United States District Court, E.D. Missouri, Eastern Division
TERRY M. NELSON, et al., Plaintiffs,
ACORN STAIR & WOODWORK, INC., et al., Defendants.
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiffs' motion for
default judgment against defendant AS & W, LLC.
Plaintiffs' motion is accompanied by affidavits and
exhibits. Also before the Court is defense counsel's
motion to withdraw as counsel for defendant AS & W, LLC.
For the following reasons, the Court will grant plaintiffs
default judgment in the amount of $19, 594.31, and deny as
moot defense counsel's motion to withdraw.
and Factual Background
an action under the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. §1132, and Section 4301
of the Multiemployer Pension Plan Amendments Act of 1980
(“MPPAA”), 29 U.S.C. §1451. Plaintiffs, who
are trustees of the Carpenters' Pension Trust Fund of
Saint Louis (“Pension Trust”), seek to collect
withdrawal liability from defendant AS & W, LLC.
originally brought suit against defendants Acorn Stair &
Woodwork, Inc. (“Acorn Stair”) and Lawrence E.
Pecor, IV, an individual d/b/a Acorn Stair. Plaintiffs
alleged that defendants Acorn Stair and Pecor were employers
within the meaning of ERISA, 29 U.S.C. §1002(5), and
Sections 2(2), (6) and (7) of the Labor Management Relations
Act of 1947 (“LMRA”), 29 U.S.C.
§§152(2), (6) and (7). According to the original
Complaint, Acorn Stair was dissolved as a Missouri
corporation for failure to file its annual report, but
defendant Pecor, who was an officer and director, continued
to conduct business in the name of Acorn Stair after its
corporate dissolution. Plaintiffs alleged that defendants
Acorn Stair and Pecor experienced a “partial
withdrawal” from the Pension Trust during the plan year
ending April 30, 2011. The Pension Trust actuarial
consultants computed that defendants had withdrawal liability
of $19, 302.00, and the Pension Trust issued a withdrawal
liability assessment to defendants in this amount, which
defendants neither disputed nor paid. In the original
Complaint, plaintiffs sought a judgment against defendants
Acorn Stair and Pecor in the amount of $19, 302.00, plus
interest, unspecified liquidated damages, attorneys' fees
September 18, 2015, Pecor filed an answer to the Complaint.
Defendant Acorn Stair did not respond to the original
Complaint in a timely manner. On September 28, 2015,
plaintiffs filed a First Amended Complaint. Plaintiffs added
defendant AS & W, LLC as a defendant, but Lawrence E.
Pecor, IV was not named as a defendant in plaintiffs'
First Amended Complaint. The allegations in the First Amended
Complaint were nearly identical to the original Complaint,
with the notable exception that defendant AS & W, LLC was
alleged to be an employer within the meaning of ERISA and the
LMRA. Defendant AS & W, LLC was alleged to be “a
disguised continuation of, and alter ego of, defendant Acorn
Stair & Woodwork, Inc., and is therefore liable for
amounts owed by Acorn Stair & Woodwork, Inc.” Doc.
9 at 2. Plaintiffs further alleged that defendant AS & W,
LLC was liable for $19, 302.00 in withdrawal liability.
did not respond to the First Amended Complaint in a timely
manner. Instead, Larry Pecor, III, filed two motions to
dismiss, which were out of time, on behalf of defendants
Acorn Stair and AS & W, LLC. The Court ordered that both
motions be stricken from the record because Larry Pecor, III,
was not a licensed attorney, and he could not represent
corporate entities without a law license. Moreover, the
motions were untimely.
Order dated December 1, 2015, the Court directed plaintiffs
to file, on or before December 15, 2015, a motion for default
judgment as to defendants Acorn Stair and AS & W, LLC. In
that Order, plaintiffs were warned that failure to comply
would result in dismissal of these parties without prejudice.
Plaintiffs requested and were granted three extensions of
time to file for default judgment. In the meantime, on March
15, 2016, attorneys Randall Grady and Joseph D. Schneider
entered appearances on behalf of defendant AS & W, LLC,
only. Defense counsel filed a consent motion for leave to
file defendant AS & W, LLC's answer to the First
Amended Complaint out of time, which the Court granted.
never filed a motion for default judgment as to defendant
Acorn Stair. On May 18, 2016, defendant Acorn Stair was
dismissed, without prejudice, pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure.
2016, plaintiffs moved to amend their complaint in order to
allege two alterative grounds for liability as to defendant
AS & W, LLC. The Court granted the motion, and plaintiffs
filed a Second Amended Complaint. The allegations in the
Second Amended Complaint are nearly identical to the two
prior complaints, however, the Second Amended Complaint is
against AS & W, LLC only, and it alleges that this
defendant is liable for the withdrawal liability of Acorn
Stair because AS & W, LLC and Acorn Stair are members of
a “common control group, ” or in the alterative,
AS &W, LLC is an “alter ego” of Acorn Stair.
In the Second Amended Complaint plaintiffs seek $19, 302.00
in withdrawal liability, plus interest, unspecified
liquidated damages, attorneys' fees, and costs against
defendant AS & W, LLC.
being represented by counsel, defendant AS & W, LLC never
answered or otherwise responded to plaintiffs' Second
Amended Complaint. Plaintiffs filed a motion for the entry of
clerk's default against defendant AS & W, LLC - a
motion which defendant AS & W, LLC did not oppose. The
clerk of court entered default against defendant AS & W,
LLC, pursuant and Rule 55(a) of the Federal Rules of Civil
Procedure on October 24, 2016.
the entry of default, defense counsel moved to withdraw as
counsel. In their one-page motion, attorneys Randall Grady
and Joseph D. Schneider state that AS & W, LLC had failed
to “substantially fulfill obligations” and
“uphold communications with movants.” Doc. 40 at
1. The motion also states that the clerk of court has entered
default against AS & W, LLC and, therefore, “the
movants can withdraw without adversely affecting [AS & W,
LLC]'s material interests.” Id. Defense
counsel represent in their certificate of service that a copy
of the motion to withdraw was sent to defendant AS & W,
filed a motion for the entry of default judgment against
defendant AS & W, LLC pursuant to Rule 55(b)(2) of the
Federal Rules of Civil Procedure. The motion is supported by
affidavits and exhibits. Defendant AS & W, LLC, which is
still represented, did not oppose the motion for the entry of
default judgment, and the time to do so has long ...