United States District Court, S.D. Illinois
June 10, 2005.
CENTRAL LABORERS' PENSION, WELFARE AND ANNUITY FUNDS, Plaintiffs,
TILCON DEVELOPMENT, INC., Defendant.
The opinion of the court was delivered by: DAVID HERNDON, District Judge
MEMORANDUM AND ORDER
Plaintiffs Central Laborers' Pension, Welfare and Annuity Funds
brought this action under the Employee Retirement Income Security
Act of 1974 ("ERISA"), as amended, 29 U.S.C. § 1001, et seq.,
seeking to recover money due and owing from Defendant Tilcon
Development, Inc. ("Tilcon Development"), as well as attorneys'
fees and costs for prosecuting this action. Now before the Court
is Plaintiffs' Motion for Default Judgment pursuant to FEDERAL
RULE OF CIVIL PROCEDURE 55. (Doc. 9). Because the Court finds
that Plaintiffs have provided sufficient documentary support to
establish they are entitled to damages in the amount of
$5,008.18, the Court grants Plaintiffs' motion for default
judgment against Tilcon Development. II. Facts and Findings
Plaintiffs, various pension, welfare and related joint
labor-management funds, bring this action as "employee welfare
benefit funds" and "plans" under ERISA. (Doc. 1 at ¶ 2).
Plaintiffs filed their complaint against Tilcon Development on
July 12, 2004. (Doc. 1). Tilcon Development was served with
process on July 31, 2004. (Doc. 3). As reflected in the Court's
file, Tilcon Development has not entered an appearance, answered,
or otherwise responded to this suit. Upon Plaintiffs' application
the Clerk of the Court entered default against Tilcon Development
on November 18, 2004. (Doc. 6).
Article VI of the Restated Agreement and Declaration of Trust
entitled "Contributions to the Fund" provides in part:
Section 7. LIQUIDATED DAMAGES. All Employers not
paying contributions within fifteen (15) days from
the date they are originally due, or the due date as
extended as provided above, shall pay in addition to
said contributions liquidated damages in the amount
of ten percent (10%) of the delinquent contributions
or Twenty-five Dollars ($25.00), whichever is
greater, and said damages shall be paid with the
delinquent contributions. Each Employer party to or
otherwise bound by this Trust Agreement acknowledge
that the liquidated damages will be used to defer
administrative costs arising by said delinquency and
acknowledge the costs to be actual and substantial
though difficult to ascertain; however, each Employer
acknowledges these costs to be minimally ten percent
(10%) of the delinquent contributions or Twenty-five
Dollars ($25.00) whichever is greater, waiving the
necessity of any additional proof thereof.
Section 9. COLLECTION COSTS. Except as hereinafter
provided in this Article, in the event an Employer
becomes delinquent in his contributions, said
delinquent Employer shall be liable for all reasonable costs incurred in
the collection process including court fees,
attorneys' fees, filing fees, and any other expenses
actually incurred by the Trustee in the course of the
Section 10. AUDITS AND COSTS THEREOF. The Trustee
shall have the authority to audit the records of the
Employer as described in Article IV, Section 8, for
the purposes of determining the accuracy of the
contributions to the Pension Fund. In the event it
becomes necessary for the Trustee to file suit and/or
otherwise retain legal counsel to enforce their
authority to perform an audit, the Employer shall be
liable for all reasonable costs incurred including
court fees, attorneys' fees, filing fees, audit
costs, and any other expenses actually incurred by
the Trustees in the course of the action, without
regard to whether the Employer did or did not owe
In the event an audit determines that there are no
delinquent contributions due the Fund, other than in
the situation as noted in the above paragraph, the
Fund shall pay the entire Audit Cost. In the event
the audit determines that there are delinquent
contributions due the Fund which were intentionally
not paid by the Employer, the entire Audit Cost shall
be assessed against the Employer. . . .
In the event an audit determines that there are
delinquent contributions which are unintentional, the
Employer shall be assessed a proportion of the audit
costs, if any, based upon a formula which shall be
set from time to time by the Trustees in their
discretion and reflected in the Minutes of the
particular meeting where the formula is adopted or
(Doc. 9, Ex. B, Restated Agreement and Declaration of Trust of
the Central Laborers' Pension Fund, Article VI).
Plaintiffs are entitled under the Restated Agreement and
Declaration of Trust, the Participation Agreement (Doc. 9, Ex.
C), and the Memorandum Agreement (Doc. 9, Ex. D), executed by
Tilcon Development, to recover the delinquent contributions as set forth in the completed audit; the
cost of the audit; liquidated damages; and the costs and expenses
of Plaintiffs, including their reasonable attorneys' fees, costs,
and expenses. An audit of Tilcon Development's payroll books and
records was completed on or around June 4, 2004 and revealed that
Tilcon Development owed Plaintiffs $3,516.57. (Doc. 9, Ex. A).
In addition, the Court finds Tilcon Development owes Plaintiffs
liquidated damages in the amount of $351.66 (10% of the
delinquent contributions); audit costs in the amount of $496.07;
and reasonable attorneys' fees, costs and expenses in the amount
of $643.88 (Doc. 9, Ex. E). In total the Court finds that
Tilcon Development owes Plaintiffs $5,008.18.
In sum, the Court GRANTS Plaintiffs' Motion for Default
Judgment. (Doc. 9). The Court DIRECTS the Clerk to enter a
partial default judgment in the amount of $5,008.18 against
Tilcon Development. The Court will retain jurisdiction for
enforcement purposes, as well as further proceedings in the event
that additional amounts become due and owing.
IT IS SO ORDERED.
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