1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BOARD OF TRUSTEES OF THE Case No. 3:22-cv-03666-WHO CEMENT MASONS HEALTH AND 8 WELFARE TRUST FUND FOR NORTHERN CALIFORNIA, et al., ORDER ON MOTION FOR DEFAULT 9 JUDGMENT Plaintiffs, 10 Re: Dkt. No. 14 v. 11 EAGLE ROCK INDUSTRIES, 12 Defendant. 13 14 The Boards of Trustees of the Cement Masons Health and Welfare Trust Fund for 15 Northern California, Cement Masons Vacation-Holiday Trust Fund for Northern California, 16 Cement Masons Pension Trust Fund for Northern California, and Cement Masons Training Trust 17 Fund for Northern California (collectively, the “Trust Funds”) filed this motion for default 18 judgment, seeking to collect unpaid and delinquent contributions, interest thereon, liquidated 19 damages, and attorney fees and costs. Defendant Eagle Rock Industries (“Eagle Rock”) has been 20 served but has not appeared in this case or opposed this motion. 21 Under Civil Local Rule 7-1(b), I find this matter appropriate for resolution without oral 22 argument and so VACATE the hearing scheduled for April 19, 2023. Because the plaintiffs meet 23 the standard for default judgment, their motion is GRANTED in part. Their request for liquidated 24 damages on late-paid contributions is denied without prejudice and as detailed below, the 25 plaintiffs may file a supplemental brief within two weeks if they would like to collect these 26 damages. 27 BACKGROUND 1 Income Security Act of 1974 (“ERISA”) § 3, 29 U.S.C. §§ 1002(3), (37). Complaint (“Compl.”) 2 [Dkt. No. 1] ¶ 3. They were created by collective bargaining agreements (“CBAs”) between the 3 Associated General Contractors of California, Inc. and the District Council of Plasterers and 4 Cement Masons of Northern California (“Cement Masons Union”), as well as by written trust 5 agreements under § 302 of the Labor Management Relations Act of 1974 (“LMRA”), 29 U.S.C. 6 § 186. Id. ¶¶ 5, 9; Declaration of Karen Hubbard (“Hubbard Decl.”) [Dkt. No. 14], Ex. E. The 7 Boards of Trustees are the administrators and fiduciaries of the Trust Funds and are authorized to 8 seek judicial relief on behalf of the Trust Funds. Compl. ¶ 3; see also Hubbard Decl., Exs. A, B. 9 The Trust Funds consist of all employee fringe benefit contributions made by employers 10 and provided to covered employees pursuant to the CBAs, as well as all returns on contributions 11 and other property. Hubbard Decl. ¶¶ 10, 12, Exs. A, B. The trust agreements for each fund 12 contain identical terms and conditions. Id. ¶ 11. 13 The Boards of Trustees are authorized to ensure that signatory employers comply with the 14 terms and conditions of the trust agreements and make timely contributions, and to set rules and 15 regulations as necessary for the administration of the Trust Funds. Id. ¶¶ 12, 15, Ex. C at 41 16 (Article IV § 4(P)). 17 Eagle Rock is an employer within the meaning of ERISA §§ 3(5), 515, and an employer in 18 an industry affecting commerce within the meaning of LMRA § 301. Compl. ¶ 7. In 2017, Eagle 19 Rock, by virtue of its membership with United Contractors, became bound by the Master Labor 20 Agreement (“Master Agreement”) between Associated General Contractors of California, Inc. and 21 the Cement Masons Union, and so agreed to be bound to the provisions and conditions of the trust 22 agreements. Id. ¶ 9; see also Hubbard Decl. ¶ 6, Ex. D. The Master Agreement has never been 23 terminated. Id. ¶ 11. Collectively, the Master Agreement and the trust agreements are referred to 24 as the “Agreements.” 25 Relevant here, § 8A-E of the Master Agreement requires covered employers to contribute 26
