Dear Counsel of Record and Defendant:

A copy of the Report and Recommendation rendered in the above-captioned case is enclosed. Any objections you wish to make thereto must be made in writing and within 14 days pursuant to Federal Rule of Civil Procedure 72(b)(2), a copy of which is enclosed.

After the time for filing written objections has expired, Judge Theodore D. Chuang will review the Report and Recommendation regardless of whether you have filed written objections to it. If you should fail to file written objections within the time set forth above (or within the time of any extension specifically granted by the Court) and Judge Chuang subsequently adopts the Report and Recommendation, you will have lost your right to appeal the finding of the Report and Recommendation to the United States Court of Appeals for the Fourth Circuit.

REPORT AND RECOMMENDATION

CHARLES B. DAY, Magistrate Judge.

This Report and Recommendation addresses Plaintiff's Motion for Default Judgment ("Plaintiff's Motion"). ECF No. 14. Plaintiff National Electrical Benefit Fund ("NEBF") filed a complaint against Defendant NRG Management Solutions, Inc. ("NRG Management") alleging Defendant violated the Employee Retirement Income Security Program ("ERISA"), 29 U.S.C. § 1145. Pl.'s Compl. ¶ 14, ECF No. 1. Plaintiff seeks damages under 29 U.S.C. § 1132(g)(2)(A)-(E),1 which includes: unpaid contributions, interest on unpaid contributions, liquidated damages, attorneys' fees, costs, and other legal or equitable relief the Court deems appropriate. Id. at ¶ 16; 29 U.S.C. 1132(g)(2)(A)-(E). Pursuant to 28 U.S.C. § 636 and Local Rules 301, the Honorable Theodore D. Chuang referred this matter to the undersigned for the making of a Report and Recommendation concerning default judgment and/or damages. ECF No. 17.

For the reasons stated herein, I recommend the Court GRANT Plaintiff's Motion.

I. Factual Background

On January 28, 2019, Plaintiff commenced this action against Defendant alleging that Defendant violated 29 U.S.C. § 1145 of the ERISA. Pl.'s Compl. ¶ 14. According to the Complaint, Plaintiff is a multiemployer pension benefit plan within the meaning of 29 U.S.C. § 1002(2), that has been established pursuant to an agreement2 entered into between the International Brotherhood of Electrical Workers ("IBEW") and the National Electrical Contractors Association ("NECA"). Id. at ¶ 4. Plaintiff alleges that Defendant is a signatory to the CBA between IBEW Local Union 429 and NECA. Id. at ¶ 4-6; See also Aff. of Total Amount Due NEBF — Angel Losquadro ("Losquadro Aff.") ¶ 3, ECF No. 14-2. Defendant became a signatory when it signed the Letter of Assent C, See Letter of Assent C, ECF No. 14-2, Ex. 1, which bound Defendant to the CBA between NECA and IBEW Local Union 429. Losquadro Aff. ¶ 3.

Under the CBA, Plaintiff alleges that Defendant, as a signatory, is obligated to submit contributions to the NEBF on behalf of the employees covered by the CBA. Pl.'s Compl. ¶ 6. Plaintiff further alleges that under the CBA, Defendant was also bound to the terms of the NEBF's Restated Agreement and Trust ("NEBF Trust Agreement") which provides for the administration of the NEBF. Id. at ¶ 7; NEBF Trust Agreement, 14-2, Ex. 4. Plaintiff alleges that Defendant "has been delinquent in making contributions to the NEBF on behalf of its employees covered by the Collective Bargaining Agreement." Pl.'s Compl. at ¶ 8. According to Plaintiff, Defendant failed to pay the NEBF at least $27,360.98 in contributions for work performed during the period of June 2017 through November 2018. Id. at ¶ 9. Plaintiff and its counsel made several demands for payment of the amounts due, however, Defendant failed to respond. Id. at ¶ 10.

On February 7, 2019, Plaintiff served Defendant with process. ECF No. 8. On March 26, 2019, Plaintiff filed a Motion for Clerk's Entry of Default, and a Motion for Default Judgment. ECF No. 13, 14. On the same day, the Clerk entered an Entry of Default against Defendant. ECF No. 15.

