Opinion
00 Civ. 8452(GBD) (AJP).
November 13, 2001.
REPORT AND RECOMMENDATION
To the Honorable George B. Daniels, United States District Judge:
On May 15, 2001, Judge Daniels entered a default judgment for plaintiff Trustees against defendant Gordon's Film Co. (New York) International Inc. d/b/a Music Palace Operating Corporation, and referred the case to me for an inquest. (Dkt. No. 8: Default Judgment.) The complaint in this ERISA action seeks delinquent contributi ons to the Pension Welfare Funds in the amount of $8,125.83. (Dkt. No. 1: Compl. ¶ 9.)
Plaintiff had previously dismissed the action without prejudice as to the remaining defendants, Oscar Watt and Edmund Yung. (Dkt. No. 7: Notice Order of Vol. Dismissal.)
For the reasons set forth below, the Court should enter judgment for plaintiff Trustees against Gordon' s Fil m for $8,125, plus accrued interest of $1,434, statutory liquidated damages of $1,625, attorneys' fees of $2,288.75, plus costs of $598, for a total of $14,070.75.
FACTS
"Where, as here, 'the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc., 30 F. Supp.2d 622, 623 (S.D.N.Y. 1998) (Carter, D.J. Peck, M.J.) (quoting 10A C. Wright, A. Miller M. Kane, Federal Practice Procedure: Civil 2d § 2688 at 58-59 (3d ed. 1998)).
Accord, e.g., Coast To Coast Fabrics, Inc. v. Tracy Evans, Ltd., 00 Civ. 4417, 2001 WL 5037 at * 1 (S.D.N.Y. Jan. 2, 2001) (Peck, M.J.);Starbucks Corp. v. Morgan, 99 Civ. 1404, 2000 WL 949665 at *1 (S.D.N.Y. July 11, 2000) (Peck, M.J.); King Vision Pay-Per-View, Ltd., Corp. v. New Paradise Restaurant, 99 Civ. 10020, 2000 WL 378053 at * 1 (S.D.N.Y. Apr. 11, 2000) (Peck, M.J.); Independent Nat'l Distrib., Inc. v. Black Rain Communications, Inc., 94 Civ. 8464, 1996 WL 238401 at *2 (S.D.N.Y. Apr. 4, 1996) (Keenan, D.J. Peck, M.J.).
The Pension and Welfare Funds of the Moving Picture Machine Operators Union, Local 306 (the "Funds") are employee benefit pl ans within the meaning of ERISA. (Dkt. No. 1: Compl. ¶¶ 2, 4.) Defendant Gordon's Film is a member of the Independent Theatre Owners Association, which is signatory to a collective bargaining agreement with Local 306. (Compl. ¶ 8.) That agreement obligates each employer to make pension and welfare contributions to the Funds on behalf of covered employees. (Compl. ¶ 8.) Gordon's Film failed to make required payments to the Funds. (Compl. ¶¶ 9-10.)
The complaint asserts that Gordon's Film is "delinquent in [its] contributions to the Funds in the principal amount of $8,125.83 through the present date." (Compl. ¶ 9.) The Court directed plaintiff Trustees to provide support for that amount. (Dkt. Nos. 9-11.) Plaintiff provided a worksheet prepared by the Funds' administrator showing a principal amount due of $8,125.83 for 1998, 1999 and 2000. (Greene 11/1/01 Supp. Aff. ¶ 4 Ex. A.)
Procedural Background
As noted above, on May 15, 2001, Judge Daniels granted plaintiff a default judgment against defendant Gordon's Film and referred the matter to me for an inquest. (Dkt. No. 8: Default Judgment.) By Orders dated October 16 and November 1, 2001, the Court directed an inquest on written submissions, with Gordon' s Film's opposition papers due November 7, 2001. (Dkt. Nos. 9-11: Orders.) Gordon's Film, however, has not submitted any opposition papers. (See docket sheet.) According to plaintiff Trustees, Gordon's Film ceased operations at the end of June 2000. (Greene 11/1/01 Supp. Aff. ¶ 3.)
ANALYSIS
The Second Circuit has approved the holding of an inquest by affidavit, without an in-person court hearing, "'as long as [the Court has] ensured that there was a basis for the damages specified in the default judgment.'" Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quoting Fustok v. Conti Commodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).
Accord, e.g., Coast To Coast Fabrics, Inc. v. Tracy Evans, Ltd., 00 Civ. 4417, 2001 WL 5037 at * 1 (S.D.N.Y. Jan. 2, 2001) (Peck, M.J.);Starbucks Corp. v. Morgan, 99 Civ. 1404, 2000 WL 949665 at *2 (S.D.N.Y. July 11, 2000) (Peck, M.J.); King Vision Pay-Per-View, Ltd., Corp. v. New Paradise Restaurant, 99 Civ. 10020, 2000 WL 378053 at * 1 (S.D.N.Y. Apr. 11, 2000) (Peck, M.J.); Chen v. Jenna Lane, Inc., 30 F. Supp.2d 622, 624 (S.D.N.Y. 1998) (Carter, D.J. Peck, M.J.); see also, e.g., Semi Conductor Materials, Inc. v. Agriculture Inputs Corp., 96 Civ. 7902, 1998 WL 388503 at * 8 (S.D.N.Y. June 23, 1998) (Kaplan, D.J. Peck, M.J.).
Plaintiff has provided sufficient proof of the principal amount of Fund contributions sued for, $8,125, in the form of the Funds' administrators' worksheets. (Greene 11/1/01 Supp. Aff. ¶ 4 Ex. A.) Accordingly, the Court should award plaintiff Trustees $8,125 as the principal amount owed to the Funds.
Paintiff's moving papers dropped the claim for the additional 83 cents.
In addition to the principal amount, ERISA entitles the Funds to interest, liquidated damages and attorneys' fees:
(2) In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan —
(A) the 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),
(D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court deems appropriate.
For purposes of this paragraph, 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).
The Funds' administrators calculated the interest due under the Plan on unpaid contributions, as follows: 1998, $105; 1999, $354; and 2000, $975. (Greene 11/1/01 Supp. Aff. ¶ 4 Ex. A.) Accordingly, the Court should award plaintiff Trustees interest of $1,434.
Plaintiff' s counsel sought only $975 for interest, apparently mistakenly assuming it was the cumulative interest number. (See Trustees Br. at 2.) The Court's review of the spreadsheet (Greene 11/1/01 Supp. Aff. Ex. A) disclosed that it is not a cumulative number. Plaintiff Trustees should not lose out because of an error by its counsel.
ERISA provides for liquidated damages of up to 20% of the principal amount, and Gordon's Film has not responded in connection with the inquest; thus the Court sees no reason not to award the maximum. The Court should award plaintiff Trustees liquidated damages under ERISA of$1,625.
Plaintiff Trustees also seek $2,288.75 in attorneys' fees and $598 in costs. (Greene 11/1/01 Supp. Aff. ¶¶ 5-6 Exs. B-D.) The Court has reviewed the back-up documentation and finds these amounts reasonable. The Court therefore should award plaintiff Trustees attorneys' fees of$2,288.75 and costs of $598.
CONCLUSION
For the reasons set forth above, the Court should award plaintiff$14,070.75, as follows:
Principal Amount $ 8,125. Interest 1,434. Liquidated Damages 1,625. Attorneys' Fees 2,288.75 Costs 598. TOTAL $14,070.75
SERVICE
Plaintiff's counsel is to immediately serve a copy of this Report Recommendation on defendant Gordon's Fil m and fil e proof of service with the Clerk of Court.FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, 40 Centre Street, Room 410, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Daniels. Failure to fil e objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).