27 1 Page numbers in citations to exhibits refer to the blue docket page number found at the top of 1 to the Trust Funds based on the hours worked by their respective employees. Id. ¶ 10; Hubbard 2 Decl., Ex. E. Contributions are due on the 25th day of the month following the month in which 3 hours were worked and are considered delinquent if not received by that day.2 Compl. ¶ 10; 4 Hubbard Decl. ¶ 14, Ex. B at 3 (Article II § 10), Ex. F. The Agreements require employers to pay 5 liquidated damages and interest on delinquent contributions. Hubbard Decl. ¶ 14. The interest 6 and liquidated damages rates are outlined in the “Liquidated Damages Program—Board Policy” 7 (“Board Policy”) and are set at $150 per delinquent contribution for payments made within 30 8 days of the due date with an addition one and a half percent interest per month until paid. Id., Ex. 9 F.3 The Agreements also require Eagle Rock to pay for reasonable costs and attorney fees related 10 to the collection of delinquent contributions. Hubbard Decl. ¶ 12, Ex. C at 3 (Article IV § 3). 11 On June 22, 2022, the Boards of Trustees filed the complaint, alleging that Eagle Rock 12 failed to pay contributions for hours worked by its employees in August and September 2018, and 13 that Eagle Rock’s contributions were late in September 2019 through December 2019, January 14 2020, February 2020, August 2020 through October 2020, and January 2021 through March 2021. 15 Compl. ¶ 13. The Boards of Trustees seek to recover unpaid contributions as well as interest and 16 liquidated damages on unpaid and late contributions. Id. 17 The complaint and summons were served on Eagle Rock’s agent on August 2, 2022. Proof 18 of Service [Dkt. No. 11]. 19 On December 7, 2022, the Boards of Trustees moved for entry of default, which was 20 entered on December 9, 2022. [Dkt. Nos. 12, 13]. 21 On January 20, 2023, the Boards of Trustees filed the Motion for Default Judgment, 22
23 2 The complaint states that payments are due on the 15th day of the month, while the motion and Hubbard Declaration refer to the 25th day. Compare Compl. ¶ 10 with Mot. 9:17; Hubbard Decl. 24 ¶ 14.
25 3 The Boards of Trustees enacted the Board Policy on July 1, 2014, pursuant to their authority under the Trust Agreements to “[e]nter into contracts or policies in its own name or in the name of 26 the Fund; terminate, modify or renew any contracts or policies . . .; and exercise and claim all rights and benefits granted to the Board or the Fund.” Hubbard Decl. ¶ 15, Ex. C (article IV, 27 § 4(H) of the Trust Agreement). By virtue of its agreement to be bound by the Trust agreement 1 seeking $32,061.20 in unpaid contributions and interest and liquidated damages thereon as well as 2 $3,221.39 in liquidated damages and interest for the late-paid contributions and $4,032.70 in 3 attorney fees and costs. (“Mot.”) [Dkt. No. 14]. Eagle Rock has not filed an opposition. 4 LEGAL STANDARD 5 “Federal Rule of Civil Procedure 55(b)(2) permits a court to enter a final judgment in a 6 case following a defendant’s default.” Bds. of Trs. of Sheet Metal Workers Pension Tr. of N. Cal. 7 v. CER Mech. Corp., No. 20-cv-03462-WHO, 2021 WL 1338556, at *2 (N.D. Cal. Apr. 9, 2021) 8 (citation omitted). If the court has subject matter jurisdiction and personal jurisdiction, and the 9 defendant was adequately served, then “[w]hether to enter a judgment lies within the court’s 10 discretion.” Id. (citation omitted). Courts look to the Eitel factors to determine whether to grant 11 default judgment:
12 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) 13 the sum of money at stake in the action[,] (5) the possibility of a dispute concerning material facts[,] (6) whether the default was due 14 to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decision on the merits. 15 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citation omitted). 16 Upon entry of default, all factual allegations within the complaint are accepted as true, 17 except those allegations relating to the amount of damages. TeleVideo Sys., Inc. v. Heidenthal, 18 826 F.2d 915, 917-18 (9th Cir. 1987). Where a default judgment is granted, the scope of relief 19 “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed. R. 20 Civ. Proc. 54(c). 