VAUGHN R. WALKER, United States District Judge.
Plaintiffs move for default judgment. Doc #16. For the reasons set forth below, plaintiffs' motion (Doc #16) is GRANTED. The court finds this matter appropriate for disposition without oral argument. See Civ LR 7-1(b). The hearing scheduled for May 2, 2002, is hereby VACATED.
Plaintiffs are the boards of trustees of two employment benefit plans and one multi-employer plan and an individual trustee. See Compl (Doc #1) at ¶ 2. Defendant Robert W Peters, Jr, dba Efficient Energy Concepts, entered into a collective bargaining agreement with Sheet Metal Workers Local Union No 162, which requires defendant regularly to make employee benefit contributions to the trust funds operated by plaintiffs. See id at ¶ 5. The collective bargaining agreement also binds defendant to the provisions of the respective Trust Agreements and Declarations of Trust of these trust funds (Trust Agreements), which include provisions for liquidated damages, interest, attorney fees and costs in the event that payment is late. See id at ¶¶ 5-7.
In their complaint, plaintiffs allege that defendant has breached both the collective bargaining agreements and the Trust Agreements by failing to pay all moneys due pursuant to these agreements on behalf of defendant's employees. See id at ¶ 7. Plaintiffs allege that defendant failed to make payments for the months of March 2001 and June 2001 through February 2002. Pl Br (Doc #16) at 2. Default was entered by the clerk on January 31, 2002. Defendant has not answered the complaint in this matter, nor made any other appearance. Defendant was served with the complaint on September 14, 2001. Doc #12. Plaintiffs have also filed a proof of service of this motion on March 26, 2002. See id.
The parties and the undersigned have been down this road before. In the first case filed by plaintiffs, C-00-395-VRW, plaintiffs were awarded default judgment on their complaint, which asserted a failure by defendant to make payments in October 1999 and April through July 2000. C-00-0395-VRW, Doc #20. Plaintiffs were awarded $18,744.81, which included unpaid contributions, liquidated damages, interest on the unpaid contribution, attorney fees and costs. See id at 6.
On January 19, 2001, in C-01-0322-VRW (JCS), plaintiffs again filed a complaint, asserting that defendant had failed to make payments from October 2000 to the date of the filing of the complaint. See C-01-322-VRW (JCS), Doc #1. Pursuant to stipulation of the parties, judgment was entered against defendant on May 23, 2001. See C-01-322-VRW (JCS), Doc #7. This stipulation provided that an abstract of judgment would be recorded, but would not issue as long as defendant made timely installment payments to satisfy judgment. See id at 2-3. As defendant failed to comply with this condition, however, an abstract of judgment was entered in the amount of $28,259.89 on September 20, 2001. See C-01-322-VRW (JCS), Doc #8.
Plaintiffs thereafter requested issuance of an order of examination of defendant. See C-01-322-VRW (JCS), Doc #12. The matter was referred to Magistrate Judge Spero, for debtor examination. See C-01-322-VRW (JCS), Doc #13. Defendant failed to appear at the first scheduled date of examination. See C-01-322-VRW (JCS), Doc #14. Magistrate Judge Spero issued an order to show cause why defendant should not be held in contempt for failing to appear. See C-01-322-VRW (JCS), Doc #16. On March 29, 2002, the order to show cause was expunged. See C-01-322-VRW (JCS), Doc #17.
All three cases involving these parties have been related. See C-01-322-VRW (JCS), Docs ##5 and 9.
After the entry of default by the clerk, the court may enter default judgment pursuant to FRCP 55(b)(2). Whether to grant default judgment lies within the sound discretion of the district court. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir 1980). When exercising this discretion, district courts should consider the following factors:
(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, 1471-72 (9th Cir 1986).
In this court's December 29, 2000, order in C-00-0395-VRW, the court analyzed each of these factors in determining that default judgment should be entered against defendant for underpayment. See C-00-0395-VRW, Doc #20. Although different months are at issue, neither the facts nor the law have changed in any significant fashion since that order. For the reasons set forth in the court's December 29, 2000, order in C-00-0395-VRW, therefore, the court determines that default judgment is appropriate. See C-00-0395-VRW, Doc #20.
It is necessary before entering judgment, however, to determine the amount of damages owed to plaintiff. See FRCP 55(b)(2). Pursuant to 29 U.S.C. § 1132(g)(2), the court is obligated to award an administrator seeking to recover delinquent contributions the following:
(A) the unpaid contributions,
(B) interest on the 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 * * * 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.
In this case, award of the damages specified in this provision is mandatory because: (1) defendant was delinquent when the action was filed, (2) the court is entering a judgment against defendant and (3) the Trust Agreements provide for these awards. Northwest Administrators, Inc v. Albertson's, Inc, 104 F.3d 253, 257 (9th Cir 1996).
Plaintiffs seek $32,156.29 in unpaid contributions, representing underpayment in March 2001 and June 2001 through February 2002, $19,973.65 in liquidated damages, $1,203.07 in interest and attorney fees and costs. See Prop Order (Doc #20); Ferguson Decl (Doc #22, Exh #3). Under the Trust Agreements, the amount of liquidated damages is 20% of the delinquent contributions, which is in accordance with section 1132(g)(2). See Ferguson Decl (Doc #17) ¶ 4. The amount sought by plaintiffs represents unpaid contributions plus 20% in liquidated damages on the unpaid or late contributions for the months at issue. Since defendant was generally delinquent in all payments made during the months at issue, the liquidated damages due are generally 20% of the original contributions due each month. See Ferguson Decl (Doc #22, Exh #3).
Pursuant to section 1132(g)(2), plaintiffs seek attorney fees and costs of suit as part of judgment. Plaintiffs request costs of litigation in the amount of $250, Doc #19 at ¶ 2, which the court determines is reasonable. Plaintiffs' counsel estimates fees of $925, based on five hours of work at a rate of $185 per hour, which the court determines is also both accurate and reasonable. Id at ¶ 5.
Accordingly, plaintiffs' motion for default judgment (Doc #16) is GRANTED. The clerk shall enter judgment in favor of plaintiffs and against defendant in the amount of:
$ 32,156.29 unpaid contribution $ 19,973.65 liquidated damages at 20% $ 1,203.07 interest on unpaid contribution $ 925.00 attorney fees $ 250.00 costs $ 54,508.01 TOTAL
The clerk is directed to close the file and terminate all pending motions. If an audit or examination of defendant becomes necessary, plaintiffs may request such action and the clerk shall re-open the file.
IT IS SO ORDERED.