BOARD OF TRUSTEES OF THE OMAHA CONSTRUCTION INDUSTRY PENSION PLAN v. KOTAS ENTERPRISES LLC (2026)

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR DAMAGES ON DEFAULT JUDGMENT

This case is now before the Court on the Motion for Damages on Default Judgment by plaintiff Board of Trustees of the Omaha Construction Industry Pension Plan (OCI). Filing 55. OCI seeks damages on default judgment on a claim pursuant to the Employee Retirement Income Security Act of 1974 (ERISA) that Defendant Kotas Enterprises, LLC, (Kotas) breached a collective bargaining agreement (CBA) to pay contributions to the Pension Plan for hours worked by employees covered by the CBA and the Plan. Filing 55; see also Filing 56 at 2–3, 6. For the reasons stated below, OCI's Motion for Damages is granted.

I. INTRODUCTION

OCI filed its Complaint on November 13, 2023, asserting a claim for breach of a CBA between Kotas and the International Bricklayers & Allied Craftworkers, Local No. 15 (BAC No. 15), that required Kotas to make contributions to the Pension Plan for hours worked by Kotas's employees covered by the CBA. Filing 1 at 2 (¶ 6), 3 (¶ 10). OCI filed a Motion for Clerk's Entry of Default on February 13, 2024. Filing 1; Filing 7. The Clerk of Court entered Kotas's default on the record that same day. Filing 8. OCI then filed its original Motion for Default Judgment on March 13, 2024. Filing 9. OCI sought entry of default judgment granting OCI or its designee the authority to perform a complete audit of Kotas's payroll and payroll-related records for a computation of unpaid contributions to the Pension Plan on behalf of workers covered by the CBA, plus liquidated damages, interest, fees, and other relief provided by law. Filing 9 at 1–2. However, the Court declined to enter the requested default judgment until OCI submitted adequate proof of its entitlement to the relief it was seeking. Filing 12.

On May 16, 2024, OCI filed a Supplemental Declaration in Support of Motion for Default Judgment, Filing 13; a copy of the Restated Trust Agreement, Omaha Construction Industry Pension Fund (Restated Trust Agreement), Filing 13-1; the CBA between Kotas and BAC No. 15, Filing 13-2; and a Participation Agreement Between the Omaha Construction Industry Pension Fund and Kotas Enterprises, LLC, (Participation Agreement), Filing 13-3. In a Partial Default Judgment entered May 21, 2024, the Court concluded that OCI had submitted evidence that clearly established the grounds for default and that Kotas's default was not merely caused by a good faith mistake but was instead the result of inexcusable neglect on the part of Kotas. Filing 15 at 5–6 (citing Belcourt Pub. Sch. Dist. v. Davis, 786 F.3d 653, 661 (8th Cir. 2015)). In the Partial Default Judgment, the Court concluded further that OCI was entitled to perform a complete audit of Kotas's payroll and payroll-related records to compute damages. Filing 15 at 6. Therefore, the Court entered Partial Default Judgment as follows:

[T]hat plaintiff Board of Trustees of the Omaha Construction Industry Pension Plan (OCI) or its designee shall perform a complete audit of the payroll and payroll related records of defendant Kotas Enterprises, LLC, for a computation of unpaid contributions to the Pension Plan on behalf of workers covered by the collective bargaining agreement, plus liquidated damages, interest, fees, and other relief provided by law, and that defendant Kotas Enterprises, LLC, shall comply with and cooperate fully in such audit.

Filing 6 at 6. The Court also directed that upon completion of such audit, OCI would file sufficient evidence and argument to demonstrate that it is entitled to damages and other relief and would file status reports in the interim. Filing 6 at 7.

The audit process did not go smoothly. On May 7, 2025, the Court entered an Order Accepting Findings and Recommendation and Imposing Sanctions for Contempt of Court. Filing 38. Based on United States Magistrate Judge Ryan C. Carson's Findings and Recommendation, Filing 31, the Court ordered the following:

1. Defendant, Kotas Enterprises, LLC, is found in contempt of Court until such time as Defendant purges the contempt by producing the documents as ordered by the District Court and producing a representative for the deposition, as ordered in Judge Carson's Findings, Recommendations, and Order, Filing 31; and

2. Plaintiff is awarded attorney's fees and costs in the amount of $8,966.50 related to the Partial Default Judgment, Plaintiff's Motion for Order in Aid of Execution, and the resulting Show Cause Order and Hearing.

