Division 1181 Amalgamated Transit Union-New York Employees Pension Fund v. D & A Bus Co. (270 F. Supp. 3d 593, 2017)

United States District Court for the Eastern District of New York 2017-09-12

Customs Duties Internal Revenue Code Labor

Citations

Full opinion text

MEMORANDUM & ORDER

HURLEY, Senior District Judge:..

Presently before the Court is the August 25, 2017 Report and Recommendation (“R & R”) of Magistrate Judge A. Kathleen Tomlinson recommending that plaintiffs’ motion for default judgment be granted in part and denied in part. More particularly, Judge Tomlinson recommended that (1) default judgment be entered against defendant D & A and plaintiffs be awarded (a) $575,545.00 in withdrawal liability; (b) $38,732.30 in accrued interest; (c) $115,109.00 in liquidated damages; (d) $3,806.00 in attorneys’ fees; (e) $846.03 in costs: and (f) the requested injunctive relief, to wit an injunction compelling D & A to provide plaintiffs with a -complete list of each trade or business under its common control; and (2) the motion for default judgment against Anchor Bus. Co., In. be denied. More than fourteen days have elapsed since service of the R & R and no objections have been filed by defendants. Plaintiffs have filed objections limited to Judge Tomlinson’s recommendation regarding Anchor Bus. Co., Inc. Unsure as to whether those claims would remain pending or dismissed under the R & R, Plaintiffs seek dismissal of the claims against Anchor Bus Co., Inc. without prejudice and have in fact filed a notice of voluntary dismissal of the claim against Anchor Bus Co., Inc. pursuant to Fed. R. Civ. P. 41(a)(l)(A)(i).

As Plaintiffs notice of voluntary dismissal is proper, the Court will dismiss the claims against defendant Anchor Bus Co., Inc. without prejudice. : ■ ■

Pursuant to 28 U.S.C. § 636(b) and Fed. R.'Civ. P. 72, this Court has reviewed the unobjected to portions of the R <& R for clear error, and finding none, now concurs in both its reasoning and its result. The Court therefore adopts the August 25, 2017 R & R of Judge Tomlinson as to defendant D & A as if set forth herein.

Accordingly,

IT IS HEREBY ORDERED that plaintiffs’ motion for default judgment against defendant D & A Bus Company, Inc. is granted and plaintiffs are awarded: (1) $575,545.00 in withdrawal liability; (2) $38,732.30 in accrued interest; (3) $115,109.00 in liquidated damages; (4) $3,806.00 in attorneys’ fees; (5) $846.03 in costs; and (6) an injunction compelling defendant D & A Bus Company, Inc. to provide plaintiffs with a complete list of each trade- or business under its common control within twenty (20) days of service of a copy of the judgment upon it; . and

IT IS FURTHER ORDERED plaintiffs’ claims against defendant Anchor Bus. Co., Inc. are dismissed without prejudice.

The Clerk of Court is directed to enter judgment accordingly and to close this case.

REPORT AND RECOMMENDATION

A. KATHLEEN TOMLINSON, Magistrate Judge:

I. Preliminary Statement

Plaintiff Division 1181 Amalgamated Transit Union—New York Employees Pension Fund (the “Fund”) and its Trustees (the “Trustees”) (collectively, the “Plaintiff’) commenced this action against Defendants D & A Bus Company, Inc. (“D & A”) and Anchor Bus Co., Inc. (“Anchor”) (collectively, the “Defendants”) pursuant to §§ 502(g)(2), 515 and 4219(c) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1132(g)(2), 1145 and 1399(c) as amended by the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. §§ 1001, et seq. (“MPPAA”). Plaintiff seeks an award of withdrawal liability, interest, liquidated damages, attorney’s fees, costs and injunc-tive relief due to Plaintiff'under ERISA and the governing Collective Bargaining Agreement. See generally Complaint (“Compl,”) [DE 1].

After Defendants failed to answer the Complaint, the Clerk of the Court noted their default in the docket on November 15, 2016, pursuant to Fed, R. Crv. P. 55(a). See DE 14. Thereafter, Plaintiff filed the instant motion for entry of default judgment. See DE 15. Judge .Hurley referred the matter to this Court for a Report and Recommendation as to whéther the default judgment should be granted, and, if, so, to determine the appropriate amount of damages, costs, and/or fees, if any, to be awarded. See December 27, 2016 Electronic Order. Based upon the information submitted by Plaintiff and for the reasons set forth below, the Court respectfully recommends to Judge Hurley that Plaintiffs motion be GRANTED, in part, and DENIED, in part in accordance with this Report and Recommendation,

II, Background.

A. Statutory Background

1. ERISA

The Employee Retirement Income Security Act (“ERISA”) was created by Congress in order to provide a comprehensive statutory framework for governing the administration of employee retirement plans. Finkel v. Athena Light & Power LLC, No. 14-CV-3585, 2016 WL 4742279, at *1 (E.D.N.Y. Sept. 11, 2016) (quoting Trustees of Local 138 Pension Trust Fund v. F.W. Honerkamp Co. Inc., 692 F.3d 127, 128 (2d Cir. 2012)). The statute has the primary purpose of

Protecting] interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.

19 U.S.C. § 1001(b). In addition, Congress sought to safeguard “the interests of participants in private pension plans and their beneficiaries by improving the equitable character and the soundness of such plans by requiring them to vest the accrued benefits of employees with significant periods of service, to meet minimum standards of funding, and by requiring plan termination insurance.” Id. § 1001(b). Thus, the statute was principally designed “to ensure that employees and their beneficiaries would not be deprived of anticipated retirement benefits by the termination of pension plans before sufficient funds have been accumulated in the plans.” Finkel, 2016 WL 4742279, at *1 (quoting Connolly v. Pension Benefit Guaranty Corporation, 475 U.S. 211, 214, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986)). “To -that end, the statute created an agency, the Pension Benefit Guaranty Corporation (“PBGC”), to administer an insurance system by collecting premiums from covered pension plans and paying out accrued benefits to employees in the event a pension plan has insufficient funds.” Finkel, 2016 WL 4742279, at *1 (quoting Trustees of Local 138 Pension Trust Fund, 692 F.3d at 129); see 29 U.S.C. § 1302 (creating the PBGC for the purposes of: “(1) encourage[ing] the continuation and maintenance of voluntary private pension plans for-the benefit of their participants, (2) to provide for the timely and uninterrupted payment of pension benefits to participants and beneficiaries under plans to which this subchapter applies, and (3) to maintain premiums established by the corporation under section 1306 of this title at the lowest level consistent with carrying out its obligations under this subchapter.”).

2. Multiemployer Pension Plan Amendments Act (“MPPAA”)

One category of pension plans.governed by ERISA is the multiemployer pension plan. See. Trustees of Local 138 Pension Trust Fund, 692 F.3d at 129. Multiemployer pension plans- require multiple employers to

pool contributions into a single fund that pays benefits to covered retirees who spent a certain amount of time working for one or more of the contributing employers. Plans of this sort offer important advantages to employers and employees alike. For example, employers in certain unionized industries likely would not create their own pension plans because the frequency of companies going into and out of business, and of employees transferring among employers, make single-employer plans unfeasible. Mul-tiemployer plans allow companies to offer pension benefits to their employees notwithstanding these practicalities, and at the same time to share the financial costs and risks associated with the administration of pension plans.