Plaintiff, under 29 U.S.C. § 1131(g)(2), seeks: (1) unpaid delinquent contributions in the amount of $27,360.98; (2) interest calculated at the rate of 10% annum compounded monthly, in the amount of $2,130.92;3 (3) liquidated damages in the amount of $5,472.20, which represents 20% of the contributions owed; and (4) an award of reasonable attorneys' fees and the costs of this action. Pl.'s Compl. 4.

II. Legal Background

Rule 55 of the Federal Rules of Civil Procedure governs entries of default and default judgments. Fed. R. Civ. P. 55. Rule 55(a) provides that "[w]hen a party . . . has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a). A party may request a default judgment in two ways: (1) if a plaintiff's claim is for a sum certain or a sum that can be made certain with computation, a plaintiff may file a request with the Clerk attaching an affidavit showing the amount due; or (2) in all other cases, the party seeking default judgment must apply to the Court. Fed. R. Civ. P. 55(b)(1)-(2). In considering a motion for default judgment, the Court accepts as true the well-pleaded factual allegations in the complaint as to liability. See Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001) (citation omitted); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) ("The general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true."); see also Fed. R. Civ. P. 8(b)(6) ("An allegation — other than one relating to the amount of damages — is admitted if a responsive pleading is required and the allegation is not denied."). However, the entry of "default is not treated as an absolute confession by the defendant of his liability and of the plaintiff's right to recover." Ryan, 253 F.3d at 780 (citations omitted). The Court "must, therefore, determine whether the well-pleaded allegations in [the] complaint support the relief sought." Id.; 10A Charles Alan Wright, Arthur R. Miller & Mary K. Kane, Federal Practice & Procedure Civil § 2688.1 (4th ed. 2019) ("Liability is not deemed established simply because of the default. . . [and] the court, in its discretion, may require some proof of the facts that must be established in order to determine liability.").

The Fourth Circuit has repeatedly expressed a "strong policy that cases be decided on the merits." United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993); Colleton Preparatory Acad., Inc. v. Hoover Univ., Inc., 616 F.3d 413, 417 (4th Cir. 2010) ("We have repeatedly expressed a strong preference that, as a general matter, defaults be avoided and that claims and defenses be disposed of on their merits."). However, default judgment "may be appropriate when the adversary process has been halted because of an essentially unresponsive party." S.E.C. v. Lawbaugh, 359 F.Supp.2d 418, 421 (D. Md. 2005).

Still, "acceptance of [the] undisputed facts does not necessarily entitle [the non-defaulting party] to the relief sought." Ryan, 253 F.3d at 780-81. If the plaintiff establishes liability, the Court then turns to the determination of damages. CGI Finance, Inc. v. Johnson, No. ELH-12-1895, 2013 WL 1192353, at *1 (D. Md. Mar. 21, 2013). In determining damages, the Court cannot accept Plaintiff's factual allegations as true and must make an independent determination. Id.; see also Lawbaugh, 359 F. Supp. 2d at 422. Rule 54(c) of the Federal Rules of Civil Procedure limits the type and amount of damages that may be entered as a result of a party's default, stating that a "default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Fed. R. Civ. P. 54(c); Int'l Painters and Allied Trades Industry Pension Fund v. Capital Restoration & Painting Co., 919 F.Supp.2d 680, 684 (D. Md. 2013). While the Court may conduct an evidentiary hearing to determine damages, it is not required to do so "if the record supports the damages requested." Monge v. Portofino Ristorante, 751 F.Supp.2d 789, 795 (D. Md. 2010) (citation omitted). The Court may rely instead on affidavits or documentary evidence of record to determine the appropriate sum. See, e.g., id. (citing cases in which damages were awarded after a default judgment and without a hearing, based on affidavits, printouts, invoices, or other documentary evidence).

