Opinion
Case No. 15-cv-01771-EMC
11-11-2015
THOMES E PEREZ, Plaintiff, v. LANCE SILVA, et al., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
Docket No. 14
Plaintiff Thomas E. Perez, in his capacity as Secretary of Labor for the United States Department of Labor ("DOL"), has filed suit against Defendants Lance Silva, National Upholstering Company, Inc. ("NUC"), and the National Upholstering Company 401(k) Plan ("NUC Plan" or "Plan") (collectively, "Defendants") pursuant to the Employee Retirement Income Security Act ("ERISA"). See 29 U.S.C. § 1132(a)(5) (providing that the Secretary may bring a civil action "(A) to enjoin any act or practice which violates any provision of this title, or (B) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision of this title"). After the Secretary served the complaint, Defendants made no appearance and failed to respond. Accordingly, the Secretary sought entry of default against Defendants, and their default was entered on July 9, 2015. See Docket No. 10 (notice). The Secretary now seeks a default judgment. Having considered the papers submitted, as well as the oral argument of counsel, the Court hereby GRANTS the motion for default judgment.
As stated in the Secretary's complaint, the Plan was named as a defendant "solely to assure that complete relief can be granted." Compl. ¶ 10.
No written opposition was filed. Nor did Defendants appear at the hearing.
I. FACTUAL & PROCEDURAL BACKGROUND
The Secretary's complaint and papers submitted in support of his motion for default judgment reflect as follows.
NUC is a suspended California corporation. It ceased operations in June 2010. Prior to ceasing operations, NUC manufactured furniture. See Compl. ¶ 4. Mr. Silva was, at some point, the president of NUC. See Compl. ¶ 5.
NUC sponsored and was the plan administrator for the NUC Plan, an employee pension benefit plan as defined under ERISA. See Compl. ¶¶ 3-4, 9 (citing 29 U.S.C. § 1002(3)). Because NUC exercised discretionary authority and control with respect to the management of the Plan, NUC was a fiduciary of the Plan, as well as a party in interest to the Plan, within the meaning of ERISA. See Compl. ¶ 9 (citing 29 U.S.C. §§ 1002). For the same reason, Mr. Silva was also a fiduciary of and a party in interest to the Plan. See Compl. ¶ 8.
After NUC ceased operations, Mr. Silva
began to engage in a pattern of unauthorized transactions wherein he accessed other participants' Plan accounts and caused several participants' account balances, or portions thereof, to be transferred to himself. Specifically, between September 10, 2011, and November 14, 2011, [Mr.] Silva improperly caused Fidelity Investments to distribute $43,326.36 from four other participant's accounts to himself, without authorization, with the checks payable to [himself].Compl. ¶ 13. Mr. Silva ultimately "pled guilty to criminal charges for the theft of the funds at issue." Hesik Decl. ¶ 6.
As for NUC, after it ceased operations, it "failed to take the proper steps to ensure that Plan participants received distributions of their account balances. For example, NUC failed to update the Plan's online account to allow participants to access their benefits as required by governing Plan documents." Compl. ¶ 15; see also Compl. ¶ 20 (alleging that Plan "participants are unable to access their Plan accounts, either to reinvest them in other tax-qualified retirement savings vehicles before retirement, or to draw them down upon retirement"). Approximately $270,000 in assets remain in the Plan. See Compl. ¶ 15; Hasik Decl. ¶ 7.
II. DISCUSSION
A. Service of Process
"As a threshold matter in considering a motion for default judgment, the Court must first 'assess the adequacy of the service of process on the party against whom default is requested.'" Bd. of Trs. of the Laborers Health & Welfare Trust Fund for N. Cal. v. Montes Bros. Constr., Inc., No. C-14-1324, 2014 U.S. Dist. LEXIS 156659, at *4 (N.D. Cal. Nov. 5, 2014).
The Secretary has provided evidence that it personally served the summons and complaint on Mr. Silva in May 2015. See Docket No. 6 (proof of service). Thus, service was properly effected on him pursuant to Federal Rule of Civil Procedure 4(e)(2)(A). See Fed. R. Civ. P. 4(e)(2)(A) (allowing for service by "delivering a copy of the summons and of the complaint to the individual personally").