21 DISCUSSION 22 I. JURISDICTION 23 Before entering default judgment, a court has “an affirmative duty to look into its 24 jurisdiction over both the subject matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 25 1999). 26 I have subject matter jurisdiction pursuant to 29 U.S.C. § 185, which grants labor union 27 organizations power to sue employers in federal court, and 29 U.S.C. § 1132, which empowers 1 ERISA plan fiduciaries to bring civil actions to enforce plan terms, as well as supplementary 2 jurisdiction pursuant to 28 U.S.C. § 1367(a). Personal jurisdiction also exists under ERISA § 3(5) 3 because Eagle Rock is a California corporation and California employer, with its principal place of 4 business in Walnut Creek, California. Compl. ¶ 7. Additionally, the Trust Funds are administered 5 in the Northern District of California. Id. ¶ 2. 6 II. SERVICE OF PROCESS 7 Federal Rule of Civil Procedure 4(e)(1) allows for service following state law for serving a 8 summons in the state where the district court is located. California law provides that a corporation 9 may be served by delivering a copy of the summons and complaint to a person designated as an 10 agent for service of process or to a secretary, assistant secretary, or a person authorized to receive 11 service of process. Cal. Code Civ. Proc. § 416.10(a)-(b); see also Cal. Corp. Code § 1502(b) 12 (procedures for designating agent for purposes of service of process). 13 On August 2, 2022, Eagle Rock’s authorized agent for service of process was served with 14 the summons and complaint. [Dkt. No. 11]. Accordingly, service was proper. 15 III. EITEL FACTORS 16 A. Possibility of Prejudice to Plaintiffs 17 The first Eitel factor considers whether plaintiffs will suffer prejudice if the motion is 18 denied. Eitel, 782 F.2d at 1471. If relief is not granted, given Eagle Rock’s failure to appear or 19 otherwise defend this action, the Boards of Trustees “would be unable to recover the plan 20 contributions or otherwise enforce the Bargaining Agreement” against Eagle Rock. CER Mech., 21 2021 WL 1338556, at *4. This potential prejudice to the Boards of Trustees weighs in favor of 22 default judgment. 23 B. Merits of Plaintiff’s Substantive Claims and the Sufficiency of the Complaint 24 Under the second and third Eitel factor, I consider the merits and sufficiency of the 25 plaintiffs’ claims. Eitel, 782 F.2d at 1471. Courts often analyze these two factors together and are 26 required to “consider whether a plaintiff has stated a claim on which it may recover.” CER Mech., 27 2021 WL 1338556, at *4. I accept as true all well-pled allegations regarding liability. See Fair 1 The plaintiffs assert claims under ERISA § 515, which requires signatory employers to 2 make contributions in accordance with the terms and conditions of collective bargaining 3 agreements. See Trustees of Screen Actors Guild-Producers Pension & Health Plans v. NYCA, 4 Inc., 572 F.3d 771, 774 (9th Cir. 2009); see also 29 U.S.C. § 1145. To succeed on a claim, 5 plaintiffs must show that “(i) the trusts are multiemployer plans as defined by 29 U.S.C. 6 § 1002(37); (ii) the collective bargaining agreement obligated Defendant to make contributions; 7 and (iii) Defendant did not make the required contributions.” Bd. of Trs. ex rel. Laborers Health 8 & Welfare Tr. Fund for N. Cal. v. Geminis Demolition & Constr., Inc., No. 22-CV-01438-JSC, 9 2022 WL 2304286 at *3 (N.D. Cal. June 27, 2022) (citation omitted). 10 The Boards of Trustees sufficiently allege that the Trust Funds are multi-employer benefit 11 plans, Compl. ¶ 5, and that Eagle Rock was obligated to make contributions to the plans pursuant 12 to the Agreements by virtue of its membership with United Contractors, id. ¶¶ 9-10. They also 13 allege that Eagle Rock failed to make contributions in August 2018 and September 2018 and 14 failed to pay required contributions on time for multiple months between 2019 and 2021. Id. ¶ 13. 