MEMORANDUM AND ORDER

CHARLES A. SHAW, District Judge.

This matter is before the Court on plaintiffs' Motion for Default Judgment. Plaintiffs filed this action to recover delinquent contributions and liquidated damages allegedly owed to the plaintiff employee benefit funds pursuant to 29 U.S.C. §§ 185 and 1132. Plaintiffs also seek to recover attorneys' fees, accounting fees, and costs incurred in this action. Defendant has not filed any response to the motion and the time to do so has passed.1

I. Background

This case was filed on August 23, 2012. Plaintiffs served the complaint and summons on defendant A.L.L. Construction, LLC, on September 5, 2012. Defendant has not entered an appearance or filed an answer. A Clerk's Entry of Default pursuant to Rule 55(a), Federal Rules of Civil Procedure, was entered on October 11, 2012. On October 25, 2012, the Court granted plaintiffs' Motion for Default Order to Compel an Accounting, and ordered defendant to provide to plaintiffs its books and records reflecting or pertaining to all hours worked by and wages paid to defendant's employees "from April 1, 2007 to the present." Order of Oct. 25, 2012 at 2 (Doc. 12).

The Complaint, which was filed August 23, 2012, asserts that defendant failed to "submit monthly report forms for the period of April 1, 2007 to the present." Compl. at 5, ¶ 9. The prayer for relief seeks an interlocutory order of accounting to "determine the amounts owed to plaintiffs during the period of April 1, 2007, to date;" and "judgment against the defendant based upon the findings of the audit;" as well as "an order requiring defendant to make payments in the future to the employee benefit funds in accordance with the terms and provisions of the collective bargaining agreement, and such collective bargaining agreements as may be negotiated and executed in the future[.]" Compl. at 5.

Defendant has been bound by a collective bargaining agreement with Laborers Locals 42-53-110 since March 31, 2003, when it signed the 1999-2004 collective bargaining agreement between Laborers Locals 42-53-110 and the Site Improvement Association. (Schell Aff. ¶ 2; Exs. 1-2 thereto.) When defendant signed the 1999-2004 collective bargaining agreement, it agreed "to be bound by all subsequent agreements, renewals, changes or extensions thereto made by the original parties, unless notice of termination is given to the Union by the undersigned not less than sixty (60) days nor more than ninety (90) days prior to any termination date." (Id. ¶ 3; Ex. 1 thereto.) No notice of termination was received from defendant. (Id. ¶ 3.)

The original parties to the Site Improvement Agreement negotiated a successor agreement, effective from March 1, 2004 to February 28, 2009. (Schell Aff. ¶ 4; Ex. 3 thereto.) Defendant subsequently signed the 2004-2009 collective bargaining agreement on November 1, 2007. (Id. ¶ 5; Ex. 4 thereto.) The signature page to the 2004-2009 agreement contained the same language as the signature page to the 1999-2004 agreement quoted above. (Id.) The original parties to the Site Improvement Agreement again negotiated a successor agreement, effective from March 1, 2009 to February 28, 2014. (Id. ¶ 6; Ex. 5 thereto.) Defendant did not submit a timely notice of termination as required by Exhibit 4. (Id. ¶ 6.)

The agreements require defendant to submit monthly reports and remit contributions to the Laborers Funds. (Schell Aff., ¶ 7, Exs. 2, 3, 5 thereto.) The collective bargaining agreements require the payment of liquidated damages of twenty percent (20%) on delinquent contributions, as well as interest, attorneys' fees, and payroll examination costs. (Id. ¶¶ 7-9; Exs. 2, 3, 5 thereto.)

Plaintiffs have established that defendant is a party to collective bargaining agreements with Laborers Local Unions 42-53-110. These agreements require defendant to submit contributions to the Laborers Funds, and authorize plaintiffs to examine the financial records of defendant to ascertain whether the required contributions were made.

As stated above, on October 25, 2012 the Court ordered defendant to submit to an accounting for the time period of "April 1, 2007 to the present" within thirty days of the date of the order. (Doc. 12.) Plaintiffs assert that defendant failed to comply with the Court's Order and describe subsequent events as follows:

Pls.' Mem. Supp. Mot. for Default J. at 3-5.

