GCIU-Employer Retirement Fund et al v. All West Container Co., Docket No. 2:17-cv (C.D. Cal. Jun 27, 2017), Court Docket

Transcription

1 GCIU-Employer Retirement Fund et al v. All West Container Co., Docket No. :-cv-0 (C.D. Cal. Jun, 0, Court Docket Multiple Documents Part Description pages Declaration of Judi Knore in Support of Motion for Entry of Default Judgment Pur Proposed Order Granting Entry of Default Judgment Pursuant to FRCP (b 0 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE

2 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 0 Kerry K. Fennelly (SBN kfennelly@donaldsonandcornwell.com Valentina S. Mindirgasova (SBN vmindirgasova@donaldsonandcornwell.com Cornwell & Baldwin 0 East Grand Avenue Escondido, CA 0 (0-00 tel (0 - fax Attorneys for Plaintiffs, GCIU-Employer Retirement Fund and Board of Trustees of the GCIU-Employer Retirement Fund UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION GCIU-EMPLOYER RETIREMENT FUND AND BOARD OF TRUSTEES OF THE GCIU-EMPLOYER RETIREMENT FUND v. Plaintiffs, ALL WEST CONTAINER, CO., Defendant. CASE NO. :-CV-0-JAK (AFMx NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b Hearing Date: December, 0 Hearing Time: :0 A.M. Judge: John A. Kronstadt Place: Courtroom No. 0B [Accompanying Papers: DECLARATION OF JUDI KNORE IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT BY COURT PURSUANT TO FRCP (b; [PROPOSED] ORDER GRANTING MOTION FOR ENTRY OF DEFAULT JUDGMENT BY COURT PURSUANT TO FRCP (b] NOTICE OF MOTION AND MEMORANDUM -- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

3 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 TO THE HONORABLE COURT AND TO ALL PARTIES: PLEASE TAKE NOTICE that on December, 0 at :0 a.m. this matter will be heard in the above entitled Court located at 0 West st Street, Los Angeles, CA 00, the Plaintiffs in this case will move this Court to grant Entry of Default Judgment. The Motion is based upon this Notice and Memorandum of Points and Authorities in Support of the Motion For Entry Of Default Judgment Pursuant to Federal Rule of Civil Procedure (b ( Motion ; the Declaration Of Judi Knore in Support of Motion For Entry of Default Judgment Pursuant to Federal Rule of Civil Procedure (b ( Knore Decl. ; and the [Proposed] Order Granting Plaintiffs Motion for Entry of Default Judgment By Court Pursuant to Federal Rule of Civil Procedure (b; as well as any oral and documentary evidence as may be allowed at the hearing of this Motion. 0 Dated: September, 0 /s/ Valentina S. Mindirgasova Kerry K. Fennelly Valentina S. Mindirgasova Cornwell & Baldwin 0 East Grand Avenue Escondido, CA 0 (0-00 kfennelly@donaldsonandcornwell.com vmindirgasova@donaldsonandcornwell.com Attorneys for Plaintiffs NOTICE OF MOTION AND MEMORANDUM -- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

4 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: TABLE OF CONTENTS PAGES 0 0 I. Introduction... II. Jurisdiction and Venue... III. Facts and Procedural History... IV. Legal Standard... V. Plaintiffs Have Met the Procedural Requirements... VI. Plaintiffs Have Satisfied the Eitel Factors... A. Denial of Default Judgment Would Prejudice the Plaintiffs... B. Plaintiffs Have Demonstrated the Sufficiency of the Merits of Their Claims... C. Proportionality to the Harm Caused by Defendant's Conduct..... D. There is No Factual Dispute That Would Preclude Entry of Default Judgment....0 E. The Possibility of Excusable Neglect is Minimal....0 F. The Six Eitel Factors Have Been Met and Are Not in Conflict with the Policy Favoring Decisions on the Merits....0 VII. Requested Damages... 0 A. Withdrawal Liability... B. Prejudgment Interest and Liquidated Damages... C. Attorney's Fees and Costs.. VIII. Conclusion... i NOTICE OF MOTION AND MEMORANDUM -i- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