III. Discussion

A. Liability

Plaintiff contends Defendant violated 29 U.S.C. § 1145 by failing to make contributions to a multiemployer pension plan in accordance with the CBA and plan documents. Pl.'s Compl. ¶ 14. Specifically, 29 U.S.C. § 1145 states: "Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement . . . shall make such contributions in accordance with the terms and conditions of such plan or agreement." 29 U.S.C. § 1145. Pursuant to the CBA under Section 6.01(a):

CBA 32, ECF No. 14-2, Exs. 2 and 3. Binding itself to the CBA, Defendant signed the Letter of Assent C which states:

Letter of Assent C, 1; See Pl.'s Compl. ¶ 6.

Assuming the truth of the well-pleaded allegations in the Complaint, the Court is persuaded that Plaintiff has established Defendant's liability for failure to pay the contributions as required under the CBA. Accordingly, the Court recommends that Defendant is deemed liable to Plaintiff for violating 29 U.S.C. § 1145.

B. Damages

Once liability has been established, the question of damages must be addressed. As previously stated, the Court must make an independent determination as to the amount of damages Plaintiff may recover. See Lawbaugh, 359 F. Supp. 2d at 422. However, the Court is prohibited from awarding damages that are different in type or exceed the amount demanded in the pleadings. See Fed. R. Civ. P. 54(c); Diaz v. Mi Mariachi Latin Restaurant Inc., No. GJH-18-636, 2019 WL 528185, at *2 (D. Md. Feb. 11, 2019). The Court may rely on affidavits or other documentary evidence to establish damages. See Dekalb Farmers Market, Inc. v. Collazo Produce, Inc., No. 5:18-CV-201-D, 2019 WL 274750, at *2 (E.D.N.C. June 28, 2019); Alliance Storage Technologies, Inc. v. Engstrom, No. 4:11cv46, 2012 WL 1580544, at *2 (E.D.Va. May 3, 2012); See, e.g., Diaz, 2019 WL 528185, at *3 (relying upon facts included in a sworn written statement to calculate wages owed). On default judgment, the Court may award damages without a hearing, but only if the record supports the damages requested. Clancy v. Skyline Grill, LLC, No. ELH-12-1598, 2012 WL 5409733, at *5 (D. Md. Nov. 5, 2012). Statements in pleadings are not sufficient evidence to prove a plaintiff's entitlement to damages. Walker v. Thomas, 311 F.R.D. 3, 6 (D.D.C. 2015).

Defendant's failure to make the required contributions trigger statutory damages which were also memorialized in the NEBF Trust Agreement. Under 29 U.S.C. § 1132 (g)(2)(A)-(E), in an action under Section 1145 of the ERISA in which judgment is awarded in favor of the pension plan, the court shall award the following:

29 U.S.C. § 1132 (g)(2)(A)-(E); See also Int'l Painters and Allied Trades Industry Pension Fund, 919 F. Supp. 2d at 685. The damages are also set forth in Section 6.9 in the NEBF Trust Agreement:

NEBF Trust Agreement 25-26, ECF No. 14-2, Ex. 4.

In support of Plaintiff's request for unpaid contributions, interest, liquidated damages, legal fees, and costs, Plaintiff submitted: (1) a declaration of Angel Losquadro; (2) a Letter of Assent C; (3) the CBA; (3) NEBF Trust Agreement; and (4) an NEBF Delinquency Report. Plaintiff attests that Defendant owes $27,360.98 in unpaid contributions; $2,624.30 in interest; $5,472.20 in liquidated damages; $1,635.30 in attorneys' fees and legal costs, for a total damages award of $37,092.78. Pl.'s Mot. 2; Losquadro Aff. ¶¶ 11-13.

1. Unpaid Contributions

Mr. Losquadro, the Director of the Audit and Delinquency Department of the NEBF, attests that he is familiar with the contents of the Complaint, and that Defendant owes $27,360.98 in unpaid contributions for the period from June 2017, through November 2018. Losquadro Aff. ¶¶ 2, 8. Mr. Losquadro's assertions are further detailed in the NEBF Delinquency Report which shows how the unpaid contributions accrued from June 2017 through November 2018. NEBF Delinquency Report, ECF No. 14-2, Ex. 5. After reviewing the competent evidence in support of the amount sought by Plaintiff, it is the Court's recommendation that Plaintiff be awarded its request for $27,360.98 for unpaid contributions.

