Board of Trustees of the Northern California Plasterers Health and Welfare Trust Fund et al v. Davidson Plastering, Inc.

Northern District of California, cand-4:2015-cv-02386

REPORT AND RECOMMENDATIONS re {{14}} MOTION for Default Judgment by the Court as to filed by Board of Trustees of the Plastering Industry Labor-Management Cooperation Committee Trust Fund, Board Of Trustees Of The Northern Californi a Plasterers Joint Apprenticeship And Training Trust Fund, Chester Murphy, Board of Trustees of the Northern California Plasterers Health and Welfare Trust Fund, Board of Trustees of the Plasterers Local Union No. 66 Supplemental Retirement Benefit Fund, Board of Trustees of the Northern California Plastering Industry Pension Trust Fund. Objections due by 4/5/2016. Signed by Magistrate Judge Donna M. Ryu on 03/22/2016. (dmrlc1, COURT STAFF)

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2 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 BOARD OF TRUSTEES OF THE 7 NORTHERN CALIFORNIA PLASTERERS Case No. 15-cv-02386-PJH (DMR) HEALTH AND WELFARE TRUST FUND, 8 et al., REPORT AND RECOMMENDATION 9 Plaintiffs, RE PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT 10 v. Re: Dkt. No. 14 11 DAVIDSON PLASTERING, INC., 12 Defendant. Northern District of California United States District Court 13 Plaintiffs Boards of Trustees of the Northern California Plasterers Trust Funds move the 14 court pursuant to Federal Rule of Civil Procedure 55(b)(2) for default judgment against Defendant 15 Davidson Plastering, Inc. ("Davidson"). [Docket No. 14.] Plaintiffs seek interest and liquidated 16 damages for late-paid employee fringe benefit contributions, as well as attorneys' fees and costs. 17 For the reasons below, the court recommends that Plaintiffs' motion be granted. 18 I. BACKGROUND 19 A. Factual Allegations 20 Plaintiffs are the Boards of Trustees for the Northern California Plasterers Health and 21 Welfare Trust Fund, Northern California Plastering Industry Pension Trust Fund, Plasterers Local 22 Union No. 66 Supplemental Retirement Benefit Fund, Northern California Plasterers' Joint 23 Apprenticeship and Training Trust Fund, and Plastering Industry Labor-Management Cooperation 24 Committee Trust Fund (the "Trust Funds"). Compl. ¶ 3. Plaintiff Chester Murphy is a trustee and 25 fiduciary of each trust. Compl. ¶ 4. The Trust Funds, established under Trust Agreements, consist 26 of all employee fringe benefit contributions that are to be made by employers pursuant to 27 collective bargaining agreements, and are multiemployer benefit plans within the meaning of the 28 Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1002, 1003. 2 1 Compl. ¶ 3; Martinez Decl., Oct. 7, 2015, ¶ 2 Ex. A. Plaintiffs allege that Davidson is a California 2 corporation and an employer within the meaning of ERISA, and that Davidson is also an employer 3 in an "industry or activity affecting commerce" within the meaning of the National Labor 4 Relations Act ("NLRA"), 29 U.S.C. § 152. Compl. ¶¶ 5, 6. 5 On June 28, 2013, Davidson signed a memorandum agreement with the Golden Gate 6 Lodge of Plasterers and Shophands Local Union No. 66, O.P. & C.M.I.A., whereby it became 7 bound to a written collective bargaining agreement entitled the "Plasterers Master Agreement" 8 ("Master Agreement"). Compl. ¶ 7; Martinez Decl. ¶¶ 2, 3, Ex. A. In accepting the terms of the 9 Master Agreement, Davidson agreed to be bound by all terms and conditions of the Trust 10 Agreements, which established the Trust Funds, and to all terms relating to wages, hours, and 11 working conditions. Compl. ¶¶ 7, 8; Martinez Decl. ¶¶ 3, 4, Ex. A. at 38-39. 12 The Master Agreement requires that employers pay monthly contributions to the Trust Northern District of California United States District Court 13 Funds based on the hours worked by their employees. Compl. ¶ 9; Martinez Decl. Ex. A. An 14 employer that fails to provide timely contributions is subject to liquidated damages of 10% of the 15 amount due and unpaid or $200.00, whichever is greater, and is subject to interest on the unpaid 16 contributions and liquidated damages at the rate of 10% per annum. Martinez Decl. Ex. A at 29. 