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March 31, 2003


The opinion of the court was delivered by: Charles R. Breyer, United States District Judge.


Now before the Court is plaintiffs' motion for a default judgment and an award of unpaid contributions, liquidated damages, interest, and attorneys fees and costs. Defendant has not answered the complaint and has not otherwise communicated with the Court. After carefully considering the papers filed by the plaintiffs, the Court concludes that oral argument is unnecessary, see Local Rule 7-1(b), and GRANTS the motion for default judgment.


Defendant General Facilities, Inc., d/b/a Commerce Air Conditioning Company, Commerce Systems and Commerce A/C ("defendant") entered into a collective bargaining agreement ("CBA") with Sheet Metal Workers Local Union No. 104. The CBA requires defendant to pay health and welfare, pension and other fringe benefit contributions to the plaintiff Trust Funds on behalf of defendant's covered employees. A contribution is due no later than the 20th day of the following month.

On September 26, 2002, plaintiffs filed this ERISA action to recover unpaid contributions to employee benefit funds, plus interest, liquidated damages, attorneys fees, and costs. They served defendant with the complaint on October 11, 2002. Defendant never answered or otherwise responded to the complaint and the clerk entered default on March 3, 2003. Plaintiffs now move for entry of default judgment. Although plaintiffs served defendant with the motion for default judgment and the time for opposing the motion has expired, as of the date of this order defendant has still not answered the complaint or responded to the motion for default judgment.


ERISA provides that

[e]very employer who is obligated to make contributions to a multiemployer plan under the terms of a collectively bargained agreement shall to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement.
U.S.C. § 1145. ERISA also provides that in any action by a plan fiduciary "to enforce section 1145" in which "a judgment in favor of the plan is awarded" the district court "shall award the plan" the following:
(A) the unpaid contributions, (B) interest on the unpaid contributions, (C) an amount equal to the greater of — (i) interest on the unpaid contributions, or (ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A), (D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and (E) such other legal or equitable relief as the court deems appropriate.
29 U.S.C. § 1132(g)(2). An award under section 1132(g)(2) is mandatory if the following three requirements are satisfied: "(1) the employer must be delinquent at the time the action is filed; (2) the district court must enter a judgment against the employer; and (3) the plan must provide for such an award." Northwest Administrators, Inc. v. Albertson's, Inc., 104 F.3d 253, 257 (9th Cir. 1996); see Parkhurst v. Armstrong Steel Erectors, Inc., 901 F.2d 796, 797 (9th Cir. 1990); Idaho Plumbers & Pipe Fitters Health and Welfare Fund v. United Mechanical Contractors, Inc., 875 F.2d 212, 215 (9th Cir. 1989).

The requirement that the employer be delinquent at the time the lawsuit is commenced is based upon the language of section 1132. Section 1132 provides for liquidated damages as a percentage of "unpaid contributions" and courts have interpreted "unpaid contributions" to mean contributions owing and unpaid at the time the lawsuit is filed. See Carpenters & Joiners Welfare Fund v. Gittleman Corp., 857 F.2d 476, 478 (8th Cir. 1988) (cited in Idaho Plumbers, 875 F.2d at 215).

When plaintiffs filed this lawsuit defendant owed contributions for August 2002. Thus, the first requirement of section 1132(g)(2) is satisfied. Moreover, the plan provides for the payment of 20% liquidated damages, interest and attorneys fees and costs satisfying the second requirement. After the lawsuit was filed defendant made the August payment. This late payment, however, does not relieve defendant of its mandatory obligation to pay liquidated damages, interest, and attorneys fees and costs. See Northwest Administrators, Inc., 104 F.3d at 258 (holding that mandatory fees are available under section 1132(g)(2) "`notwithstanding the defendant's post-suit, pre-judgment payment of the delinquent contributions themselves.'") (quoting Carpenters Amended & Restated Health Benefit Fund v. John W. Ryan Constr. Co., 767 F.2d 1170, 1175 (5th Cir. 19850)). Thus, the third requirement is satisfied.

After the lawsuit was filed, defendant also made late payments for the September and October 2002 contributions and late partial payments for November and December 2002. As of the date of this order, some contributions remain unpaid for November, December 2002 and January and February 2003. Courts in this district have held that a plaintiff may receive a judgment for contributions which became due after the lawsuit was filed and remain unpaid at the time of judgment. See ITPE-MEBA/NMU Pension v. Kass Management Services, 1994 WL 508722 *5 n. 7 (N.D. Cal. 1994); Board of Trustees of Sheet Metal Workers Health Care Trust of Northern California v. B.D. Bridon, Inc., 1995 WL 573701 *3-4 (N.D. Cal. 1995); Local 81 v. Wedge Roofing, 811 F. Supp. 1398, 1401-02 (N.D. Cal. 1992).

Plaintiffs also seek statutory liquidated damages and interest for contributions that became delinquent after this lawsuit was filed but have since been paid. The Court has been unable to locate any cases which discuss whether such an award is appropriate in these circumstances and plaintiffs have not addressed the issue. The above district court cases all involved contributions that remained unpaid at the time of judgment. Nonetheless, as no opposition has been filed, the Court will award the liquidated damages and interest sought by plaintiffs.

As defendant has not answered the complaint, and as the recovery sought by plaintiffs is readily ascertainable and certain, the motion for default judgment is GRANTED in the total amount of $76,422.57. This amount consists of the following: $39,697.07 in unpaid contributions, $2,172.53 in interest, ...

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