The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
BOARDS OF TRUSTEES OF THE
AGC-OPERATING ENGINEER
HEALTH AND WELFARE FUND et al., No. 3:21-cv-01702-MO
Plaintiffs, OPINION AND ORDER
v.
TRONEAGLE CONSTRUCTION, INC.,
Defendant.
MOSMAN, J.,
This matter comes before me on Plaintiffs’ Motion for Default Judgment [ECF 9]. For the
reasons below, I grant Plaintiffs’ motion and enter judgment for Plaintiffs.
BACKGROUND
Plaintiffs the Boards of Trustees of the AGC-Operating Engineer Health and Welfare Fund,
the Operating Engineers Pension Funds, and the International Union of Operating Engineers Local
701-AGC Training Trust Fund (“the Trust Funds’) sued Defendant Ironeagle Construction, Inc.,
an Oregon Corporation, in November 2021. Compl. [ECF 1]. The Trust Funds allege that this
court has jurisdiction under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.
§§ 1132, 1145. Id. 92-10. The Trust Funds are “multiemployer plans”; the Trustees of the Trust
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Funds are “fiduciaries”; and Defendant is an “employer” for the purposes of ERISA. 29 U.S.C.
§§ 1002(2), (21)(A) & (37)(A).
The Complaint alleges that Defendant is bound by a collective bargaining agreement
(“CBA”), which incorporates the terms and conditions of the applicable Trust Agreements for the
Trust Funds. /d. 7, 11. The CBA requires Defendant to pay fringe benefit contributions to the
Trust Funds on behalf of its employees performing work under the CBA. Jd. □ 8, 12. According
to Plaintiffs, Defendant has employed workers for whom contributions are due, but has failed and
refused to timely make the requirement contributions to the Trust Funds for these employees. Id.
4 15. Defendant’s failure to make these payments under the CBA entitles Plaintiffs to recover the
unpaid contributions, interest on those contributions, liquidated damages, and attorney fees and
costs. Id. J] 13, 16-17.
Plaintiffs moved for an Order of Default in February 2022, which was granted the
following month. Mot. for Entry of Default [ECF 5]; Clerk’s Entry of Default [ECF 7]. Plaintiffs
then moved for Default Judgment. They seek $7,318.24 in contributions, $669.92 in liquidated
damages, and $1045.30 in interest for the months of April and May 2021. Mot. for Default J.
[ECF 9] at 3-5. They also seek $991.50 in attorney fees and $507.00 in costs. Id. at 5.
LEGAL STANDARD
After the entry of default, the court may grant default judgment and award damages. Fed.
R. Civ. P. 55(b)(2). “The district court’s decision whether to enter a default judgment is a
discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). The court may
consider the following factors when deciding whether to grant a default judgment:
(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiffs
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)
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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).
Upon entry of default, “the factual allegations of the complaint, except those relating to the
amount of damages, will be taken as true.” Tele Video Sys., Inc. v. Heidenthal, 826 F.2d 915, 917—
18 (9th Cir. 1987) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). “Thus,
the court must accept plaintiff's facts in the complaint as true, but the plaintiff must prove
damages.” Joe Hand Prods. v. Holmes, No. 2:12-CV-00535-SU, 2015 WL 5144297, at *3 (D. Or.
Aug. 31, 2015) (citing Tele Video Sys., 826 F.2d at 917-18).
ERISA requires “[e]very employer” obligated to make contributions to a multiemployer
plan to make such contributions consistent with the terms of the plan. 29 U.S.C. § 1145. In an
ERISA action in which judgment is rendered in favor of the plan, the court shall award unpaid
contributions, interest, liquidated damages provided for in the plan, and reasonable attorney fees
and costs. 29 U.S.C. § 1132(g)(2). Liquidated damages cannot exceed 20% of the delinquent
contributions. /d. § 1132(g)(2)(c)(ii).
In ERISA cases, fee awards “are calculated using a hybrid lodestar/multiplier approach.”
McElwaine vy. US W., Inc., 176 F.3d 1167, 1173 (9th Cir. 1999). “To calculate the ‘lodestar’
amount, [courts] multiply the number of hours reasonably expended by the attorney(s) on the
litigation by a reasonable hourly rate, raising or lowering the lodestar according to factors
identified by [the Ninth Circuit].” Jd. The Ninth Circuit instructs courts to consider
(1) the time and labor required; (2) the novelty and difficulty of the questions
presented; (3) the skill requisite to perform the legal services properly; (4) the
preclusion of employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the attorneys; (10) the
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“undesirability” of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases.
Seymour v. Hull & Moreland Eng’g, 605 F.2d 1105, 1117 (9th Cir. 1979).
DISCUSSION
Taking the factual allegations in the Complaint as true, Defendant, an “employer” under
ERISA, failed to make the required contributions for April and May 2021. The Trust Funds meet
ERISA’s definition of fiduciaries, and the Trust Agreement (and its Delinquency Procedure) is an
ERISA plan. Plaintiffs must still prove damages. The declaration accompanying the motion and
its supporting documentation make clear that (1) there were unpaid contributions, (2) the plan
provides for a 12% annual interest rate on those delinquent contributions, and (3) liquidated
damages of 10% are also permitted by the plan, well beneath the statutory maximum rate of 20%.
Pardee Decl. [ECF 10] 7, 10, 17. The amounts calculated by Plaintiffs—$7,318.24 in
contributions, $1,045.30 in interest, and $669.92 in liquidated damages—are persuasive based on
the evidence provided. See Pardee Decl., Ex. 8 at 2-3.
I find that the factual allegations in the Complaint establish 29 U.S.C. § 1145’s elements
against Defendant. Turning to the Eifel factors, I find that the possibility of prejudice to Plaintiffs,
the merits of Plaintiffs’ substantive claim, the sufficiency of the complaint, and the sum of money
at stake outweigh any other interests. I therefore grant default judgment to Plaintiffs on their
ERISA claim and award the amounts requested.
Similarly, Plaintiffs have provided a declaration by their attorney regarding fees and costs.
Dwarzski Decl. [ECF 11] ff] 4-5. That declaration, in accordance with the lodestar method,
provides the attorneys’ hourly rate and the number of hours expended. Dwarzski Decl., Ex. A.
Considering the Seymour factors discussed above, I find the attorney fees and costs reasonable and
award the amounts requested.
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CONCLUSION
For the reasons given above, I GRANT default judgment to Plaintiffs on their ERISA
claim. I AWARD the following in damages: $7,318.24 in contributions, $1,045.30 in interest, and
$669.92 in liquidated damages, for a total of $9,033.46. I also AWARD $991.50 in attorney fees
and $507.00 in costs.
IT IS SO ORDERED.
DATED this See December, 2022.
Senior United States istrict Judge
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