2. Interest

Due to Defendant's failure to make its monthly contribution to Plaintiff, Plaintiff is also owed interest on the unpaid contributions. Section 1132 of the ERISA provides for an award of interest on unpaid contributions "determined by using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of Title 26." 29 U.S.C. § 1132. The NEBF Agreement provides an interest rate "at a ten percent (10%) annual rate compounded monthly throughout the period of the delinquency." NEBF Trust Agreement 25. Applying the ten percent interest rate, Plaintiff submits it is owed $2,130.92 for the period of unpaid contributions from June 2017 through November 2018. Since the initiation of this suit, interest on the delinquent contributions has increased to $2,624.30. Pl.'s Mot. 2; See also NEBF Delinquency Report; Losquadro Aff. ¶ 11. After reviewing the competent evidence in support of the amount sought by Plaintiff, the Court recommends an award to Plaintiff of $2,624.30 in interest.

3. Liquidated Damages

Section 1132 of the ERISA allows Plaintiff to recover the greater of either interest on the unpaid contributions or liquidated damages provided under the plan not to exceed twenty percent (20%). 29 U.S.C. 1132(g)(2)C). Consistent with Section 1132 of the ERISA, the NEBF Trust Agreement allows Plaintiff to recover "liquidated damages an amount up to twenty percent (20%) of the amount found to be delinquent." NEBF Trust Agreement 25; 29 U.S.C. § 1132. As noted above, the total interest is $2,624.30. Twenty percent of the unpaid contributions is $5,472.20. NEBF Delinquency Report. The amount of liquidated damages equal to twenty percent of the unpaid contributions is greater than the interest on the unpaid contributions. After reviewing the competent evidence in support of Plaintiff's request, the Court recommends an award to Plaintiff of $5,472.20 in liquidated damages.

4. Attorneys' Fees and Costs

"In an ERISA action, a district court may, in its discretion, award costs and reasonable attorneys' fees to either party under 29 U.S.C. § 1132(g)(1), so long as that party has achieved some relative degree of success." Williams v. Metropolitan Life Ins. Co., 609 F.3d 622, 634 (4th Cir. 2010) (citations omitted). The NEBF Trust Agreement also provides Plaintiff may receive "from . . . Employer all costs, audit expenses, actuarial expenses, and attorneys fees incurred by the Trustees." NEBF Trust Agreement 25-26.

An award of attorneys' fees to Plaintiff will require an application of the traditional lodestar methodology factors. Int'l Painters and Allied Trades Industry Pension Fund., 919 F. Supp. 2d at 688. The starting point in the lodestar calculation is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). In addition, the specific facts of the case are to be considered in calculating a reasonable figure. The United States Court of Appeals for the Fourth Circuit has instructed district courts to consider certain factors, including:

Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978). When a claim for attorneys' fees is filed in the federal court in Maryland, there is an extra layer of complexity arising from the Court's Local Rules which includes an entire appendix listing "Rules and Guidelines" for how parties are to request reimbursement of fees. Local Rules, App. B (D. Md. July 1, 2016).

Plaintiff, in seeking to collect unpaid contributions from Defendant has incurred attorneys' fees and costs in the amount of $1,635.30. Losquadro Aff. ¶ 12. To support this request, a declaration of Jennifer Bush Hawkins, counsel of record for Plaintiff, employed by Potts-Dupre, Hawkins & Kramer was submitted. Declaration of Jennifer Bush Hawkins ("Hawkins Declaration") ¶¶ 1-3, ECF No. 14-1. Also submitted was an Adjusted Laffey Matrix4 to demonstrate the prevailing market rate for attorneys in the "D.C. area." Laffey Matrix, ECF No. 14-1, Ex. 1; Hawkins Decl. ¶ 5.