Filing 38 at 3.

On February 23, 2026, Judge Carson entered a text order stating that OCI's Status Report, Filing 53, showed that the audit was complete. Filing 54. Therefore, Judge Carson directed OCI to file its anticipated motion for damages on default on or before March 6, 2026. Filing 54. OCI's Motion for Damages on Default Judgment now before the Court followed on March 6, 2026. Filing 55. The Motion was supported by a Brief, Filing 56, and an Index, Filing 57, to which were attached the Declaration of Avram Tynes, counsel for OCI, Filing 57-1, and the Declaration of Jacob Rosenthal, a Payroll Audit Manager at DeBoer & Associates, PC, Filing 57-2. Attached to Mr. Tynes's Declaration were the deposition of Robert Kotas, the owner and operator of Kotas Enterprises, with exhibits, Filing 57-1 at 3–30, and the billing entries for Mr. Tynes with costs, Filing 57-1 at 31–33. Attached to Mr. Rosenthal's Declaration were the DeBoer Audit Report, Filing 57-2 at 3–14, and the DeBoer Audit Invoice, Filing 57-2 at 15.

II. LEGAL ANALYSIS

A. Default Judgment Pursuant to Rule 55(b)

Federal Rule of Civil Procedure 55 provides for entry of a default by the Clerk of Court when a party against whom relief is sought “has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). The rule then provides for entering of a default judgment as follows:

(b) Entering a Default Judgment.

(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk--on the plaintiff's request, with an affidavit showing the amount due--must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.

(2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals--preserving any federal statutory right to a jury trial--when, to enter or effectuate judgment, it needs to:

(A) conduct an accounting;

(B) determine the amount of damages;

(C) establish the truth of any allegation by evidence; or

(D) investigate any other matter.

Fed. R. Civ. P. 55(b). Here, OCI seeks entry of default judgment by the Court to determine damages. Fed. R. Civ. P. 55(b)(2)(B).

B. Standards for Entry of Default Judgment

The Eighth Circuit Court of Appeals “reviews decisions on default judgments for abuse of discretion.” Doe v. Fort Zumwalt R-II Sch. Dist., 920 F.3d 1184, 1191 (8th Cir. 2019) (quoting Weitz Co. LLC v. MacKenzie House, LLC, 665 F.3d 970, 977 (8th Cir. 2012)); Belcourt Pub. Sch. Dist. v. Davis, 786 F.3d 653, 661 (8th Cir. 2015) (“The Federal Rules of Civil Procedure commit the entry of a default judgment against a party to the sound discretion of the trial court.” (quoting F.T.C. v. Packers Brand Meats, Inc., 562 F.2d 9, 10 (8th Cir. 1977) (per curiam) (citations omitted), and also citing Fed. R. Civ. P. P. 55(b)(2)). However, the Eighth Circuit has cautioned,

This court has recognized that default judgments are “not favored by the law and should be a rare judicial act.” In re Jones Truck Lines, Inc., 63 F.3d 685, 688 (8th Cir. 1995) (citations and quotation marks omitted). Put simply, there is a “judicial preference for adjudication on the merits.” Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 784 (8th Cir. 1998) (citations and quotation marks omitted).

Belcourt Pub. Sch. Dist., 786 F.3d at 661.

More specifically, as to the standards for entry of default judgment,

When a default judgment is entered, facts alleged in the complaint are taken as true, but “it remains for the [district] court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.” Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010) (quotation omitted).

Martinizing Int'l, LLC v. BC Cleaners, LLC, 855 F.3d 847, 850 (8th Cir. 2017). “There are various factors courts may consider when determining whether to enter a default judgment.” Belcourt Pub. Sch. Dist., 786 F.3d at 661. These factors include the following:

[T]he amount of money potentially involved; whether material issues of fact or issues of substantial public importance are at issue; whether the default is largely technical; whether plaintiff has been substantially prejudiced by the delay involved; and whether the grounds for default are clearly established or are in doubt. Furthermore, the court may consider how harsh an effect a default judgment might have; or whether the default was caused by a good-faith mistake or by excusable or inexcusable neglect on the part of the defendant.

Belcourt Pub. Sch. Dist., 786 F.3d at 661 (quoting Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., 513 F. Supp. 2d 1, 3 (S.D.N.Y. 2007)).