Id. at 129 (citing Concrete Pipe & Prods. of Cal. Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 605-07, 113 S.Ct. 2264, 124 L.Ed. 2d 539 (1993)); see Finkel, 2016 WL 4742279, at *1. The catalyst underlying the enactment of the MPPAA was the very real threat of widespread employer withdrawal, particularly acute in declining industries. See Trustees of Local 138 Pension Trust Fund, 692 F.3d at 129; Finkel, 2016 WL 4742279, at *2; Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 722 n. 2, 104 S.Ct. 2709, 81 L.Ed. 2d 601 (1984). For each employer that withdraws from a mul-tiemployer pension plan, the contribution burden shouldered by the remaining employers increase. Trustees of Local 138 Pension Trust Fund, 692 F.3d at 129; Finkel, 2016 WL 4742279, at *2. Therefore, widespread employer withdrawal has the potential to significantly reduce the plan’s contribution base which effectively “pushes the contribution rate for remaining employers to higher and higher levels’ in order to fund past service liabilities, including liabilities generated by employers no longer participating in the plan, so-called inherited liabilities.” Trustees of Local 138 Pension Trust Fund, 692 F.3d at 129 (quoting R.A. Gray & Co., 467 U.S. at 722 n. 2, 104 S.Ct. 2709); Finkel, 2016 WL 4742279, at *2. These rising financial burdens may either encourage or force further withdrawals from the plan, “thereby increasing the inherited liabilities to be funded by an ever-decreasing contribution base.” Trustees of Local 138 Pension Trust Fund, 692 F.3d at 129 (quoting R.A. Gray & Co., 467 U.S. at 722 n. 2, 104 S.Ct. 2709); Finkel, 2016 WL 4742279, at *2. The net effect would be akin to falling dominoes—thus signaling the death knell of the pension plan itself. See Trustees of Local 138 Pension Trust Fund, 692 F.3d at 129 (quoting R.A. Gray & Co., 467 U.S. at 722 n. 2, 104 S.Ct. 2709); Finkel, 2016 WL 4742279, at *2. Further, such mass withdrawals would pose “an almost insurmountable burden on the PBGC.” Finkel, 2016 WL 4742279, at *2 (quoting R.A. Gray & Co., 467 U.S. at 722 n. 2, 104 S.Ct. 2709).

At the time ERISA was conceived, Congress failed to perceive the imminent dangers inherent in mass withdrawals by employers. In fact, certain provisions in the original legislation actually contributed to these problems by encouraging (1)- withdrawal from weak multiemployer pension plans (without compensating these plans for inherited liabilities that would be passed on to the remaining employers); and (2) employers “who did not withdraw to terminate deteriorating pension plans” in the near term rather than attempting to keep them 'afloat. Trustees of Local 138 Pension Trust Fund, 692 F.3d at 129 (citing Concrete Pipe & Prods. of Cal., Inc. 508 U.S. 602, 607-08, 113 S.Ct. 2264, 124 L.Ed.2d 539); see R.A. Gray & Co., 467 U.S. at 722, 104 S.Ct. 2709; Milwaukee Brewery Workers’ Pension Plan v. Joseph Schlitz Brewing Co., 513 U.S. 414, 416-17, 115 S.Ct. 981, 985, 130 L.Ed. 2d 932 (1995) (recognizing _ that ERISA’s statutory “scheme encouraged an employer to withdraw from a financially shaky plan and risk paying its share if the plan later became insolvent, rather than to remain and (if others withdrew) risk having to bear alone the entire cost of keeping the shaky plan afloat. Consequently, a plan’s financial troubles could trigger a stampede for the exit doors, thereby ensuring the plan’s demise.”).

With the specter of the imminent collapse of the PBGC due to the insurmountable insurance burden placed upon it by mass employer withdrawals, see Connolly, 475 U.S. at 215, 106 S.Ct. 1018 (recognizing that “implementation of mandatory guarantees [funded by the PBGC] for mul-tiemployer plans might induce several large plans to terminate, thus subjecting the insurance system to liability beyond its means”), Congress reacted by enacting the Multiemployer Pension Plan Amendments Act of 1980 (the “MPPAA”), Pub. L. No. 96-364, 94 Stat. 1208 (codified as amended in scattered sections of Titles 26 and 29 of the United States Code). See Nat’l Shopmen Pension Fund v. DISA Indus., Inc., 653 F.3d 573, 575 (7th Cir. 2011) (“Congress enacted the MPPAA to address the risk of insolvency that arises when, an employer withdraws from a pension plan,. When that happens, the plan must, ensure-that it is,. adequately funded to provide benefits to workers as promised”) (citing Central States, Se. and Sw. Areas Pension Fund v. O’Neill Bros. Transfer and Storage Co., 620 F.3d 766, 767-68 (7th Cir. 2010)); Trustees of Local 138 Pension Trust Fund, 692 F.3d at 130; Finkel, 2016 WL 4742279, at *2.

The passage of the MPPAA helped to significantly mitigate the problem of employer withdrawals by “changing [an employer’s]’ strategic considerations. It transformed'what Was only a risk'(that a withdrawing employer would have to pay a fair share of underfunding) into a certainty. That is to say, the MPPAA imposed a withdrawal charge oh all employers withdrawing from an underfunded plan (whether or not the plan later became insolvent). And it set forth a detailed set of rules for determining, and collecting, that‘charge.” Milwaukee Brewery Workers’ Pension Plan, 513 U.S. at 417, 115 S.Ct. 981. Thus, the primary goal of the MPPAA is to ensure that withdrawing employers aire , responsible for their fair share of -inherited liabilities by mandating that “an employer [that] withdraws from a multiemployer plan ... is liable to the plan in the amount determined ... to be the withdrawal liability.” ERISA § 4201(a), 29 U.S.C. § 1381(a); see Trustees of Local 138 Pension Trust Fund, 692 F.3d at 130; Finkel, 2016 WL 4742279, at *2. This withdrawal liability represents the “withdrawing employer’s proportionate share of the pension plan’s unfunded vested benefits.” Trustees of Local 138 Pension Trust Fund, 692 F.3d at 130; Finkel, 2016 WL 4742279, at *2. Pursuant to the MPPAA, withdrawing employers remit withdrawal liability payments in annual installments calculated “based upon each employer’s historical contribution levels.” Trustees of Local 138 Pension Trust Fund, 692 F.3d at 130; Finkel, 2016 WL 4742279, at *2; see ERISA §§ 4211(c), 4219(c), 29 U.S.C. §§ 1391(c), 1399(c).

B. Factual Background

The following" facts are taken from the Complaint and are assumed to be "true for purposes of this motion.

The Fund “is a multiemployer pension plan within the meaning of Sections 3(37) and 4001(a)(3) of ERISA, 29 U.S.C. §§ 1002(37) and 1301(a)(3), which provides retirement benefits to eligible participants.” Compl. ¶ 4. “The Trustees are fiduciaries of the Fund within the meaning of Section 3(21) of ERISA, 29 U.S.C. § 1002(21).!’ Id. ¶ 6. Defendants are New York corporations having a principal place of business located at 732 . 5th Avenue, Brooklyn, New York 11232. Id. ¶¶ 8-9.

During the relevant time period, Defendant D & A was a signatory to and bound by a Collective Bargaining Agreement (“CBA”) with Amalgamated Transit Union Local 1181 (the “Union”), “a labor organization representing employees in an industry affecting interstate commerce.” Id. ¶¶ 11-12; see CBA, attached as Exhibit (“Ex.”) 2 to the July 19, 2017 Supplemental Declaration of Robert D’Ulisse (“D’Ulisse Supp. Decl.”) [DE 19-1]. As part of its obligations as a signatory to the CBA, D & A “was obligated] to contribute to the Fund on behalf of its covered employees” and to “abide by the terms and conditions of the Agreement and Declaration of Trust establishing the Fund and any amendments thereto (the “Trust Agreement”), and the rules and policies adopted by the Trustees pursuant to the Trust Agreement.” Id. ¶¶ 13-14; see D’Ulisse Supp. Decl., Ex. 1 (Trust Agreement), Ex, 5 (Policy for Collection of Delinquent Contributions), Ex. 6 (Withdrawal Liability Rules). In addition, D & A “was also obligated to submit monthly reports and contributions to the Fund. Id. ¶ 17.

