dues.
Plaintiffs have established that defendant is liable to them
for $31, 327.63 in unpaid fringe benefit contributions and
union dues, $6, 620.07 in liquidated damages, and $514.47 in
payroll examination costs, for a total of $38, 462.17.
Plaintiffs have also established that defendant is liable to
them for $3, 795.17 in legal fees and costs.
IT IS HEREBY ORDERED that plaintiffs' motion for default
judgment [Doc. #20] is granted.
separate judgment in accordance with this Memorandum and
Order will be entered.