17 The Master Agreement permits the Boards of Trustees to seek judicial relief to recover prompt 18 payment of contributions due, including the recovery of delinquent contributions, and to seek all 19 attorneys' fees and costs incurred in a lawsuit to recover the delinquent contributions. Id. If the 20 Boards of Trustees file a legal action to collect unpaid contributions, liquidated damages for any 21 contributions still unpaid on the date the action is filed are increased to 20% of the principal due. 22 Id. 23 Plaintiffs allege that Davidson failed to report, and thus failed to pay, contributions due to 24 the Trusts for at least the months of March and April 2015. Compl. ¶¶ 11, 12. Plaintiffs further 25 allege that Defendant made late payments for the periods October 2013 through November 2013, 26 January 2014 through June 2014, and August 2014 through February 2015, and thus owes 27 liquidated damages for those untimely contributions. Compl. ¶ 13. 28 B. Procedural History 2 2 1 Plaintiffs filed the current action in this Court on May 28, 2015 pursuant to the Labor- 2 Management Relations Act ("LMRA"), 29 U.S.C. § 185, and ERISA, 29 U.S.C. §§ 1132, to 3 recover due and unpaid benefit contributions, interest, liquidated damages, and attorneys' fees and 4 costs. Plaintiff served the summons and complaint on Davidson on June 8, 2015. [Docket No. 9 5 (Proof of Service).] After Davidson failed to appear or otherwise respond to the summons and 6 complaint within the time prescribed by the Federal Rules of Civil Procedure, the clerk entered 7 default on July 8, 2015. [Docket No. 11.] Plaintiffs subsequently filed a motion for default 8 judgment, which the court referred to the undersigned for preparation of a Report and 9 Recommendation. [Docket Nos. 14, 16.] The court ordered Plaintiffs to submit supplemental 10 briefing, which Plaintiffs timely filed. [Docket Nos. 19, 22.] 11 The court held a hearing on January 14, 2015. Davidson did not appear. At the hearing, 12 Plaintiffs' counsel represented that Davidson had made multiple payments of benefit contributions Northern District of California United States District Court 13 after Plaintiffs filed the motion for default judgment. Accordingly, the court ordered Plaintiffs to 14 submit a detailed declaration with supporting evidence setting forth the revised amount of 15 damages sought, along with an updated calculation of the total amount of attorneys' fees sought 16 with supporting evidence. [Docket No. 23 (Minute Order).] Plaintiffs timely filed the 17 supplemental evidence. [Docket No. 24 (Ling Decl, Feb. 12, 2016 ("2d Ling Decl."), 24-1 18 (Martinez Decl., Feb. 5, 2016 ("2d Martinez Decl.").] 19 II. LEGAL STANDARD 20 Federal Rule of Civil Procedure 55(b)(2) permits a court to enter a final judgment in a case 21 following a defendant's default. Shanghai Automation Instrument Co., Ltd. v. Kuei, 194 F. Supp. 22 2d 995, 999 (N.D. Cal. 2001). Whether to enter a judgment lies within the court's discretion. 23 Pepsico, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. 24 Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)) ("A defendant's default does not automatically 25 entitle the plaintiff to a court-ordered judgment."); Shanghai Automation Instrument Co., 194 F. 26 Supp. 2d at 999. 27 Before assessing the merits of a motion for default judgment, a court must confirm that it 28 has subject matter jurisdiction over the case and personal jurisdiction over the parties, as well as 3 2 1 ensure the adequacy of service on the defendant. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 2 1999). If the court finds these elements satisfied, it turns to the following factors ("the Eitel 3 factors") to determine whether it should grant a default judgment: 4 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) 5 the sum of money at stake in the action[,] (5) the possibility of a dispute concerning material facts[,] (6) whether the default was due 6 to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decision on the merits. 7 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citation omitted). In this analysis, "the 8 well-pleaded allegations of the complaint relating to a defendant's liability are taken as true." 9 Pepsico, Inc., 238 F. Supp. 2d at 1175 (citing Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 10 917-18 (9th Cir. 1987)). Nevertheless, default does not compensate for essential facts not within 11 the pleadings and those legally insufficient to prove a claim. Cripps v. Life Ins. Co. of N. Am., 980 12 Northern District of California United States District Court F.2d 1261, 1267 (9th Cir. 1992). 