The Trustees—pursuant to the authority vested in-them, as set forth in the Trust Agreement—adopted the “Policy for Collection of • Delinquent Contributions (the “Collection Policy”) and the Fund’s Withdrawal Liability Rules.” Id. ¶ 15; see D’Ul-isse Supp. Decl., Exs. 5, 6. As is relevant here, “[t]he Fund’s Withdrawal Liability Rules provide that interest on delinquent withdrawal liability payments -shall be determined using the interest rates applicable to unpaid contributions to the Fund as provided in the Fund’s Collection Policy.” Id. ¶ 16; see D’Ulisse Supp. Decl. Ex. 6 (§. S, ¶ 8.9). The Collection Policy, in turn, provides that the applicable interest rate shall be based upon the “Fund’s custodial bank’s prime rate plus 2% per annum.” Id., D’Ulisse Supp. Decl., Ex. 5 (§ 2, ¶2),

The Fund determined that- as of June 30, 2014, D & A “effected a ‘complete withdrawal’ from the Fund, as said term is defined in Section 4203 of ERISA, 29 U.S.C. § 1383” and that as a result of this its withdrawal, D & A “incurred withdrawal liability to the Fund in the amount of $575,545.00, as determined under Section 4201(b) of ERISA, 29 U.S.C. § 1381(b).” Id. ¶¶ 18-19. In accordance with its statutory obligations as set forth in §§ 4202(2) and 4219(b)(1) of ERISA, 29 U.S.C. §§ 1382(2) and 1399(b)(1), on September 9, 2015, Plaintiff sent D & A a Notice and Demand for payment of withdrawal liability via certified mail. Id. ¶ 20. The Notice and Demand contained the requisite payment schedule for remittance of a monthly withdrawal, liability payment. Id. Specifically, the Notice and Demand informed D & A that its withdrawal liability totaled $575,545.00, which . was payable “in 80 quarterly payments of $13,233.34.” Id. ¶ 21. In addition, the Notice and Demand directed D & A to provide Plaintiff with a “complete list of each trade or business under ‘common control’ as said term is defined in ERISA Section 4001(b).” Id. ¶ 22. According to the Plaintiff, despite: the explicit directives contained in the Notice and Demand—requiring remittance of payments and the provision of.certain in: formation—D & A nevertheless failed to comply. Id. ¶ 23. However, according to Plaintiff, the September 9,2015 Notice and Demand was ultimately “returned to the Fund with ‘return to.-sender, unable to forward’ noted on the envelope.” Id. ¶ 24.

In light of the fact that the September 9, 2015 Notice and Demand letter was returned as undeliverable, on January -8, 2016, Plaintiff again attempted -to send, via certified mail, the Notice and Demand to the home address of the owner of Defendant D & A, Joseph Orapallo. Id. ¶25. However, Plaintiff never received a signed return receipt and was therefore unable to confirm that the Notice and Demand was delivered. Id. Thereafter, on March 2, 2016, Plaintiff made a third attempt to notify D & A of its withdrawal liability obligations by sending, via regular mail, an updated Notice and Demand containing a revised payment schedule which set forth an initial payment due date of May 1, 2016, Id. ¶ 26. Plaintiff did not receive any indication that “its March 2,' 2016 Notice, and Demand was not delivered.” Id. ¶ 27.

On June 2, 2016, Plaintiffs counsel sent an additional letter notifying D & A that “it was delinquent in making its first quarterly withdrawal liability payment and that it would be in default within the meaning of ERISA Section 4219(c)(5)(A), 29 U.S.C. § 1399(c)(5)(A) if it did not cure the delinquency within 60 days from receipt of the letter.” Id. ¶ 28; see D’Ulisse Supp. Deck, Ex. 6 (§ 1, ¶ 1.3 (defining default in substantially similar terms)). According to Plaintiff, it “has not received any indication that its June 2, 2016 letter was not delivered.” Id. ¶ 29.

Significantly, Plaintiff asserts that “[n]either Defendant D & A nor any other trade or business under common control with [ ] D & A, including but not limited to [ ]Anchor, [ ] paid to the Fund any of the payments due under Defendant D & A’s withdrawal liability payment schedule” or otherwise sought to initiate[] arbitration of the withdrawal liability assessment within the time period specified in Section 4221(a)(1) of ERISA,: 29 - U.S.C. § 1401(a)(1).” Id. ¶ 29.

Based upon D & A’s failure to remit interim withdrawal liability payments— notwithstanding its obligation to do so pursuant to the CBA and Sections- 515 and 4219(c) of ERISA, 29 U.S.C. §§ 1145 and 1399(c)—“D & A is in default within the meaning of Section 4219(c)(5)(A) of ERISA, 29 U.S.C. § 1399(c)(5)(A) and 29 C-.F.R. § 4219.33. As a result, the..full amount of the withdrawal liability is now due and owing.” Id ¶¶ 33-35. As such, Plaintiff asserts it is entitled to $575,-545.00—the full principal amount of withdrawal. liability—as well as “interest on the withdrawal liability at the rate of the Fund’s custodial bank’s prime rate plus 2% per annum; an amount equal to the greater of the foregoing accrued interest or liquidated damages equal to twenty (20%) percent of the withdrawal liability; and the attorneys’ fees and costs incurred by the Fund in collection of the delinquent withdrawal liability, including the attorneys’ fees and costs of this action.” Id. ¶ 36; see D’Ulisse Supp. Decl., Ex. 6 (§ 8, ¶ 8.7) which provides for acceleration of the entire amount of withdrawal liability in the event a default occurs as well as the payment of accrued interest in conjunction with additional interest or' liquidated damages).

Moreover, Plaintiff states that in accordance with ERISA Section 4001(b)(1), 29 U.S.C. § 1301(b)(1), the obligation to remit withdrawal liability payments “extends ... to all trades or businesses that are under common control with the employer within the meaning of Section 414(c) of the Internal Revenue Code, 26 U.S.C. § 414(c), and the regulation thereunder.” Id. ¶ 38. As such, according to Plaintiff, “[a]t the time of [ ] D & A’s withdrawal from the Fund, [ ] Anchor was a trade or business under common control with [ ] D & A within the meaning of Section 414(c) of the Internal Revenue Codé, 26 U.S.C. § 414(c)” making it “jointly and severally liable for Defendant D & A’s withdrawal liability under ERISA Section 4001(b)(1), 29 U.S.C. § 1301(b)(1).” Id. ¶¶ 39-40. In addition, in accordance with “Section 4219 of ERISA, 29 U.S.C. § 1399, notice of withdrawal liability assessment, default and. all other notices provided under Sections 4201-4225 of ERISA, 29 U.S.C. §§ 1381-1405, sent to one member of a controlled group constitutes notice to all trades or businesses in the same controlled group.” Id. ¶ 41. Based upon the fact that Plaintiff provided the required notices, and neither D & A nor “any. other trade or business under common control with. [ ] D & A, including [ ] Anchor, has paid .., any of the payments due under [ ] D & A’s withdrawal liability payment schedule, they are now in default.” Id. ¶¶ 42-43.