5 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 TABLE OF AUTHORITIES Cases Carpenters Pension Trust Fund for Northern California v. Underground Const. Co., Inc., F.d, (th Cir Eitel v. McCool, F.d 0, - (th Cir....-,0 Elektra Entm t Grp. v. Bryant, No. 0-GAF, 00 U.S. Dist. LEXIS 00, at * (C.D. Cal. Feb., Kloepping v. Fireman, No. C - THE, U.S. Dist. LEXIS, at * (N.D. Cal. Feb., Landstar Ranger, Inc. v. Parth Enters., Inc., F. Supp. d, - ( ,, 0 Operating Eng'rs Pension Trust Fund v. Clarke's Welding, Inc., F. Supp. d 0, (N.D. Cal. 00. Pepsico, Inc. v. California Security Cans, F. Supp. d,, (C.D. Cal Solice v. Vigilance, Inc., No 0-00 JW, 00 U.S. Dist. Lexis, at *- (N.D. Cal. July, ii NOTICE OF MOTION AND MEMORANDUM -ii- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

6 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 0 Statutes U.S.C. (a (... (e... (e(... (f... (g(... (g((d (a......,,... (b(... (b((a... (c..., (c(... (c(...., 0(a(..., 0(b(... (b... (c... (d... iii NOTICE OF MOTION AND MEMORANDUM -iii- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

7 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 0 Employee Retirement Income Security Act of ( , (b(... (b((a... (c... (c(... (c(..... (a(... 0(b... Labor-Management Relations Act 0(a... Federal Rules of Civil Procedure Rule (b(. Rule Rule (c ,0 Rule Rule (b Local Rules Rule Rule iv NOTICE OF MOTION AND MEMORANDUM -iv- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

8 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 0 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE (b Plaintiffs, the GCIU-Employer Retirement Fund and the Board of Trustees of the GCIU-Employer Retirement Fund, respectfully move this Court to enter default judgment against Defendant All West Container Co., upon the record. For the reasons set forth below, the Court should enter default judgment against Defendant. I. Introduction On June, 0, Plaintiffs GCIU-Employer Retirement Fund ( Fund and the Board of Trustees of the GCIU-Employer Retirement Fund ( Board filed their Complaint ( Complaint against Defendant for the collection of withdrawal liability incurred as a result of its withdrawal from the multiemployer pension plan arising under the Employee Retirement Income Security Act of ( ERISA, as amended by the Multiemployer Pension Plan Amendments Act of 0, U.S.C. 00 et seq. The court clerk entered default against Defendant on August, 0 (Dkt. No.. Plaintiffs then filed the instant Motion for Entry of Default Judgment ( Motion against Defendant. This Motion seeks a default judgment awarding damages for withdrawal liability, associated interest, liquidated damages, attorneys fees, and costs. II. Jurisdiction and Venue This Court has jurisdiction pursuant to U.S.C. (e, (f and (c. Venue lies in this Court under U.S.C. (e( and (d, in that the Plaintiff Fund is administered at its principal place of business in Los Angeles, California. III. Facts and Procedural History Plaintiff Fund is a multiemployer pension plan and is administered at its principal place of business in Los Angeles, California. Plaintiff Board of Trustees, the plan sponsor of the Fund, is comprised of present trustees who are named fiduciaries of the Fund. The Board of Trustees administers the Fund in Los Angeles, California. Defendant All West Container Co. is a corporation organized under the laws of the NOTICE OF MOTION AND MEMORANDUM -- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

9 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 0 State of California that is currently dissolved. At all times relevant to this action, Defendant has been an employer as the term is defined by Section ( of ERISA, U.S.C. 00(, and was engaged in an industry affecting commerce, as defined by section 0(a of the Labor-Management Relations Act, U.S.C. (a. As a result of a collective bargaining agreement with District Council No., Local M, Defendant All West Container Co. was required to make contributions to the Fund on behalf of certain employees. In 0, All West Container Co. ceased participating in the plan and thus stopped making contributions to the Fund. Accordingly, the Fund determined that All West Container Co. withdrew from the Plaintiff Fund, effectuating a complete withdrawal from the Fund under Section 0 of ERISA, U.S.C.. As such, Defendant became subject to withdrawal liability under Section 0 of ERISA, U.S.C.. On May, 0, Plaintiffs notified Defendant of this liability in a Notice of Complete Withdrawal Liability and Demand for Payment ( Notice and Demand. (Complaint ; Complaint Exhibit. The Notice and Demand included an actuarial calculation of the withdrawal and a payment schedule in accordance with the requirements of Section (c of ERISA, U.S.C. (c. The Fund s actuary determined that the withdrawal liability attributable to Defendant was $,. Pursuant to the payment schedule Defendant was to make 0 monthly payments of $0.0. Alternatively, Defendant could make a lump sum payment of $,, the present value of the 0 monthly payments. The Notice and Demand also informed Defendant that per Section (b( of ERISA, U.S.C. (b(, Defendant had 0 days to request a review or object to the assessment. Plaintiffs Notice and Demand also noted the time restriction imposed by Section of ERISA, U.S.C., regarding arbitration applied to this Notice and Demand. Defendant failed to exercise its rights under Section (b((a of ERISA, U.S.C. (b((a, to ask the Trustees/plan sponsor to review the assessment, to identify any inaccuracies in the determination of the amount of the assessment, or to NOTICE OF MOTION AND MEMORANDUM -- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