15 Pursuant to the terms of the CBA, the Agreements, and 29 U.S.C. § 1132(g)(2), Eagle Rock is 16 liable for unpaid contributions, liquidated damages and interest thereon, liquidated damages and 17 interest for late contributions, and reasonable attorney fees and costs. Taking the allegations as 18 true, and as supported by evidence, plaintiffs have made a strong showing of likelihood of success 19 on the merits and these factors weigh in favor or granting default judgment. 20 C. The Sum of Money at Stake in the Action 21 Under the fourth Eitel factor, I consider “the amount of money at stake in relation to the 22 seriousness of Defendant’s conduct.” Geminis Demolition, 2022 WL 2304286, at *3 (citation 23 omitted); see also Eitel, 782 F.2d at 1471. “[W]hen the sum of money at stake is tailored to the 24 specific misconduct of the defendant, default judgment may be appropriate.” Geminis Demolition, 25 2022 WL 2304286, at *3 (citation omitted). 26 Here, the Boards of Trustees seek (i) interest and liquidated damages totaling $3,221.39 for 27 late-paid contributions; (ii) unpaid contributions of $12,582.68; (iii) $19,478.52 in interest and 1 $3,032.29, for a total of $39,315.29. Mot. 17:1-9. 2 As discussed below, the Boards of Trustees demonstrate with supporting evidence that 3 they are entitled to most of these amounts. The amount is appropriate and reasonable as 4 authorized under 29 U.S.C. § 1132, as well as the Agreements. This amount is also in line with 5 other ERISA cases in which default judgment was granted. See, e.g., CER Mech., 2021 WL 6 1338556, at *8 (awarding $33,612.97 in damages and $11,939.69 in attorney fees and costs); see 7 also Bay Area Ctys. Roofing Indus. Promotion Fund v. Bartek Int’l, Inc., No. 21-CV-06025-BLF, 8 2022 WL 1062047, at *5 (N.D. Cal. Apr. 8, 2022) (awarding $113,578.15 in damages and 9 $8,310.93 in attorney fees and costs). Thus, this factor weighs in favor of default judgment. 10 D. The Possibility of a Factual Dispute 11 The fifth Eitel factor considers the possibility that material facts are disputed. Eitel, 782 12 F.2d at 1471-72. Once default is entered, the defendant is “deemed to have admitted all well- 13 pleaded factual allegations” in the complaint. CER Mech., 2021 WL 1338556, at *5 (quoting 14 DirectTv, Inc. v. Hoa Huynh, 503 F.3d 847, 851 (9th Cir. 2007)). Here, the plaintiffs properly 15 served Eagle Rock, and Eagle Rock was given fair opportunity to respond and to participate in the 16 proceedings. See id. Additionally, the plaintiffs submitted the Agreements for review, and Eagle 17 Rock’s obligations under those are clear, so “the possibility for any factual disputes is unlikely.” 18 Id. (citation omitted). Accordingly, this Eitel factor also weighs in favor of default judgment. 19 E. Excusable Neglect 20 The sixth Eitel factor considers whether a defendant’s default may have resulted from 21 excusable neglect. Eitel, 782 F.2d at 1472. “When a defendant is properly served with a 22 summons and complaint and thus had notice[] of the lawsuit, an entry of default judgment is 23 favored.” Bd. of Trs. of Cement Masons Health & Welfare Tr. Fund for N. Cal. v. PDB Servs. 24 LLC, No. 21-CV-03383-DMR, 2022 WL 2289062, at *7 (N.D. Cal. Feb. 22, 2022), report and 25 recommendation adopted, No. 21-CV-03383-JD, 2022 WL 2288917 (N.D. Cal. Apr. 15, 2022). 26 As discussed above, Eagle Rock was properly served with a copy of the summons and complaint 27 and has failed to respond to any motions or to appear at the hearing on this mooring. There is no 1 judgment. 