While Plaintiff's Motion does not explicitly address all twelve factors set forth by the Fourth Circuit, the filing contains sufficient information to make an independent assessment possible. Those factors that appear to be significant to the determination of reasonableness in this case are addressed below. The remaining factors—while the information exists in the filing—present no novel issues or significant impact on the reasonableness of the attorneys' fees requested.5

i. (1) The Time and Labor Expended

Plaintiff's counsel, Ms. Hawkins, has provided her declaration as lead counsel, detailing her qualifications and summarizing the work completed for the case. Hawkins Decl. Within the declaration, Plaintiff's counsel also included a detailed time log with a breakdown of the hours billed and the tasks completed. Id. at ¶ 6. According to the time log, Ms. Hawkins' firm spent 4.7 hours and expended $1,635.30 in legal fees and expenses to litigate the case. Id. at ¶¶ 6-9. The fee was calculated using the rate of $139.00 per hour for her legal assistant, Caroline Lippie, and $379.00 per hour for Ms. Hawkins' attorney rate.

Generally, administrative or secretarial work should not be compensated as an award for attorneys' fees. Kabore v. Anchor Staffing, Inc., No. L-10-3204, 2012 WL 5077636, at *4 (D. Md. Oct. 17, 2012) (citing In re Beenblossom, BK 10-40335-TJM, WL 2710417, at *4 (Bankr. D. Neb. July 7, 2010)) (concluding that activities such as "file setup, scanning, setting up appointments" are clerical and, therefore not billable). "Fees for work performed by paralegals are generally recoverable, but only to the extent that they reflect tasks traditionally performed by an attorney and for which the attorney would customarily charge the client." Id. (citing Hyatt v. Barnhart, 315 F.3d 239, 255 (4th Cir. 2002)). Where a description is ambiguous as to whether the task is clerical or legal in nature, courts have declined to award fees for those hours. Kabore, 2012 WL 5077636, at *4 (declining to award fees for hours spent "prepar[ing] for mailing to 425 opt-ins" as it was "not immediately apparent what this `preparation' entailed").

Plaintiff's counsel seeks to recover attorneys' fees for work completed by counsel's legal assistant at a lower rate. Hawkins Decl. ¶¶ 4, 6. Having reviewed the time entries for Ms. Lippie, the tasks performed do not appear to be clerical, and are tasks traditionally performed by an attorney. It appears Ms. Lippie drafted all pleadings and documents to be filed to the Court, and Ms. Hawkins reviewed and edited the documents. The rate charged for Ms. Lippie's work is within the rate set forth in Appendix B of the Local Rules, and is therefore, reasonable.

As to Ms. Hawkins' fee, given that she has been a licensed attorney since 1994, Hawkins Decl., ¶ 3, and a bar member of the United States District for the District of Maryland since 1997, https://www.mdd.uscourts.gov/bar-member-search, (Last visited Oct. 9, 2019), her hourly rate is consistent with the rates set forth in Appendix B of the Local Rules and are therefore, also reasonable.

ii. (2) The Novelty and Difficulty of the Questions Raised

This case appears to be a typical collection of delinquent contributions case under the ERISA. Although, not novel or difficult, Plaintiff's counsel efficiently filed: (1) a notice of intent to file a motion for default judgment; (2) a motion for Clerk's entry of default; and (3) a motion for default judgment. Further, Plaintiff's counsel prepared and filed a detailed affidavit with exhibits of Angel Losquadro which allowed the Court to determine the damages resulting from Defendant's failure to pay contributions. Losquadro Aff., ECF No. 14-2.

iii. (5) The Customary Fee for Like Work

An additional factor considered by the Court is the customary fee attorneys charge for the type of work for which a fee award is sought. For the convenience of counsel, the Local Rules include guidelines listing a presumptive range of reasonable hourly rates. Gonzales v. Caron, No. CBD-10-2188, 2001 WL 3886979, at *2 (D. Md. Sept. 2, 2011) ("[G]enerally this Court presumes that a rate is reasonable if it falls within these ranges.").