III. Legal Standards

A. Standard of Review

For a movant to obtain a default judgment, it must complete a two-step process. “When a party against whom a judgment for affirmative relief is sought 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). Once the clerk’s certificate of default is issued, the moving party may then make an application for entry of a default judgment, pursuant to Fed. R. Civ. P. 55(b). A default constitutes an admission of all well-pleaded factual allegations in the complaint and the allegations as they pertain to liability are deemed true. See Fed. R. Civ. P. 8(b)(6); Joe Hand Promotions, Inc. v. Duke Bazzel Tobacco & Lounge LLC, No. 13 Civ. 300, 2014 WL 2711168, at *1 (N.D.N.Y. Jun. 16, 2014); Gesualdi v. Specialty Flooring Systems, Inc., No. 11 Civ. 5937, 2014 WL 2208195, at *2 (E.D.N.Y. May 28, 2014); Joe Hand Promotions, Inc. v. El Norteno Restaurant Corp., No. 06 Civ. 1878, 2007 WL 2891016, at *2 (E.D.N.Y. Sept. 28, 2007) (citing Greyhound Exhibitgroup, Inc. v. E.I. U.I. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080, 113 S.Ct. 1049, 122 L.Ed.2d 357 (1993)); Finkel v. Omega Commc’n Servs., Inc., 543 F.Supp.2d 156, 158 (E.D.N.Y. 2008) (citing Garden City Boxing Club, Inc. v. Batista, No. 05 Civ. 1044, 2007 WL 4276836, at *2 (E.D.N.Y. Nov. 30, 2007)).

However, “just because a party is in default, the plaintiff is not entitled to a default judgment as a matter of right.” Profi-Parkiet Sp. Zoo v. Seneca Hardwoods LLC, No. 13 Civ. 4358, 2014 WL 2169769, at *3 (E.D.N.Y. May 23, 2014), adopted by 2014 WL 2765793 (E.D.N.Y. Jun. 18, 2014) (internal quotations omitted); Bravado Int’l Grp. Merchandising Servs., Inc., v. Ninna, Inc., 655 F.Supp.2d 177, 186 (E.D.N.Y. 2009). The fact that a complaint remains unanswered will not suffice to establish liability on its claims since, “a default does not establish conclu-sory allegations, nor does it excuse any defects in the plaintiffs pleading.” Said v. SBS Elecs., Inc., No. 08 Civ. 3067, 2010 WL 1265186, at *2 (E.D.N.Y. Feb. 24, 2010), adopted as mod. by 2010 WL 1287080 (E.D.N.Y. Mar. 31, 2010); Gunawan v. Sake Sushi Rest., 897 F.Supp.2d 76, 83 (E.D.N.Y. 2012) (“[I]t remains the plaintiffs burden to demonstrate that those uncontroverted allegations, without more, establish the defendant’s liability on each asserted cause of action.”).

In determining whether a default judgment should be entered, courts consider the same factors which apply to a motion to set aside entry of a default, namely: “1) whether the defendant’s default was willful; 2) whether defendant has a meritorious defense to plaintiffs claims; and 3) the level of prejudice the non-defaulting party would suffer as a result of the denial of the motion for default judgment.” Reliance Commc’ns LLC v. Retail Store Ventures, Inc., No. 12 Civ. 2067, 2013 WL 4039378, at *2 (E.D.N.Y. Aug. 7, 2013) (citing Mason Tenders Dist. Council v. Duce Constr. Corp., No. 02 Civ. 9044, 2003 WL 1960584, at *2 (S.D.N.Y. Apr. 25, 2003)); see also O’Callaghan v. Sifre, 242 F.R.D. 69, 73 (S.D.N.Y. 2007) (finding that courts may consider “numerous factors, including whether plaintiff has been substantially prejudiced by the delay involved [ ] and whether the grounds for default are clearly established or in doubt” when deciding a motion for default judgment) (internal quotations and citation omitted); U.S. v. DiPaolo, 466 F.Supp.2d 476, 482 (S.D.N.Y. 2006) (finding that the grounds for a default judgment were established by the defendant’s failure to answer the complaint, particularly in light of the fact that the defendant had expressed no intention to do so at a later time).

Ultimately, the decision to grant a motion for default judgment is left to the sound discretion of the court. See Finkel v. Romanowicz, 677 F.3d 79, 87 (2d Cir. 2009) (“In permitting, but not requiring, a district court to conduct a hearing before ruling on a default judgment, Rule 65(b) commits this decision to the sound discretion of the district court.”); Palmieri v. Town of Babylon, 277 Fed.Appx. 72, 74 (2d Cir. 2008); Shah v. New York State Dep’t of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999) (“The dispositions of motions for entries of defaults and default judgments ... ate left to the sound discretion of a district court because it is in the best position to assess the individual circumstances of a given case and to evaluate the credibility and good faith of the parties.”) (internal quotations omitted); Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993) (“The circumscribed scope of the district court’s discretion in the context of a default is a reflection of our oft-stated preference for resolving disputes on the merits.”); Ainbinder v. Money Ctr. Fin. Grp., Inc., No. 10 Civ. 5270, 2014 WL 1220630, at *2 (E.D.N.Y. Mar. 24, 2014) (“The determination of a motion for default judgment is left to the sound discretion of the district court”) (citing Shah, 168 F.3d 610, 615).

B.. The Law of Withdrawal Liability

“Withdrawal liability is part of a comprehensive legislative scheme designed to address the adverse consequences that arise when individual employers terminate their participation in, or withdraw from, multiemployer pension plans.” Gesualdi v. Seacoast Petroleum Prods., Inc., 97 F.Supp.3d 87, 97 (E.D.N.Y. 2015) (quoting Burke v. Hamilton Equip. Installers, Inc., 02-CV-519, 2006 WL 3831380, at *4 (W.D.N.Y. Oct. 16, 2006)). In enacting the withdrawal liability provisions of ERISA, “Congress determined that unregulated withdrawals from multiemployer plans could endanger their financial vitality and deprive workers of the Vested rights they were entitled to anticipate would be theirs upon retirement. For this reason, Congress imposed withdrawal liability as one part of an overall statutory scheme to safeguard the solvency of private pension plans.” Connolly v. Pension Ben. Guar. Corp., 475 U.S. 211, 227-28, 106 S.Ct. 1018, 1027, 89 L.Ed. 2d 166 (1986); Seacoast Petroleum Prods., Inc., 97 F.Supp.3d at 97. Thus, the fundamental purpose for imposition of withdrawal liability is ‘“to relieve the funding burden on remaining employers and to eliminate the incentive to pull out of a [pension] plan which would result if liability were imposed only on a mass withdrawal by all employers.’ ” Finkel, 2016 WL 4742279, at *5 (quoting HOP Energy, L.L.C. v. Local 553 Pension Fund, 678 F.3d 158, 161 n. 2 (2d Cir. 2012)). Pursuant to 29 U.S.C. § 1381, in the event an employer completely or partially withdraws from a pension plan, the employer is liable to the plan for withdrawal liability “in order to protect any future benefits that may have vested for employees covered by the plan.” Rao v. Prest Metals, 149 F.Supp.2d 1, 5 (E.D.N.Y. 2001); Finkel, 2016 WL 4742279, at *5; see 29 U.S.C. § 1381. A complete withdrawal occurs where an employer “permanently ceases to have an obligation to contribute under the plan” or “permanently ceases all covered operations under the plan.” 29 U.S.C. § 1383(a); see Rao, 149 F.Supp.2d at 5; Finkel, 2016 WL 4742279, at *5; Seacoast Petroleum Prods., Inc., 97 F.Supp.3d at 97. A partial withdrawal occurs where “there is a 70-percent contribution decline” or “there is a partial cessation of the employer’s contribution obligation” within a given plan year. 29 U.S.C. § 1385; Rao, 149 F.Supp.2d at 5.