As for NUC and the Plan, the Secretary effected service by serving Mr. Silva in May 2015. See Docket No. 6 (proof of service). Rule 4(h)(1)(B) allows for service on a corporation as well as an unincorporated association "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process." Fed. R. Civ. P. 4(h)(1)(B). The Ninth Circuit has explained that, in spite of the language of the rule,
service of process is not limited solely to officially designated officers, managing agents, or agents appointed by law for the receipt of process. The rules are to be applied in a manner that will best effectuate their purpose of giving the defendant adequate notice. Thus, the service can be made "upon a representative so integrated with the organization that he will know what to do with the papers. Generally, service is sufficient when made upon an individual who stands in such a position as to render it fair, reasonable and just to imply the authority on his part to receive service."Direct Mail Specialists, Inc. v. Eclat Comp. Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). Here, the Court finds that the Secretary has adequately established a prima facie case for service on NUC and the Plan via Mr. Silva. Mr. Silva, though not the most recent president of NUC, was formerly a president and he apparently still had an active role in the company as a fiduciary of the Plan. In the absence of any evidence suggesting that Mr. Silva would not know what to do with the papers, the Court finds that service was properly effected on the two entities. B. Eitel Analysis
As noted above, after Defendants failed to respond to the complaint served upon them, the Clerk of the Court entered their default on July 9, 2015. See Docket No. 10 (notice). After entry of a default, a court may grant a default judgment on the merits of the case. See Fed. R. Civ. P. 55. "The district court's decision whether to enter a default judgment is a discretionary one." Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Factors that a court may consider in exercising that discretion include:
(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 a 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). Because default has already been entered in this case, the Court must construe as true all factual allegations in the Secretary's complaint except for those related to the amount of damages or other relief sought. See Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
The Court finds that the Eitel factors largely weigh in favor of granting default judgment, at least as to Mr. Silva and NUC. As to the first factor, if the motion for default judgment were to be denied, then the participants in the Plan, including but not limited to those whose funds were taken by Mr. Silva, would likely be without a remedy. See Walters v. Shaw/Guehnemann Corp., No. C 03-04058 WHA, 2004 U.S. Dist. LEXIS 11992, at *7 (N.D. Cal. Apr. 15, 2004) ("To deny plaintiff's motion [for default judgment] would leave them without a remedy. Prejudice is also likely in light of the merits of their claims."); Pepsico, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002) ("If Plaintiffs' motion for default judgment is not granted, Plaintiffs will likely be without other recourse for recovery."). Also, the sum of money at stake in the action is appropriate as it is tailored to the specific alleged misconduct of Mr. Silva. See id. at 1176 (stating that "the court must consider the amount of money at stake in relation to the seriousness of Defendant's conduct"). In addition, there is nothing to suggest that there is a possibility of a dispute concerning material facts. Further, there is no indication that Mr. Silva and NUC's default was due to excusable neglect. Finally, while public policy favors decisions on the merits, Eitel, 782 F.2d at 1472, Defendants' refusal to defend this action renders a decision on the merits "impractical, if not impossible." PepsiCo, 238 F. Supp. 2d at 1177.
For example, the Secretary served the motion for default judgment on Defendants (more specifically, on Mr. Silva, both individually and as a representative of NUC and the Plan), but no written opposition was ever filed by any Defendant.
The only factors that deserve closer analysis are the second and third factors - that is, the merits of the Secretary's substantive claims and the sufficiency of the complaint. The Court agrees that Mr. Silva's conduct in taking assets from Plan participants' without their consent constitutes a violation of several ERISA provisions. See 29 U.S.C. § 1104(a)(1)(A) (providing that a fiduciary shall discharge his duties for the exclusive purpose of "providing benefits to participants and their beneficiaries"); id. § 1104(a)(1)(B) (providing that a fiduciary shall discharge his duties "with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims"); id. § 1106(a)(1)(D) (providing that a fiduciary shall not engage in a transaction that transfers assets of a plan to a party in interest); id. § 1106(b)(1) (providing that a fiduciary shall not "deal with the assets of the plan in his own interest or for his own account").