This Court previously found the relevant factors were satisfied:

As to the factors that the Court finds pertinent here, the Court concludes that OCI has now submitted evidence that clearly established the grounds for default and that Kotas's default is not merely caused by a good-faith mistake but is instead the result of inexcusable neglect on the part of Kotas. [Belcourt Pub. Sch. Dist., 786 F.3d at 661] (citing these factors).

Filing 15 at 5. The Court also determined that the provisions of the documents that OCI had submitted established as a matter of law that OCI was entitled to perform a complete audit of Kotas's payroll and payroll-related records for a computation of damages. Filing 15 at 6. Consequently, the Court entered default judgment to the extent of permitting the requested audit, with final judgment to be entered after OCI submitted adequate proof of its damages. Filing 15 at 6. That leaves the remaining question of what damages, if any, OCI is now entitled to on default judgment.

C. Damages on Default Judgment

1. Applicable Standards

There is no right to a jury trial on damages following a default judgment. KD v. Douglas Cnty. Sch. Dist. No. 001, 1 F.4th 591, 601 (8th Cir. 2021). As the Eighth Circuit explained,

Appellants argue that they had a right to a jury trial on the issue of damages following the default judgment under both Federal Rule of Civil Procedure 55(b)(2) and the Seventh Amendment. However, Rule 55(b)(2) merely preserves “any federal statutory right to a jury trial,” Fed. R. Civ. P. 55(b)(2), and Appellants do not direct this Court to any federal statute creating such a right. Moreover, we have previously explained that “[i]t is a familiar practice and an exercise of judicial power for a court upon default, by taking evidence when necessary or by computation from facts of record, to fix the amount which the plaintiff is lawfully entitled to recover and to give judgment accordingly.” Stephenson v. El-Batrawi, 524 F.3d 907, 915 (8th Cir. 2008) (citation omitted). Rule 55(b)(2) entrusts the district court with the discretion to decide if a hearing on the issue of damages is necessary following default judgment, and nothing in Rule 55(b)(2) mandates that a jury determine the amount of damages, should the district court elect to hold a hearing. See Fed. R. Civ. P. 55(b)(2).

KD v. Douglas Cnty. Sch. Dist. No. 001, 1 F.4th 591, 601 (8th Cir. 2021). Even when the underlying claim is of the type heard by a jury at common law, the Eighth Circuit found “that nothing in the Seventh Amendment's language provides for a right to a jury trial on the issue of damages following a default judgment.” Id. at 602. When the district court decides the damages issue, “[t]he necessity of an evidentiary hearing to determine a plaintiff's damages [on default judgment] is committed to the sound discretion of the district court.” Cutcliff v. Reuter, 791 F.3d 875, 882 (8th Cir. 2015).

“The amount of damages awarded is a finding of fact, so [the Eighth Circuit's] review of that award in a non-jury case is subject to a ‘clearly erroneous’ standard of review.” Id. (citing Gonzalez v. United States, 681 F.3d 949, 952 (8th Cir. 2012), and Webb v. Arresting Officers, 749 F.2d 500, 501 (8th Cir. 1984)). The Eighth Circuit observed that this is “an exacting standard,” such that it “will not reverse the district court unless we are ‘left with the definite and firm conviction that a mistake has been committed.’ ” Id. (quoting United States v. Dock, 967 F.3d 903, 905 (8th Cir. 2020)). On the other hand, the district court must explain with specificity how it reached any loss determination and how the supporting documents support the damages awarded to provide an adequate record for appellate review; a “generic reference to evidentiary support” is insufficient. Stephenson v. El-Batrawi, 524 F.3d 907, 917 (8th Cir. 2008) (remanding because of the insufficiency of the record on these points).

The Court turns to application of these standards to determine OCI's proper award of damages, if any, on default judgment against Kotas.