13 III. ANALYSIS 14 A. Jurisdiction and Service of Process 15 The court has subject matter jurisdiction over this case pursuant to 29 U.S.C. § 1132, 16 which empowers ERISA plan fiduciaries to bring civil actions to enforce plan terms. Under 17 ERISA, fiduciaries may bring an enforcement action in the federal district court of any district 18 "where the plan is administered, where the breach took place, or where a defendant resides or may 19 be found, and process may be served in any other district where a defendant resides or may be 20 found." 29 U.S.C. § 1132(e)(2). This nationwide service of process provision permits a court to 21 exercise personal jurisdiction over a defendant anywhere in the United States, regardless of the 22 state in which the court sits. U.A. Local No. 467 Pension Trust Fund v. Hydra Ventures Inc., No. 23 C-12-3746 EMC, 2013 WL 1007311, at *4 (N.D. Cal. Mar. 13, 2013) (citations omitted). Here, 24 Plaintiffs allege that Davidson is a California corporation doing business in Alameda County, 25 California. They also allege that the Trust Funds are administered in this District and that the 26 breach took place in this District. Accordingly, the court properly exercises personal jurisdiction 27 over Davidson. 28 4 2 1 Regarding the adequacy of service of process, Rule 4(e)(2) allows for service of an 2 individual by "delivering a copy of the summons and of the complaint to the individual 3 personally." Fed. R. Civ. P. 4(e)(2)(A). A party may serve a corporation "following state law for 4 serving a summons in an action brought in courts of general jurisdiction in the state where the 5 district court is located or where service is made." Fed. R. Civ. P. 4(e)(1); see also Fed. R. Civ. P. 6 4(h)(1)(A) (authorizing service of process on corporations "in the manner prescribed by Rule 7 4(e)(1) for serving an individual"). Under California law, "[a] summons may be served by 8 personal delivery of a copy of the summons and of the complaint to the person to be served." Cal. 9 Civ. Proc. Code § 415.10. A summons can be served on a corporation by delivering a copy of the 10 summons and of the complaint to the person designated as agent for service of process. Cal. Civ. 11 Proc. Code § 416.10(a). 12 Here, the proof of service indicates that the summons and complaint were personally Northern District of California United States District Court 13 served on Clifton Edgar Davidson, Davidson's designated agent for service of process. Ling 14 Decl., Dec. 30, 2015, ¶¶ 2, 3, Ex. A (California Secretary of State Business Entity Detail). The 15 court finds that service of the summons and complaint was properly effectuated. 16 B. Eitel Factors 17 Turning to the first Eitel factor, Plaintiffs will suffer prejudice if the court does not enter a 18 default judgment against Davidson because Plaintiffs otherwise have no means to recover the 19 contributions that Davidson owes them. PepsiCo, Inc., 238 F. Supp. 2d at 1177. Plaintiffs also 20 fulfill the second and third Eitel factors. First, Plaintiffs' complaint pleads the elements of a 21 violation of 29 U.S.C. § 1145.1 Specifically, it claims that Davidson is an employer obligated 22 under the collective bargaining agreement to make contributions to the Trust Funds and that it 23 failed to make such contributions. Compl. ¶¶ 11. Moreover, when a benefit plan secures a 24 judgment under section 1145, section 1132(g)(2) entitles the plan to unpaid contributions, interest 25 26 1 Section 1145 provides, in relevant part, that "[e]very employer who is obligated to make 27 contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall. . . make such contributions in accordance with the terms 28 and conditions of such plan or such agreement." 29 U.S.C. § 1145. 5 2 1 thereon, liquidated damages, and reasonable attorneys' fees and costs. In light of these factual 2 allegations and the pertinent law, Plaintiffs have submitted a legally sufficient complaint which 3 appears to have merit. See Bd. of Trs. of the Clerks v. Piedmont Lumber & Mill Co., Inc., No. 10- 4 1757 MEJ, 2010 WL 4922677, at *4 (N.D. Cal. Nov. 29, 2010). 