The Court further agrees that NUC's failure to take steps to ensure that Plan participants received distributions of their account balances (after NUC ceased operations) also constitutes a violation of several ERISA provisions. See id. § 1104(a)(1)(A) (providing that a fiduciary shall discharge his duties for the exclusive purpose of "providing benefits to participants and their beneficiaries"); id. § 1104(a)(1)(B) (providing that a fiduciary shall discharge his duties "with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims"); id. § 1104(a)(1)(D) (providing that a fiduciary shall discharge his duties "in accordance with the documents and instruments governing the plan").
The only issue that gives the Court some pause is the Secretary's attempt to hold NUC liable for the acts of Mr. Silva. Title 29 U.S.C. § 1105 addresses liability for breach by a co-fiduciary. It provides in relevant part as follows:
In addition to any liability which he may have under any other provision of this part [29 U.S.C. § 1101 et seq.], a fiduciary with respect to a plan shall be liable for a breach of fiduciary responsibility of another fiduciary with respect to the same plan in the following circumstances:Id. § 1105(a). According to the Secretary,
. . . .
(2) if, by his failure to comply with section 404(a)(1) [29 U.S.C. § 1104(a)(1)] in the administration of his specific responsibilities which give rise to his status as a fiduciary, he has enabled such other fiduciary to commit a breach; or
(3) if he has knowledge of a breach by such other fiduciary, unless he makes reasonable efforts under the circumstances to remedy the breach.
NUC is liable as a co-fiduciary . . . because (1) NUC enabled [Mr.] Silva to commit such breaches by its failure to comply with § 404(a)(1)(A) and (D) . . . and (2) NUC had knowledge of [Mr.] Silva's breaches and failed to make reasonable efforts under the circumstances to remedy such breaches.Compl. ¶ 19.
The first theory of liability, however, is tenuous. It is questionable whether NUC's failure to take steps to ensure that Plan participants received distributions of their account balances (after NUC ceased operations) enabled Mr. Silva's theft. As for the second theory, the Court has concerns because the Secretary has not explained how NUC had knowledge of Mr. Silva's theft and then failed to make reasonable efforts to remedy the situation.
At the hearing, the Secretary argued for the first time that NUC had knowledge of the Mr. Silva's breaches because Mr. Silva's knowledge (of his own breaches) could be imputed to NUC, especially as he was a high-level employee of NUC. But the language used in § 1105 suggests to the contrary - i.e., there is co-fiduciary liability where one fiduciary has knowledge of the other fiduciary's breaches. Furthermore, the Secretary has not offered any authority to support his position. Finally, there is at least some authority to the contrary. See Harris v. Fich, Pruyn & Co., Inc., No. 1:05-CV-951 (FJS/RFT), 2008 U.S. Dist. LEXIS 39033, at *26 (N.D.N.Y. May 13, 2008) (stating that "Plaintiffs may not rely on the theory that Defendant Finch Pruyn acquired knowledge of the breaches by virtue of Defendant Benway's and Defendant Levandosky's knowledge" because, "[i]n ERISA co-fiduciary cases, an agent's knowledge cannot be imputed to the principal" - "[t]o allow knowledge to be imputed pursuant to traditional agency theory would . . . circumvent [ERISA's fiduciary liability] scheme by imposing virtually strict liability on principals for breaches of their agents, thus extending co-fiduciary liability beyond the strictly-delimited categories of 29 U.S.C. § 1105(a)").
As for the Plan, the Court shall not enter a default judgment against it because, as the Secretary himself concedes in his complaint, the Plan has not engaged in any wrongdoing itself but has simply been named to ensure that complete relief can be obtained. That being said, because the Plan was given notice of the suit, but failed to appear, it cannot protest the relief that the Court shall grant, as discussed below. C. Relief
Having concluded that a default judgment against Mr. Silva and NUC is appropriate, the Court now turns to the relief sought by the Secretary. As noted above, under ERISA, the Secretary has the authority to bring a civil action "(A) to enjoin any act or practice which violates any provision of this title, or (B) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision of this title." 29 U.S.C. § 1132(a)(5). Furthermore, ERISA provides that
[a]ny person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this title shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary.Id. § 1109(a).