10 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #:0 0 0 furnish any additional information to the Trustees/plan sponsor. In addition, Defendant did not timely initiate arbitration pursuant to Section (a( of ERISA, U.S.C. 0(a(. After receipt of Plaintiffs Notice and Demand, Defendant made eighteen monthly payments of $0.0, totaling $,.0. However, after making these payments Defendant ceased making payments as required by the schedule provided by Plaintiffs under Section (c(, U.S.C. (c(. (Knore Decl. -. As such, on January 0, 0, Plaintiffs provided via UPS Second Days Air a Notice of Failure to Pay Withdrawal Liability and Demand for Cure ( Demand certified mail for Cure to All West Container Co. in accordance with Section (c( of ERISA, U.S.C (c(. (Complaint ; Complaint Exhibit. Defendant failed to cure the required withdrawal liability payments to the Fund and is in default within the meaning of ERISA Section (c(, U.S.C. (c(. (Knore Decl. 0. The failure to make the required withdrawal liability payments subjects an employer to interest, liquidated damages, attorney s fees and costs. As Defendant has failed to make withdrawal liability payments, Plaintiffs seek to recover the total of the remaining withdrawal liability of $0,.0 ($, total assessed minus the $,.0 paid, $,. in prejudgment interest (plus $.0/day until judgment is entered, $,0. in liquidated damages, $,. in attorneys fees (plus $./day until judgment is entered, and $0.00 in costs. IV. Legal Standard Before a Court may rule on a Motion for Default Judgment ( Motion, it first must determine whether the Motion complies with Fed. R. Civ. P. and Local Rule -. See Pepsico, Inc. v. California Security Cans, F. Supp. d, (C.D. Cal. 00. The Motion must set forth: ( when and against which party the default was entered; ( the identification of the pleading to which default was entered; ( whether the defaulting party is an infant or incompetent person, and if so, whether that person is adequately represented; ( that the Solders and Sailors Civil Relief Act of NOTICE OF MOTION AND MEMORANDUM -- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

11 Case :-cv-0-jak-afm Document Filed 0// Page 0 of Page ID #: does not apply; and ( that notice of the Motion has been served on the defaulting party, if required. Id.; see also Landstar Ranger, Inc. v. Parth Enters., Inc., F. Supp. d, n. (00 (holding that service on defaulting party is required only if the party has appeared in the action. Once these procedural requirements are met, [g]ranting or denying a motion for default judgment is a matter within the court s discretion. Landstar, F. Supp. d at. Entry of default does not automatically entitle the non-defaulting party to a courtordered judgment. See Pepsico, F. Supp. d at. In fact, default judgments are ordinarily disfavored. Eitel v. McCool, F.d 0, (th Cir.. Accordingly, the Ninth Circuit has instructed courts to consider the following factors in deciding whether to grant default judgment: ( the possibility of prejudice to the plaintiff; ( the merits of the plaintiff s substantive claim; ( the sufficiency of the complaint; ( the sum of money at stake in the action;( the possibility of a dispute concerning material facts; ( whether the default was due to excusable neglect; and ( the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel, F.d at -. Upon entry of default, the well-pleaded allegations of the complaint, except those concerning damages, are deemed true. Fed. R. Civ. P. (b(. The court, however, must assure itself that the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law. Landstar, F. Supp. d at 0. Further, the plaintiff must provide evidence of its damages, and the damages sought must not be different in kind or exceed the amount demanded in the pleadings. Fed. R. Civ. P. (c ( A judgment by default shall not be different in kind from, or exceeding amount, what is demanded in the pleadings.. V. Plaintiffs Have Met the Procedural Requirements Plaintiffs have satisfied the procedural requirements for default judgment under Local Rule -. Specifically, Defendant has not appeared in this action and has not responded to the Complaint within the time permitted by Fed. R. Civ. P.. Moreover, NOTICE OF MOTION AND MEMORANDUM -- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

