United States District Court, D. Massachusetts
ELECTRICAL WORKERS PENSION PLAN, LOCAL 103, IBEW, and MICHAEL P. DONOVAN, as Administrator of the Electrical Workers Pension Plan, Local 103, IBEW, Plaintiffs,
DONALD R. HEROLD, Jr., Defendants.
MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
an action brought by Electrical Workers Pension Plan, Local
103, IBEW (the “Plan”) and Michael P. Donovan,
Administrator of the Pension Plan (“Donovan” and,
together with the Plan, “Plaintiffs”) pursuant to
the Employee Retirement Income Security Act
(“ERISA”) and federal common law to recover more
than $50, 000 in misappropriated pension funds and associated
costs. [ECF No. 11 (“Amended Complaint” or
“Am. Compl.”) ¶ 1]. Currently pending before
the Court is Plaintiffs' motion for a default judgment
following Donald R. Herold, Jr.'s
(“Defendant”) failure to appear or otherwise
defend this action. [ECF No. 19]. Upon the request of the
Court, the motion for default judgment was supplemented with
additional briefing. [ECF No. 21]. For the following reasons,
Plaintiffs' motion for a default judgment [ECF No. 19] is
FACTUAL AND PROCEDURAL BACKGROUND
Court summarizes the salient facts alleged in the Amended
Complaint and accepts all well-pleaded facts as true for
purposes of this Memorandum and Order. See Conetta v.
Nat'l Hair Care Ctrs., Inc., 236 F.3d 67,
76 (1st Cir. 2001). Charles Harmon was a participant in the
Plan who retired in 1988 and began receiving monthly
retirement benefits. [Am. Compl. ¶ 6]. Upon his death in
1994, his widow, Jo Ann Harmon, began receiving monthly
benefits as a surviving spouse, which were deposited directly
into her bank account. [Id. ¶¶ 7-8]. Mrs.
Harmon died on October 8, 2012. [Id. ¶ 9]. The
Plan was not notified of her death and sent monthly benefits
to Mrs. Harmon's account until August 2017, which totaled
$54, 511.57. [Id. ¶¶ 11, 14]. The Social
Security Administration's Death Master File, which the
Plan checks monthly, did not reflect Mrs. Harmon's death.
[Id. ¶ 12]. The Plan learned of her death
through a death audit conducted by a commercial service in
August 2017. [Id. ¶ 13].
21, 2018, Plaintiffs brought this action against a
“John Doe” defendant because they did not know
who had misappropriated the pension funds. [ECF No. 1
¶¶ 16-19]. Plaintiffs sought and received a
subpoena from the Court to obtain bank records identifying
who had control over Mrs. Harmon's account, which was
where the monthly benefits had been deposited. [Am. Compl.
¶ 16]. The account records identified Defendant, who is
Mrs. Harmon's son, as the person who controlled the
account and had withdrawn funds from the account.
[Id. ¶¶ 16, 17].
April 12, 2019, after two extensions of time to serve the
complaint were allowed by the Court, Plaintiffs filed the
Amended Complaint naming Donald R. Herold, Jr. as the
defendant. See [ECF Nos. 5, 7, 9-11]. Defendant was
served on April 2, 2019, and his answer was due on April 23,
2019. See [ECF No. 12]. On May 16, 2019, the clerk
entered a default as to Donald R. Herold, Jr. [ECF No. 15].
On June 17, 2019, Plaintiffs filed a motion for default
judgment. [ECF No. 19]. Attached to Plaintiffs' motion
for default judgment was a letter from Defendant stating:
I am unable to get council [sic] either from legal aid or
paying myself. I do not know how to proceed other than to say
I am guilty. I would like to [r]epay this lawsuit. However,
as you will see from my income and expenses [b]elow I cannot
pay up front what the plaintiff would like. And between legal
[f]ees and interest I may be not able to repay [i]t all.
Therefore, I must rely on the court's decision.
[ECF No. 19-3 at 5]. Defendant did not respond to the motion
for default judgment.
to Rule 55(b), a plaintiff seeking a default judgment
“must apply to the court” if the amount of
damages claimed is not a “sum certain.”
Fed.R.Civ.P. 55(b). The Court must first assure itself that
it has both subject matter jurisdiction and personal
jurisdiction over the action. Plasterers' and Cement
Masons' Local 40 Pension Fund v. Capital Curbing
Corp., No. 09-cv-00236-WES-DLM, 2010 WL 1424722, at *2
(D.R.I. Mar. 12, 2010), adopted by 2010 WL 1376293
(D.R.I. Apr. 6, 2010). Once satisfied that jurisdiction is
proper, the Court reviews the well-pleaded facts alleged in
the complaint to determine whether they state a claim for
which relief may be granted. Ramos-Falcon v. Autoridad de
Energia Electrica, 301 F.3d 1, 2 (1st Cir. 2002).
Finally, if the Court finds that the complaint states a
claim, it calculates damages. See G. & C. Merriam Co.
v. Webster Dictionary Co., 639 F.2d 29, 34 n.7 (1st Cir.
Court “has an affirmative duty to assure itself that it
has jurisdiction over both the subject matter and the
parties” before entering a default judgment.
Plasterers' and Cement Masons' Local 40 Pension
Fund, 2010 WL 1424722, at *2.
Court has subject matter jurisdiction over the ERISA claim
pursuant to 29 U.S.C. § 1132(e)(1). See 29
U.S.C. § 1132(e)(1) (“[T]he district courts of the
United States shall have exclusive jurisdiction of civil
actions under this subchapter brought by . . . a . . .
fiduciary . . . .”). The Court also has subject matter
jurisdiction over the conversion claim pursuant to 28 U.S.C.
§ 1367 because the claim is closely related to and part
of the same case or controversy as the ERISA claim.
See 28 U.S.C. § 1367 (“[I]n any civil
action of which the district courts have original
jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that
they form part of the same case or controversy . . .
Court has personal jurisdiction over Defendant. “Any
district court in which a plaintiff brings an action under
Title I of ERISA will have personal jurisdiction over the
defendant, if the defendant is properly served and has
sufficient minimum contacts with the United States.”
Plasterers' and Cement Masons' Local 40 Pension
Fund, 2010 WL 1424722, at *3 (footnote omitted) (quoting
Cent. States, Se. & Sw. Areas Pension Fund v.
Phencorp Reinsurance Co., 440 F.3d 870, 875 (7th Cir.
2006)). “Furthermore, sufficient contacts exist
whenever the defendant is served within the sovereign
territory of the United States pursuant to a federal statute
or civil rule.” Univ. of Mass. Med. Ctr. v. C &
M Corp., 16 F.Supp.2d 110, 111 (D. Mass. 1998) (citing
United Elec. & Mach. Workers of Am. v. 163 Pleasant
St. Corp., 960 F.2d 1080, 1085-86 (1st Cir. 1992)).
“ERISA provides for nationwide service of process, and
[Fed. R. Civ. P. 4(k)(1)(C)] constitutes the mechanism for
exercising such extraterritorial service.” Id.
at 112. Here, Defendant resides in North Carolina. [Am.
Compl. ¶ 4]. A return of service was filed on April 12,