2 F. Policy Favoring Decision on the Merits 3 The final Eitel factor instructs that cases should be decided on the merits whenever 4 reasonably possible. See Eitel, 782 F.2d at 1472. However, “this preference, standing alone, is 5 not dispositive.” CER Mech., 2021 WL 1338556, at *5 (citation omitted); see also Fed. R. Civ. 6 Proc. 55(b) (providing that the “termination of a case before hearing the merits is allowed 7 whenever a defendant fails to defend an action.”). Here, a decision on the merits would not 8 otherwise be possible because Eagle Rock has not answered the complaint, appeared in court, or 9 otherwise participated in the proceedings. See CER Mech., 2021 WL 1338556, at *5. Therefore, 10 this factor favors granting default judgment. 11 In sum, the Eitel factors weigh in favor of default judgment. 12 IV. RELIEF SOUGHT 13 Once liability is established through a defendant’s default, a plaintiff is required to 14 establish that the requested relief is appropriate. CER Mech., 2021 WL 1338556, at *5 (citing 15 Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). 16 A. Unpaid Contributions 17 In an action to recover unpaid contributions, the court shall award unpaid contributions, 18 interest, and liquidated damages. 29 U.S.C. § 1132(g)(2)(A-C). “For purposes of this paragraph, 19 interest on unpaid contributions shall be determined by using the rate provided under the plan, or, 20 if none, the rate prescribed under section 6621 of Title 26.” Id. § 1132(g). Liquidated damages 21 are equal to the interest on the unpaid contributions or the contract liquidated damages rate, 22 whichever is greater. Id. § 1132(g)(2)(C). 23 1. Principal 24 First, the Boards of Trustees provide supporting evidence that Eagle Rock failed to pay its 25 self-reported contributions to the Trust Funds for the months of August 2018 and September 2018, 26 in the total amount of $12,582.68. See Compl. ¶ 13; Hubbard Decl., Exs. J, K. The outstanding 27 1 contributions for hours worked in August 2018 amount to $3,329.52.4 The outstanding 2 contributions for hours worked in September 2018 amount to $9,253.16.5 Accordingly, plaintiffs 3 are entitled to recover the total principal for unpaid contributions of $12,582.68. 4 2. Interest and Liquidated Damages6 5 Plaintiffs further assert that Eagle Rock owes $9,739.26 in interest through December 15, 6 2022, and the equivalent amount, $9,739.26 in statutory liquidated damages on the unpaid 7 contributions pursuant to 29 U.S.C. § 1132(g)(2)(C). See, e.g., CER Mech., 2021 WL 1338556, at 8 *5 (awarding interest and liquidated damages on unpaid contributions). Because plaintiffs’ 9 calculations have some errors, I do not rely on their calculations of interest and liquidated 10 damages.7 11 The plaintiffs have demonstrated with supporting evidence that the outstanding 12 contributions for hours worked in August 2018 total $3,329.52. This contribution became 13 delinquent on September 25, 2018, and remained outstanding as of December 15, 2022,8 a period 14 of 51 months.9 Hubbard Decl. ¶¶ 18, 20. At one and a half percent simple interest per month, the 15 monthly rate is $49.94, totaling $2,546.94 for the 51-month period.10 Similarly, the outstanding 16 4 The plaintiffs state this total is $3,329.46, which may be due to a rounding error. Mot. 12:5. 17
5 Plaintiffs correctly note that Eagle Rock’s calculations in their Employer’s Report of 18 Contribution was off by $0.02. Mot. 12 n.1.
19 6 In the complaint, the Boards of Trustees state “[i]nterest will continue to accrue at the rate of 1.5% each month during the pendency of this lawsuit.” Compl. ¶ 14. Plaintiffs seeking interest 20 through judgment typically provide a daily rate to assist in calculating the interest. See CER Mech. Corp., 2021 WL 1338556, at *5. The Boards of Trustees provide only interest calculations 21 through December 15, 2022, and do not address the calculation of interest from December 2022 through judgment. Accordingly, I will not grant interest through judgment, but Boards of Trustees 22 are not precluded from seeking such interest after judgment is entered.