12 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 0 Plaintiffs filed a Request for Entry of Default on the Complaint on August, 0 (Dkt. Doc. No. and Default by Clerk was entered August, 0 (Dkt. Doc. No.. Defendant is not a natural person, and therefore is neither an infant nor an incompetent person. In addition, because Defendant is not a natural person, it is not exempt under the Solders and Sailors Civil Relief Act of 0. (Knore Decl.. Plaintiffs have served a copy of this Motion on Defendant in conjunction with the filing of the Motion. However, it should be noted that because Defendant has not appeared in the action, Plaintiffs are not required to serve notice of this Motion. Therefore, Plaintiffs have met the procedural requirements for default judgment under Local Rule -. VI. Plaintiffs Have Satisfied the Eitel Factors As previously discussed, the Ninth Circuit has instructed courts to consider the following when determining whether default judgment should be granted: the possibility of prejudice to the plaintiff; the merits of the plaintiff s substantive claim; sufficiency of the complaint; the sum of money at stake in the action; the possibility of a dispute concerning material facts; whether the default was due to excusable neglect; and the strong policy favoring decisions on the merits. Eitel, F.d at -. Per the discussion below, the Court should find that the Eitel factors in this instant matter favor the granting of default judgment. A. Denial of Default Judgment Would Prejudice the Plaintiffs A denial of default judgment that leaves a plaintiff without other recourse has been found to be prejudicial. Pepsico, Inc., F. Supp. d at. Denying default judgment would leave Plaintiffs with no other means to recover the damages they sustained by Defendant s withdrawal. Moreover, Plaintiffs have made efforts to contact Defendant to recover the withdrawal liability in accordance with ERISA and the Plaintiff Fund's Withdrawal Liability Procedures, but Defendant has failed to comply. (Complaint,. Moreover, if Defendant does not compensate the Plaintiff Fund for their withdrawal, Plaintiffs will suffer damages as a result of the unfunded vested NOTICE OF MOTION AND MEMORANDUM -- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

13 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 0 benefit obligations of the multiemployer plan, therefore unfairly burdening the Plaintiff Fund s participating employers with increased payments and participating members with potential reductions in benefits. See Carpenters Pension Trust Fund for Northern California v. Underground Const. Co., Inc., F.d, (th Cir. (explaining that ERISA was intended to protect against this harm. As such, Plaintiffs would suffer prejudice absent the entry of default judgment. B. Plaintiffs Have Demonstrated the Sufficiency of the Merits of Their Claims The second and third Eitel factors are often analyzed together. The Ninth Circuit has suggested that these two factors require that a plaintiff state a claim on which [it] may recover. Pepsico, F.Supp. d at (quoting Kloepping v. Fireman, No. C - THE, U.S. Dist. LEXIS, at * (N.D. Cal. Feb.,. If an employer withdraws from a multiemployer plan in a complete withdrawal or a partial withdrawal, then the employer is liable to the plan. U.S.C.. Withdrawal occurs when an employer permanently ceases to have an obligation to contribute under the plan. U.S.C. (a. Congress has established the procedure and methods for computing and assessing the amount of liability of a withdrawing employer. Under U.S.C., the amount of withdrawal liability is first computed by the pension plan's sponsor and the employer is then notified of the amount and the schedule of payments to be made. The employer is then entitled, within 0 days of such notice, to ask the sponsor to review any specific matter relating to the determination of the employer's withdrawal liability. U.S.C. (c. Any dispute between an employer and the plan sponsor concerning the employer's withdrawal liability shall be resolved through arbitration. U.S.C. 0(a(. Arbitration may be initiated within a 0 day period after the employer is notified of the sponsor's final determination concerning withdrawal liability (or 0 days after the employer requested the sponsor to review the matter, whichever date is earlier. U.S.C. 0(a(. If arbitration proceedings are not initiated within the time period prescribed by the statute, the NOTICE OF MOTION AND MEMORANDUM -- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