2. OCI's Damages Claims Are Supported by the Law and the Record

OCI argues that in accordance the Employee Retirement Income Security Act of 1974 (ERISA), as amended by the Multi-Employer Pension Plan Amendments Act of 1980, 29 U.S.C. § 1132(e), OCI is entitled to an award of the following damages: (1) $22,699.08 in unpaid contributions, (2) $10,777.03 in interest, (3) $1,411.41 in liquidated damages, (4) $11,725 in audit fees, (5) $13,650 in attorneys’ fees, and (6) $1,116.50 in costs. Filing 56 at 9. With one exception, the Court agrees.

a. Applicable Law Provides for the Damages Claimed

Section 515 of ERISA requires an employer to pay plan contributions that are required “under the terms of the plan or under the terms of collectively bargained agreement.” 29 U.S.C. § 1145. Section 502(g)(2) of ERISA authorizes the multiemployer plan's trustees to enforce such liability by bringing an action in federal district court for the unpaid contributions, prejudgment interest thereon, liquidated damages, reasonable attorney's fees and costs, and other appropriate relief. 29 U.S.C. § 1132(g)(2). More specifically,

Where the court awards “a judgment in favor of the plan” for delinquent contributions, “the court shall award the plan” the following:

(A) the unpaid contributions,

(B) interest on the unpaid contributions,

(C) an amount equal to the greater of—

(i) interest on the unpaid contributions, or

(ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A),

(D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and

(E) such other legal or equitable relief as the court deems appropriate.

Marshall v. Anderson Excavating & Wrecking Co., 8 F.4th 700, 706 (8th Cir. 2021) (quoting 29 U.S.C. § 1132(g)(2)). Thus, ERISA plainly provides for the award of each category of damages that OCI claims.

b. The Record Supports the Damages Claimed

OCI first seeks $22,699.08 in unpaid contributions, as permitted by 29 U.S.C. § 1132(g)(2)(A). The auditor's report establishes that this sum is the result of 136 occurrences where employees’ hours were not reported properly on the employer reports to the Pension Plan. Filing 57-2 at 2 (Dec. of Rosenthal, ¶ 8), 4 (Rosenthal Report), 5–8 (payroll consulting services report for the applicable period), 13 (Supplemental-Variances and Amounts Due Per Person).

OCI also seeks $10,777.03 in interest, as permitted by 29 U.S.C. § 1132(g)(2)(B) and as provided under the Trust and Pension Plan documents. See Filing 57-2 at 2 (Dec. of Rosenthal, ¶ 8), 4 (Rosenthal Report), 14 (Liquidated Damages & Interest); see also Marshall, 8 F.4th at 707 (“[I]nterest on unpaid contributions shall be determined by using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of Title 26.” (quoting 29 U.S.C. § 1132(g)(2)). The award of a plan-provided interest rate is appropriate here because Kotas is a signatory to the plan document or has otherwise agreed to bind itself to the plan. Marshall, 8 F.4th at 707; Filing 15 at 2–5 (explaining how Kotas was bound to the terms of the Plan).

The problem is that OCI has erred by claiming liquidated damages in the amount of $1,411.41 under § 1132(g)(2)(C). ERISA requires a court to award the plaintiff “an amount equal to the greater of—(i) interest on the unpaid contributions, or (ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent” of the total delinquent contributions. 29 U.S.C. § 1132(g)(2)(C). Thus, where the amount of interest is greater than the amount of liquidated damages, the Court must base its award under § 1132(g)(2)(C) upon the amount of prejudgment interest. Marshall, 8 F.4th at 709. In Marshall, the Eighth Circuit affirmed the award of $4,657.75 for prejudgment interest under § 1132(g)(2)(B) and the award of $4,657.75 under § 1132(g)(2)(C) as that was the greater amount (interest) instead of $2,391.39 (liquidated damages at 20% of the unpaid contributions of $11,956.96). Id. at 705, 709 (citing the case below, Marshall v. Anderson Excavating & Wrecking Co., No. 8:14-CV-96, 2017 WL 1054039, at *1 (D. Neb. Mar. 20, 2017), which stated the liquidated damages amount). Thus, in addition to the award of $10,777.03 in interest under § 1132(g)(2)(B), this Court will award the greater amount of $10,777.03 (interest) rather than the lesser amount of $1,411.41 (liquidated damages at 5% under the terms of the Plan) under § 1132(g)(2)(C). See Filing 57-2 at 14 (Auditor's Report showing liquidated damages at 5% of unpaid contributions each year).¹

Next, OCI seeks $13,650 in attorneys’ fees and $1,116.50 in costs, as permitted by 29 U.S.C. § 1132(g)(2)(D). As the Eighth Circuit explained in Marshall,

Section 1132(g)(2)(D) “governs the availability of attorney's fees in ERISA actions under § 1145 (actions to recover delinquent employer contributions to a multiemployer plan). In such cases, only plaintiffs who obtain ‘a judgment in favor of the plan’ may seek attorney's fees.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 252, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010) (quoting 29 U.S.C. § 1132(g)(2)(D) (providing that “[i]n any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan ․ reasonable attorney's fees and costs of the action, to be paid by the defendant”)). “Just what is a reasonable attorneys’ fee is a matter peculiarly within the district court's discretion.” Greater Kan. City Laborers Pension Fund v. Thummel, 738 F.2d 926, 931 (8th Cir. 1984) (applying 29 U.S.C. § 1132(g)(2)(D)).