Where an employer either • completely or partially withdraws from a plan “the fund is vested with authority to determine the amount of withdrawal liability. It must then notify the withdrawing employer of its withdrawal liability, set a payment schedule, and formally demand payment.” Seacoast Petroleum Prods., Inc., 97 F.Supp.3d at 97; Rao, 149 F.Supp.2d at 5; Finkel, 2016 WL 4742279, at *5 (“upon withdrawal from the pension plan, the plan’s sponsor must determine the amount of the withdrawal liability and notify the withdrawing employer of that amount and provide an amortized payment schedule.”); see 29 U.S.C. §§ 1382, 1399(b). The initial .notification to the employer must occur “as soon as practicable after an employer’s complete or partial withdrawal.” 29 U.S.C. § 1399(b)(1); see Rao, 149 F.Supp.2d at 5. Within 90 days after the employer receives the notification from the plan sponsor, the employer can request that the plan, sponsor: (1) “review any specific matter relating to the determination of the employer’s liability and the schedule of payments;” (2) “identify any inaccuracy in the determination of the amount of the unfunded vested benefits allocable to the employer;” and (3) “furnish any additional relevant.information to the plan sponsor.” 29 U.S.C. § 1399(b)(2)(A). After receiving the employer’s request for review, the plan sponsor is required to notify the employer of the plan’s decision,-identify the basis for the decision and explain the reason for “any change in the determination of the employer’s liability or schedule of liability payments.” Id. § 1399(b)(2)(B).

Importantly, notwithstanding an employer’s request for review of the plan’s withdrawal liability determination, “[withdrawal liability shall be payable in accordance with the schedule set forth by the pian sponsor .., beginning no later than 60 days after the date of the demand.” 29 U.S.C. § 1399(c)(2); see Seacoast Petroleum Prods., Inc., 97 F.Supp.3d at 97; Finkel, 2016 WL 4742279, at *6; see also 29 U.S.C. § 1401(d) (mandating that withdrawal liability payments continue notwithstanding the pendency of an arbitration and must continue unabated until “the arbitrator issue's a final decision_”). Indeed, “[t]o withhold the periodic payments required by the MPPAA pending a disposition of defendant’s arguments on the merits would frustrate the clear congressional intent behind the requirement of interim payments.” Bowers for & on Behalf of NYSA-ILA Pension Trust Fund v. Transportes Navieros Ecuadorianos (Transnave), 719 F.Supp. 166, 173 (S.D.N.Y. 1989). As such, “[b]y requiring payment pending appeal, the MPPAA effectuates the avowed purpose of shifting the economic burdens, of withdrawal back to the withdrawing employer.” Id. at 173-74; see Rao, 149 F.Supp.2d at 5 (recognizing that ERISA is a “pay-first-question-later statute in that the employer .must make withdrawal liability payments regardless .of whether there is a dispute as to the assessment of liability.”) (internal citation omitted). In the event the employer fails to remit the required withdrawal liability payments pursuant to the schedule set forth' by the plan sponsor, the 'plan sponsor again notifies the employer of the delinquency and the employer, in turn, has 60 days from the date of receipt of the notification to cure the deficiency. 29 U.S.C. § 1399(c)(5)(B); see Seacoast Petroleum, Prods., Inc., 97 F.Supp.3d at 97-98; Finkel, 2016 WL 4742279, at *6.

Where an employer has availed itself of the review and appeal procedures set forth in 29 U.S.C. 1399(b) concerning the plan sponsor’s withdrawal liability determination, any disputes that still remain must be submitted to and resolved through arbitration. 29 U.S.C. § 1401(a)(1); see Finkel, 2016 WL 4742279, at *6; Trustees of Local 531 Pension Fund v. Flexwrap Corp., 818 F.Supp.2d 585, 589 (E.D.N.Y. 2011) (Any dispute.over the plan’s calculation of withdrawal liability must be settled through arbitration!)]”). Either party may initiate arbitration within 60 days after the earlier of: (1) “the date of notification to the employer under section 1399(b)(2)(B);” or (2) 120 days after the date of the employer’s request under section 1399(b)(2)(A) of this title.” Id.; Finkel, 2016 WL 4742279, at *6; Rao, 149 F.Supp.2d at 6. In addition, [t]he parties may jointly initiate arbitration within the 180-day period after the date of the plan sponsor’s demand.” Id. Where an employer “fails to request arbitration within the statutory time frame, it is barred from challenging the amount of withdrawal liability- calculated by the plan.” Flexwrap Corp., 818 F.Supp.2d at 589 (citing 29 U.S.C. § 1401); Labarbera v. United Crane & Rigging Servs., 08-CV-3274, 2011 WL 1303146, at *5, (E.D.N.Y. Mar. 2, 2011) (“an employer’s failure to arbitrate or dispute the plan sponsor’s calculation in the face of proper notification will result in the court’s adoption of the sum proffered by the plan, even' in the absence of documentation as to how the figure was calculated”) (citations omitted).

Moreover, In the event an employer is found to be in default, the plan sponsor is vested with a potent weapon in that it “may require immediate payment of the outstanding amount of an employer’s withdrawal liability, plus accrued interest on the total outstanding liability from the due date of the first payment which was not timely made.” 29 U.S.C. § 1399(c)(5); Flexwrap Corp., 818 F.Supp.2d at 589; Nat’l Pension Plan of the Unite Here Works Pension Fund v. Swan Finishing Co., No. 05 Civ. 6819, 2006 WL 1292780, at *3 (S.D.N.Y.May 11, 2006); Nat’l Pension Plan of the Unite Here Works Pension Fund v. Westchester Lace & Textiles, Inc., No. 05 Civ. 6138, 2006 WL 2051107, at *9 (S.D.N.Y. Jul. 21, 2006); see also 29 C.F.R. § 4219.33 (permitting plan to adopt additional rules “pertaining to acceleration of the outstanding balance on default”).

IV. Discussion

A. Basis for Liability

Generally, where a plan sponsor seeks withdrawal liability payments, it must “show only that it complied with statutory procedural requirements.” See Trustees of Amalgamated Ins. Fund v. Steve Petix Clothier, Inc., No. 03 Civ. 4530, 2004 WL 67480, at *2 (S.D.N.Y. Jan. 15, 2004); Transportes Navieros Ecuadorians (Transnave), 719 F.Supp. at 172. Thus, “[t]he plan sponsor must: (1) determine that an employer has partially or completely withdrawn from a multiemployer plan; '(2) determine the amount of the employer’s withdrawal liability; (3) notify the employer of the amount of liability and the payment schedule; and (4) demand payment according to the schedule.” Steve Petix Clothier, Inc., 2004 WL 67480, at *2; Ret. Plan of Nat. Ret. Fund v. Lackmann Culinary Servs., Inc., No. 7:10-CV-06316, 2011 WL 3366354, at *3 (S.D.N.Y. July 29, 2011) (“To succeed on a claim for -withdrawal liability payments, a plan sponsor must (1) determine that an employer has partially or completely withdrawn from a multiemployer plan; (2) determine the amount of the employer’s withdrawal liability; (3) notify the employer of the amount of liability and the payment schedule; and (4) demand payment according to the schedule.”) (internal quotations and citation omitted). Having reviewed the Complaint, the Court is satisfied that Plaintiff has met the statutory prerequisites for imposition of withdrawal liability payments' as against D & A. See Bricklayers Ins. & Welfare Fund v. Verse Inc.} No. 12-CV-4271, 2013 WL 4883966, at *4 (E.D.N.Y. Sept. 11, 2013) (finding liability sufficiently established based solely upon the well pleaded. factual allegations in the Complaint).

