Full title: TRUSTEES OF THE I.B.E.W. LOCAL 405 HEALTH WELFARE FUND; TRUSTEES OF THE…
Court: United States District Court, N.D. Iowa, Cedar Rapids Division
Date published: Jan 7, 2009
Facts
On September 22, 2008, Plaintiffs Trustees of the I.B.E.W. Local 405 Health Welfare Fund (“Health Welfare Fund”), Trustees of the I.B.E.W. Local 405 Deferred Savings Fund a/k/a I.B.E.W Local 405 Deferred Savings Plan (“Savings Fund”), Trustees of the I.B.E.W. Local 405 Education Fund (“Education Fund”), Trustees of the National Electrical Benefits Fund (“NEBF”), Local Union No. 405 International Brotherhood of Electrical Workers (“Local 405”) and National Electrical Contractors Association, Incorporated (“NECA”) (collectively, “Plaintiffs”) filed a Complaint (docket no. 2-3) against Defendant Affordable Electric, Inc. The Complaint contains two counts.
In Count 1, the Health Welfare Fund, the Savings Fund, the Education Fund and NEBF allege Defendant failed to make contributions due under a collective bargaining agreement (“Agreement”). Pursuant to 29 U.S.C. § 1132(g)(2), they seek judgment in the amount of the unpaid contributions plus additional penalties, interest and attorney’s fees and costs.
In Count 2, Local 405 and NECA allege Defendant failed to make contributions due under the Agreement. Pursuant to 29 U.S.C. § 185, they seek payment of the unpaid contributions plus interest, attorney’s fees and costs.
Plaintiffs ask the court in both counts for an order that requires the Defendant to submit to an audit of its books and records. Plaintiffs allege that absent such an audit, they are unable to determine whether Defendant owes additional contributions under the Agreement.
On September 23, 2008, Plaintiffs served Defendant at its place of business by delivering a copy of the Summons and Complaint upon Defendant’s registered agent at 6700 Milburn Road NE, Cedar Rapids, Iowa. The defendant did not file an answer to the Complaint.
On November 4, 2008, Plaintiffs filed their “Application for Entry of Default Against the Defendant Pursuant to Rule 55(a) FRCP” (docket no. 7). On November 5, 2008, the Clerk of Court filed a Default Entry (docket no. 8). See Fed.R.Civ.P. 55(a) (“When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.”); see also Fed.R.Civ.P. 7(a) (requiring a defendant to file an answer).
On December 9, 2008, the Plaintiffs filed the Application and the Motion. Plaintiffs request that the court enter a default judgment against Defendant. Defendant has not filed a response to either the Motion or the Application, and the time for doing so has expired. The court finds that a hearing on the Application and the Motion is not appropriate. See Fed.R.Civ.P. 55(b)(2) (stating that the court “may” conduct a hearing); see, e.g., Taylor v. City of Ballwin, Mo., 859 F.2d 1330, 1333 (8th Cir. 1988) (“[T]he district court need not hold an evidentiary hearing on the issue of damages.”); Overcash v. United Abstract Group, Inc., 549 F. Supp. 2d 193, 196 (N.D.N.Y. 2008) (“[I]t is not necessary for a court to hold a hearing; instead, a court may rely upon affidavits and documentary evidence.”); United States v. Gant, 268 F. Supp. 2d 29, 32 (D.D.C. 2003) (same).
Issue
Decision
IT IS THEREFORE ORDERED THAT:
(1) Plaintiffs’ Application (docket no. 9) and Motion (docket no. 10) are GRANTED IN PART AND DENIED IN PART;
(2) The Clerk of Court is directed to enter a default judgment in favor of Plaintiff and against Defendant in the amount of $37,390.81;
(3) Defendant is entitled to a credit of $25,738.00 against such judgment;
(4) As of the date of the instant Order, Defendant owes Plaintiffs $11,652.81;
(5) Defendant shall cooperate with an audit of its books and records to ensure that Defendant’s self-reports during calendar year 2008 are accurate. Defendant shall make such books and records available to Plaintiffs and their agents for their inspection at a reasonable time and place. The audit shall take place on or before March 1, 2009; and
(6) The Clerk of Court is directed to CLOSE THIS CASE.