Consistent with his complaint, the Secretary asks for the following relief: (1) An order requiring Mr. Silva and NUC to restore $55,838.84 to the NUC Plan; (2) An order removing Mr. Silva and NUC as fiduciaries of the Plan; (3) An order appointing Metro Benefits, Inc. as an independent fiduciary to the Plan; (4) An order requiring Mr. Silva and NUC to pay the independent fiduciary $5,950 to cover its reasonable fees; (5) A permanent injunction enjoining Mr. Silva and NUC from future violations of ERISA; (6) A permanent injunction enjoining Mr. Silva from future service as a fiduciary of, or service provider to, any ERISA-covered plan. (7) An order assessing a 20% civil penalty on any amounts recovered under the judgment.
1. Restoring Funds to the Plan
The Secretary asks first for an order requiring Mr. Silva and NUC to restore $55,838.84 to the NUC Plan. This figure is based on the $43,326.36 that Mr. Silva stole from the Plan participants, plus $12,412.48 in what the Secretary calls "lost earnings" (i.e., return that would have been earned had the funds not been stolen by Mr. Silva in the first place). Mot. at 10. The Secretary calculated the lost earnings by using the interest rate specified in 26 U.S.C. § 6621. See Hesik Decl. ¶ 10. In the alternative, the Secretary asks for the interest rate to be based on 28 U.S.C. § 1961, which would yield a total interest of $452.94. See Hesik Decl. ¶ 11.
Section 6621 provides in relevant part that "[t]he underpayment rate established under this section shall be the sum of (A) the Federal short-term rate determined under subsection (b), plus (B) 3 percentage points." 26 U.S.C. § 2261(a)(2).
Section 1961 provides in relevant part: "Such interest shall be calculated . . . at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment." 28 U.S.C. § 1961.
As a preliminary matter, the Court shall order Mr. Silva only to restore funds, as it is not holding NUC liable for the breach of its co-fiduciary. As to Mr. Silva, it is equitable to order the restoration of $43,326.36, as that represents the money stolen by Mr. Silva.
With respect to lost earnings, the Court deems it equitable to make an award of prejudgment interest given that the Plan and/or the Plan participants were deprived of the use of the $43,326.36.
The only question remaining is which interest rate should apply - that provided under § 6621 or that provided under § 1961. The Ninth Circuit has stated that, "[g]enerally, 'the interest rate prescribed for post-judgment interest under 28 U.S.C. § 1961 is appropriate for fixing the rate of pre-judgment interest unless the trial judge finds, on substantial evidence, that the equities of that particular case require a different rate.'" Blankenship v. Liberty Life Assur. Co., 486 F.2d 620, 628 (9th Cir. 2007). In his motion, the Secretary contends that § 6621 should apply instead of § 1961 because the § 1961 interest "rate is at historically low levels. Therefore, awarding pre-judgment interest at the 28 U.S.C. § 1961 rate would not effectuate the remedial purpose of ERISA to put the Plan in the position it would have been but for the breaches of the Default Defendants." Mot. at 11. The Court finds that the Secretary has adequately stated a basis for applying the higher interest rate. See Russo v. Unger, 845 F. Supp. 124, 126 (S.D.N.Y. 1994) (stating that "'the district court has discretion to apply the Section 6621 rate, provided it finds, based on the evidence before it, that that rate is an appropriate one consistent with Section 409's standard of making the plan whole, and the court must make specific determination as to that appropriateness'"). Furthermore, the Court notes that the equities weigh in favor of a higher interest rate given that Mr. Silva, in essence, stole from the Plan.
The Secretary has not made the argument that prejudgment interest should be based on, e.g., the rate of return that the Plan made on funds that were not misappropriated during or about that same time period. See Russo v. Unger, 845 F. Supp. 124, 126-27 (S.D.N.Y. 1994) (considering historical rates of return of ERISA plan).
