Opinion
4:22-cv-03639-JST (KAW)
11-09-2023
OPERATING ENGINEERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA, et al., Plaintiffs, v. BRAMBILA & KELLEY INC., et al., Defendants.
REPORT AND RECOMMENDATION GRANTING MOTION FOR DEFAULT JUDGMENT RE: DKT. NO. 30
KANDIS A. WESTMORE UNITED STATES MAGISTRATE JUDGE
On June 22, 2022, Plaintiffs filed the instant case against Defendants Brambila & Kelley Inc. (dba JB Electric and Construction), Brambila & Kelley Inc. (dba Tri Valley Electric, Inc.), Brambila & Kelley Inc. (dba Tri Valley Maintenance & Repair, Inc.), and Juan Brambila alleging that Defendants failed to pay the amounts found due on an audit of Defendants' payroll records for the period from October 22, 2020 through June 30, 2021 (“audit period”) and to pay fringe benefit contributions self-reported by Defendants, plus liquidated damages and interest on the unpaid and late-paid contributions.
Plaintiffs now move for an order requiring Defendants to pay the amounts found owed, pay fringe benefit contributions self-reported by Defendants, plus liquidated damages and interest on the unpaid and late-paid contributions, and to pay the attorneys' fees and costs incurred in bringing this lawsuit. (Pls.' Mot., Dkt. No. 30 at 1.) Defendants are in default and have not filed an opposition.
On August 17, 2023, the matter was referred to the undersigned. (Dkt. No. 37.) On October 19, 2023, the Court held a hearing, at which Defendants did not appear. Having considered the parties' filings and the relevant legal authorities, the Court RECOMMENDS that Plaintiffs' motion be GRANTED.
I. BACKGROUND
Plaintiffs are employee benefit plans and their respective trustees (collectively “Trust Funds,” “Plaintiffs,” or “ERISA Plaintiffs”). The Plaintiff Trust Funds are funds organized under and pursuant to the provisions of Section 302(c)(5), 302(c)(6) and 302(c)(9) of the Labor Management Relations Act of 1947, as amended. (29 U.S.C. 186 (c)(5), 186(c)(6) and 186(c)(9).) (See Compl., Dkt. No. 1 ¶ 1.) The principal offices of the Trust Funds are in the City of Alameda, County of Alameda, State of California. (Compl. ¶ 2; see also Decl. of Matthew P. Minser, “Minser Decl.,” Dkt. No. 31 ¶ 2.)
Defendants Brambila & Kelley Inc., dba JB Electric and Construction, (“Brambila & Kelley”), and Juan Brambila aka John Brambila, are employers within the meaning of ERISA Section 3(5) of 29 U.S.C. Section 1002 (5) and National Labor Relations Act Section 2(2) (29 U.S.C. Section 152 (2)). (Compl. ¶ 3; Minser Decl., ¶¶ 3, 10.)
On or about March 4, 2022, the Trust Funds' Collections Office referred Brambila & Kelley to Plaintiffs' Counsel's office based on its default and failure to pay amounts owed pursuant to an executed stipulation for entry of judgment (“Stipulation”), which Defendant Mr. Brambila and Defendant Brambila & Kelley entered on January 12, 2022. (Compl. ¶¶ 4, 16, 17; Minser Decl., ¶ 4, Ex. A.)
Pursuant to the Stipulation, Defendant Juan Brambila aka John Brambila bound any additional entities in which he is an officer, owner, or possesses any controlling interest to the Stipulation. (Compl. ¶¶ 4, 18.) Defendant Juan Brambila aka John Brambila is listed as the Responsible Managing Officer, CEO, and President on the Contractors State License Board (“CSLB”) website for Defendants:
1. Brambila & Kelley;
2. Brambila & Kelley Inc. dba Tri Valley Electric Inc.; and
3. Brambila & Kelley Inc. dba Tri Valley Maintenance & Repair Inc.(Compl. ¶ 19.)
By virtue of that Stipulation, Defendants Brambila & Kelley Inc. dba Tri Valley Electric Inc., Brambila & Kelley Inc. dba Tri Valley Maintenance & Repair Inc. (collectively the “non- signatory Defendants”), and Defendant Brambila & Kelley are bound such that the non-signatory Defendants are liable for signatory Defendant Brambila & Kelley's liability to Plaintiffs. (Compl. ¶¶ 19-20.) Therefore, the non-signatory Defendants are also employers by virtue of ERISA § 3(5), 29 U.S.C. § 1002(5), and NLRA § 2(2), 29 U.S.C. § 152(2). (Compl. ¶ 4; Minser Decl., ¶¶ 3, 10.)
The non-signatory Defendants were also properly served in this action and their defaults have been entered. (Minser Decl. ¶ 14; Dkt. Nos. 11, 19.)
Brambila & Kelley, Juan Brambila aka John Brambila, and the non-signatory Defendants are collectively referred to herein as “Defendants.” (Compl. ¶ 5.)
On October 22, 2020, Defendant John Brambila (hereinafter “Mr. Brambila”) entered into the “Independent Northern California Construction Agreement” (the “Independent Agreement”) with the Operating Engineers Local No. 3 of the International Union of Operating Engineers, AFL-CIO (the “Union”). (Compl. ¶ 12; Minser Decl., ¶¶ 3, 10.) Under the terms of the Independent Agreement, if the individual employer is a corporation, its principal shareholder(s) personally guarantee all payment of wages, fringe benefit contributions, liquidated damages, interest, and collections cots including but not limited to, attorneys' fees and auditor/accountant fees. (Compl. ¶ 12; Decl. of Sonya Brown, “Brown Decl.,” Dkt. No. 33 ¶ 3, Ex. A, § 1, ¶ 12.) Based on information available in the public record, Mr. Brambila is all Defendants' sole and principal shareholder. (Compl. ¶ 12.) Therefore, he is personally liable for all amounts claimed herein. (Id.; Minser Decl. ¶ 9.)