Marshall, 8 F.4th at 712. The Eighth Circuit then applied the lodestar method to an award of attorneys’ fees under § 1132(g)(2)(D), determining the reasonable hours worked at a reasonable hourly rate, with appropriate adjustments based on circumstances of the case. Id. at 712–14. OCI has previously been awarded $8,966.50 in attorneys’ fees and costs related to the Partial Default Judgment, Plaintiff's Motion for Order in Aid of Execution, and the Resulting Show Cause Order and Hearing. Filing 56 at 9 (citing Filing 38). OCI now seeks only additional attorneys’ fees in the amount of $13,650 and costs in the amount of $1,116.50 that were incurred after the prior award. Filing 56 at 9. OCI's submissions indicate that it seeks attorneys’ fees at the rate of $250.00 per hour, which the Court finds reasonable. Filing 57-1 at 33. Thus, the $13,650 in attorneys’ fees is for 54.6 hours, all documented, Filing 57-1 at 31–33, which the Court also finds reasonable, without adjustments to either the hours or the hourly rate. Likewise, OCI has documented costs in the amount of $1,1116.50. See Filing 57-1 at 33. These sums will be awarded pursuant § 1132(g)(2)(D).

Lastly, OCI seeks an award of $11,725 in audit fees. OCI argues that such audit fees are commonly allowed under 29 U.S.C. § 1132(g)(2)(E). Filing 56 at 7 (citing Mid-America Carpenters Reg'l Council v. Landmark Interiors, LLC, No. 4:25-CV-927-SRW, 2025 WL 3513869, at *4 (E.D. Mo. Dec. 8, 2025)). The Landmark Interiors case cites in support Greater St. Louis Construction Laborers’ Welfare Fund, et al., v. A Shining Store, Inc., 547 F. Supp. 2d 997 (E.D. Mo. 2008); Schembre v. Orth Constr. Co., 199 F. Supp. 2d 944 (E.D. Mo. 2001); and Greater St. Louis Construction Laborers’ Welfare Fund, et al., v. Don Richardson, 775 F. Supp. 1249 (E.D. Mo. 1991). Landmark Interiors, 2025 WL 3513869, at *4. Thus, the Court finds that the award of audit fees is appropriate pursuant to § 1132(g)(2)(E).

Thus, with the exception of adjustment to the award pursuant to § 1132(g)(2)(C) explained above, the Court awards damages requested by OCI.

III. CONCLUSION

Upon the foregoing,

IT IS ORDERED that

1. The Motion for Damages on Default Judgment by plaintiff Board of Trustees of the Omaha Construction Industry Pension Plan (OCI), Filing 55, is granted; and

2. The Court awards damages pursuant to 29 U.S.C. § 1132(g)(2) on default judgment in the following amounts:

a. $22,699.08 in unpaid contributions pursuant to 29 U.S.C. § 1132(g)(2)(A);

b. $10,777.03 in interest pursuant to 29 U.S.C. § 1132(g)(2)(B);

c. $10,777.03 as the greater of interest or liquidated damages pursuant to 29 U.S.C. § 1132(g)(2)(C);

d. $13,650 in attorneys’ fees and $1,116.50 in costs pursuant to 29 U.S.C. § 1132(g)(2)(D); and

e. $11,725 in audit fees pursuant to 29 U.S.C. § 1132(g)(2)(E); for a total damages award of $70,744.64.

IT IS FURTHER ORDERED that Judgment shall enter accordingly.

Dated this 29th day of April, 2026.

FOOTNOTES

1.   The figure of $1,411.41 in liquidated damages in the “Liquidated Damages & Interest” part of the Audit Report is 5% of the “Total Delinquent” contributions of $28,227.84. Filing 57-2 at 14. However, the amount for delinquent contributions that OCI seeks is $22,699.08, as shown in the “Supplemental-Variances and Amounts Due Per Person” in the Audit Report. Filing 57-2 at 13.

Brian C. Buescher United States District Judge