23 7 All calculations are rounded to the nearest cent. Values greater than or equal to one-half cent are rounded up. 24
8 Plaintiffs provided calculations as of December 15, 2022. See Hubbard Decl., Ex. L. 25
9 The Liquidated Damages and Interest Board Policy states that if payment is not received within 26 30 days of the due date, interest will be charged at one and a half percent per month. Because the payment was due on September 25, 2018, the first month of interest was calculated between 27 September 25 and October 25, 2018. 1 contributions for hours worked in September 2018 totaled $9,253.16, became delinquent on 2 October 25, 2018, and remained outstanding as of December 25, 2022—a 50-month period. Id. 3 ¶¶ 18, 21. At one and a half percent simple interest per month, the monthly rate for the September 4 contributions is $138.80. Over the 50-month period, this gives rise to interest of $6,940.00.11 5 Accordingly, based on the evidence, the Boards of Trustees are entitled to $9,486.94 in interest. 6 Plaintiffs also seek statutory liquidated damages under 29 U.S.C. § 1132(g)(2)(C) which 7 provides that plaintiffs may recover liquidated damages at an amount equal to the interest on the 8 unpaid contributions or the contract liquidated damages rate, whichever is greater. Section 9 1132(g)(2) is “mandatory” when three requirements are met: “(1) the fiduciary obtains a judgment 10 in favor of the plan, (2) unpaid contributions exist at the time of suit, and (3) the plan provides for 11 liquidated damages.” CER Mech., 2021 WL 1338556, at *5 (first quoting Idaho Plumbers & 12 Pipefitters Health and Welfare Fund v. United Mech. Contractors, Inc., 875 F.2d 212, 215 (9th 13 Cir. 1989); and then quoting Nw. Adm’rs, Inc. v. Albertson’s, Inc., 104 F.3d 253, 257 (9th Cir. 14 1996)). 15 Each requirement is met. This Order grants judgment in favor of the plan, unpaid 16 contributions exist at the time of this suit, and the plaintiffs submitted a copy of the plan that 17 shows it provides for liquidated damages. See Hubbard Decl., Ex. B at 3 (Article II § 10); id., Ex. 18 F. Accordingly, the plaintiffs are entitled to the interest they seek under § 1132(g)(2)(C)(i), in the 19 amount of $9,486. 20 Together, plaintiffs are entitled to $31,556.56 in unpaid contributions, interest, and 21 liquidated damages. 22 B. Late Contributions 23 Plaintiffs also seek $3,221.3912 in interest and liquidated damages for contributions that 24 Eagle Rock paid late. Mot. 10:28. 25 “ERISA does not expressly provide for a statutory recovery of liquidated damages for late 26
27 1 payments of employer contributions.” PDB Servs., 2022 WL 2289062, at *7 (citing Idaho 2 Plumbers, 875 F.2d at 215-16). However, liquidated damages on contributions paid before the 3 lawsuit was filed are permitted under contract law where the trust agreement provides for 4 liquidated damages. Id. A liquidated damages provision is enforceable where: (1) “the harm 5 caused by a breach [is] very difficult or impossible to estimate,” and (2) “the amount fixed [is] a 6 reasonable forecast of just compensation for the harm caused.” Idaho Plumbers, 875 F.2d at 217. 7 With respect to the first factor, “[w]here, as here, ‘an employer is delinquent in paying 8 contributions into a fringe benefit trust fund, the fund suffers some kinds of harms that are very 9 difficult to gauge.’” CER Mech., 2021 WL 1338556, at *6 (first quoting Bd. of Trs. v. Udovch, 10 771 F. Supp. 1044, 1048 (N.D. Cal. 1991); and then citing Trs. of Bricklayers Local No. 3 Pension 11 Tr. v. Huddleston, 2013 WL 2181532, at *6 (N.D. Cal. May 20, 2013)). The parties here agreed in 12 the Trust Agreements that “it would be extremely difficult, if not impracticable, to fix the actual 13 expense and damage to the Fund and to the Pension Plan which would result from the failure of an 14 Individual Employer to pay the monthly Contributions in full within the time prescribed.” 15 Hubbard Decl., Ex. B at 3 (Article II § 10). This makes sense: it would be difficult or impossible 16 to estimate the harm to plaintiffs given the uncertainty of costs related to the collection and 17 administration of delinquent payments. Thus, the first Idaho Plumbers factor is satisfied. See, 18 e.g., PDB Servs., 2022 WL 2289062, at *7 (concluding that the first Idaho Plumbers factor was 19 met “because of the uncertainty in increased costs to Plaintiffs for collection and administration of 20 the Trust Funds”). 