The Independent Agreement specifically lists #1021892 as the Contractor's License No. for Brambila and specifically lists the address and phone number as 3295 Shelby Place, Fairfield, CA 94534, 707-631-6226. (Brown Decl. ¶ 3; Minser Decl. ¶ 11.) Under “Individual Employer (Company Name)”, the Independent Agreement lists “Brambila-Kelley, Inc.” Ids. Plaintiffs' Counsel's office researched the California Secretary of State's Business Search website and there is no entity listed under the name Brambila-Kelley, Inc. (Minser Decl. ¶ 11.) However, according to the California Contractors State License Board, Contractor's License No. 1021892 is associated with “BRAMBILA & KELLEY INC., a California Corporation dba JB ELECTRIC AND CONSTRUCTION” (hereinafter “Brambila & Kelley”). Id. Therefore, the hyphen listed on the Independent Agreement was an inadvertent errata and should have been an ampersand. Id.
The Independent Agreement incorporates the terms and conditions of the current Master Agreement (“Master Agreement”) between the Union and the Associated General Contractors of California, Inc. (AGC). (Compl. ¶ 12; Brown Decl. ¶ 4, Exs. A-C.) The Independent Agreement and Master Agreements are collectively referred to hereinafter as the “Bargaining Agreements.” (Compl. ¶ 12; Brown Decl. ¶ 5.) Plaintiffs are third-party beneficiaries of the Bargaining Agreements. Ids.
The Bargaining Agreements, which incorporate the terms of the Trust Agreements establishing the Trust Funds (“Trust Agreements”), require Defendants to provide employer contributions to Plaintiffs' Trust Funds, to the Union for union dues, and to the other plans more fully described in the Bargaining Agreements. (Compl. ¶ 12; Brown Decl. ¶ 8.)
Defendants are and continue to be signatory to the Independent Agreement and the Master Agreements. (Brown Decl. ¶ 6.) The terms of the Independent Agreement provide that Defendants, or the Union must give sixty (60) to ninety (90) days written notice to the other to terminate prior to the expiration of the Bargaining Agreements. (Id.) No such notice was given by either party. Id. Additionally, the terms of the Master Agreements provide that the agreement continues indefinitely after the stated termination date if no written notice is submitted by the employer or the Union. (Brown Decl. ¶ 6, Exs. B & C, Section 25.03.00.)
The Master Agreements require Defendants to make contributions to Plaintiffs' Trust Funds based on the hours worked by Defendants' employees. (Compl. ¶ 14; Brown Decl. ¶ 7, Exs. B-C, Section 12.00.00-12.14.00.) The Master Agreement incorporates the terms of the Trust Agreements establishing the various Trust Funds (the “Trust Agreements”), which also requires Defendants to pay benefit contributions to Plaintiffs and enumerates the procedures if they fail to do so. (Compl. ¶ 12; Brown Decl. ¶ 8, Exs. B & C, Section 12.01.03.)
The Master Agreement and Trust Agreements provide that all benefit contributions are due on or before the fifteenth (15th) day of the month following the month in which hours were worked and are delinquent if not received by the twenty-fifth (25th) day of that month. (Compl. ¶ 14; Brown Decl. ¶ 9; Exs. B-C, Section 12.01.02; 12.13.00-12.13.02; Ex. D, Seventeenth Amendment to Article II, Section 10, Section 1(A)(2)-(4), p. 1-2.) If contributions are delinquent, the Master Agreement and Trust Agreements mandate that Defendants pay interest and liquidated damages on the delinquent contributions. Ids.
Pursuant to the terms of the Master and Trust Agreements, prior to litigation liquidated damages are calculated at ten percent (10%) of the delinquent contributions. (Compl. ¶ 14; Brown Decl. ¶ 10; Exs. B-C, Section 12.13.01; Ex. D, Seventeenth Amendment to Article II, Section 10, Section 1(A)(3)(a), p. 2.) However, once a lawsuit has been filed, the Master and Trust Agreements provide that liquidated damages are calculated at twenty percent (20%). Ids. Pursuant to the Master and Trust Agreements, interest accrues on the delinquent unpaid contributions at ten percent (10%) per annum calculated from the day contributions are considered delinquent until paid. Ids.
The Master Agreement further provides for reimbursement of attorneys' fees and costs, audit fees, and all other expenses incurred in connection with the collection of delinquent contributions. (Compl. ¶¶ 15, 25, 30; Brown Decl. ¶ 11; Exs. B-C, Section 12.13.06.)
The Master Agreement also provides for an audit of the books and records of signatory employers so that the Trust Funds may determine if the employer is making full and prompt payment of required contributions. (Compl. ¶¶ 15, 30; Brown Decl. ¶ 13; Exs. B-C, Section 12.01.04.) Section 12.01.04 of the Master Agreement entitled “Examination of Records” states as follows:
The Union or the Trust Funds, or their agents or accountants may require the Individual Employer to submit to them for examination, any information relevant to the administration of the Trust Funds, to confirm the Individual Employer's reporting compliance, and the Individual Employer must submit such information pursuant to the terms of the Trust Agreements incorporated herein. If more than minor underpayments are found due on audit, the Individual Employer shall reimburse the Trust Funds, upon demand of the Trust Funds, the costs of said examination in addition to any other obligations it may have hereunder. Minor underpayments shall be defined as 10% of the proper contributions for the period tested. Id.
The Trust Agreements also provide for an audit of the books and records of signatory employers so that the Trust Funds may determine if the employer is making full and prompt payment of required contributions. (Compl. ¶¶ 15, 30; Brown Decl. ¶ 14.) Article IV, Section 6, of the Trust Agreement for the Pension Trust Fund for Operating Engineers, which is representative of the language of the Agreements for the other Operating Engineers Trust Funds named in this proceeding, provides that:
The Board can require the Employer . . . to submit to it any information, data, report, or documents reasonably relevant to and suitable for the purposes of such administration . . . Reasonable cause appearing therefore upon notice in writing from the Board, a Contributing Employer must permit a certified public accountant appointed by the Board to enter upon the premises of such employer during business hours, at all reasonable time or times, and to examine and copy such books, records, papers or reports of such Contributing Employer as may be necessary to determine whether such Contributing Employer is making full and prompt payment of all sums required to be paid by him or it to this Fund.(Compl. ¶ 30; Brown Decl. ¶ 14, Ex. D, Article IV, Section 6.)