5 As to the fourth factor, "[w]hen the money at stake in the litigation is substantial or 6 unreasonable, default judgment is discouraged." Bd. of Trs. v. Core Concrete Const., Inc., No. 11- 7 2532 LB, 2012 WL 380304, at *4 (N.D. Cal. Jan. 17, 2012) (citing Eitel, 782 F.2d at 1472). 8 However, when "the sum of money at stake is tailored to the specific misconduct of the defendant, 9 default judgment may be appropriate." Id. (citations omitted). The sum of damages, interest, 10 attorneys' fees, and costs that Plaintiff seeks is $216,173.31. The amounts owed are tailored to 11 Davidson's specific misconduct, and its failure to pay contributions. These amounts are supported 12 by the evidence, the collective bargaining agreement, and by statute. With respect to the fifth Northern District of California United States District Court 13 prong, Davidson has not appeared in this action, let alone contested any of Plaintiffs' material 14 facts. Finally, nothing in the record suggests that Davidson defaulted due to excusable neglect. 15 Plaintiffs have served Davidson with submissions relating to the case throughout the pendency of 16 this action (see Docket Nos. 14, 18, 21), and Davidson has failed to participate in the litigation. 17 Shanghai Automation Instrument Co., 194 F. Supp. 2d at 1005. Examining these facts in the 18 aggregate, the court finds that the first six Eitel factors outweigh the Federal Rules of Civil 19 Procedure's strong preference for a decision on the merits. The court therefore recommends that 20 Plaintiffs' motion for default judgment be granted. 21 C. Damages 22 To recover damages after securing a default judgment, a plaintiff must prove the relief it 23 seeks through testimony or written affidavit. Bd. of Trs. of the Boilermaker Vacation Trust v. 24 Skelly, Inc., 389 F. Supp. 2d 1222, 1226 (N.D. Cal. 2005); see Pepsico, 238 F. Supp. 2d at 1175 25 (citing Televideo, 826 F.2d at 917-18). 26 1. Interest and Liquidated Damages on Untimely Contributions 27 At the time Plaintiffs filed suit, they alleged that Davidson failed to report, and thus failed 28 to pay, contributions due to the Trusts for at least the months of March 2015 and April 2015. 6 2 1 Compl. ¶¶ 11, 12. Davidson subsequently made late payments for the contributions due for those 2 two months. See Martinez Decl. Ex. C (showing payments through June 2015). In their motion 3 for default judgment, Plaintiffs assert that Davidson made late payments for contributions to the 4 Trust Funds due for work performed in the periods October 2013 through November 2013, 5 January 2014 through June 2014, and August 2014 through February 2015. They explain in 6 supplemental briefing that after filing the present motion, Davidson made untimely payments for 7 contributions for work performed in the period June 2015 through October 2015. 2d Martinez 8 Decl. ¶¶ 3-7, Ex. A. There are no outstanding fringe benefit contributions due. See id. Plaintiffs 9 ask for a statutory award of liquidated damages and interest on all of Davidson's late-paid 10 contributions. 11 With respect to cases arising out of ERISA, the statute declares the following: 12 In any action. . . by a fiduciary for or on behalf of a plan to enforce Northern District of California United States District Court section 1145 of this title in which a judgment in favor of the plan is 13 awarded, the court shall award the plan-- 14 (A) the unpaid contributions, 15 (B) interest on the unpaid contributions, 16 (C) an amount equal to the greater of-- 17 (i) interest on the unpaid contributions, or 18 (ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher 19 percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph 20 (A), 21 (D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and 22 (E) such other legal or equitable relief as the court deems 23 appropriate. 