United States District Court, E.D. Michigan, Southern Division
Trustees of Roofers Local 149 Security Benefit Trust Fund, et al., Plaintiffs,
Traverse Bay Roofing Co. and David Ferris, Defendants.
Elizabeth A. Stafford U.S. Magistrate Judge
ORDER GRANTING PLAINTIFFS' MOTION FOR DEFAULT
J. Tarnow Senior U.S. District Judge
- Trustees of the Roofers Local 149 Security Benefit Trust
Fund; Roofers Local 149 Pension Fund; Roofers Local 149
Vacation-Holiday Fund; and Roofers Local 149 Apprenticeship
Fund (hereinafter “the Funds”) -filed a Complaint
[Dkt. 1] on August 25, 2016 against Defendants Traverse Bay
Roofing Company and David Ferris, alleging breach of contract
under 29 U.S.C. § 1145 and breach of fiduciary duties
under 29 U.S.C. § 1109(a). Since the commencement of
this lawsuit, the above-named Defendants have not retained
counsel; no Notice of Appearance by an attorney has been
filed on behalf of these Defendants, nor have they attempted
to participate in the proceedings in any way.
October 6, 2016, Plaintiffs requested, and the Clerk of the
Court entered, Default as to all Defendants [6-8].
See Fed. R. Civ. P. 55(a) (“When a party
against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party's default.”). Plaintiffs subsequently filed
this Motion for Default Judgment  on December 9, 2016.
Court will enter default judgment against all Defendants.
“Upon a party's default, the well-pleaded
allegations of the complaint related to liability are taken
as true.” IBEW Local 648 Pension Plan v. Butler
County Elec., No. 10-467, 2011 U.S. Dist. LEXIS 92263,
at *8 (S.D. Ohio July 22, 2011); see also Antoine v.
Atlas Turner, Inc., 66 F.3d 105, 110-11 (6th Cir. 1995).
Accepting as true the facts set forth in the complaint,
Defendants violated the parties' Collective Bargaining
Agreement (“CBA”) when they failed to pay, in
addition to wages, employee fringe benefit contributions to
the Funds for Traverse Bay employees. Because of
Defendants' failure to pay their obligations, the
Trustees of the Plaintiff Funds have been unable to discharge
their duties as permitted by the CBA. Defendants violated the
CBA and various provisions of the Employee Retirement Income
Security Act (“ERISA”), 29 U.S.C. § 1001,
have failed to plead or otherwise defend on Plaintiffs'
claims and are therefore liable on each count set forth in
the complaint. “Under ERISA, if judgment is awarded in
favor of a plan in a suit brought on behalf of the plan
pursuant to 29 U.S.C. § 1145, ‘the court shall
award the plan -
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),
reasonable attorney's fees and costs of the action, to be
paid by the defendant, and
such other legal or equitable relief as the court deems
Butler County Elec, 2011 U.S. Dist. LEXIS 92263, at
*10 (quoting 29 U.S.C. § 1132(g)(2)). For purposes of
provision (g)(2), “interest on unpaid contributions
shall be determined by using the rate provided under the
plan, or, if none, the rate prescribed under section 6621 of
Title 26.” 29 U.S.C. § 1132(g)(2).
seek to recover the following:
• Unpaid fringe benefit contributions: ...