Plaintiffs' Auditors conducted testing of Brambila & Kelley's payroll records for the period October 22, 2020 through June 30, 2021. (Decl. of Michael Quackenbush, “Quackenbush Decl.”, Dkt. No. 32 ¶ 3.) The audit was completed after the complaint was filed and may properly be included in this judgment pursuant to the allegations of the Complaint which specifically allows recovery of an audit completed after the Complaint is filed. (Compl. ¶¶ 15, 25, 30; Quackenbush Decl. ¶ 6; Ex. B (report cover letter dated September 19, 2022).) In order to perform the testing, Plaintiffs' Auditors reviewed specific categories of records received from Brambila & Kelley. (Quackenbush Decl. ¶¶ 4-5.)
Brambila & Kelley provided the required documentation to complete the audit pursuant to the terms of the Bargaining and Trust Agreements. (Compl. ¶¶ 15, 25, 30.)
The audit resulted in hours underreported to the Plaintiff Trust Funds due to both underreporting hours worked by Defendants' employees during the inspection period and failing to report hours worked by Defendants' employees during the inspection period. (Quackenbush Decl. ¶ 6.) The audit resulted in $8,611.27 due to both underreporting hours worked by Defendants' employees of during the inspection period and failing to report hours worked by Defendants' employees during the inspection period. Id. Interest owed on the unreported contributions through March 29, 2022 was calculated by the Auditors at $968.80 (the interest rate is 10% per annum). Id. Pursuant to the inspection report, the total amount due to the Trust Funds is $9,580.07. Id.
Pursuant to the Master and Trust Agreements, interest accrues on the delinquent unpaid contributions at ten percent (10%) per annum calculated from the day contributions are considered delinquent until paid. (Compl. ¶ 14; Brown Decl. ¶ 10; Exs. B-C, Section 12.13.02; Ex. D, 17thAmendment to Article II, Section 10, Section 1(A)(4), p. 2.)
On May 5, 2022, Plaintiffs' Counsel sent a default letter to Brambila & Kelley requesting that it submit its fourth stipulated payment. (Minser Decl. ¶ 12.) Brambila & Kelley failed to respond to Plaintiffs' Counsel default notice and pay the amount requested. Id.
Therefore, Plaintiffs filed this action on June 22, 2022 to compel all Defendants to pay Plaintiffs all amounts set forth in the May 5, 2022 Default Notice (contributions, liquidated damages, and interest for November 2021 and May 2022; liquidated damages and interest for late-paid contributions for the months of May 2021, September 2021, and October 2021). The Complaint also sought any and all contributions, and all liquidated damages and interest on delinquent contributions, found due on timecards, further audit, or otherwise, including estimated contributions for any months Defendants failed to report to Plaintiffs, through the time of Judgment. (Minser Decl., ¶ 13; Compl. ¶ 15.)
Plaintiffs served all Defendants (including the non-signatory defendants bound by virtue of the Stipulation for Entry of Judgment) with the Summons and Complaint by personal service on June 29, 2022 and a Proof of Service of Summons was filed with this Court on July 11, 2022. (Minser Decl. ¶ 14; Certificate of Service, Dkt. No. 11.) Defendants' deadline to file a response was July 20, 2022. Defendants have failed to appear in the matter. (Minser Decl. ¶ 14.)
After Defendants were served with the Complaint, Defendants reached out to Plaintiffs' Counsel requesting additional time to submit payment. Plaintiffs' Counsel followed up with Defendants multiple times. (Minser Decl. ¶ 15.)
On September 13, 2022, Plaintiffs' Counsel sent Defendants another default notice letter informing Defendants of all amounts due pursuant to the Stipulation, as well as additional amounts found due on audit of Defendants' payroll records. (Minser Decl. ¶ 16.) Defendants failed to respond to Plaintiffs' September 13, 2022 letter by the end of the day on September 20, 2022, or file a responsive pleading or otherwise respond to the lawsuit. Id.
Plaintiffs issued an additional default notice on October 13, 2022 to Defendants requesting that Defendants submit payment for their May 2022 through September 2022 contributions, fifth and sixth stipulated payments, January through August 2022 job reports, payment for amounts due on an audit of their payroll records and attorneys' fees. (Minser Decl. ¶ 18.)
Defendants responded to Plaintiffs requesting an updated payment plan for all amounts due. (Minser Decl. ¶ 19.) Plaintiffs prepared the payment plan (Judgment Pursuant to Stipulation) and sent it to Defendants. Id. Defendants responded to Plaintiffs' Counsel disputing some of the amounts included in the stipulation but ultimately failed to pay the amounts owed and stated that they cannot enter into the payment plan. Id.
Therefore, Plaintiffs filed their Request for Entry of Default as to all Defendants on December 8, 2022. (Dkt. No. 17.) The Clerk entered default as to all Defendants on December 13, 2022. (Dkt. No. 19.) Plaintiffs served the Notice of Entry of Default on Defendants and filed a proof of service with the Court that same day. (Dkt. No. 20.)
Since March 2, 2023, Defendants became delinquent for additional contributions, liquidated damages, and interest. (Minser Decl. ¶ 19.) Therefore, Plaintiffs provided Defendants with an updated payment plan, accounting both for Defendants' dispute and the additional amounts due. Id. Plaintiffs sent the updated payment plan to Defendants on April 21, 2023 informing Defendants that Plaintiffs would be filing a motion for default judgment if no response was received. Defendants responded stating they cannot make any payments at this time or enter into the payment plan. Id.
To date, Defendants have failed to:
(1) Pay liquidated damages and interest incurred on their late-paid May 2021, September 2021, October 2021 and partial November 2021 contributions (incurred prior to a lawsuit being filed, and therefore 10% liquidated damages and 10% interest per annum were incurred thereon);
(2) Pay contribution balances owed for the months of May 2022 through June 2023 as well as liquidated damages and interest incurred for these unpaid contribution balances; and
(3) Pay amounts found due on the audit of their payroll records for the period of October 22, 2020 through June 30, 2021.(Brown Decl. ¶¶ 15-18; Quackenbush Decl. ¶ 6; Minser Decl. ¶¶ 25-26.)
Defendants owe the following amounts to Plaintiffs based on amounts reported to Dated:
Ids.