14 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 0 amounts demanded by the plan sponsor... shall be due and owing on the schedule set forth by the plan sponsor. U.S.C. 0(b(. If the employer fails to make payment when due, and fails to cure the delinquency within 0 days of notice of the delinquency, the plan sponsor is entitled to obtain immediate payment of the entire amount of the employer's outstanding withdrawal liability. U.S.C. (c(. Here, Plaintiffs have adequately stated a claim that Defendant incurred withdrawal liability based upon its complete withdrawal from the multiemployer plan. (Complaint. First, Plaintiffs have submitted a copy of the collective bargaining agreement that bound Defendant to make contributions to the Plan. (Complaint 0; Complaint Exhibit. Second, Plaintiffs provided copies of the letter they sent notifying Defendant of its withdrawal liability. (Complaint, Complaint Exhibit. Third, through the Declaration of Judi Knore, Plaintiffs have demonstrated that the Defendant made eighteen payments prior its cessation of making the rest of their withdrawal liability payments pursuant to the schedule provided by Plaintiffs. (Complaint ; Knore Decl.. Further, Plaintiffs properly alleged that because Defendant neither sought arbitration nor cured its deficiencies, it entered into default under U.S.C. (c(. (Complaint and. C. Proportionality to the Harm Caused by Defendant s Conduct This factor asks whether the recovery sought is proportional to the harm caused by defendant s conduct. Landstar, F. Supp. d at (internal citations omitted. Plaintiffs seek to recover $0,.0 in withdrawal liability, interest, and liquidated damages. Plaintiffs have provided detailed calculations of the withdrawal liability based upon the statutory formulas provided in Section of ERISA, U.S.C., which supports the outstanding balance for the withdrawal liability. (Knore Decl. -. As such, based on the evidence submitted, the Court should be able to conclude that the damages sought are consistent with the terms of the contracts and are otherwise appropriate. Landstar, F. Supp. d at. NOTICE OF MOTION AND MEMORANDUM -- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

15 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 0 D. There is No Factual Dispute That Would Preclude Entry of Default Judgment Defendant has made no attempt to challenge the accuracy of the allegations in the Complaint. Moreover, Plaintiffs have provided support of their factual allegations with ample evidence, including the submission of relevant exhibits upon the filing of the Complaint and the Declaration of Judi Knore in support of this Motion. As such, there should be no factual dispute precluding entry of default judgment. Landstar, F. Supp. d at -. E. The Possibility of Excusable Neglect is Minimal The possibility of excusable neglect is minimal. Even where a defendant is only constructively served through the Secretary of State, the failure to appear or defend is not a result of excusable neglect. See Solice v. Vigilance, Inc., No 0-00 JW, 00 U.S. Dist. Lexis, at *- (N.D. Cal. July, 00. Here, Defendant was served with the Summons and Complaint on July, 0. (Dkt. No.. However, Defendant failed to respond and has made no effort to appear before this Court. Thus, this factor should weigh in favor of granting default judgment. F. The Six Eitel Factors Have Been Met And Are Not in Conflict with the Policy Favoring Decisions on the Merits On balance, even though there is a general preference to decide matters on the merits, the first six Eitel factors discussed above strongly favor the granting of a default judgment against Defendant. VII. Requested Damages Awards granted after entering default judgment are governed by Fed. R. Civ. P. (c, which allows only the amount prayed for in the complaint to be awarded to the plaintiff in default. See Elektra Entm t Grp. v. Bryant, No. 0-GAF, 00 U.S. Dist. LEXIS 00, at * (C.D. Cal. Feb., 00. Plaintiffs demand for relief must be specific, and it must prove up the amount of damages. Landstar, F. Supp. d at (internal quotation marks omitted. 0 NOTICE OF MOTION AND MEMORANDUM -0- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