Plaintiff's counsel seeks to recover fees based on hourly rates which fall within the guidelines set forth in the Local Rules. To further support her request for fees, Plaintiff's counsel provided a Laffey Matrix which sets forth the customary fees in Washington D.C. Laffey Matrix, ECF No. 14-1, Ex. 1. However, a Laffey Matrix is not binding upon the United States District Court for the District of Maryland. Robinson v. Equifax Information Services, LLC, 560 F.3d 235, 245 (4th Cir. 2009) (stating that the plaintiff failed to provide evidence that the Laffey Matrix which pertains to Washington D.C. attorneys was a reliable indicator of the hourly rates of attorneys in Alexandria, Virginia); Grissom v. The Mills Group, 549 F.3d 313, 323 (4th Cir. 2008) (stating that the plaintiff provided no evidence that the Laffey Matrix is a reliable indicator of the hourly rates of attorneys in Reston, Virginia). Plaintiff's counsel did not supply affidavits or declarations from experienced attorneys outside of her firm who could attest to whether the rates charged by Plaintiff's counsel are customary for this work. However, as stated above, the rates requested are within the Guidelines set forth in Appendix B of the Local Rules, and are therefore presumptively reasonable.

iv. (8) The Amount in Controversy and the Results Obtained

Plaintiff's Complaint requests $27,360.98 for unpaid delinquent contributions, $2,130.92 for interest on the delinquent contributions, and $5,472.20 for liquidated damages. Pl.'s Compl. 5. Plaintiff seeks an additional $493.38 for the interest which accrued from the time the Complaint was filed and the time Plaintiff's Motion was filed. This request appears reasonable.

v. (9) The Experience, Reputation and Ability of the Attorney

Ms. Hawkins has over 24 years of experience practicing law. Hawkins Decl. ¶ 3. Of those 24 years, Ms. Hawkins has more than 22 years representing the NEBF in its ERISA collections proceedings. Id. Ms. Hawkins has been a bar member of the United States District for the District of Maryland since 1997. Accordingly, the Court finds that Ms. Hawkins' extensive practice with ERISA collections proceedings provides Plaintiff with adequate representation.

vi. (12) Attorneys' Fees Awards in Similar Cases

Counsel has not provided any examples of attorneys' fee awards in similar cases, but a review of a few cases reveals Plaintiff's requested amount is a reasonable amount to recover. See National Electrical Benefit Fund v. United Network Systems, Inc., No. GJH-17-27, 2017 WL 5056418, at *4 (D. Md. Oct. 30, 2017) (awarding attorneys' fees and costs in an action for default judgment regarding unpaid contributions under ERISA in an amount of $1,339.30); Int'l Painters and Allied Trades Industry Pension Fund, 919 F. Supp. 2d at 689 (awarding attorneys' fees and costs in an action for default judgment regarding unpaid contributions under ERISA in an amount of $4,017.48); National Electrical Benefit Fund v. Allran/Hemmer Electric, LLC, No. GJH-16-1184, 2017 WL 1273922, at *5 (D. Md. Jan. 6, 2017) (awarding attorneys' fees and costs in an action for default judgment regarding unpaid contributions under ERISA in an amount of $1,535.40). Accordingly, the Court finds the ratio between what Plaintiff seeks to be in line with other similar cases.

5. Post-Judgment Interest

Plaintiff also requests interest on all amounts until judgment is satisfied. Pl.'s Mot. ¶ 8; Losquadro Aff. ¶ 13. Under 28 U.S.C. § 1961, post-judgment interest is calculated from the date of the entry of the judgment, at a rate "equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of judgment." 28 U.S.C. § 1961. "Interest shall be allowed on any money judgment in a civil case recovered in a district court." Id.

Accordingly, the Court recommends that post-judgment interest be awarded in accordance with 28 U.S.C. § 1961, until the judgment is satisfied.

IV. Conclusion

For the foregoing reasons, it is my recommendation that the Court GRANT Plaintiff's Motion for Default Judgment against Defendant and award Plaintiff: $27,360.98 for unpaid contributions; $2,624.30 in pre-judgment interest, $5,472.20 in liquidated damages, $1,635.30 in attorneys' fees and costs, and post-judgment interest.