Work Month
Late Paid Contributions
Unpaid Contribution Balances
20% Liquidated Damages
10% Interest (through 08/10/23)
Total
May-22
$6,855.44
$3,689.48
$2,108.98
$664.27
$6,462.73
Jun-22
$9,526.45
$261.84
$1,957.66
$305.94
$2,525.44
Jul-22
$11,455.50
$2,863.90
$2,863.88
$492.80
$6,220.58
Aug-22
$5,465.91
$5,130.46
$2,119.27
$514.62
$7,764.35
Sept-22
$1,636.50
$6,251.43
$1,577.59
$512.00
$8,341.02
Oct-22
-
$11,471.89
$2,294.38
$810.12
$14,576.39
Nov-22
$3,068.44
$3,412.05
$1,296.10
$292.76
$5,000.91
Dec-22
$5,138.61
$2,904.82
$1,608.69
$213.60
$4,727.11
Jan-23
$122.74
$4,852.19
$1,047.36
$224.23
$6,123.77
Feb-23
-
$5,236.80
$1,047.36
$197.34
$6,481.50
23-Mar
-
$5,236.80
$1,047.36
$153.01
$6,437.17
23-Apr
-
$5,236.80
$1,047.36
$110.11
$6,394.27
23-May
-
$5,236.80
$1,047.36
$65.78
$6,349.94
23-Jun
-
$5,236.80
$1,047.36
$22.88
$6,307.04
Subtotals:
$67,022.06
$22,110.71
$4,579.46
$93,712.23
Subtota
(Contributions, Liquidated Damages and Interest):
$93,712.23
Liquidated Damages on Prior Late-Paid Contributions (5/21, 9/21-11/21):
$3,922.54
Interest on Prior Late-Paid Contributions (5/21, 9/21-11/21):
$1,431.88
Subtotal (Liquidated Damages on Paid Late Contributions Prior to Litigation):
$5,354.42
Audit (10/22/20-6/30/21)
Contributions Underpayments:
$8,611.27
Interest (through 3/29/22):
$968.80
Additional Interest (3/30/22-8/10/23):
$1,177.64
Subtotal (Audit 10/22/20-6/30/21):
$10,757.71
TOTAL (Contributions, LDs, Interest):
$109,824.36
As of the date of the filing of this motion, Defendants have failed to plead or otherwise respond to the lawsuit. (Minser Decl. ¶ 20.)
II. LEGAL STANDARD
Federal Rule of Civil Procedure 55(b)(2) permits a court to enter a final judgment in a case following a defendant's default. Shanghai Automation Instrument Co. v. Kuei, 194 F.Supp.2d 995, 999 (N.D. Cal. 2001). Whether to enter a judgment lies within the court's discretion. Id. at 999 (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)).
Before assessing the merits of a default judgment, a court must confirm that it has subject matter jurisdiction over the case and personal jurisdiction over the parties, as well as ensure the adequacy of service on the defendant. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). If the court finds these elements satisfied, it turns to the following factors (“the Eitel factors”) to determine whether it should grant a default judgment:
(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action[,] (5) the possibility of dispute concerning material facts[,] (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citation omitted). Upon entry of default, all factual allegations within the complaint are accepted as true, except those allegations relating to the amount of damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). Where a default judgment is granted, the scope of relief “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed.R.Civ.P. 54(c).
III. DISCUSSION
a. Jurisdiction and Service of Process
In considering whether to enter default judgment, a district court must first determine whether it has jurisdiction over the subject matter and the parties in the case. In re Tuli, 172 F.3d at 712 (“When entry of default is sought against a party who has failed to plead or otherwise defend, a district court has an affirmative duty to look into its jurisdiction over both the subject matter and the parties.”).
i. Subject Matter Jurisdiction
This is a civil action brought by the fiduciary trustees alleging a violation of ERISA, a federal statute. Plaintiffs seek to enforce the provisions of ERISA and the terms of the Plan and redress Defendants' violation of ERISA. Thus, the Court has subject matter jurisdiction.
ii. Personal Jurisdiction and Venue
Personal jurisdiction over Defendants exists pursuant to ERISA § 502(e)(2), which allows an action to be brought against a defendant “in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found ....” 29 U.S.C. § 1132(e)(2). Thus, ERISA “provides for nationwide service of process. This means that service on a defendant in an ERISA case anywhere in the United States is sufficient to establish personal jurisdiction, and there is no need to engage in the ‘minimum contacts' analysis.” Schuett v. FedEx Corp. Retirement Appeals Comm., Case No. 15-cv-189-PJH, 2015 WL 4484153, at *5 (N.D. Cal. July 22, 2015) (citing Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992); see also Bd. of Trustees v. Diversified Concrete Cutting, Inc., Case No. 17-cv-6938-MEJ, 2018 WL 3241040, at *2 (N.D. Cal. July 3, 2018).
In addition, the Court has jurisdiction over the non-signatory Defendants. Defendant Brambila executed a stipulation for entry of judgment on January 12, 2022. (Minser Decl. ¶ 4, Ex. A.) Pursuant to the Stipulation, Defendants Brambila & Kelley and Mr. Brambila agreed to consent to
the Court's jurisdiction as well as the use of a Magistrate Judge for all proceedings, including, entry of Judgment. Employer further confirms that if a Complaint is filed and Judgment is entered, all successors in interest, assignees, and affiliated entities (including, but not limited to, parent or other controlling companies), and any companies with which either Employer joins or merges, if any, shall also be bound by the terms of the Judgment. This shall include any additional entities in which Individual [Juan Brambila aka John Brambila] is an officer, owner or possesses any controlling ownership interest.(Minser Decl. ¶ 5, Ex. A ¶ 6(c)) (emphasis added).
Plaintiffs have confirmed that based on public records, Mr. Brambila is an officer of the non-signatory Defendants. (Minser Decl. ¶¶ 6-10.) Therefore, the non-signatory Defendants are properly included herein as liable. Moreover, the non-signatory Defendants have all been served in this action, have failed to appear, and their default has been entered. (See Dkt. Nos. 11, 19.)
Defendants are not infants or incompetent persons, or in the military service of the United States or otherwise exempted under the Servicemembers Civil Relief Act of 2003. (Minser Decl. ¶¶ 23-24.)