Based on the payroll examination described above covering the period of April 1, 2007 through December 31, 2012, plaintiffs assert that defendant owes $53,880.69 in unreported contributions. In addition, pursuant to the collective bargaining agreements and ERISA, 29 U.S.C. § 1132(g)(2), plaintiffs assert they are owed $10,775.86 in liquidated damages and $8,224.13 in interest based on the unreported contributions for a total of $72,880.68 owed based on the payroll examination. (Nilges Aff. ¶ 12, Ex. 1 thereto.)

Plaintiffs also assert that for the hours defendant did report to the funds, the reports were late for the months of July 2007, August 2007 and November 2007, and thus defendant incurred additional liquidated damages in the amount of $2,019.33. (Schell Aff. ¶ 11; Ex. 6 thereto.) Finally, since the period covered by the payroll examination, plaintiffs assert that defendant has failed to pay $4,860.44 in contributions and has incurred an additional $972.09 in liquidated damages for a total of $5,832.53 owed for the month of February 2014. (Schell Aff. ¶ 12, Ex. 6 thereto.) Therefore, plaintiffs assert that the total amount owed to the Funds in unreported contributions, liquidated damages and interest is $80,732.54. (Schell Aff. ¶ 13.)

The collective bargaining agreements and ERISA, 29 U.S.C. § 1132(g)(2), require defendant to pay plaintiffs' attorneys' fees, accounting fees, and costs. Plaintiffs assert that they incurred $1,190.00 in payroll examination fees, $13,232.50 in attorneys' fees, and $403.74 in costs.

II. Discussion

Default judgments are not favored in the law, United States ex rel. Time Equip. Rental & Sales, Inc. v. Harre, 983 F.2d 128, 130 (8th Cir. 1993), and their entry is discretionary. See Taylor v. City of Ballwin, Mo., 859 F.2d 1330, 1332 (8th Cir. 1988). There is a judicial preference for adjudication on the merits. Oberstar v. F.D.I.C., 987 F.2d 494, 504 (8th Cir. 1993).

Even when a defendant is in default and all of the requirements for a default judgment are satisfied, a plaintiff is not entitled to default judgment as a matter of right. 10 James Wm. Moore, et al., Moore's Federal Practice § 55.31[1] (3d ed. 2013); see Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996) (review of order entering default judgment is for abuse of discretion). Prior to the entry of a discretionary default judgment, this Court must satisfy itself that the moving party is entitled to judgment, including by reviewing the sufficiency of the complaint, and the underlying substantive merits of its claim. 10 Moore's Federal Practice § 55.31[2].

A. Judgment Amount Sought Exceeds Demand for Relief

As stated above, the Complaint filed August 23, 2012 asserts that defendant failed to "submit monthly report forms for the period of April 1, 2007 to the present" and seeks an interlocutory order of accounting to "determine the amounts owed to plaintiffs during the period of April 1, 2007, to date" and "judgment against the defendant based upon the findings of the audit."

Rule 54(c) of the Federal Rules limits default judgment to the relief sought in Complaint:

Rule 54(c), Fed. R. Civ. P. A leading federal practice treatise offers this explanation of the principles underlying the Rule:

10 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2663 (3d ed. 1998) (footnotes omitted).

The Complaint in the instant case seeks an audit for the period from April 1, 2007 "to the present," which the Court interprets as the date the Complaint was filed, August 23, 2012. The Complaint also seeks judgment "based upon the findings of the audit." The Court finds plaintiffs have established that, under the terms of the applicable collective bargaining agreements and ERISA, they are entitled to recover delinquent contributions, liquidated damages, costs and attorneys' fees in connection with defendant's failure to make (or to timely make) the required contributions up through the date this action was filed.

Plaintiffs' motion for default judgment also seeks delinquent contributions from August 24, 2012 through December 31, 2012, however, and for February 2014. This request for judgment goes beyond the relief sought in the Complaint and appears to run afoul of Rule 54(c)'s requirement that a default judgment not differ in kind from, or exceed in amount, what is demanded in the pleadings."2 Plaintiffs' complaint could have sought judgment for unpaid contributions, liquidated damages, fees and costs accruing through the date of judgment, but did not do so. Under these circumstances, defendant did not have fair notice that failure to defend a complaint filed in August 2012 concerning a debt due for the period "April 1, 2007 to the present" could lead to a default judgment on additional debt whose existence did not arise, and whose amount could not be calculated, until months or years after the complaint had been served upon it.