24 29 U.S.C. § 1132(g)(2). Interest on unpaid contributions is determined by using the rate provided 25 under the plan. Id. 26 Here, the Master Agreement provides that an employer that fails to provide timely 27 contributions is subject to liquidated damages of 10% of the amount due and unpaid or $200.00, 28 whichever is greater, and is subject to interest on the unpaid contributions and liquidated damages 7 2 1 at the rate of 10% per annum. Martinez Decl. Ex. A at 29. If the Boards of Trustees file a legal 2 action to collect unpaid contributions, liquidated damages for any contributions still unpaid on the 3 date the action is filed are increased to 20% of the principal due. Id. 4 "It is settled Ninth Circuit law that [an award under Section 1132(g)(2)] is mandatory and 5 not discretionary." Operating Eng'rs Pension Trust v. Beck Eng'g & Surveying Co., 746 F.2d 6 557, 569 (9th Cir. 1984) (noting the statutory language in Section 1132(g)(2) that "the court shall 7 award the plan" unpaid contributions, interest, the greater of interest or liquidated damages, and 8 reasonable attorneys' fees). For a mandatory award under section 1132(g)(2), three requirements 9 must be satisfied: (1) the employer must be delinquent at the time the action is filed; (2) the 10 district court must enter a judgment against the employer; and (3) the plan must provide for such 11 an award. Nw. Adm'rs, Inc. v. Albertson's, Inc., 104 F.3d 253, 257 (9th Cir. 1996) (holding 12 mandatory fee award available under section 1132(g)(2) 'notwithstanding the defendant's post- Northern District of California United States District Court 13 suit, pre-judgment payment of the delinquent contributions themselves.'" (citation omitted)); see 14 also Idaho Plumbers & Pipefitters Health & Welfare Fund v. United Mechanical Contractors, 15 Inc., 875 F.2d 212, 217 (9th Cir. 1989) (holding 29 U.S.C. § 1132(g)(2) is not applicable to late- 16 paid contributions where no contributions were "unpaid" at the time of suit). 17 Plaintiffs seek liquidated damages on three categories of untimely contributions: 1) 18 contributions that became due before the suit was filed but were paid after the filing of the action; 19 2) contributions that became due after the suit was filed and were paid before the ruling on this 20 motion; and 3) contributions that were paid, but paid late, before the filing of the action. The court 21 will address each category in turn. 22 As to the first category, contributions that became due before the suit was filed but were 23 paid after Plaintiffs filed suit, Plaintiffs satisfy the three requirements for a mandatory award under 24 § 1132(g)(2). First, Davidson was delinquent in paying fringe benefit contributions at the time 25 Plaintiffs filed their lawsuit. Second, the court recommends the entry of judgment in favor of 26 Plaintiffs against Davidson. Third, the parties' agreement provides that Plaintiffs will be 27 permitted to assess liquidated damages and interest on payments paid, but paid late, at a rate that is 28 not "in excess of 20 percent" of the contributions at issue. Martinez Decl. Ex. A at 29; see 29 8 2 1 U.S.C. § 1132(g)(2)(C)(ii). Plaintiffs are thus entitled to a statutory award of liquidated damages 2 on the first category of untimely contributions. See Trustees of Bricklayers Local No. 3 Pension 3 Trust v. Huddleston, No. 10-1708 JSC, 2013 WL 2181532, at *5 (N.D. Cal. May 20, 2013) 4 ("Plaintiffs are entitled to statutory liquidated damages under section 1132(g) as to those payments 5 which were unpaid at the time this suit was filed."). Plaintiffs identify two months where unpaid 6 contributions existed at the time of the suit, March 2015 and April 2015. The court recommends a 7 statutory award of liquidated damages in the amount of $8,258.26. 8 The second category of untimely contributions includes contributions that became due 9 after the suit was filed and were paid before the ruling on this motion. Contributions that matured, 10 became delinquent, and were paid after the suit was filed were neither unpaid at the time the suit 11 was filed, nor remain unpaid at the time of judgment. Accordingly, Plaintiffs are not entitled to a 12 statutory award of liquidated damages on such contributions. Bd. of Trs. v. Udovch, 771 F. Supp. Northern District of California United States District Court 13 1044, 1051 (N.D. Cal. 1991) (citing Parkhurst v. Armstrong Steel Erectors, Inc., 901 F.2d 796, 14 797 (9th Cir. 1990) ("[w]e have held that unpaid contributions must exist at the time of suit for 15 statutory liquidated damages to be awarded.")). 