Likewise, venue is proper as the trust funds are administered in this district and the breach took place here. See Schuett, 2015 WL 448153, at *5 (citing 29 U.S.C. § 1132(e)(2)).
iii. Service of Process
Plaintiffs served all Defendants with the Summons and Complaint by personal service on June 29, 2022, and a certificate of service was filed with this Court on July 11, 2022. (Dkt. No. 11.) Defendants' deadline to file a response was July 20, 2022. Id. Defendants failed to appear in the matter. (Minser Decl. ¶ 14.) On December 13, 2022, the Clerk entered default as to all Defendants. (Dkt. No. 19.) Plaintiffs served the Notice of Entry of Default on Defendants and filed a proof of service with the Court that same day. (Dkt. No. 20; Minser Decl. ¶ 17.)
1. First Factor: Possibility of Prejudice to Plaintiffs
Taking all of the factual allegations in the complaint as true, the first Eitel factor weighs in favor of granting default judgment on Plaintiffs' claims. “Because ERISA provides that federal courts have exclusive jurisdiction for claims of this nature, denial of Plaintiffs' Motion would leave them without a remedy.” Bd. of Trs. of U.A. Local No. 159 Health & Welfare Trust Fund v. RT/DT, Inc., Case No. 12-cv-5111-JSW, 2013 WL 2237871, at *4-5 (N.D. Cal. May 21, 2013). Accordingly, the first Eitel factor weighs in favor of granting a default judgment.
i. Second and Third Factors: Merits of Plaintiffs' Claims and the Sufficiency of the Complaint
The second and third Eitel factors address the merits and sufficiency of Plaintiffs' claims pled in the complaint. “These two factors are often analyzed together.” Li v. A Perfect Day Franchise, Inc., Case No. 10-cv-1189-LHK, 2012 WL 2236752, at *6 (N.D. Cal. June 15, 2012). In considering the second and third factors, the Court takes all factual allegations in Plaintiffs' complaint as true, except for those relating to damages. Televideo Sys., 826 F.2d at 917-18.
When a benefit plan wins a judgment in an action to enforce Section 1145, Section 1132 of the same title provides that the plan is entitled to the unpaid contributions, interest thereon, reasonable attorneys' fees and costs, and liquidated damages. (29 U.S.C. § 1132 (g)(2).) The liquidated damages provision, as set forth in Section 1132(g)(2)(C)(ii), applies when: (1) the fiduciary obtains a judgment in favor of the plan; (2) unpaid contributions exist at the time of suit; and (3) the plan provides for liquidated damages. (Idaho Plumbers & Pipefitters Health & Welfare Fund v. United Mech. Contractors, Inc., 875 F.2d 212, 215 (9th Cir. 1989).) Liquidated damages are mandatory where factors (1)-(3) above are satisfied. (Id. at 215.)
Here, Plaintiffs' Complaint states clear claims for relief. Defendants are employers by virtue of ERISA and the NLRA. (Minser Decl. ¶¶ 3, 10.) Furthermore, Defendants Juan Brambila aka John Brambila and Brambila & Kelley are bound to the Bargaining Agreements, with the nonsignatory Defendants bound through the Stipulation. Therefore, Defendants have a statutory duty to timely make required contribution payments to Plaintiffs under ERISA § 515, 29 U.S.C. § 1145. Additionally, by virtue of Defendants Juan Brambila aka John Brambila and Brambila & Kelley's assent to the Bargaining Agreements, which incorporate the terms of the Trust Agreements, as well as the Stipulation, Defendants have an express contractual obligation to timely make benefit contributions to Plaintiffs for hours worked by their employees, and to comply with Plaintiffs' audit request. Therefore, under § 1132(g)(2) and the Collective Bargaining Agreements, and Trust Agreements, Plaintiffs have established that they are entitled to any unpaid contributions, interest and liquidated damages on any unpaid and late-paid contributions, reasonable attorneys' fees and costs, and all other reasonable expenses incurred in relation to this action.
Plaintiffs have established that unpaid contributions due from Defendants to Plaintiffs existed at the time the complaint was filed. Under § 1132(g)(2) and the Bargaining Agreements, Plaintiffs are entitled to any additional unpaid contributions, interest and liquidated damages on any unpaid and late-paid contributions, reasonable attorneys' fees and costs, and all other reasonable expenses incurred in relation to this action.
Liquidated damages are mandatory in this case, upon a judgment in favor of Plaintiffs, since the other Idaho Plumbers factors are satisfied: Unpaid contributions due from Defendants existed at the time the complaint was filed, and the Bargaining and Trust Agreements specifically provide for liquidated damages for failure to timely pay the contributions due. Thus, 29 U.S.C. § 1132 (g)(2), including its liquidated damages provision, is applicable in this matter, which makes the likelihood of Plaintiffs' success on the merits certain. In addition, all allegations in the complaint have been properly pled. Plaintiffs have submitted declarations from their Counsel, Auditor, Fringe Benefits Director in support of the factual allegations contained in the complaint and this motion for default judgment.
Accordingly, Plaintiffs have successfully pled a case under ERISA entitling them to an audit. The second and third Eitel factors weigh in favor of granting their motion for default judgment.
ii. Fourth Factor: Sum of Money at Stake
The fourth Eitel factor addresses the amount of money at stake in relation to the seriousness of Defendants' conduct. PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1176 (C.D. Cal. 2002). Default judgment is disfavored when the amount at stake is substantial or unreasonable in light of the allegations in the complaint. See Eitel, 782 F.2d at 1472 (affirming denial of default judgment where the plaintiff sought $3 million in damages and the parties disputed material facts in the pleadings).
Here, Plaintiffs seek unpaid and late paid contributions, liquidated damages, and interest in the amount of $99,066.65, underpaid contributions, liquidated damages, and interests per the audit in the amount of $10,757.71, as well as attorney's fees of $16,388.50 and costs of $816.43. (Pl.'s Mot. at 1-2.) As discussed below, Plaintiffs are entitled to these amounts, and the amounts are tailored to Defendants' misconduct as the fees and costs were incurred due to Defendants' failure to comply with the audit. Accordingly, this factor weighs in favor of default judgment.
iii. Fifth Factor: Possibility of Dispute Concerning Material Facts
The fifth Eitel factor examines the likelihood of dispute concerning material facts in the case. Eitel, 782 F.2d at 1471-72. Upon entry of default, the defendant is “deemed to have admitted all well-pleaded factual allegations” in the complaint. DirectTV, Inc. v. Hoa Huynh, 503 F.3d 847, 851 (9th Cir. 2007) (citing to Fed.R.Civ.P. 55(a)).