Specifically, the Complaint alleges that D & A effected a complete withdrawal from the Fund as of June 30, 2014. See Compl. ¶¶ 18, 19; D’Ulisse Supp. Decl., Ex. 4 (Withdrawal Liability Actuarial Report). After determining D & A’s total amount of withdrawal liability due and owning, Plaintiff sent D & A, via certified mail on September 9, 2015, the initial Notice and Demand for payment along with a payment schedule. Compl. ¶20. After the September 9, 2015 Notice and Demand was returned as undeliverable,- Plaintiff sent another copy of the Notice and Demand to D & A’s attention via certified mail on January 8, 2016. Id. ¶25; see D’Ulisse Decl, Ex. 4 (January 8, 2016 Notice and Demand Letter). Despite its best efforts, Plaintiff could not confirm receipt by D & A and, as such, on March 2, 2016, it sent another copy of the Notice and Demand as well as a revised payment schedule to D & A via regular’ mail. Id. ¶ 26; see D’Ulisse Decl, Ex. 4 (March 2, 2016 Notice and Demand Letter). Plaintiff asserts it received no indication that the March 2, 2016 Notice of Demand “was not delivered.” Id. ¶27. Based upon these facts, Plaintiff has satisfied the statutory prerequisites set forth in 29 -U.S.C. § 1399(b) and, as such; has asserted a viable claim for the payment by D & A of delinquent withdrawal liability. See Steve Petix Clothier, Inc., 2004 WL 67480, at *2; Ret. Plan of Nat. Ret. Fund, 2011 WL 3366354, at *3; see also 29 U.S.C. §§ 1382, 1399(b) (setting forth notification and demand requirements).

In addition to satisfying the elements for the award of interim withdrawal liability payments, Plaintiff has also pleaded facts illustrating that it is entitled to an accelerated payment of the entire withdrawal liability amount, pursuant to 29 U.S.C. § 1399(c)(5)(A) (providing that “the failure of an employer to make, when due, any payment under this section [shall constitute a default], if the failure is not cured within 60 days after the employer receives written notification from the plan sponsor of such failure... ”). Specifically, the Complaint alleges that on June 2, 2016, Plaintiffs counsel sent a letter advising D & A that because it had failed to remit its initial quarterly withdrawal liability installment payment by May 1, 2016—in accordance with the payment schedule contained in the March 2, 2016 Notice and Demand letter—that it risked being found in default within the meaning of 29 U.S.C. § 1399(c)(5)(A) if It failed to “cure the delinquency within 60 days from receipt of the letter.” Compl. ¶28. Notwithstanding the June 2, 2016, letter, according to Plaintiff, D & A has not remitted “any of the payments-due under [ ]• D & A’s withdrawal liability payment schedule.” Id. ¶30.-Likewise, Plaintiff states that D & A has failed to “initiate! ] arbitration of the withdrawal liability assessment within the time period specified .in [] 29 U.S.C. § 1401(a)(1).” Id. ¶ 31. As such, according to Plaintiff, “D & A is in default within the meaning of [] 29 U.S.C. § 1399(c)(5)(A) ... [and]: [a]s a result, the full amount of the withdrawal liability is now. due and owing.” Id. ¶ 30

Here, in accordance with 29 • U.S.C. § 1399(e)(5)(A), as well as the Fund’s Withdrawal Liability Rules, Plaintiff sent a letter notifying D & A that if it failed to cure the payment delinquency within 60 days, it would be found in default. Notwithstanding this letter, Plaintiff asserts that D & A has nevertheless failed to remit the required withdrawal liability payments. Consequently, in accordance with ERISA, Plaintiff is entitled to an immediate payment of the entire unpaid amount of withdrawal liability due and owing. 29 U.S.C. § 1399(c)(5) (“In the event of a default, a plan sponsor may require immediate payment of the outstanding, amount of an employer’s withdrawal liability, plus .accrued interest on the total outstanding liability from the due date of the first payment which was not timely made.”); D’Ulisse Supp. Decl., Ex, 6 (§ 8, ¶ 8.7); see Seacoast Petroleum Prods., 97 F.Supp.3d at 97-98.

Plaintiff also seeks to establish joint liability against Anchor based upon the theory that -“[a]s a trade * or business,- under common control with [ ] D & A, Defendant Anchor is jointly and severally liable for Defendant D & A’s withdrawal liability under-ERISA Section 4001(b)(1), 29. U.S.C. § 1301(b)(1)” and because “notice of withdrawal liability 'assessment, default and all other notices provided under Sections 4201-4225 of ERISA, 29 U.S.C. §§ 1381-1405, sent to one member of a controlled group constitutes notice to all trades or businesses in the same controlled group.” Compl. ¶¶ 40-41.

Plaintiff is correct that “[a]ll trades or businesses under common control are treated as a single employer for the purpose of collecting withdrawal liability, and each is jointly and severally liable for the withdrawal liability of another.” Trustees of the Local 813 Pension Tr. Fund v. Frank Miceli Jr. Contracting, Inc., No. 13CV0198, 2016 WL 1275041, at *3 (E.D.N.Y. Mar. 31, 2016) (quoting UFCW Local One Pension Fund v. Enivel Props., LLC, 791 F.3d 369, 371 (2d Cir. 2015) (citing 29 U.S.C. § 1301(b)(1)); see also Internal Revenue Code § 4i4(c). However, Plaintiff has failed to plead any facts which support its allegation that Anchor is under common control with D & A (the obligated entity). Indeed, Plaintiff does no more than simply conclude that Anchor is a trade or business under common control with D & A, without setting forth facts from which it reached that conclusion, See Compl. ¶¶ 30-31, 39-40, 43. However, in order to impose withdrawal liability upon Anchor under a “common control” theory,. Plaintiff must set-forth facts illustrating that D & A and Anchor “are members of a ‘parent-subsidiary’ or ‘brother-sister’ group of trades or businesses under common control.” I.L.G.W.U. Nat’l. Ret. Fund v. ESI Grp., Inc., No. 92 CIV. 0597, 2002 WL 999303, at *5 (S.D.N.Y. May 15, 2002), aff’d sub nom. I.L.G.W.U. Nat. Ret. Fund v. Meredith Grey, Inc., 94 Fed.Appx. 850 (2d Cir. 2003) (citing 26 C.F.R. §. 1.414(c)-2(a)); see Frank Miceli Jr. Contracting, Inc., 2016 WL 1275041, at *3; New York State Teamsters Conference Pension & Ret. Fund by Scalzo v. C & S Wholesale Grocers, Inc., No. 5:16-CV-84, 2017 WL 1628896, at *10 (N.D.N.Y. May 1, 2017). However, the Complaint lacks these necessary factual allegations.