16 As to the third category -- contributions that were paid, but paid late, before the filing of 17 the action -- it is not clear whether ERISA allows liquidated damages on such contributions. See 18 Huddleston, 2013 WL 2181532, at *5 (discussing split of authority). However, even if a statutory 19 award of liquidated damages is not available for these last two categories of contributions, 20 Plaintiffs may be entitled to liquidated damages as a matter of contract. Idaho Plumbers, 875 F.2d 21 at 217. Such "liquidated damages are a valid award for breach of contract if (1) it is 'very difficult 22 or impossible' to calculate the harm that stems from the breach, and (2) the amount of damages is 23 a 'reasonable forecast of just compensation for the harm.'" Huddleston, 2013 WL 2181532, at *6 24 (quoting Idaho Plumbers, 875 F.2d at 217). 25 With respect to the first requirement, courts have held that "[w]hen an employer is 26 delinquent in paying contributions into a fringe benefit trust fund, the fund suffers some kinds of 27 harms that are very difficult to gauge." Udovch, 771 F. Supp. at 1047; see also Bay Area Painters 28 & Tapers Pension Trust Fund v. Golden Vas Painting, No. 10-CV-02923 CW (DMR), 2011 WL 9 2 1 2020250, at *8 (N.D. Cal. Mar. 17, 2011) (same); Huddleston, 2013 WL 2181532, at *6 (same). 2 For example, in pursuing payment, "the trust must engage in a number of activities, such as 3 sending additional collection letters, billing statements, and correspondence, and placing follow- 4 up telephone calls, that are made necessary only by the breach but that are so intertwined with on- 5 going operations that their separate value is most difficult to measure." Udovch, 771 F. Supp. at 6 1049. 7 "The parties' intentions determine whether the second requirement has been satisfied." 8 Huddleston, 2013 WL 2181532, at *6. "They must have made a 'good faith effort to set an 9 amount equivalent to the damages they anticipate.'" Id. (quoting Udovch, 771 F. Supp. at 1048). 10 Here, the Master Agreement states that the parties "recognize and acknowledge that the prompt 11 payments of amounts due by the Individual Employer pursuant to this Agreement is essential to 12 the maintenance in effect of the various Funds and Plans involved, and that it would be extremely Northern District of California United States District Court 13 difficult, if not impractical, to fix the actual expense and damage to the parties hereto and to the 14 Funds which would result from the failure of an Individual Employer to make the monthly 15 payments in full within the time provided." Martinez Decl. Ex. A at 29. This evidence supports 16 an inference that the parties made a good faith effort to establish a liquidated damages rate that 17 "would be a reasonable forecast of just compensation" when entering into the agreement. 18 Huddleston, 2013 WL 2181532, at *6 (citation omitted). 19 The court concludes that contractual liquidated damages are warranted here as to the 20 second and third categories of contributions at issue in this matter, namely, contributions that were 21 paid, but paid late, before the filing of the action, as well as contributions that became due after the 22 suit was filed and were paid before the ruling on this motion. Plaintiffs, however, are entitled to 23 contractual liquidated damages of only 10% on these categories of untimely contributions. The 24 Master Agreement states "[i]f a legal action is filed to collect unpaid contributions or unpaid 25 liquidated damages, the liquidated damages for any contributions still unpaid on the date the legal 26 action is filed shall be increased to 20% of the contributions due." Martinez Decl. Ex. A at 29 27 (emphasis added). Neither category of untimely contributions were "unpaid on the date the legal 28 action" was filed. Accordingly, the court recommends that Plaintiffs be awarded contractual 10 2 1 liquidated damages in the amount of $34,967.25.1 2d Martinez Decl. ¶ 11, Ex. B. This sum 2 accounts for payments made by Davidson after Plaintiffs filed their motion for default judgment 3 which Plaintiffs applied towards outstanding liquidated damages. 2d Martinez Decl. ¶¶ 8-10, Ex. 4 B. 5 Plaintiffs are also entitled to interest on the untimely contributions. The Master Agreement 6 states that an employer who fails to make the required contributions on or before the 15th day of 7 the month following the month in which hours were performed is subject to interest on the 8 delinquent contribution at a rate of 10% per annum. Martinez Decl. Ex. A at 29. Plaintiffs have 9 calculated interest on the untimely contributions to be $12,135.82.2 2d Martinez Decl. Ex. A. The 10 court recommends Plaintiff be granted interest in the amount of $12,135.82. 