If a plaintiff wishes to obtain relief that was not sought in the original complaint, it must amend or supplement the complaint under Rule 15(a) or 15(d),3 and serve the amended or supplemented complaint on the defendant under Rule 4. See Rule 5(a)(2), Fed. R. Civ. P. This notice allows the defendant the opportunity to "reevaluate and reverse the earlier decision not to defend actively." 10 Wright & Miller, Federal Practice and Procedure, § 2663. If the plaintiff seeks to add additional claims based on conduct that occurred before suit was filed, it can do so under Rule 15(a), which gives a plaintiff the right to amend the complaint "once as a matter of course" where the non-appearing defendant has not served "a responsive pleading." Fed. R. Civ. P. 15(a)(1)(B). If the plaintiff seeks to add additional claims based on "any transaction, occurrence, or event that happened after the date" of the original complaint, it must seek leave of Court to file a supplemental complaint under Rule 15(d), which requires the plaintiff to give the defendant "reasonable notice" of the motion. Rule 15(d), Fed. R. Civ. P.

As noted above, Rule 5(a)(2) generally excuses the plaintiff from having to serve anything but the summons and complaint on a non-appearing defendant. An exception exists, however, for a "pleading that asserts a new claim for relief" against the defendant, such as an amended complaint under Rule 15(a) or a supplemental complaint under Rule 15(d). These pleadings "must be served on [the defendant] under Rule 4." Fed. R. Civ. P. 5(a)(2). The fact that plaintiffs have mailed copies of their filings to the defendant does not meet the requirements of the Rule.

The Court will therefore deny plaintiffs' motion for default judgment without prejudice, and give plaintiffs an opportunity to (1) amend or seek leave to supplement their complaint, or (2) amend their motion for default judgment to seek damages only as prayed for in the original complaint.

B. Determination of Reasonable Attorneys' Fees

Section 502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2), makes an award of attorneys' fees mandatory in an action by a fiduciary for or on behalf of a plan to enforce Section 1145 which results in a judgment in favor of the plan. See Greater Kansas City Laborers Pension Fund v. Thummel, 738 F.2d 926, 931 (8th Cir. 1984). The statute directs a court to award the plan "reasonable attorney's fees and costs of the action." 29 U.S.C. § 1132(g)(2)(D). The plaintiffs bear the burden to prove that the attorneys' fees they request are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983).

Plaintiffs submit the affidavit of Matthew J. Gierse, which in pertinent part lists the hourly rates charged by partners, associates and paralegals in plaintiffs' counsel's law firm; states the number of hours billed by specific individuals in the years 2012, 2013 and 2014, but does not identify whether those individuals are partners, associates or paralegals; includes a one-paragraph summary of services performed; and states that plaintiffs "have incurred $13,232.50 for legal services in this matter." Gierse Aff. at 2, ¶ 7.

"The usual method of calculating reasonable attorney's fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the `lodestar' amount." Local 513, Int'l Union Operating Engineers v. Larry Ortmann Contracting, Inc., 2009 WL 151698, at *2 (E.D. Mo. Jan. 22, 2009). Hours that were not reasonably expended should be excluded, Hensley, 461 U.S. at 434, and the onus is on the party seeking the award to provide evidence of the hours worked and the rate claimed. Id. at 433. The lodestar approach has been applied to the determination of the reasonableness of an attorneys' fee award under § 502(g)(2). Local 513, 2009 WL 151698, at *2 (citing cases).

Based on the evidence presented by plaintiffs, the Court is unable to determine the lodestar amount, and whether the services performed by plaintiffs' attorneys were reasonable and necessary to the litigation of this case. Plaintiffs must provide additional information, preferably in the form of billing records, for the Court's review.

III. Conclusion

For the foregoing reasons, the Court will deny without prejudice plaintiffs' motion for default judgment. Plaintiffs may amend or seek leave to supplement their complaint pursuant to Rule 15, as appropriate, and serve the amended or supplemental complaint on the defendant under Rule 4; or may submit an amended motion for default judgment in conformance with this order. In either event, plaintiffs shall provide additional information concerning their attorneys' fees, sufficient to permit the Court to determine whether the claimed fees were reasonable.

Accordingly,

IT IS HEREBY ORDERED that plaintiffs' motion for default judgment is DENIED without prejudice. [Doc. 27]