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BOARD OF TRUSTEES OF THE CALIFORNIA METAL TRADES V

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


December 15, 1997

BOARD OF TRUSTEES OF THE CALIFORNIA METAL TRADES, et al, Plaintiffs,
v.
PITCHOMETER PROPELLER, et al, Defendants.

The opinion of the court was delivered by: WALKER

ORDER.

 Defendant Pitchometer Propeller ("Pitchometer") entered into a collective bargaining agreement with International Association of Machinists and Aerospace Workers District Lodge # 115 on February 13, 1997. The collective bargaining agreement went into effect on July 1, 1996, and terminated on June 30, 1997. Pitchometer was also bound by the terms of the Joint Health & Welfare and Dental Trust agreement ("Trust Agreement").

 Pitchometer failed to make timely contributions as required under the Trust Agreement. On September 3, 1997, a default was entered by the court clerk as a result of Pitchometer's failure to file an answer or otherwise respond to plaintiffs' complaint. On October 6, 1997, plaintiffs filed a motion for default judgment, pursuant to FRCP 55(b)(2), requesting liquidated damages, attorney fees and costs.

 I

 After the entry of a default by the court clerk, the court may enter a judgment of default pursuant to FRCP 55(b)(2). The decision to grant or to deny a request for default judgment lies within the sound discretion of the district court. Aldabe v Aldabe, 616 F.2d 1089, 1092 (9th Cir 1980). When exercising this discretion, a district court is guided by the following factors:

 

(1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff's claim; (3) the sufficiency of the complaint; (4) the amount 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 of the Federal Rules of Civil Procedure favoring decision on the merits. Eitel v McCool, 782 F.2d 1470, 1471-72 (9th Cir 1986).

 In this case, Pitchometer has filed no papers with the court challenging the validity of the collective bargaining agreement and the liquidated damages clause. Despite proper service, it has not responded to any of plaintiffs' motions, which appear to be complete and meritorious on their face. Thus refusal to grant a default judgment could prejudice plaintiffs.

 In addition, as a result of Pitchometer's failure to respond to plaintiffs' motions, the court sees no dispute concerning material facts of this case. There are no facts to suggest that Pitchometer's failure to respond is as a result of excusable neglect. The amount of money at stake is reasonable, properly documented and contractually justified. In view of the above reasons, the court GRANTS plaintiffs' motion for default judgment.

 Plaintiffs request liquidated damages in the amount of $ 4,875.00. Under Item III, section (C)(2) of the Trust Agreement, liquidated damages at a rate of 20% of the delinquent contributions amount are due if such delinquency is referred to a collection attorney. The delinquent amounts are outlined in plaintiffs' Exhibit 3, and upon review, the court finds them to be accurate. Therefore, plaintiffs are entitled to the full amount of liquidated damages.

 Plaintiffs also request attorney fees and cost incurred as a result of this action. Under Item III, section E of the Trust Agreement, plaintiffs are entitled to attorney fees and costs, in addition to any delinquent contributions. In his declaration, plaintiffs' attorney avers that he spent 5 hours in the prosecution of this case. At an hourly rate of $ 185.00, the total amount of attorney fees is $ 925.00. Under the standard set out by the Ninth Circuit in Kerr v Screen Extras Guild, Inc, the court finds that the attorney fees and the hours spent on this matter are both reasonable. See Kerr, 526 F.2d 67, 70 (9th Cir 1975).

 II

 For the foregoing reasons, the court GRANTS plaintiffs' motion for default judgment. Pitchometer shall pay the following to plaintiffs by December 24, 1997:

 

(1) liquidated damages in the amount of $ 4,875.00;

 

(2) attorney fees in the amount of $ 925.00; and

 

(3) costs in the amount of $ 200.00.

 Plaintiffs shall advise the court in writing that the payment was made whereupon the clerk will close the file.

 IT IS SO ORDERED.

 VAUGHN R. WALKER

 United States District Judge

 JUDGMENT. - ENTERED IN CIVIL DOCKET DEC 17 1997

 Fed. R. Civ. Pro. 55

 In accordance with this court's order of December 15, 1997, plaintiffs' motion for default judgment is GRANTED. Defendants shall pay the following to plaintiffs by December 24, 1997: Liquidated Damages $ 4,875.00 Attorney's Fees 925.00 Costs 200.00 TOTAL $ 6,000.00

19971215

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