Defendants are aware of the action against them. (Minser Decl. ¶ 21.) Defendants were duly served with the complaint and summons. (Minser Decl. ¶ 18.) Defendants were also properly served with a copy of the Clerk's Notice of Entry of Default and every other pleading in this action and did not request that the default be set aside or otherwise appear or try to resolve this matter. (Minser Decl. ¶¶ 14, 17, 22.) The evidence submitted by Plaintiffs in support of this Motion, including the Bargaining Agreements and incorporated Trust Agreements, supports Plaintiffs' account of the events. The record, therefore, reflects that little possibility of dispute exists as to Defendants' liability for damages.
Accordingly, this factor weighs in favor of default judgment.
iv. Sixth Factor: Whether Default was a Result of Excusable Neglect
The sixth Eitel factor examines whether Defendants' failure to respond to Plaintiffs' complaint was due to excusable neglect. Eitel, 782 F.2d at 1471-72.
Here, there is no possibility of excusable neglect. Defendants were well aware of this action against them. (Minser Decl. ¶¶ 14, 17, 21, 22.) Defendants were duly served with the complaint and summons in this action and did not request that the default be set aside or otherwise appear in the action. Ids. At the hearing, Plaintiff's counsel informed the Court that Mr. Brambila had previously stated that he would appear at the hearing on any future motion for default judgment, and that Mr. Brambila emailed him the day prior requesting an updated accounting of the amounts owed. Counsel provided the accounting to him, and Counsel believed that Mr. Brambila may appear at the hearing. Despite contacting Plaintiff, Mr. Brambila did not appear at the hearing. Defendants are not, to the best of Plaintiffs' knowledge, an infant or incompetent. (Minser Decl. ¶¶ 23-24.) Thus, Plaintiffs have properly served Defendants with all relevant pleadings to Plaintiffs' cause of action and the relief sought, and there is no evidence that Defendants' failure to appear and litigate this case is based on excusable neglect. See Shanghai Automation Instr. Co. v. Kuei, 194 F.Supp.2d 995, 1005 (N.D. Cal. 2001). As such, this factor weighs in favor of granting default judgment.
v. Seventh Factor: Policy Favoring a Decision on the Merits
In Eitel, the Ninth Circuit stated that “[c]ases should be decided on the merits whenever reasonably possible.” Eitel, 782 F.2d at 1472. The courts have recognized, however, that “this preference, standing alone, is not dispositive.” PepsiCo, Inc., 238 F.Supp.2d at 1177 (internal quotation omitted). The existence of Federal Rule of Civil Procedure 55(b) indicates that the “termination of a case before hearing the merits is allowed whenever a defendant fails to defend an action.” Id. Defendants have never participated in the proceedings. Thus, a decision on the merits will not otherwise be possible. In this situation, Rule 55(b) permits the court to grant default judgment.
After an examination of the Eitel factors in the aggregate, the Court finds that Eitel factors one through six outweigh the preference for a decision on the merits. The undersigned therefore recommends the entry of default judgment.
b. Relief Sought
After entry of default, well-pleaded factual allegations in the complaint are taken as true, except as to the amount of damages. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). To recover damages after securing a default judgment, a plaintiff must prove the relief it seeks through testimony or written affidavit. Bd. of Trs. of the Boilermaker Vacation Trust v. Skelly, Inc., 389 F.Supp.2d 1222, 1226 (N.D. Cal. 2005); see PepsiCo, Inc., 238 F.Supp.2d at 1175.
Plaintiffs seek a judgment requiring Defendants to pay the following unpaid contributions, liquidated damages, interest, amounts found due pursuant to audit, and attorneys' fees and costs:
Work Month
Late Paid Contributions
Unpaid Contribution Balances
20% Liquidated Damages
10% Interest (through 08/10/23)
Total
May-22
$6,855.44
$3,689.48
$2,108.98
$664.27
$6,462.73
Jun-22
$9,526.45
$261.84
$1,957.66
$305.94
$2,525.44
Jul-22
$11,455.50
$2,863.90
$2,863.88
$492.80
$6,220.58
Aug-22
$5,465.91
$5,130.46
$2,119.27
$514.62
$7,764.35
Sept-22
$1,636.50
$6,251.43
$1,577.59
$512.00
$8,341.02
Oct-22
-
$11,471.89
$2,294.38
$810.12
$14,576.39
Nov-22
$3,068.44
$3,412.05
$1,296.10
$292.76
$5,000.91
Dec-22
$5,138.61
$2,904.82
$1,608.69
$213.60
$4,727.11
Jan-23
$122.74
$4,852.19
$1,047.36
$224.23
$6,123.77
Feb-23
-
$5,236.80
$1,047.36
$197.34
$6,481.50
23-Mar
-
$5,236.80
$1,047.36
$153.01
$6,437.17
23-Apr
-
$5,236.80
$1,047.36
$110.11
$6,394.27
23-May
-
$5,236.80
$1,047.36
$65.78
$6,349.94
23-Jun
-
$5,236.80
$1,047.36
$22.88
$6,307.04
Subtotals:
$67,022.06
$22,110.71
$4,579.46
$93,712.23
Subtota
(Contributions, Liquidated Damages and Interest):
$93,712.23
Liquidated Damages on Prior Late-Paid Contributions (5/21, 9/21-11/21):
$3,922.54
Interest on Prior Late-Paid Contributions (5/21, 9/21-11/21):
$1,431.88
Subtotal (Liquidated Damages on Paid Late Contributions Prior to Litigation):
$5,354.42
Audit (10/22/20-6/30/21)
Contributions Underpayments:
$8,611.27
Interest (through 3/29/22):
$968.80
Additional Interest (3/30/22-8/10/23):
$1,177.64
Subtotal (Audit 10/22/20-6/30/21):
$10,757.71
Attorneys' Fees (through 3/31/23):
$16,388.50
Costs (through 1/31/23):
$816.43
Work Month
Late Paid Contributions
Unpaid Contribution Balances
20%
Liquidated Damages
10% Interest (through 08/10/23)
Total
Subtotal (Attorneys' Fees and Costs):
$17,204.93
TOTAL JUDGMENT:
$127,029.29
(See Minser Decl., ¶¶ 26, 27, 31-37; Brown Decl., ¶¶ 15-18; Quackenbush Decl., ¶¶ 6, 7.)