2. Removal as Fiduciaries
ERISA specifically contemplates that removal of a fiduciary may be appropriate equitable or remedial relief where the fiduciary has breached its responsibilities. See 29 U.S.C. § 1109(a). Here, the Court finds that removal of Mr. Silva and NUC is appropriate, as requested by the Secretary. Mr. Silva, as noted above, stole from the Plan/Plan participants. As for NUC, it has "failed to take the proper steps to ensure that Plan participants received distributions of their account balances." Compl. ¶ 15; see also Compl. ¶ 20 (alleging that Plan "participants are unable to access their Plan accounts, either to reinvest them in other tax-qualified retirement savings vehicles before retirement, or to draw them down upon retirement"). Failing to satisfy such a basic duty counsels against its continued role as a fiduciary for the Plan.
3. Appointment of Independent Fiduciary and Payment of Independent Fiduciary's Fees
In place of Mr. Silva and NUC, the Secretary asks that the Court appoint an independent fiduciary and that Mr. Silva and NUC be compelled to pay for the reasonable fees of the independent fiduciary. The Court agrees that such relief is appropriate. As Mr. Silva and NUC are no longer fiduciaries, and there is nothing to indicate that there is another fiduciary who will take on responsibility for the Plan, an independent fiduciary shall be appointed. The DOL has obtained bids from three potential fiduciaries (to terminate the Plan and distribute assets to participants and beneficiaries) and determined that Metro Benefits, Inc. is the best candidate. Metro Benefits's fee for the scope of work is $5,950. See Hesik Decl. ¶ 8. Because the DOL has acted reasonably in its selection process and Metro Benefits's fee is not unreasonable, the Court shall appoint Metro Benefits as the independent fiduciary, with the understanding that its services shall not cost more than $5,950. See generally Perez v. Bar-K, Inc., No. 14-cv-05549-JSW (JSC), 2015 U.S. Dist. LEXIS 94226 (N.D. Cal. June 4, 2015) (report and recommendation) (removing fiduciary and appointing independent fiduciary), adopted by 2015 U.S. Dist. LEXIS 94225 (N.D. Cal. July 20, 2015). In addition, the Court finds it equitable for Mr. Silva and NUC to pay for the cost of the independent fiduciary because it was their failure to comply with their fiduciary obligations that necessitated the appointment of an independent fiduciary.
4. Enjoining Future Violations of ERISA
The Secretary asks next for an injunction enjoining Mr. Silva and NUC from future violations of ERISA. While the request is not without any merit, the Court shall not impose the injunction as it is tantamount to an obey-the-law injunction. See EEOC v. AutoZone, Inc., 707 F.3d 824, 841 (7th Cir. 2013) (noting that "[a]n injunction that does no more than order a defeated litigant to obey the law raises several concerns" - e.g., overbreadth and vagueness).
5. Enjoining Future Service as Fiduciary or Service Provider
The Court, however, shall grant the Secretary's request for an injunction enjoining Mr. Silva from future service as a fiduciary of, or service provider to, any ERISA-covered plan. Given the seriousness of Mr. Silva's conduct, such relief is appropriate. See, e.g., Chao v. Merino, 452 F.3d 174, 185-86 (2d Cir. 2006) (noting that relief under § 1109 "may include a permanent injunction barring a former ERISA fiduciary from providing services or acting as a fiduciary to any employee benefit plan in the future" and that such relief "is not limited to cases in which the fiduciary has engaged in self-dealing").
6. Assessment of 20% Civil Penalty
Finally, the Secretary asks that the Court's order include a provision that "[t]he Secretary will assess a civil penalty of 20% to amounts recovered under this Judgment as required by" 29 U.S.C. § 1132. Prop. Order ¶ 9. Section 1132(l) provides in relevant part as follows:
(1) In the case of -
(A) any breach of fiduciary responsibility under (or other violation of) part 4 [29 U.S.C. § 1101 et seq.] by a fiduciary, or
(B) any knowing participation in such a breach or violation by any other person,
the Secretary shall assess a civil penalty against such fiduciary or other person in an amount equal to 20 percent of the applicable recovery amount.
. . . .