Importantly, - even in the context of a default judgment, it is “the plaintiffs burden to demonstrate that the uncontrovert-ed allegations, without more, establish the defendant’s liability on each asserted cause of action”); Sciascia v. Prime Protective Servs., Inc., No. 13-CV-0800, 2014 WL 940721, at *5 (E.D.N.Y. Mar. 11, 2014) (same); Flanagan v. Marco Martelli Assocs., Inc., No. 13-CV-6023, 2015 WL 1042279, at *4 (E.D.N.Y. Mar. 9, 2015) (same). Moreover, conclusory allegations, without more, are insufficient to establish liability. See Philip Morris USA Inc. v. U.S. Sun-Star Trading, Inc., No. CV 08-0068, 2010 WL 2133937, at *3 (E.D.N.Y. Mar. 11, 2010), report and recommendation adopted, No. 08-CV-0068, 2010 WL 2160058 (E.D.N.Y. May 27, 2010) (“The fact that a complaint stands unanswered does not, however, suffice to establish liability on its claims: a default does not establish conclusory allegations, nor does it excuse any defects in the plaintiffs pleading.”); Chanel, Inc. v. Louis, No. 06-CV-5924, 2009 WL 4639674, at *3 (E.D.N.Y. Dec. 7, 2009) (“default does riot establish conclusory allegations....”); United States v. Marco Leather Goods Ltd., No. 12-CV-02386, 2013 WL 5350622, at *1 (E.D.N.Y. Sept. 23, 2013) (same); Koszkos v. Janton Indus., Inc., No. 15-CV-1700, 2016 WL 4444329, at *2 (E.D.N.Y. Aug. 3, 2016), report and recommendation adopted sub nom. Koszkos v. Janton Indus., 2016 WL 4444782 (E.D.N.Y. Aug. 23, 2016); see also C & S Wholesale Grocers, Inc., 2017 WL 1628896, at *10 (“[B]ecause Plaintiff has not even remotely alleged facts that would plausibly suggest that Defendant and Penn Traffic constituted a single employer for purposes of ERISA withdrawal liability, the Court grants Defendant’s motion to dismiss Plaintiffs third cause of action.”). As such, Plaintiff has not met its burden here to show that Anchor is jointly and severally liable for the withdrawal liability incurred by D & A.

Based upon the foregoing analysis, the Court finds that the uncontroverted allegations set.forth, in the Complaint, without more, establish D & A’s liability on; each asserted cause of action but do not similarly establish Anchor’s' liability under a “common control” theory. Having determined that a basis for liability exists, as against D & A,- the Court turns its attention to the default judgment factors to determine whether entry of a default as to D & A is warranted here.

B. The Default Judgment Factors

I. Willfulness

When a defendant is continually and “entirely unresponsive,” a defendant’s failure to respond is considered willful. Trs. of the Pavers and Rd. Builders Dist. Council Welfare, Pension, Annuity and Apprenticeship, Skill Improvement and Safety Funds v. JREM Constr. Corp., No. 12 Civ. 3877, 2013 WL 618738 at *3 (E.D.N.Y. Jan. 28, 2013); Bridge Oil Ltd. v. Emerald Reefer Lines, LLC, No. 06 Civ. 14226, 2008 WL 5560868, at *2 (S.D.N.Y. Oct. 27, 2008). Thus, as to the first factor, the failure of D & A to respond to the Amended Complaint, und.er the present facts sufficiently demonstrates willfulness. See Elgard Corp. v. Brennan Const. Co., 248 Fed.Appx. 220, 222 (2d Cir. 2007); Eastern Sav. Bank, FSB v. Beach, No. 13 Civ. 341, 2014 WL 923151, at *5 (E.D.N.Y Feb. 12,2014), adopted by 2014 WL 923151 (E.D.N.Y. Mar. 10, 2014); Indymac Bank v. Nat’l Settlement Agency, Inc., No. 07 Civ. 6865, 2007 WL 4468652, at. *1 (S.D.N.Y. Dec. 20, 2007).

Here, Plaintiff submitted affidavits of service demonstrating that D & A was served with the Summons and Complaint on October 31, 2016; See DE 11. D & A neither answered nor otherwise responded in any way to the Complaint, nor did it request an extension of time to respond. In addition, Plaintiff provided the Court with Certificates of Service indicating that D & A was served with the Notice of Motion for Default Judgment and the accompanying Declarations and Exhibits. See DE 16. There is no indication that D & A’s failure to respond to the Complaint as well as the instant motion, despite being properly served, was anything but deliberate.

2. Meritorious Defense

Where an employer fails to re- • quest arbitration within the timeframes set forth by ERISA, it is precluded “from asserting defenses to Plaintiff’s] claims of withdrawal liability.” Seacoast Petroleum Prod., Inc., 97 F.Supp.3d at 100; see Trs. of the 1199 SEIU Health Care Employees Pension Fund v. Traymore Chemists, Inc., 13 CV 4070, 2014 WL 4207589, at *4, (E.D.N.Y. June 25, 2014) (Report and Recommendation), adopted by 2014 WL 4207592, (E.D.N.Y. Aug. 25, 2014) (recognizing that “if no arbitration is initiated, the employer ‘waives its right to arbitration and its right to assert any defenses in [an] action seeking withdrawal liability.’ ”) (quoting Bakery & Confectionary Union & Industrial Pension Fund v. Mt. Rose Ravioli & Macaroni Co., Inc., 2011 WL 6130975, at *2 (E.D.N.Y. Nov. 10, 2011)); Vacca v. Bridge Chrysler Jeep Dodge, Inc., 2008 WL 4426875 at *7 (E.D.N.Y. Sept. 4, 2008) (“It is well-settled that when a defendant fails to initiate arbitration under ERISA’s provisions, the defendant’s withdrawal liability becomes fixed and all defenses to that withdrawal liability are waived.”). Moreover, as stated previously, where an employer “fails to request arbitration within the statutory time frame, it is barred from challenging the amount of withdrawal liability calculated by the plan.” Flexwrap Corp., 818 F.Supp.2d at 589 (citing 29 U.S.C. § 1401); Labarbera, 2011 WL 1303146, at. *5 (“an employer’s failure to arbitrate or dispute the plan sponsor’s calculation in the face of proper notification will result in the court’s adoption of the sum proffered by the plan, even in the absence of documentation as to how the figure was calculated”) (citations omitted); see Gesualdi v. Auburndale Mason Supply, Inc., No. 16 CV 2636, 2017 WL 3208597, at *3 (E.D.N.Y. June 30, 2017), report and recommendation adopted, 2017 WL 3208530 (E.D.N.Y. July 26, 2017).

In the instant case, by failing to timely request arbitration within the statutory timeframes provided by ERISA, see Compl. ¶ 31, D & A has waived its right to interpose defenses concerning the imposition of withdrawal liability as well as the overall amount, calculated by the plan sponsor. See Pavers & Rd. Builders Dist. Council Pension Fund by Montelle v. Nico Asphalt Paving, Inc., No. 15 CV 3994, 248 F.Supp.3d 374, 380, 2017 WL 1403339, at *4 (E.D.N.Y. Mar. 31, 2017) (“In failing to properly initiate arbitration or to initiate any action challenging the Fund’s calculation of withdrawal liability within the statutorily prescribed time period, Nico has thus waived its right to raise a laches defense in this forum.”); Mt. Rose Ravioli & Macaroni Co, Inc., 2011 WL 6130975, at *3 (“Where a defendant does not initiate arbitration, it waives its right to arbitration and its right to assert any defenses in [an] action seeking withdrawal liability. Accordingly, the withdrawal liability assessed against the defendant becomes fixed.”) (internal citation omitted). Therefore, to the extent D & A may have had meritorious defenses to Plaintiffs claims, any such defenses have been implicitly waived based upon'Plaintiffs failure to timely request arbitration. See Gesualdi v. Reliance Trucking of CG Inc., No. 14-CV-4112, 2015 WL 1611313, at *10 (E.D.N.Y. Apr. 10, 2015) (“Defendant’s failure to seek timely arbitration under ERISA precludes it from asserting defenses to Plaintiffs’ claims of withdrawal liability here.”); Trustees of Leather Goods, Plastics, Handbags & Novelty Workers Union Local 1 Joint Ret. Fund v. Key Handling Sys. Inc., No. CV 14-2675, 2015 WL 5604184, at *4 (E.D.N.Y. June 5, 2015), report and recommendation adopted, 2015 WL 5604178 (E.D.N.Y. Sept. 23,2015) (same).

