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Anderson v. Ross Island Sand & Gravel Co.

United States District Court, D. Oregon

July 11, 2018

JAMES ANDERSON, ROBERT CRANE, DARREN GLEBE, JACK MILLER, DAVID ALEXANDER, JOHN ANDERSON, JAMES M. WRIGHT, and KYLE IZATT, Trustees for the AGC-INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 701 PENSION, HEALTH AND WELFARE, AND TRAINING TRUST FUNDS, Plaintiffs,
v.
ROSS ISLAND SAND & GRAVEL CO., an Oregon corporation, Defendant.

          FINDINGS AND RECOMMENDATION

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE.

         On March 29, 2018, the above named individuals (collectively “Trustees”) filed a Complaint against Ross Island Sand & Gravel Corporation (“Ross Island”) alleging a breach of the Collective Bargaining Agreement (“CBA”) between the parties and violations of Section 502 of the Employee Retirement Income Security Act (“ERISA”), and Section 301 of the Taft-Hartley Act, 29 U.S.C. §§ 185, 1132, 1145. (ECF No. 1.) On April 17, 2018, the Trustees filed Acceptance of Service by Counsel, in which counsel for Ross Island acknowledged receipt of the Trustees' Complaint. (ECF No. 4.) Ross Island did not file an Answer or otherwise appear in this matter and, on May 9, 2018, the Trustees filed a Motion for Entry of Default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure (“FRCP”). (ECF No. 5.) On May 30, 2018, the Clerk of the Court entered a default against Ross Island. (ECF No. 8.)

         Pending before the Court is the Trustees' Motion for General Judgment by Default pursuant to Rule 55(b). (ECF No. 10.) The Trustees seek a Judgment for:

1) The sum of $86, 996.19 for fringe benefit contributions due for the exclusive period of December 2017 through February 2018 (after any partial payments are applied), liquidated damages, and interest through 5/20/18 as outlined in the Declaration of Traci Pardee in Support of the Motion for General Judgment by Default; and
2) The sum of $2, 761.00 for pre-judgment attorney fees and costs incurred herein as outlined in the Declaration of Talia Y. Stoessel in Support of the Motion for General Judgment by Default.

         (Pls.' Mot. General J. Default 2.) Having reviewed all of the pleadings in this matter, the Court recommends that the district judge grant the Trustees' motion seeking damages in the amount of $86, 996.19, and grant in part their motion seeking attorney's fees and costs.

         DISCUSSION

I. DAMAGES

         A. Legal Standard

         Upon entry of default, “the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). With respect to a request for damages, under Rule 55(b)(1), the district court clerk is authorized to enter a default judgment if the plaintiffs' claim “is for a sum certain or a sum that can be made certain by computation against a defendant who has been defaulted for not appearing.” A sum is certain when “no doubt remains as to the amount to which a plaintiff is entitled as a result of the defendant's default.” Franchise Holding II, LLC v. Huntington Rests. Grp., Inc., 375 F.3d 922, 928 (9th Cir. 2004).

         Under Rule 55(b)(2), the district court has discretion to grant a motion for default judgment provided jurisdiction is proper and there was adequate service on defendant. The district court may consider several factors to determine whether to grant default judgment. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth factors, including possible prejudice to plaintiff, merits of the claim, and the sum of money at stake).

         B. Analysis

         As a threshold matter, the Trustees' request for attorney's fees and costs (discussed below) are not sums certain and, as such, cannot be authorized by the Clerk of the Court. See, e.g., Branded Online Inc. v. Holden LLC, No. SA CV 15-0390-DOC, 2016 WL 8849024, at *1 (C.D. Cal. Jan. 8, 2016) (“Further, Plaintiff seeks to recover attorney's fees in connection with the default judgment. However, a calculation of reasonable attorneys' fees is not a sum certain calculation.” (quotations and citation omitted)); see also FRCP 55(b)(2) (“In all other cases, the party must apply to the court for a default judgment.”). Accordingly, the Court, rather than the Clerk, will enter default judgment here.

         The Court turns to the Trustees' request for damages as authorized under the terms of the Trust Agreement.[1] Ross Island is required to submit monthly reports listing the number of covered hours worked by its employees, and pay contributions based upon the listed hours. (Stoessel Decl. ¶ 4.) Ross Island submitted contribution reports for the period December 2017 through February 2018, binding Ross Island to the Trust Agreements. (Stoessel Decl. ¶ 4; Traci Pardee Decl. Exs. A-E, June 4, 2018.) Specifically, Ross Island agreed that:

The undersigned Employer agrees to be bound by the Trust Agreements creating and controlling the Fringe Benefits listed and make contributions to said Trust Funds as required by the current Labor Agreements providing for said Trust and further the enclosed contributions are to be credited to the accounts of the above listed employees for the Indicated Trusts' purposes. The herein named Employer certifies that it is signatory to and bound by a written collective bargaining agreement required contributions to the funds listed heron.

(Pardee Decl. Exs. A-E.)

         The Trust Agreement, including the Amendments, state in relevant part:

Each monthly contribution shall include all payments which have accrued in the interim for work performed up to the close of the Employer's payroll period ending closest to the last day of the preceding calendar month. Each monthly contribution shall be accompanied by ...

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