(3) The Secretary may, in the Secretary's sole discretion, waive or reduce the penalty under paragraph (1) if the Secretary determines in writing that -
29 U.S.C. § 1132(l). Given the mandatory language in § 1132(l), the Court shall include in its order the 20% civil penalty. The order, however, shall be applicable to Mr. Silva only, as he is the only defendant liable for monetary damages. Moreover, the Court's ruling here shall not bar Mr. Silva from asking for, or the Secretary from deciding that, a waiver is appropriate under the circumstances.(A) the fiduciary or other person acted reasonably and in good faith, or
(B) it is reasonable to expect that the fiduciary or other person will not be able to restore all losses to the plan (or to provide the relief ordered pursuant to subsection (a)(9)) without severe financial hardship unless such waiver or reduction is granted.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS the Secretary's motion for default judgment and orders as follows: (1) Within sixty (60) days of entry of final judgment, Mr. Silva shall make restitution to the Plan by restoring $55,838.84, which includes $43,326.36 in principal loses and $12,512.48 in prejudgment interest; (2) Mr. Silva and NUC are immediately removed as fiduciaries of the NUC Plan; (3) Metro Benefits, Inc. (of 8150 Perry Highway, Suite 311, Pittsburgh, Pennsylvania 15237) is appointed as independent fiduciary of the NUC Plan and has sole responsibility for administering the Plan; (4) Within sixty (60) days of entry of final judgment, Mr. Silva and NUC shall pay Metro Benefits $5,950 to cover its reasonable fees; (5) Mr. Silva is permanently enjoined from future service as a fiduciary of, or service provider to, any ERISA-covered plan; and (6) The Secretary shall assess a civil penalty of 20% to amounts recovered under this judgment as required by 29 U.S.C. § 1132.
As to Metro Benefits's powers, duties, and responsibilities as appointed independent fiduciary, the Court hereby orders as follows: A. The Independent Fiduciary shall have full fiduciary authority and shall have all the powers, rights, discretion, and duties of a trustee, fiduciary, and Plan Administrator under ERISA; B. The Independent Fiduciary's responsibilities shall include, but shall not be limited to, establishment or continuation of trust accounts for the benefit of the Plan's participants and beneficiaries, communication with participants regarding their account disbursement options, collection of any necessary information from those persons or entities in custody of such information including bankruptcy trustees, calculation of the participants' and beneficiaries' account balances, and shall file a final Form 5500; C. The Independent Fiduciary shall have responsibility and authority to collect, liquidate, and manage the Plan's assets for the benefit of the eligible participants and beneficiaries who are entitled to receive such assets, until such time that the Plan's assets are distributed to those participants and beneficiaries; D. The Independent Fiduciary shall exercise reasonable care and diligence to identify and locate each participant or beneficiary who is eligible to receive a distribution under the terms of the Plan. Further, the Independent Fiduciary shall make distributions to each eligible participant and beneficiary of the Plan; E. The Independent Fiduciary shall have full access to all data, information and calculations in the Plan's possession or under its control, including information and records maintained by the Plan's custodial trustee, service providers, and Mr. Silva; F. Mr. Silva shall fully cooperate with all reasonable requests by the Independent Fiduciary to facilitate the administration, liquidation and/or termination of the Plan; G. As soon as administratively practicable after appointment, the Independent Fiduciary shall provide for the orderly termination and liquidation of the Plan, including making all distributions and/or rollovers to the participants and beneficiaries; H. The Independent Fiduciary shall have full authority to amend the Plan as necessary to effectuate its termination and the processing of all participant distributions; and I. The Independent Fiduciary shall provide to the Secretary any and all information he requests concerning the Plan, including but not limited to information concerning the assets remaining in the plan and the status of distributions. All information shall be mailed to the Regional Director at this address:
Regional Director, EBSA
90 7th Street, Suite 11-300
San Francisco, CA 94103
J. Should Mr. Silva and/or NUC default under their obligation to pay the Independent Fiduciary's fees as set forth in Paragraph 4 above, the Independent Fiduciary may obtain payment from the Plan of no more than $5,950.00 to cover the Independent Fiduciary's reasonable fees. Mr. Silva and NUC shall remain liable for these amounts and any amounts subsequently obtained from Mr. Silva and/or NUC in satisfaction of this debt shall be restored to the Plan.
The Clerk of the Court is instructed to enter judgment in accordance with the above and close the file in the case.
This order disposes of Docket No. 14.
IT IS SO ORDERED. Dated: November 11, 2015
/s/_________
EDWARD M. CHEN
United States District Judge