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Cascade Pension Trust v. Bob Fisher Electric, Inc.

United States District Court, D. Oregon

April 20, 2015

CASCADE PENSION TRUST, et al., Plaintiff,


MICHAEL McSHANE, District Judge.

Plaintiffs Cascade Pension Trust, Harrison Electrical Workers Trust Fund, National Electrical Benefit Fund, I.B.E.W. District No. 9 Pension Plan, Central Inside Joint Apprenticeship and Training Trust, and Southern Oregon IBEW-NECA Electrical Workers Audit Committee, acting by and through its Collection Committee comprised of Plaintiffs Klaas DeBoer, Jr. and Tim Frew (collectively, "Plaintiffs") move this Court for an Entry of Default, Default Judgment, and attorney fees and costs. See ECF No. 6. For the reasons that follow, Plaintiffs' motion, ECF No. 6, is GRANTED.


Plaintiffs brought this action on December 2, 2014, and Defendant Bob Fisher Electric, Inc. ("Defendant") received personal service on December 12, 2014. More than two months have now passed, and Defendant has not filed any responsive pleadings. As a result, any allegations in the Complaint that do not relate to the amount of damages are deemed admitted. See Fed.R.Civ.P. 8(b)(6).

Defendant entered into a collective bargaining agreement ("CBA") with Plaintiffs, under which Defendant agreed to the terms and conditions of the collection procedures for delinquent contributions. The CBA requires that Defendant submit reports to Plaintiffs each month indicating the hours worked by Defendant's employees who are covered under the CBA, and Defendant must submit payments to Plaintiffs in order to provide benefits for those employees. Defendant must maintain records for each employee to determine the amount of benefits due, and Defendant must make those records available in the event Plaintiffs request an audit. If Defendant does not keep adequate records and make the required payments, Defendant must pay the expenses of an audit and pay employee benefits to Plaintiffs based on an imputed forty hours per week for each employee.

Plaintiffs audited Defendant for the calendar years 2012 and 2013, during which Defendant had two employees covered under the CBA, but Defendant did not submit adequate records or contributions to Plaintiffs. Under the CBA and ERISA, [1] Defendant must pay the delinquent contributions, interest on the delinquent contributions, liquidated damages, the cost of the payroll audit, and attorney fees. Plaintiffs also seek post-judgment interest at the Oregon statutory rate of nine percent for their fees and costs.[2]


A defendant must file a responsive pleading within 21 days of being served, or within 60 days if the defendant has timely waived service. Fed.R.Civ.P. 12(a)(1). "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed.R.Civ.P. 55(a).

After entering an order of default, the district court has discretion to issue a default judgment. See Fed.R.Civ.P. 55(b); DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 852 (9th Cir. 2007), cert. denied, 555 U.S. 937 (2008). In exercising its discretion, the court may consider: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the 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 Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citation omitted).

The court has "considerable leeway as to what it may require as a prerequisite to the entry of a default judgment." Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987) (per curiam) (footnote omitted). The court may take the complaint's well-pleaded factual allegations as true, other than the amount of damages. Id. at 917-18 (citation omitted); DIRECTV, 503 F.3d at 854 (citations omitted). On the other hand, a "defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law.'" DIRECTV, 503 F.3d at 854 (quoting Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).


I. Entry of Default

Defendant received personal service on December 12, 2014, and more than 60 days have passed without Defendant filing any responsive pleadings. Defendant has not filed any notice to appear or provided this court any reason why an entry of default is not appropriate in this case. Defendant has failed to plead or ...

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