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Chilko v. Lorren

August 3, 2008


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



Plaintiffs Jim Chilko, Trustee; Danny Kane, Trustee; James Elrod, Trustee; Don Rush, Trustee; Carl Jarrett, Trustee, and Rod Bailey, Trustee; Trustees of The Kern County Electrical Workers' Pension Plan ("Plaintiffs") filed a motion for default judgment on March 17, 2008. In the motion, Plaintiffs sought a judgment in the amount of $62,742.78 which included $44,792.00 for reimbursement of retirement benefits, $11,318.78 for 10% pre-judgment interest, $6,267.00 in attorney fees plus costs of $365.00. Plaintiffs also requested that the judgment bear interest at a rate of 10% from the date of entry until paid. The court denied the first motion for default judgment because inter alia, Plaintiffs had not outlined how the facts alleged in the complaint satisfied the claims for unjust enrichment and fraud. Accordingly, Findings and Recommendations were issued on May 9, 2008, recommending that Plaintiffs' Motion for Default Judgment be denied without prejudice. Doc. 19. These Findings and Recommendations were adopted by the Honorable Oliver W. Wanger on June 16, 2008. Doc. 22.

On June 11, 2008, Plaintiffs filed the instant Motion for Default Judgment (hereinafter, "Plaintiff's Motion"). The motion was referred to this court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302. In this motion, Plaintiffs have requested a monetary judgment in the amount of $44,792.00 plus an unspecified amount of interest, $6736.50 in attorney's fees*fn1 and $350.00 for costs all totaling $51,878.50. In support of the request, they have asserted that they have valid causes of action for fraud and unjust enrichment See, Plaintiffs' Motion at pg. 2 & 3. A hearing was scheduled for July 18, 2008 at 9:30 am. The hearing was vacated and the court issues the following order requiring that the Plaintiffs provide the court with additional points and authorities addressing the issues outlined below. The new hearing date will be September 26, 2008, at 9:30 before this court in Courtroom 10.


Plaintiff filed this action on September 7, 2007, based on Section 302(c) of the Labor Management Relations Act ("Act"), 29 U.S.C. § 186(c) and the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq., as amended. The specific facts alleged in the complaint will not be recited as they have been outlined in a previous order. In summary, Plaintiffs allege that Defendant, Earnie Lorren, committed fraud and was unjustly enriched by receiving pension payments after making misrepresentations regarding his eligibility to receive benefits as an early retiree. Plaintiffs assert two causes of action alleging fraud and unjust enrichment. Complaint at ¶ 13 - 22. The relief requested in the complaint is compensatory damages and prejudgment interest for each cause of action, attorney's fees, and costs. Complaint at pg. 5.

On November 6, 2007, Plaintiff filed a proof of service indicating that Defendant Lorren was personally served on November 4, 2007. Doc. 6. The Clerk of the Court entered default on November 29, 2007. Doc. 8. Plaintiff filed the instant motion for default judgment on June 11, 2008. Doc. 20.


Plaintiff moves for entry of default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2), which provides that judgment may be entered:

By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States.

Factors which may be considered by courts in exercising discretion as to the entry of a default judgment include: (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, 1471-1472 (9th Cir. 1986).

As noted above, in determining whether to grant a motion for default judgment, the court must consider the sufficiency of the complaint. In reviewing a default judgment, this court must take the well-pleaded factual allegations in the complaint as true. Benny v. Pipes, 799 F.2d 489, 495 (9th Cir.1986) cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). However, necessary facts not contained in the pleadings, or claims which are legally insufficient, are not established by default. See, Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir.1978); Alan Neuman Productions v. Albright, 862 F.2d 1388, 1392-93 (9th Cir.1988) (reversing default judgment for plaintiff on RICO claims because the complaint failed properly to allege such claims), cert. denied, 493 U.S. 858, 110 S.Ct. 168, 107 L.Ed.2d 124 (1989); Cripps v. Life Ins. Co. of North America, 980 F.2d 1261, 1267 (9th Cir.1992).

Plaintiff brings this action under ERISA, however, the complaint only alleges two causes of action 1) fraud and 2) unjust enrichment. Plaintiffs have cited state law to support these common law claims. Plaintiff's Motion at pg. 2-4. The complaint references section 301(a) of the Act, 29 U.S.C. § 185(a), and 28 U.S.C. § 1367(a) which properly confers jurisdiction of this case on this court. Complaint at ¶ 3. The complaint also references 29 U.S.C. § 1001 et seq, but it does not specifically outline which sections of ERISA are applicable. Complaint at ¶ 1. The only other section the complaint references are sections 502(g)(2) and 515 of ERISA which relate to employer contributions and are not ...

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