16 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 0 ERISA provides that [i]n any action under this section to compel an employer to pay withdrawal liability, any failure of the employer to make any withdrawal liability payment within the time prescribed shall be treated in the same manner as a delinquent contributions.... U.S.C. (b. In an action to enforce payment of delinquent contributions, a plaintiff is entitled to recover the unpaid contributions, interest, liquidated damages, and reasonable attorneys' fees and costs. U.S.C. (g(. See also Operating Eng'rs Pension Trust Fund v. Clarke's Welding, Inc., F. Supp. d 0, (N.D. Cal. 00. Moreover, pursuant to Article IX, Sections and of Plaintiff Fund s Trust Agreement, in a collection action for delinquent contributions the amount of interest is 0% from the date of each payment missed and liquidated damages are 0% of the unpaid total. A. Withdrawal Liability To establish that Defendant is liable for the damages as a result of withdrawal from the multiemployer pension plan, Plaintiffs submitted multiple exhibits as well as the Declaration of Judi Knore, a third party administrator for the Fund and the Board. (Knore Decl.. As discussed above, the exhibits establish that although Defendant was obligated to pay its withdrawal liability upon its complete withdrawal, Defendant failed to do so despite Plaintiffs notice. To support the damages sought in the amount of $0,.0, Plaintiffs have provided a copy of the calculation of Defendant s assessed withdrawal liability, which is based on the statutory formulas contained in Section of ERISA, U.S.C.. (Knore Decl. -; Knore Decl. Exhibit B. Therefore, based on this evidence, Plaintiffs have provided adequate support to establish that they are entitled to damages in the amount of $0,.0. B. Prejudgment Interest and Liquidated Damages Pursuant to Section 0(b of ERISA, U.S.C. (b any failure of the employer to make any withdrawal liability payment within the time prescribed shall be treated in the same manner as a delinquent contributions.... Pursuant to Article IX, Section of Plaintiff Fund s Trust Agreement, in a collection action for delinquent NOTICE OF MOTION AND MEMORANDUM -- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

17 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 0 contributions the amount of interest due on a late payment is 0% from the date of each payment missed. Moreover, pursuant to Article IX, Section of Plaintiff Fund s Trust Agreement liquidated damages are 0% of the unpaid total. Further, interest is calculated from the due date of each withdrawal liability payment through the date the Judgment is entered. (Knore Decl.. At the time of the filing of this Motion, interest the resulting interest amount is $,. plus $.0 per day until judgment is entered by the Court. (Knore Decl.. Liquidated damages are 0% of $0,.0, which total $,0.. (Knore Decl.. C. Attorney s Fees and Costs Because Defendants were delinquent in paying their withdrawal liability payments (Knore Decl. 0-, Plaintiffs are entitled to reasonable attorney s fees. U.S.C. (g((d; (Knore Decl.. Local Rule states that where a statute provides for reasonable attorney's fees, those fees must be calculated according to the schedule provided under that Rule. The total delinquency here at the time of the filing of this Motion is $0,.0 in withdrawal liability, $,. in prejudgment interest, and $,0. in liquidated damages, totaling $,.. Local Rule 's schedule establishes that where the amount of the judgment is over $00,000, attorney's fees are calculated at $,00 plus % of the amount over $00,000. This totals $,. in attorney s fees, plus $. per day based on the additional $.0 per day in prejudgment interest, until a judgment is entered. (Knore Decl.. In addition, costs in this instant case total $0.00. (Knore Decl.. Therefore, Plaintiffs are entitled to reasonable attorney s fees in the amount of at least $,. (plus $. per day until a judgment is entered and costs in the amount of $0.00. VIII. Conclusion For the reasons set forth above, the Court should grant this Motion for Default Judgment against Defendant All West Container Co. /// /// NOTICE OF MOTION AND MEMORANDUM -- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

18 Case :-cv-0-jak-afm Document Filed 0// Page of Page ID #: 0 0 Dated: September, 0 Respectfully submitted, /s/ Valentina S. Mindirgasova Kerry K. Fennelly Valentina S. Mindirgasova Cornwell & Baldwin 0 East Grand Avenue Escondido, CA 0 (0-00 kfennelly@donaldsonandcornwell.com vmindirgasova@donaldsonandcornwell.com Attorneys for Plaintiffs NOTICE OF MOTION AND MEMORANDUM -- OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

19 Case :-cv-0-jak-afm Document - Filed 0// Page of Page ID #: 0 0 Kerry K. Fennelly (SBN kfennelly@donaldsonandcornwell.com Valentina S. Mindirgasova (SBN vmindirgasova@donaldsonandcornwell.com Cornwell & Baldwin 0 East Grand Avenue Escondido, CA 0 (0-00 tel (0 - fax Attorneys for Plaintiffs, GCIU-Employer Retirement Fund and Board of Trustees of the GCIU-Employer Retirement Fund UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION GCIU-EMPLOYER RETIREMENT FUND AND BOARD OF TRUSTEES OF THE GCIU-EMPLOYER RETIREMENT FUND v. Plaintiffs, ALL WEST CONTAINER CO., Defendant. CASE NO. :-CV-0-JAK (AFMx DECLARATION OF JUDI KNORE IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT BY COURT PURSUANT TO FRCP (b Hearing Date: December, 0 Hearing Time: :0 A.M. Judge: John A. Kronstadt Place: Courtroom No. 0B [Accompanying Papers: NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (b; [PROPOSED] ORDER GRANTING MOTION FOR ENTRY OF DEFAULT JUDGMENT BY COURT PURSUANT TO FRCP (b] DECLARATION OF JUDI KNORE IN SUPPORT -- OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (B

