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International Brotherhood of v. Metropolitan Netcomm

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


June 25, 2011

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS DISTRICT
PENSION PLAN, ET AL.,
PLAINTIFFS,
v.
METROPOLITAN NETCOMM, INC.,
DEFENDANT.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER DENYING WITHOUT JUDGMENT PREJUDICE MOTION FOR DEFAULT

Plaintiffs have moved for entry of default judgment in this action. Having considered the 18 materials submitted, the Court finds this matter appropriate for determination without oral 19 argument and vacates the hearing scheduled for June 30, 2011. See Civ. L.R. 7-1(b). For the 20 reasons set forth below, the Court DENIES without prejudice Plaintiffs' motion for default 21 judgment. Plaintiffs may submit a revised motion for default judgment within 30 days of this 22 order.

Plaintiffs filed this action on December 2, 2010 to collect unpaid contributions allegedly owed by Defendant Metropolitan Netcomm, Inc., under multi-employer benefit plans and a 25 collective bargaining agreement. Compl. ¶ 1. Plaintiffs served Defendant Metropolitan Netcomm, 26 Inc. on January 1, 2011.*fn1 See ECF No. 1; ECF No. 5. Defendant did not timely answer the complaint, and Plaintiffs requested entry of default on February 9, 2011. See ECF No. 6. The Clerk entered default on March 1, 2011. See ECF No. 11. Plaintiffs now move for entry of default 3 judgment. They seek to recover $26,433.36 in delinquent contributions, liquidated damages, and 4 pre-judgment interest, as well as $3,082.00 in attorney's fees.

In support of their motion for default judgment, Plaintiffs submit a declaration of Sandy Stephenson, Vice President of Administration for United Administrative Services, the third-party 7 administrator that assists in the collection and disbursement of funds to the trusts at issue. Decl. of Sandy Stephenson ISO Mot. for Default Judgment ("Stephenson Decl."), ECF No. 15-1. Attached 9 to the declaration is a breakdown compiled by Ms. Stephenson's office purportedly showing the 10 benefit contributions Defendant owes to the Trust Funds. Stephenson Decl., Ex. A. However, neither the declaration nor the attached exhibit provides any indication of how the delinquent benefit contributions were calculated. Accordingly, the Court cannot determine whether the 13 claimed damages for delinquent contributions are justified.

Additionally, Plaintiffs state that pursuant to the Sound & Communications 9th District Agreement (the "Agreement") and related Trust Agreements, Defendant is liable for liquidated 16 damages equal to 10% of delinquent payments and for interest at the rate of 8% per annum on the 17 sum of the unpaid principal and liquidated damages due. Decl. of Eileen M. Bissen ISO Mot. for Default Judgment ("Bissen Decl.") ¶¶ 5-6, ECF No. 15-2. Attached to the Bissen Declaration is a 19 copy of the Agreement, as well as a copy of Defendant's Letter of Assent, signed in 2004, in which B. These submissions are not sufficient to support Plaintiffs' motion for a number of reasons.

Bissen Decl. Ex. A at 1. Although the Bissen Declaration states that the Agreement continues to be 24 in effect today, Plaintiffs provide no evidentiary basis for this statement. If Ms. Bissen has 25 personal knowledge of the duration of the agreement, she must indicate the basis for that 26 knowledge. Otherwise, Plaintiffs must provide some evidence that the Agreement remains in 27 effect. Second, the Court is unable to locate an entitlement to 10% liquidated damages or 8% 28 interest in the Agreement provided. It may be that these entitlements are contained in the related Defendant agreed to be bound by current and subsequent labor agreements. Bissen Decl. Exs. A-21 First, the Agreement states that it is effective "December 1, 2003 through November 30, 2006."

Trust Agreements, but as the Trust Agreements have not been submitted, the Court has no way of 2 verifying the amount of liquidated damages and interest for which Defendant is liable. Plaintiffs 3 must submit the agreements that contain the liquidated damages and interest rate provisions, and Finally, with regard to attorney's fees, the Ninth Circuit "has adopted the hybrid 6 lodestar/multiplier approach . . . as the proper method for determining the amount of attorney's fees 7 in ERISA actions." Van Gerwen v. Guarantee Mut. Life Co., 214 F3d 1041, 1045 (9th Cir. 2000). Ms. Bissen must cite to those provisions in any revised declaration.

Under this method the Court is to determine how many hours were reasonably expended on the 9 litigation and multiply those hours by a reasonable hourly rate. Id. On a motion for attorney's 10 fees, the "fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services." Intel Corp. v. Terabyte Intern., Inc., 6 F.3d 614, 622 (9th Cir. 1993) (quoting 13 "I bill the Plaintiffs for our services at the rate of $195.00 per hour plus actual reimbursement for 15 certain out-of-pocket costs." Bissen Decl. ¶¶ 13, 14. However, Plaintiffs provide no evidence 16 from which the Court can determine whether the claimed rates are reasonable and in line with those 17 prevailing in the community for similar services. Without this information, the Court cannot 18 determine whether the fees sought are reasonable, and the request for attorney's fees must be 19 denied without prejudice. without prejudice. Plaintiff may submit a renewed motion addressing the issues raised above 22 within 30 days of the date of this order. Failure to do so will result in dismissal of this action with 23 prejudice.

IT IS SO ORDERED.

Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987)). The Bissen declaration states, For the reasons discussed above, Plaintiff's motion for default judgment is DENIED


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