1. Unpaid Contributions
The stipulation for entry of judgment, dated January 12, 2022, and incorporated into the complaint by reference, was signed by Defendant Juan Manuel Bramila on behalf of himself and Brambila-Kelley, Inc., provided notice of the claims for the unpaid contributions outstanding at the time the signing in the amount of $31,507.00 in unpaid contributions, interest in the amount of $450.98, and liquidated damages in the amount of $3,922.54. (Compl. ¶¶ 16-17; Minser Decl. ¶ 4, Ex. A.) As of the filing of this motion, Defendant owes $67,022.06 in unpaid contributions. (Brown Decl. ¶ 18.) Additionally, Defendants owe $8,611.27 in underpayments found due by the audit. (Quackenbush Decl. ¶ 6.) These amounts have been substantiated in these supporting declarations, and total $75,633.33.
The undersigned has reviewed the parties' Agreements and accounting and finds that Plaintiffs have sufficiently demonstrated that they are entitled to unpaid contributions in the total amount of $75,633.33.
2. Liquidated Damages and Interest
ERISA § 515 provides that every employer who is obligated to make contributions to a multiemployer plan pursuant to the terms of a collective bargaining agreement must make such contributions in accordance with the terms of such agreement. Where judgment is entered in favor of the plan in an action to enforce Section 515, the court must award the plan interest on the unpaid contributions, liquidated damages, reasonable attorneys' fees and costs, and such other legal or equitable relief as the court deems appropriate. ERISA § 502(g), 29 U.S.C. 1132 (g)(2); see also, Operating Engineers Pension Trust v. Beck Eng'g & Surveying Co., 746 F.2d 557, 569 (9th Cir. 1984) (An award of liquidated damages under §1132(g)(2) is “mandatory and not discretionary.”). To award statutory liquidated damages, the Ninth Circuit requires that unpaid contributions exist at the time the lawsuit was filed. (Idaho Plumbers, 875 F.2d at 212.)
In Local 81 v. Wedge Roofing, 15 E.B.C. 2470 (N.D. Cal. 1991), this Court specified that liquidated damages shall also be awarded where further unpaid contributions become delinquent after the filing of the lawsuit. Defendants in this action have failed to submit payment for the audit amounts due and have failed to pay contributions and the assessed liquidated damages and interest for its unpaid and late-paid contributions. (Brown Decl. ¶¶ 15-18; Quackenbush Decl. ¶ 6; Minser Decl., ¶¶ 25-26.)
Plaintiffs' action in this matter is based on the statutory duty provided by ERISA § 515 for payment of contributions pursuant to the terms of valid Collective Bargaining Agreements, to which Defendants are signatory, and the incorporated Trust Agreements. Defendants' failure to comply with the terms of the Bargaining and Trust Agreements was the cause of this litigation, at great expense to Plaintiffs in administration, attorneys' fees, and costs.
Pursuant to the terms of the Bargaining and Trust Agreements, and ERISA § 502(g), 29 U.S.C. 1132(g)(2), Defendants are liable for twenty percent (20%) liquidated damages and ten percent (10%) interest per annum on its unreported, unpaid, and late-paid contributions from the date that they were delinquent until present (including those found due on any audit), as well as audit fees and attorneys' fees and costs. (Brown Decl. ¶¶ 10-14; Minser Decl. ¶¶ 25-27, 31-36.)
The amount of required contributions, as well as rates for liquidated damages and interest on delinquent contributions, are set forth in the Bargaining and Trust Agreements, to which Defendants are bound. The amounts Defendants owe to Plaintiffs have been established in the declarations of Plaintiffs' Counsel, Auditor, and Fringe Benefits Director. (See generally, Minser Decl., Quackenbush Decl., and Brown Decl.) Specifically, Plaintiffs have shown that Defendants owe $22,110.71 in liquidated damages and $4,579.46 in interest from unpaid contributions. (Brown Decl. ¶ 18.) Additionally, Plaintiff are owed liquidated damages in the amount of $3.922.54 and interest in the amount of $1,431.88 on prior late-paid contributions. Id.
Interest in the audit report was calculated by the Auditor through March 29, 2022. (Quackenbush Decl. ¶ 6; Minser Decl. ¶ 26.) As of March 29, 2022, interest owed through the audit was $968.80. (Quackenbush Decl. ¶ 6.) As the contributions remain unpaid on the audit, additional interest at 10% from March 30, 2022 through August 10, 2023 is calculated as follows: $8,611.27 * .10 = $861.13. 861.13/365 = 2.36 (daily rate); March 30, 2022 through August 10, 2023 = 499 days; 2.36 (daily rate) * 499 days = $1,177.64 due in additional interest. Ids.
Thus, the undersigned finds that liquidated damages in the amount of $26,033.25 and interest in the amount of $8,157.78 are reasonable.
i. Attorneys' Fees and Costs
Section 1132(g) of ERISA requires the Court to award Plaintiffs “reasonable attorneys' fees and costs of the action” when Plaintiffs obtain a judgment in their favor or otherwise obtain the relief sought. 29 U.S.C. § 1132 (g)(2) (D); Nw. Adm'rs, Inc., 104 F.3d at 253, 258.) Similarly, the Bargaining and Trust Agreements provide that Defendants must reimburse Plaintiffs for attorneys' fees, audit fees, costs, and all other expenses incurred in connection with the collection of delinquent contributions.
Here, Plaintiffs seek reimbursement of attorneys' fees incurred in the total amount of $16,388.50, for hours worked by Plaintiffs' Counsel from March 4, 2022 through March 31, 2023 seeking to enforce Defendants' obligation to pay amounts due (including amounts found due pursuant to audit) to Plaintiffs. (Minser Decl. ¶¶ 31-34, 36.) Plaintiffs' Counsel has submitted a declaration summarizing the qualifications of the attorneys and paralegals in this matter, along with their hourly rates. (Mincer Decl. ¶ 30.) Plaintiffs' Counsel also included true and correct copies of their billing records (Minser Decl. 31-33.) Plaintiffs also seek to recover the reasonable costs incurred in this matter in the amount of $816.43. (Minser Decl. ¶¶ 35-36.)