3. Prejudice

The last factor for the . Court to consider is whether the non-defaulting party would be prejudiced if the motion for default judgment were to be denied. Denying this motion would be prejudicial to Plaintiff “as there are no additional steps available to secure relief in this Court.” See Trs. of the Pavers and Road Builders Dist. Council Welfare, Pension, Annuity and Apprenticeship, Skill Improvement and Safety Funds, 2013 WL 618783, at *4 (internal quotation omitted); Bridge Oil Ltd., 2008 WL 5560868, at *2 (citing Mason Tenders, 2003 WL 1960584, at *3). If a default judgment is not granted, the Plaintiff will have no alternative legal redress to recover the delinquent withdrawal liability. Since all three factors necessary to establish a default have been .satisfied, the Court respectfully recommends to Judge Hurley that default judgment be entered against D & A.

C. Damages

Generally a party’s default is viewed as a concession of all well-pleaded allegations of liability, it is not considered an admission of damages. Greyhound, 973 F.2d at 158. Therefore, once a party’s default as to liability is established, a plaintiff must usually prove damages. See Cement and Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. and Training Fund and Other Funds v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012); Gutman v. Klein, No. 03 Civ. 1570, 2010 WL 4975593, at *1 (E.D.N.Y. Aug. 19, 2010) (“While a default, judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation.”) (citing Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974)).

However, where, ‘ as here, the damages sought consist, in part, of delinquent withdrawal liability payments ’and where the employer has otherwise failed to timely request arbitration, courts have the discretion to “adopt[ ] [ ] the sum proffered by the plan, even in the absence of documentation as to how the figure was calculated.” Labarbera, No. 08-CV-3274, 2011 WL 1303146, at *5 (adopting Plaintiffs proffered amount of withdrawal liability “despite the lack of evidence regarding its calculation”) (citing Daniello v. Planned Sys. Integration Ltd., 2009 WL 2160536, at *5 (E.D.N.Y. July 17, 2009)); Nat’l Integrated Grp. Pension Plan v. Dunhill Food Equip. Corp., 938 F.Supp.2d 361, 367 (E.D.N.Y. 2013) (same); Natale v. Country Ford Ltd., No. CV 10-4128, 2014 WL 4537501, at *6 (E.D.N.Y. Aug. 20, 2014) (same); Gesualdi v. Ava Shypula Testing & Inspection, Inc., No. 13 CV 1873, 2014 WL 1399417, at *6 (E.D.N.Y. Apr. 10, 2014) (same); Trustees of the Local 138 Pension Fund v. Tax Trucking Co., No. 09CV3041, 2015 WL 13446776, at *4 (E.D.N.Y. June 2, 2015), report and recommendation adopted sub nom. Trustees of Local 138 Pension Fund v. Tax Trucking Co., No. 09 CV 3041, 2017 WL 2779685 (E.D.N.Y. June 26, 2017); see also Bd. of Trs. of the Private Sanitation Union Local 813 Pension Fund v. Metro Demolition Contracting Corp., No. 10-CV-00195, 2010 WL 5621275, at *3 (E.D.N.Y. Sept. 17, 2010) (“Although Plaintiffs did not submit any supporting documentation detailing how they arrived at $289,114.00, they were under no requirement to do so since Defendants’ failure to initiate arbitration made the amount demanded by the Fund ‘owing as a matter of law.’ ”).

In determining the categories of damages to which Plaintiff is entitled, the Court points out that “ ‘[a]ny failure of the employer to make any withdrawal liability payment within the time prescribed, shall be treated in the same manner, as a delinquent contribution (within the meaning of section 1145 of this title).’ ” Trustees of the Local 138 Pension Fund v. Tax Trucking Co., No. 09 CV 3041, 2015 WL 13446776, at *3 (E.D.N.Y. June 2, 2015), report, and recommendation adopted sub nom. Trustees of Local 138 Pension Fund v. Tax Trucking Co., 2017 WL 2779685 (E.D.N.Y. June 26, 2017) (quoting 29 U.S.C. § 1451(b)). Therefore, in accordance with 29 U.S.C. § 1132(g)(2)—which sets forth the applicable categories of damages available to a multiemployer pension fund when a participating employer fails to remit contributions (or in this case withdrawal liability payments)—a pension plan is required to be awarded the following damages:

(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.

29 US.C. § 1132(g)(2).

With these principles in mind, the Court will now address each requested category of damages. , .

1. Principal Amount of Delinquent Withdrawal Liability

Since Í) & A failed to timely request arbitration, its ability to contest the amount of withdrawal liability due and owning is foreclosed. See Mt. Rose Ravioli & Macaroni Co, Inc., 2011 WL 6130975, at *3; Flexwrap Corp., 818 F.Supp.2d at 590 (“[B]ecause [defendant] did not demand arbitration, [it] is barred from challenging Plaintiffs’ calculation of the amount of unpaid withdrawal liability”); see Nico Asphalt Paving, Inc., No. 15 CV 3994, 248 F.Supp.3d at 378, 2017 WL 1403339, at *3 (“Failure to timely initiate arbitration ... bar[s] the employer from challenging its liability in any forum.”). As such, this Court has discretion, to “adopt[] [] the sum [of $575,545.00] proffered by the plan, even in the absence of documentation as to how the figure was calculated.” Labarbera, No. 08-CV-3274, 2011 WL 1303146, at *5 (adopting Plaintiffs proffered amount of withdrawal liability “despite the lack of evidence regarding its calculation”); see Daniello, 2009 WL 2160536, at *5; Dunhill Food Equip. Corp., 938 F.Supp.2d at 367; Natale, 2014 WL 4537501, at *6. Notwithstanding the Court’s inherent discretion, in the instant case, Plaintiff has submitted a detailed actuarial report setting forth the manner and means by which the total withdrawal liability figure of $575,545.00 was calculated. See D’Ulisse Supp. Decl., Ex. 3 (Actuarial Report). Having reviewed the Actuarial Report, the Court is satisfied that the principal amount of outstanding withdrawal liability has been sufficiently established. See id. (setting forth methodology used in determining withdrawal liability -amount). Accordingly, this Court respectfully recommends to Judge Hurley that Plaintiff be awarded $575,545.00 in withdrawal liability. See id.

2. Interest on Delinquent Withdrawal Liability

Plaintiff seeks interest on the unpaid withdrawal liability amount totaling $38,732.30. See D’Ulisse Supp. Decl. ¶ 13. The Trust Agreement, Plan Rules and ERISA expressly provide for this category of damages. See id., Ex. 1 (Trust Agreement, Art. VII § 9), Ex. 5 (Policy for Collection of Delinquent Contributions, § 2), Ex. 6 (Withdrawal Liability Rules, § 8); 29 U.S.C. § 1132(g)(2).

In order to adequately substantiate the total amount of interest requested, Plaintiff has submitted a Second Supplemental Declaration of Christopher M. Leins which sets forth the methodology used to arrive at'the $38,732.30 figure. See generally August 10, 2017 Second Supplemental Declaration of Christopher M. Leins (“Second Supp. Leins Decl.”) [DE 21]. Significantly, this declaration states that the- interest was calculated “at the rate of the Fund’s custodial bank’s prime rate (3.5%) plus 2% per annum...Leins Second Supp. Decl, ¶ 2; see D’Ulisse Supp. Decl., Ex. 5 (Policy for Collection of Delinquent Contribution's, § 2) (setting forth that where the CBA fails to specify-the rate of interest; such delinquent interest “shall accrue ... at the rate of the Fund’s custodial bank’s prime rate plus 2% per a