United States District Court, D. Massachusetts
NEW ENGLAND CARPENTERS CENTRAL COLLECTION AGENCY et al., Plaintiffs,
WHIPPLE CONSTRUCTION INC. and GEOFFREY EVANCIC, Defendants.
MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR
ENTRY OF DEFAULT JUDGMENT
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.
November 3, 2015, the Trustees of New England Carpenters
Guaranteed Annuity Fund, New England Carpenters Pension Fund,
New England Carpenters Health Benefits Fund, New England
Carpenters Vacation Savings Fund, and New England Carpenters
Training Fund (collectively, “the Funds”) and the
New England Carpenters Central Collection Agency (together
with the Funds, “Plaintiffs”) filed a complaint
against Whipple Construction, Inc. (“Whipple
Construction”) and Geoffrey Evancic
(“Evancic”) (together, “Defendants”)
alleging violations of the Employee Retirement Income
Security Act of 1974 (“ERISA”) and the Labor
Management Relations Act of 1947 based on Whipple
Construction's failure to make employer contributions to
the Funds as required by a collective bargaining agreement.
[ECF No. 1 (“Complaint” or
“Compl.”)]. The Court entered a notice of default
against Evancic on September 17, 2018. [ECF No. 40].
Currently pending before the Court is Plaintiffs' Renewed
Motion for Entry of Default Judgment against
Evancic. [ECF No. 51]. For the following reasons,
the Renewed Motion for Entry of Default Judgment [ECF No. 51]
following summary of facts is drawn from the Complaint, the
well-pleaded allegations of which the Court accepts as true
for purposes of this Memorandum and Order. See Brockton
Sav. Bank v. Peat, Marwick, Mitchell & Co., 771 F.2d
5, 13 (1st Cir. 1985) (explaining that after the entry of a
default, allegations of fact in the complaint must be taken
as true); see also Franco v. Selective Ins., 184
F.3d 4, 9 n.3 (1st Cir. 1999) (“A party who defaults is
taken to have conceded the truth of the factual allegations
in the complaint as establishing the grounds for liability as
to which damages will be calculated.”).
Funds are trusts established in accordance with 29 U.S.C.
§ 186(c) and are employee pension benefit or welfare
plans as defined by 29 U.S.C. § 1002(2). [Compl. ¶
4]. The United Brotherhood of Carpenters & Joiners of
America and the New England Regional Council of Carpenters
(together, the “Union”) are labor organization as
defined by 29 U.S.C. § 152(5). [Id. ¶ 5].
The Funds are maintained pursuant to collective bargaining
agreements between the Union and employers under which
employers contribute to the Funds for covered work performed
by employees. [Id. ¶ 6].
Construction, which was run by Evancic, was an employer
subject to a collective bargaining agreement with the Union.
[Id. ¶¶ 8-11]. As such, Whipple
Construction was obligated to make contributions to the Funds
for each hour of work performed by its employees under a
collective bargaining agreement. [Id. ¶ 11].
Whipple Construction failed to make contributions to the
Funds for work performed by its employees and failed to
submit reports of the number of hours worked by each
employee. [Id. ¶¶ 13-14].
this time, Evancic had broad personal discretion and control
over the assets and expenditures of Whipple Construction.
[Id. ¶ 19]. This included making the decision
to withhold payment of amounts that were due to the New
England Carpenters Health Benefits Fund (“Health
Benefits Fund”). [Id. ¶ 20]. Under the
terms of the trust agreement for the Health Benefits Fund,
these amounts due, but not yet paid, were assets of the
Health Benefits Fund from the moment they became due.
[Id. ¶ 17]. By virtue of exercising discretion
and control over assets of the Health Benefits Fund, Evancic
was a fiduciary of the Health Benefits Fund within the
meaning of 29 U.S.C. § 1002(21). [Id. ¶
initiated this action on November 3, 2015. [ECF No. 1].
Evancic was served on November 9, 2015. [ECF No. 4]. When
Defendants failed to answer or otherwise respond to the
Complaint, Plaintiffs requested a notice of default on
December 3, 2015. [ECF Nos. 6, 7]. On December 7, 2015, the
Court ordered Defendants to show cause why the Court should
not enter a default and ordered them to respond to the
Complaint by December 18, 2015 or risk a default. [ECF No.
8]. Defendants filed their answer on December 30, 2015. [ECF
January 7, 2016, Plaintiffs moved to strike the untimely
filed answer and again sought an entry of default against
Defendants. [ECF No. 12]. On April 6, 2016, Plaintiffs'
counsel advised the Court that Whipple Construction had a
matter pending in the U.S. Bankruptcy Court for the District
of Massachusetts and stated his belief that the automatic
stay applied to further prosecution of Whipple Construction.
[ECF No. 20]. The Court held a status conference on June 22,
2016, at which counsel for Defendants appeared. [ECF Nos. 23,
24]. The Court granted Plaintiffs' motion to strike but
denied the request for a default judgment and ordered
Defendants “to file an answer to the Complaint and/or a
status report within 60 days.” [ECF No. 24].
compliance with the Court's order, Defendants filed a
status report on August 22, 2016 and requested additional
time to respond to the Complaint or to file an additional
status report. [ECF No. 25]. The Court allowed a 60-day
extension. [ECF No. 26]. Defendants filed another status
report on November 1, 2016, which again requested additional
time to respond or to file an additional status report. [ECF
No. 27]. The Court allowed the extension to January 2, 2017.
[ECF No. 28].
Defendants failed to file an answer or additional status
report, the Court, on March 8, 2017, ordered Defendants to
show cause why a default judgment should not be entered and
required a status report by March 21, 2017. [ECF No. 29].
Defendants complied with the order and filed a status report
on March 21, 2017, which advised the Court of the ongoing
bankruptcy action. [ECF No. 30]. The same day,
Defendants' counsel moved to withdraw himself as counsel
based on a breakdown of communication between him and
Defendants. [ECF No. 32]. The Court granted the motion to
withdraw on March 22, 2017. [ECF No. 34].
the Court sought updates from the parties and requested
regular status reports due on June 1, 2018 and September 14,
2018. [ECF Nos. 35-38]. Only Plaintiffs submitted status
reports, which advised the Court of the ongoing bankruptcy
involving Whipple Construction. [ECF Nos. 36, 38]. On
September 14, 2018, Plaintiffs requested a notice of default