In the Ninth Circuit, the reasonableness of attorneys' fees is first determined by calculating the lodestar amount. Credit Managers Ass'n of So. Calif. v. Kennesaw Life and Acc. Ins. Co., 25 F.3d 743, 750 (9th Cir. 1994) (“When awarding fees under ERISA, ‘the court must determine a “lodestar” amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.'”); Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987) (finding strong presumption that the lodestar figure represents a reasonable fee). “The ‘lodestar' is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). The court may, however, adjust the award from the lodestar figure upon consideration of additional factors. Kerr v. Screen Extras Guild, 526 F.2d 70 (9th Cir. 1975); Credit Managers Ass'n of So. Calif., 25 F.3d at 750 (“[T]he court may increase or decrease the lodestar fee based on factors identified by this circuit in Kerr, 526 F.2d at 67 that are not subsumed within the initial calculation of the lodestar.”).
1. Reasonableness of Hourly Billing Rate.
The billing rates charged to the Trust Funds by Plaintiffs' Counsel in this action are: a paralegal at $165-$175 per hour, an associate attorney at $265-$285 per hour, and a shareholder attorney at $285-$305 per hour (see Minser Decl., ¶ 30), which are significantly lower than those charged in the area. However, “[t]he starting point for calculating attorneys' fees is “the prevailing market rate in the relevant community.” (Bell v. Clackamas County, 341 F.3d 858, 860 (9th Cir. 2003).) In establishing the reasonable hourly rate, the court may take into account: (1) the novelty and complexity of the issues; (2) the special skill and experience of counsel; (3) the quality of representation; and (4) the results obtained. (See Cabrales v. County of Los Angeles, 864 F.2d 1454, 1464 (9th Cir. 1988).)
In the Ninth Circuit, evidence of billing rates awarded in ERISA cases in the region must be considered. (Welch v. Metro Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007).) The Ninth Circuit has “repeatedly held that the determination of a reasonable hourly rate is not made by reference to the rates actually charged to the prevailing party.” (Id. citing Mendenhall v. Nat'l Transp. Safety Bd., 213 F.3d 464, 471 (9th Cir. 2000) (quoting Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986)).) “Rather, billing rates ‘should be established by reference to the fees that private attorneys of an ability and reputation comparable to that of prevailing counsel charge their paying clients for legal work of similar complexity.'” (Id. quoting Davis v. City and County of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992).)
2. Reasonableness of Hours Billed.
Plaintiffs' Counsel billed a total of 70.7 hours from March 4, 2022 through March 31, 2023, incurring $16,388.50 in fees, consisting of 42.6 attorney hours and 28.1 paralegal hours. (Minser Decl. ¶¶ 31-34.) The attorneys' fees specified above were incurred by Plaintiffs for work performed by Plaintiffs' Counsel for activities specifically described in detail in the billing records attached to a supporting declaration. (See Minser Decl. ¶ 31-33, Exs. I & J.) The undersigned finds that all hours reported were reasonably expended.
3. Reasonableness of Total Attorneys' Fees Requested.
As set forth above, in the Ninth Circuit the reasonableness of attorneys' fees is first determined by calculating the lodestar amount. Credit Managers, 25 F.3d at 743, 750 (“When awarding fees under ERISA, ‘the court must determine a “lodestar” amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.'”) (quoting D'Emanuele v. Montgomery Ward & Co., 904 F.2d 1379, 1383 (9th Cir. 1990)). The lodestar amount is equal to the number of hours Plaintiffs' counsel reasonably expended on the litigation multiplied by a reasonable hourly rate. Morales, 96 F.3d at 363. The reasonable hourly rate is based on the prevailing market rate in the relevant community in ERISA actions.
Here, Plaintiffs are only requesting the billing rates that its attorneys actually charged. Specifically, the attorneys billing rates ranged from $265 to $305 per hour, while the paralegal rates were between $165 and $175 per hour, which are below the lodestar amount based on the prevailing market rate in the relevant community in similar ERISA actions. (See Minser Decl., ¶ 30-34, 36, Exs. I & J.) Therefore, the rates requested are reasonable, and the undersigned recommends that Plaintiffs be awarded $16,388.50 for the attorneys' fees incurred.
4. Costs
Finally, Plaintiffs seek reimbursement of costs in the amount of $816.43. (Minser Decl. ¶¶ 35-36.) The costs include the filing fee and the service of the summons and complaint. (Minser Decl., Ex. I.) These costs appear reasonable, and, therefore, the undersigned recommends that the district court award costs in the amount of $816.43.
IV. CONCLUSION
For the reasons stated above, the undersigned RECOMMENDS that Plaintiffs' motion for default judgment be GRANTED, that judgment be entered against Defendants Brambila & Kelley Inc., a California Corporation dba JB Electric and Construction, Brambila & Kelley Inc., a California Corporation dba Tri Valley Electric Inc., Brambila & Kelley Inc., a California Corporation dba Tri Valley Maintenance & Repair Inc., and Juan Brambila aka John Brambila, an individual, and that Plaintiffs be awarded:
(1) Unpaid contributions in the amount of $75,633.33;
(2) Interest in the amount of $8,157.78;
(3) Liquidated damages in the amount of $26,033.25;
(4) Reasonable attorney's fees in the amount of $16,388.50; and
(5) Costs in the amount of $816.43.
Moreover, interest shall continue to accrue at a rate of 10% per annum on unpaid contributions ($75,633.33) from August 11, 2023, until paid, and at post-judgment interest rates on the balance of the judgment. The undersigned further recommends that the district court retain jurisdiction over this matter.
Finally, no later than 3 days from the date of this report and recommendation, Plaintiffs are instructed to serve Defendants with a copy by any means reasonably calculated to provide actual notice and file a proof of service to that effect. Any party may file objections to these recommendations within 14 days of being served with a copy. See 28 U.S.C. § 636(b); See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); N.D. Civil L.R. 72-3. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. IBEW Local 595 Trust Funds v. ACS Controls Corp., No. C-10-5568, 2011 WL 1496056, at *3 (N.D. Cal. Apr. 20, 2011).
IT IS SO RECOMMENDED.