21 For the second factor, “[t]o determine whether the parties reasonably forecasted the 22 compensation for breach, courts look to the parties’ intentions and a good faith effort to determine 23 the amount of damages.” CER Mech., 2021 WL 1338556, at *6 (citation omitted); see also 24 Huddleston, 2013 WL 2181532, at *6 (noting that the question is “whether the record supports the 25 inference that the parties ‘made a good faith effort to establish a liquidated damages rate that 26 would be a reasonable forecast of just compensation’ when entering into the CBA.” (citation 27 omitted)). 1 that delinquent contributions incur liquidated damages in the amount of “$20 per delinquency or 2 15% of the amount of the Contributions due, whichever is greater,” id. Ex. B at 3 (Article II § 10). 3 The Trust Agreements explicitly state the liquidated damages provision was not enacted as a 4 penalty. Id. The current version of the Master Agreement, enacted in January 2016, provides for 5 liquidated damages at flat fee of $150 per month “to reflect the internal administrative costs 6 incurred by the trust administrators in monitoring and tracking such late contributions.” Id., Ex. E 7 at 25 (§ 8(G)(2)); see also id. ¶ 15, Ex. F (showing the Board Policy on Liquidated Damages set 8 liquidated damages at $150 for each delinquent contribution). 9 By agreeing to be bound by the Master Agreement and Trust Agreements in 2017, see 10 Compl. ¶ 9, Eagle Rock agreed to pay interest and liquidated damages in the amount of $150 per 11 delinquent contribution. See Hubbard Decl., Ex. F. Other courts in this district have concluded 12 that a $150 fee for liquidated damages is reasonable. See PDB Servs., 2022 WL 2289062, at *7; 13 see also Bd. of Trustees of Laborers Health & Welfare Tr. Fund for N. Cal. v. JS Taylor Constr., 14 Inc., No. 19-CV-06011-SK, 2020 WL 3441052, at *6 (N.D. Cal. May 26, 2020) (collecting cases), 15 report and recommendation adopted, No. 19-CV-06011-MMC, 2020 WL 3432641 (N.D. Cal. 16 June 23, 2020). Eagle Rock also agreed that “it would be extremely difficult, if not impracticable, 17 to fix the actual expense and damage” resulting from late contributions. Hubbard Decl., Ex. B at 3 18 (Article II § 10). Together, this shows the requisite good faith effort, see Huddleston, 2013 WL 19 2181532, at *6, and shows the amount is reasonably tailored to the damage they would anticipate, 20 see CER Mech., 2021 WL 1338556, at *6. Accordingly, the liquidated damages provision 21 satisfies both factors from Idaho Plumbers and is enforceable. See, e.g., PDB Servs., 2022 WL 22 2289062, at *7 (concluding that the same liquidated damages provision and the same collective 23 bargaining agreement at issue here satisfied both Idaho Plumbers factors). 24 However, the plaintiffs do not provide sufficient evidence to support their calculations of 25 liquidated damages and interest. The accounting of the interest and liquidated damages owed for 26 each late payment does not include the amount of the delinquent payment or when it was 27 ultimately received. See Hubbard Decl., Ex. H. The interest and fees assessed under the 1 information it is impossible to determine how much is owed in interest and fees. Because the 2 record is insufficient in this regard, the plaintiffs’ request for liquidated damages and interest for 3 the late contributions is DENIED without prejudice. 4 C. Mandatory Injunction Compelling and Audit of Eagle Rock 5 The plaintiffs also seek a mandatory injunction compelling Eagle Rock to submit to an 6 audit for the period from January 2019 through the last completed quarter in order to determine the 7 full amount of contributions owed by Eagle Rock, and to provide the auditor with certain 8 documents.13 Compl. 8:27-9:10. 9 Article IV, § 7 of the Trust Agreements contractually obligates Eagle Rock to submit to an 10 audit of financial records by the Boards of Trustees. Hubbard Decl. ¶ 12, Ex. C at 4 (Article IV 11 § 7). An audit is “well within the authority of the trustees as outlines in the trust documents” and 12 is part of “proper plan administration.” Bd. of Trs. of Laborers Health & Welfare Tr. Fund for N. 13 Cal. v. Cazadores Constr., Inc., No. 17-cv-05242-WHO, 2018 WL 986020, at *5 (quoting Cent. 14 States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 472 U.S. 559, 581 (1985)); see also 15 29 U.S.C. § 1132(g)(2)(E) (authorizing courts to award “such legal and equitable relief as the 16 court deems appropriate”). And, the right of trustees of employee benefit plans to require such 17 audits is well established. See Cazadores Constr., 2018 WL 986020, at *5 (citing Cent. Transp., 18 472 U.S. at 571 n.12). 19 Here, I deem the requested injunction proper, and so the plaintiffs’ request for a mandatory 20 injunction is GRANTED. 21
