Trustees of the N. NV Laborers Health & Welfare Trust Fund v. Kenneth M. Mercurio

• Court: District Court, D. Nevada
• Decided: March 2, 2022
• Docket: 3:17-cv-00577
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 TRUSTEES OF THE NORTHERN NEVADA ) LABORERS HEALTH & WELFARE TRUST) 10 FUND, et al., ) ) ) 3:17-cv-00577-RCJ-CLB 11 Plaintiffs, )

) ORDER 12 vs. ) ) 13 KENNETH M. MERCURIO, et al., ) ) 14 Defendants. )

15 Plaintiffs filed this case in 2017 and served Defendant Mercurio in 2018. Despite these 16 facts, Defendant Mercurio has not responded in this case to date. This Court has since issued sum- 17 mary judgment in favor of Plaintiffs against other defendants and default against Defendant Mer- 18 curio. Plaintiffs now move to enter default judgment against Defendant Mercurio finally resolving 19 this case. No opposition has been filed to this motion. The Court grants it and closes the case. 20 LEGAL STANDARD 21 Federal Rule of Civil Procedure 55(b)(2) permits a plaintiff to obtain default judgment if 22 the clerk previously entered default based on a defendant’s failure to defend. After entry of default, 23 the complaint’s factual allegations are taken as true, except those relating to damages. TeleVideo 24 Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987). “However, necessary facts not 1 contained in the pleadings, and claims which are legally insufficient, are not established by de- 2 fault.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992). The court may 3 require a plaintiff to provide additional proof of facts or damages in order to ensure that the re- 4 quested relief is appropriate. LHF Prods., Inc. v. Boughton, 299 F. Supp. 3d 1104, 1113 (D. Nev. 5 2017). 6 Based on the available facts, “a district court has an affirmative duty to look into its juris- 7 diction over both the subject matter and the parties” before granting a default judgment. In re Tuli, 8 172 F.3d 707, 712 (9th Cir. 1999). Once satisfied on the issue of jurisdiction, whether to grant a 9 motion for default judgment under Rule 55(b)(2) is a matter of discretion to a court. Eitel v. 10 McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). The Ninth Circuit has pointed to seven factors that 11 a court should consider it making this determination: 12 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substan- tive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the 13 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 Fed- 14 eral Rules of Civil Procedure favoring decisions on the merits. 15 Id. at 1471–72. 16 ANALYSIS 17 Assuming the allegations of the operative complaint, the Court has jurisdiction over the 18 subject matter of this case and Defendant Mercurio. As for subject matter, Plaintiffs’ raise federal 19 claims under ERISA giving this Court federal question jurisdiction under 28 U.S.C. § 1331 and 20 related state law claims, this Court has supplemental jurisdiction under 28 U.S.C. § 1367. As for 21 personal jurisdiction, Defendant Mercurio was at all times a Nevada resident conducting business 22 in the District of Nevada. (ECF No. 43 ¶ 5.) 23 Since this Court has jurisdiction, it turns to the merits of whether default judgment should 24 be entered. Plaintiffs have filed facially valid proof of service upon Defendant Mercurio on July 1 28, 2018. (ECF No. 45.) The Court entered default against Defendant Mercurio on September 5, 2 2018. (ECF Nos. 56, 57.) To date, Defendant Mercurio has failed to file any response. 3 Applying the seven Eitel factors to this case, default judgment is proper: 4 The first factor favors the entry of a default judgment. Plaintiffs have been actively litigat- 5 ing this case for years, and Defendant Mercurio has failed to ever respond. If Plaintiffs cannot get 6 a default judgment Defendant Mercurio, they would be “without other recourse for recovery.” 7 Pepsico, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). 8 The second and third factors also favor granting the motion. The complaint states colorable 9 claims as this Court has ruled that summary judgment was proper in favor of Plaintiffs. (ECF No. 10 161.) 11 The fourth factor favors granting the motion. The sum of money at stake is reasonable in 12 relation to the alleged misconduct. While it is in the hundreds of thousands of dollars, it is the

13 statutory amount required by ERISA. 14 The fifth factor favors granting the motion. While it is possible that Defendant Mercurio 15 would have challenged the allegations, he has not raised any defense in the years this litigation 16 pended, and the Court found summary judgment appropriate. 17 The sixth factor favors granting the motion. There is no evidence in the record that De- 18 fendant Mercurio’s failure to appear was the result of excusable neglect. 19 The seventh factor disfavors granting the motion. This factor always weighs against the 20 entry of default judgment as the courts desire a decision on the merits. However, this factor alone 21 is not sufficient to outweigh the other factors. 22 Lastly, the Court considers the amount to enter for default judgment. As this Court previ-

23 ously found the amount of damages that Plaintiffs are due, a hearing on this issue is not necessary. 24 Subtracting the bond amounts already paid to Plaintiffs, they have presented a list of damages that 1 || Plaintiffs are still owed as of the time filing of this motion: 2 e $5,904.67 to Trustees of the Cement Masons Annuity Trust Fund for Northern Nevada; e $32,333.78 to Trustees of the Cement Masons Joint Apprenticeship and Training Trust 3 Fund; e $241,933.49 to Trustees of the Northern Nevada Laborers Health and Welfare Trust Fund; 4 e $144,359.12 to Trustees of the Laborers Pension Trust Fund for Northern Nevada; e $29,493.77 to Trustees of the Laborers Training Fund for Northern Nevada; 5 e $35,672.58 to Trustees of the Northern Nevada Operating Engineers Health and Welfare Trust Fund; and 6 e $58,000.37 to Trustees of the Pension Trust for Operating Engineers. 7 || The Court orders that judgment be entered reflecting these figures. In addition to them, Plaintiffs 8 || are further entitled to interest of these figures for the time in between the filing of the motion and 9 || now, post-judgment interest, and attorney fees. 10 CONCLUSION 11 IT IS HEREBY ORDERED that Plaintiffs’ Motion for Default Judgment (ECF No. 170) 12 || is GRANTED. 13 IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close 14 || the case. 15 IT IS SO ORDERED. 16 || Dated March 2, 2022. 17 18 . ROB C. JONES 19 United Statés District Judge 20 21 22 23 24

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