11 2. Attorneys' Fees and Costs 12 Pursuant to both 29 U.S.C. § 1132(g)(2)(D) and the Master Agreement, Plaintiffs are Northern District of California United States District Court 13 entitled to their attorneys' fees and costs incurred in a suit to enforce payment of outstanding 14 contributions. 15 Plaintiffs ask for an award of $7,653.00 in fees, representing 38.6 hours of attorney time 16 expended in this case through December 30, 2015. 2d Ling Decl. ¶¶ 4, 6. They seek rates of $225 17 per hour for Benjamin Lunch, a law firm shareholder, and $195 per hour for Wan Yan Ling, a 18 second year associate. Ling Decl., Oct. 5, 2015, ¶ 6 Ex. A. These are reasonable San Francisco 19 Bay Area rates for ERISA claims. See, e.g., Oster v. Std. Ins. Co., 768 F. Supp. 2d 1026, 1035 20 21 1 The court calculated this sum as follows: Plaintiffs request a total of $108,394.00 in liquidated 22 damages. Plaintiffs represent that this sum equals 20% of the total amount of untimely contributions. $108,394.00 total liquidated damages requested - $8,258.26 statutory liquidated 23 damages awarded = $100,135.74. $100,135.74 / 2 (10% liquidated damages rate instead of 20%) = $50,067.87. $50,067.87 - $15,100.62 (additional payments by Davidson) = $34,967.25. 24 2 The court notes a discrepancy in the total amount of interest calculated. In her second 25 declaration, Linda Martinez, the Third Party Administrator, states Davidson owes $12,308.00 in interest on the untimely contributions, and that after adjusting the amount to reflect additional 26 untimely payments made after the filing of Plaintiffs' motion for default judgment, the total amount of interest due is $12,135.82. Based on the court's own calculations of the monthly 27 interest owed, the amount of interest due (without any credits) is actually $12,564.25, not $12,308.00. Plaintiffs do not explain their calculation and do not address or explain the 28 discrepancy. Accordingly, the court recommends that Plaintiffs be awarded the lower sum requested, or $12,135.82. 11 2 1 (N.D. Cal. 2011) (approving hourly rate of $400 for associates and $150 for paralegals); Langston 2 v. N. Am. Asset Dev. Corp. Group Disability, No. 08-2560 SI, 2010 WL 1460201, at *2 (N.D. Cal. 3 Apr. 12, 2010) (approving hourly rate of $550 for partner and $150 for paralegals); Bd. of Trustees 4 of Cement Masons Health & Welfare Trust Fund for N. California v. C & C Concrete Inc., No. C 5 10-03343 LB, 2013 WL 2456560 at *9 (N.D. Cal. June 6, 2013) (approving rate of $325 per hour 6 for shareholder). The court therefore recommends that Plaintiffs recover $7,653.00 in attorneys' 7 fees. 8 The court also will award costs if "the prevailing practice in a given community [is] for 9 lawyers to bill those costs separately from their hourly rates." Trs. of Contrs. Indus. & Laborers 10 Health & Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1258 (9th Cir. 2006) (quotation marks 11 omitted); see 29 U.S.C. § 1132(g)(2)(D). Plaintiffs have incurred $483.00 in costs in the action to 12 date. Ling Decl. ¶ 7, Ex. B. Because the court finds this sum reasonable, it recommends that Northern District of California United States District Court 13 Plaintiffs be granted $483.00 in costs. 14 IV. CONCLUSION 15 For the foregoing reasons, the court recommends that the court grant Plaintiffs' motion for 16 default judgment against Defendant Davidson. The court further recommends that the court award 17 Plaintiffs liquidated damages and interest on late-paid contributions in the amount of $55,361.33. 18 The court also recommends that the court award Plaintiffs attorneys' fees and costs amounting to 19 $7,653.00 and $483.00, respectively. 20 Plaintiffs shall serve a copy of this order on Defendant Davidson and file proof of service 21 with the court. Any party may file objections to this report and recommendation with the District 22 Judge within 14 days of being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. ISTRIC 23 72(a); N.D. Civ. L.R. 72-2. TES D TC TA O 24 S U ED RT 25 IT IS SO ORDERED. DERED UNIT O OR 26 Dated: March 22, 2016 IT IS S R NIA ______________________________________ M. Ryu 27 NO o n n a DONNA M. RYU ge D FO 28 JudMagistrate United States Judge RT LI 12 E H A RN C F D IS T IC T O R