20 Case :-cv-0-jak-afm Document - Filed 0// Page of Page ID #:0 0 0 I, Judi Knore, declare as follows:. I am the assistant third party administrator for Plaintiffs, GCIU-Employer Retirement Fund and Board of Trustees of the GCIU-Employer Retirement Fund, in the above-entitled action.. Defendant, All West Container Co., ( Defendant has not appeared in this action and has not responded to the Complaint within the time permitted by law.. Defendant is not an infant, incompetent person, or person of military service or otherwise exempted from default judgment under the Soldiers and Sailors Civil Relief Action of 0.. A Request to Enter Default against Defendant in this action was made on August, 0. Default by Clerk was entered on August, 0. A true and correct copy of the Default by Clerk is attached hereto as Exhibit A.. This action involves a claim for damages by Plaintiffs against the Defendant under Section (b( of ERISA, U.S.C. 0(b(. Specifically, this action is for collection of withdrawal liability, interest, liquidated damages, and attorneys fees incurred by Defendant as a result of a withdrawal from a multiemployer pension plan. A copy of the calculation of the amount of the withdrawal liability assessment and payment schedule is attached hereto as Exhibit B.. ERISA provides statutory formulas for calculating the amount of withdrawal liability assessment set forth under Section of ERISA, U.S.C... Plaintiffs, with the assistance of their actuary calculated the amount of withdrawal liability assessment in accordance with those formulas. The Fund s actuary determined that the withdrawal liability attributable to Defendant was $,. Plaintiffs provided Defendant with the option to pay its withdrawal liability in 0 monthly payments of $0.0 under Section (c( of ERISA, U.S.C. (c(, or in a lump sum payment of $,, the present value of the 0 monthly payments. DECLARATION OF JUDI KNORE IN SUPPORT -- OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (B

21 Case :-cv-0-jak-afm Document - Filed 0// Page of Page ID #: 0 0. Defendant made eighteen payments of $0.0 each between July 0 and December 0. The total of the payments made to date being $,.0.. Defendant then ceased making payments, and Plaintiffs provided to Defendant via UPS Second Days Air a Notice of Failure to Pay Withdrawal Liability and Demand for Cure ( Demand for Cure in accordance with Section (c( of ERISA, U.S.C (c(. A true and correct copy of the Demand for Cure was attached to the Complaint as Exhibit. 0. Defendant failed to cure the required withdrawal liability payments to the Fund and is now in default within the meaning of Section (c( of ERISA, U.S.C. (c(.. There is now due and owing the sum of $0,.0 based on Defendant s failure to cure the required withdrawal liability payments to the Fund, its default within the meaning of ERISA Section (c(, U.S.C. (c(, and the payments made to date.. Under Section 0(b of ERISA, U.S.C. (b any failure of the employer to make any withdrawal liability payment within the time prescribed shall be treated in the same manner as delinquent contributions.. As a contributing employer, Defendant was bound by the terms, conditions, rules and regulations of the Plaintiff Fund s Trust Agreement. A true and correct copy of the Trust Agreement was attached to the Complaint as Exhibit. Pursuant to Article IX, Section of Plaintiff Fund s Trust Agreement, in a collection action for delinquent contributions the amount of interest due on a late payment is 0% from the date of each payment missed. Moreover, pursuant to Article IX, Section of Plaintiff Fund s Trust Agreement liquidated damages are 0% of the unpaid total.. Prejudgment interest is calculated at 0% from the due date of each missed withdrawal liability payment until the date the Judgment is entered. Accordingly, through the date of the filing of this Motion, the resulting interest amount is DECLARATION OF JUDI KNORE IN SUPPORT -- OF MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO FRCP (B

22 Case :-cv-0-jak-afm Document - Filed 0// Page of Page ID #:

23 Case :-cv-0-jak-afm Document - Filed 0// Page of Page ID #: GCIU-Employer Retirement Fund, et al. v. All West Container Co. EXHIBIT A to DECLARATION - :-cv-0