22 13 The documents include: California Quarterly Report of Wages, Form DE-6; Federal Tax 23 Forms W-3/W-2 and 1069/1099; Payroll Registers/Journals; Individual Earnings Records; Source Records, including time cards 24 and time card summaries for all employees; contribution reports for all trust funds; workers’ compensation reports; certified payroll 25 reports; personnel records indicating job classifications and hire/termination dates; cash disbursement journal; vendor invoices; 26 copies of subcontract agreements; cash receipts journal; general ledger; job cost records; records of related entities; and any other 27 books and records that may be necessary to complete the auditor’s D. Attorney Fees and Costs 1 Finally, plaintiffs seek an award of reasonable attorney fees and costs pursuant to 29 2 U.S.C. § 1132(g)(2)(D) and the Trust Agreements. Mot. 14:5-12; Compl. 8:24-26. A plaintiff 3 who obtains a judgment for an ERISA claim under 29 U.S.C. § 1145 for unpaid contributions is 4 entitled to “reasonable attorney’s fees and costs of the action, to be paid by the defendant.” 29 5 U.S.C. § 1132(g)(2)(D). Here the Trust Agreements also provide that employers must reimburse 6 trustees for reasonable attorney fees, costs, and other expenses incurred in connection with the 7 collection of delinquent contributions. See Hubbard Decl., Ex. C at 1 (Article IV § 3). 8 Courts in the Ninth Circuit typically rely on the “lodestar analysis” to calculate fee awards, 9 which is “is calculated by multiplying the number of hours the prevailing party reasonably 10 expended on the litigation (as supported by adequate documentation) by a reasonable hourly rate.” 11 PDB Servs., 2022 WL 2289062, at *8 (citation omitted). 12 Plaintiffs’ counsel Ronald Richman requests attorney fees in the amount of $3,445.00, 13 representing 10.6 hours of work he billed between December 6, 2022, and January 4, 2023. 14 Declaration of Ronald Richman (“Richman Decl.”) ¶ 5 [Dkt. No. 14]. Richman has practiced law 15 since 1984 and has handled ERISA trust fund litigation since 1995. Id. ¶ 3. Richman says his 16 standard hourly billing rate is $375 to $450, but that he charges plaintiffs $325 per hour. Id. ¶ 4. 17 Richman has also provided timesheets confirming the time spent and tasks performed. Id. ¶ 5, Ex. 18 A. I find that these hours and rates are reasonable. Cf. CER Mech., 2021 WL 1338556, at *7 19 (finding 55.4 hours over a two-year period reasonable). 20 Additionally, “courts have routinely awarded costs for service, messenger services, and 21 investigatory fees in actions brought under 29 U.S.C. § 1132(g)(2)(D).” Nichols Plumbing & 22 Heating, 2016 WL 8313928, at *9; see also CER Mech., 2021 WL 1338556, at *8. The plaintiffs 23 submit that they have incurred $587.70 in costs related to this action, including for the complaint 24 filing fee and messenger service. Richman Decl. ¶ 6, Ex. A. These costs are reasonable and in 25 line with other courts in this district. See, e.g., Nichols Plumbing & Heating, 2016 WL 8313928, 26 at *9 (finding $400 filing fee, $258.45 messenger service, and $1,035.00 investigative fees 27 reasonable); Pension Plan for Pension Tr. Fund for Operating Eng’rs v. J & K Sweeping, No. C 1 14-1179 CW, 2014 WL 4626008, at *8 (N.D. Cal. Sept. 15, 2014) (“With respect to Plaintiffs’ 2 || request for costs for messenger service, legal research, and investigation, such costs are available 3 on the basis that they are generally billed as attorneys’ fees.”). 4 Accordingly, the plaintiffs and Richman are entitled to attorney fees in the amount of 5 $3,445.00 and costs in the amount of $587.70, for a total of $4,032.70. 6 CONCLUSION 7 Plaintiffs’ motion for default judgment is GRANTED in part. Plaintiffs are entitled to 8 $31,556.56 in unpaid contributions, interest, and liquidated damages, and $4,032.70 in attorney 9 || fees and costs, as well as the requested injunction. The plaintiffs’ request for liquidated damages 10 || on late-paid contributions is denied without prejudice. The plaintiffs may submit a supplemental 11 declaration for that request within two weeks of the date of filing of this Order. 12 IT IS SO ORDERED. 5 13 || Dated: April 17, 2023 14 . ly i ° 20 2 Iliam H. Orrick = 16 United States District Judge
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