24 Case :-cv-0-jak-afm Document - Filed 0/0/ 0// Page of Page ID ID #: #: UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NUMBER: GCIU EMPLOYER RETIREMENT FUND, et al. PLAINTIFF(S : cv 0 JAK AFM v. ALL WEST CONTAINER CO. DEFENDANT(S. DEFAULT BY CLERK F.R.Civ.P. (a It appearing from the records in the above entitled action that summons has been served upon the defendant(s named below, and it further appearing from the affidavit of counsel for Plaintiff, and other evidence as required by F.R.Civ.P. (a, that each of the below defendants have failed to plead or otherwise defend in said action as directed in said Summons and as provided in the Federal Rules of Civil Procedure: Now, therefore, on request of counsel, the DEFAULT of each of the following named defendant(s is hereby entered: All West Container Co. Clerk, U.S. District Court August, 0 Date CV (0/0 By /s/ Brent Pacillas Deputy Clerk DEFAULT BY CLERK F.R.Civ.P. (a GCIU-Employer Retirement Fund, et al. v. All West Container Co. EXHIBIT A to DECLARATION - :-cv-0

25 Case :-cv-0-jak-afm Document - Filed 0// Page of Page ID #: GCIU-Employer Retirement Fund, et al. v. All West Container Co. EXHIBIT B to DECLARATION - :-cv-0

26 Case :-cv-0-jak-afm Document - Filed 0// Page of Page ID #: GCIU-Employer Retirement Fund, et al. v. All West Container Co. EXHIBIT B to DECLARATION - :-cv-0

27 Case :-cv-0-jak-afm Document - Filed 0// Page of Page ID #: GCIU-Employer Retirement Fund, et al. v. All West Container Co. EXHIBIT B to DECLARATION - :-cv-0

28 Case :-cv-0-jak-afm Document - Filed 0// Page 0 of Page ID #: GCIU-Employer Retirement Fund, et al. v. All West Container Co. EXHIBIT B to DECLARATION - 0 :-cv-0

29 Case :-cv-0-jak-afm Document - Filed 0// Page of Page ID #: GCIU-Employer Retirement Fund, et al. v. All West Container Co. EXHIBIT C to DECLARATION - :-cv-0

30 Case :-cv-0-jak-afm Document - Filed 0// Page of Page ID #:0 GCIU-Employer Retirement Fund, et al. v. All West Container Co. EXHIBIT C to DECLARATION - :-cv-0

31 Case :-cv-0-jak-afm Document - Filed 0// Page of Page ID #: GCIU-Employer Retirement Fund, et al. v. All West Container Co. EXHIBIT C to DECLARATION - :-cv-0

32 Case :-cv-0-jak-afm Document - Filed 0// Page of Page ID #: 0 0 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION GCIU-EMPLOYER RETIREMENT FUND AND BOARD OF TRUSTEES OF THE GCIU-EMPLOYER RETIREMENT FUND v. Plaintiffs, ALL WEST CONTAINER CO., Defendant. CASE NO. :-CV-0-JAK (AFMx [PROPOSED] ORDER GRANTING ENTRY OF DEFAULT JUDGMENT BY COURT PURSUANT TO FRCP (b It appearing from the records in the above-entitled action from Plaintiffs Motion for Entry of Default Judgment Pursuant to F.R.C.P (b, including the declaration submitted in support thereof, and other evidence as required by F.R.C.P. (b and Local Rule., that the Defendant has failed to plead or otherwise defend in said action and default having been entered. Now, therefore, on request of counsel, the Default Judgment, comprised of the following, is hereby entered against Defendant All West Container, Co. [PROPOSED] ORDER GRANTING ENTRY -- OF DEFAULT JUDGMENT PURSUANT TO FRCP (b

33 Case :-cv-0-jak-afm Document - Filed 0// Page of Page ID #: 0 Plaintiffs Claim for Relief As to Plaintiffs Claim for Relief, Defendant is hereby ordered to pay $0,.0 in withdrawal liability, $,. in prejudgment interest (plus $.0 per day from September, 0 until Judgment is entered, and $,0. in liquidated damages. Attorneys Fees and Costs Defendant is hereby ordered to pay $,. (plus $. per day from September, 0 until Judgment is entered in attorneys fees pursuant to Local Rule -, and costs totaling $0.00. Total judgment for Plaintiffs is $. 0 Dated: The Honorable John A. Kronstadt [PROPOSED] ORDER GRANTING ENTRY -- OF DEFAULT JUDGMENT PURSUANT TO FRCP (b