96 B.R. 413 (1989)
In re Paul Nelson KING, Jr., d.b.a. Paul N. King, Jr., Electrician, and Leila M. King, Debtors.
SPRINGFIELD INSTITUTION FOR SAVINGS, Plaintiff,
v.
Paul Nelson KING, Jr., d.b.a. Paul N. King, Jr., Electrician and Leila M. King, Defendants.
Bankruptcy No. 88-40018-JFQ, Civ. A. No. 88-0194-F.
United States District Court, D. Massachusetts.
February 22, 1989.
William F. McNamara, Pioneer Valley Legal Clinic, Springfield, Mass., for plaintiff.
Steven Weiss, Cooley, Shrair, Alpert, Labovitz & Dambrov, Springfield, Mass., for defendants.

MEMORANDUM AND ORDER
FREEDMAN, Chief Judge.

I. INTRODUCTION
Before the Court is appellants Paul and Leila King's ("the Kings") Appeal From a Judgment of Nondischargeability of Debt of the Bankruptcy Court, appellee Springfield Institution for Savings' ("SIS") Memorandum in Support of Cross Appeal, and in Response to Debtor's Appeal, and appellants' Reply thereto.
*414 There being no dispute as to the facts as found by Bankruptcy Judge Queenan,[1] they are hereby adopted as follows:
1. The Co-debtor, Paul N. King, Jr. (the "Debtor"), was a sole proprietor of an electrical contracting business which he began on a full-time basis in March of 1987, after having previously operated the business part-time for a few years.
2. On or about the last week in July of 1987, the Debtor inquired of the Plaintiff, Springfield Institution for Savings (the "bank"), as to the possibility of a loan. This inquiry was made to Michael Farrell ("Farrell"), a loan officer of the Bank whom the Debtor had met a few months before when renting a vacation home of Farrell's. The Debtor told Farrell that he needed additional capital to order electrical supplies in bulk at a lower price. He also told Farrell that he had credit card bills for personal items which had been incurred as a result of his cash being drained from starting the business. Farrell stated that a loan from the Bank would be at a lower interest rate than the credit card debt carried. That initial discussion concluded with a tentative plan for two loans, one to pay the credit card debt and the second being a line of credit for the business. Farrell gave the Debtor a financial statement to complete, and they arranged to meet again.
3. On August 3, 1987 the Debtor and his wife met with Farrell at Farrell's office. The Debtor brought with him the financial statement which had been completed except for the value of his home and the debt portion. The Debtor said he had a figure on their debt over and above their real estate mortgage, but that he was not sure whether to put this on the line for secured or unsecured debt. Farrell indicated they could put it all on the line for secured debt, because part of the debt was for secured debt on the car. The Debtor and his wife then inserted the figure of $31,000 on the line for secured debt.
4. The Debtor's personal debt, exclusive of business debt, amounted to about $31,000, broken down roughly as follows: car loan$18,000; home improvement loan$5,000; and credit card loans $8,000.
5. In addition, on August 3, 1987, the Debtor had about $15,000 to $16,000 of business debt incurred for the purchase of electrical supplies and equipment. Most of this debt was over 60 days old. Two of these creditors had brought suit, one having levied execution on the home and the other having attached the home. Neither the Debtor nor his wife informed Farrell of either these business debts or the two lawsuits. This omission was intentional. At the time of the meeting with Farrell, the Debtor had no more than a few hundred dollars of business receivables from which to pay these debts.
6. At the meeting of August 3, 1987, Farrell had a credit report which contained information on the existence of the credit card debt but no information on the existence of the business debt. The report indicated that only two additional supply houses had made credit inquiries.
7. On August 12, 1987, the Debtor and his wife signed two notes, one for $10,000 upon which $10,000 was immediately advanced and one for a $15,000 line of credit upon which $15,000 was advanced over a period of time.
8. The omission of the $15,000-$16,000 of trade debt from the financial statement is significant in view of the absence of offsetting receivables. Other alleged discrepancies concerning valuation were not significant.
9. In extending this credit the Bank placed substantial reliance on the financial statement in that the statement showed nothing which was contrary to the picture of a small, growing and prosperous electrical contracting business.
10. The representation in the financial statement that the Debtors had $31,000 *415 of debt (other than their home mortgage) was a representation which was: materially false; respecting the Debtor's financial condition upon which the Bank reasonably relied; and which was made by the Debtor and his wife with intent to deceive.
11. Including interest through to today, the Bank's claim on the $15,000 note is $16,221.15, and on the $10,000 note is $9,914.33. Including attorneys' fees of $4,588 and disbursements of $192.13, the total claim is $30,915.61.
The Court rules that the Bank's burden of proof is to convince by a fair preponderance of the evidence, not clear and convincing evidence. Kleiner v. Daboul (In re Daboul), 85 B.R. 197 (Bankr. D.Mass.1988); Stern v. Dubian (In re Dubian), 77 B.R. 332 (Bankr.D.Mass. 1987). The Bank has sustained that burden here. It would not have sustained its burden on the issue of intent had the standard been one of clear and convincing evidence, an extremely difficult standard to achieve in proving intent to deceive.
In re King, No. 88-40018-JFQ, slip op. at 1-4 (Bankr.D.Mass. Aug. 10, 1988).
The issues on appeal may be briefly stated as follows: (1) Did the Bankruptcy Judge apply the correct burden of proof? (2) Did SIS succeed in meeting the correct burden of proof? (3) Did the Bankruptcy Judge err by not allowing SIS to amend its complaint on the day of the trial? These issues will be discussed seriatim.

II. DISCUSSION
In the adversarial proceeding in the Bankruptcy Court, SIS sought to have Bankruptcy Judge Queenan declare two of the debtors' debts nondischargeable under 11 U.S.C. § 523(a)(2)(B), which states in relevant part:
(a) A discharge under section 727, 1141, or 1328(b) of this title [11 U.S.C.S. § 727, 1141, or 1328(b)] does not discharge an individual debtor from any debt
. . . .
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by
. . . .
(B) use of a statement in writing
(i) that is materially false;
(ii) respecting the debtor's or an insider's financial condition;
(iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and
(iv) that the debtor caused to be made or published with intent to deceive. . . .
In his opinion, Judge Queenan states that SIS' burden was "to convince by a fair preponderance of the evidence, not clear and convincing evidence." In re King, slip op. at 4. In support of his conclusion, Judge Queenan relies on two prior opinions he authored. Kleiner v. Daboul (In re Daboul), 85 B.R. 197 (Bankr.D.Mass.1988); Stern v. Dubian (In re Dubian), 77 B.R. 332 (Bankr.D.Mass.1987). Judge Queenan then concluded that SIS had prevailed by a fair preponderance of the evidence, but would not have if he had required clear and convincing evidence. The appellants challenge Judge Queenan's choice of standard.
A. The Correct Burden of Proof
1. Appellants' Arguments
As the appellants correctly state, this Court is required to conduct a de novo review of the law as applied by the trial court. The Bible Speaks v. Dovydenas, 81 B.R. 750, 754 (D.Mass.1988). The burden of proof applied by the Bankruptcy Court clearly falls within that category.
The appellants argue that Judge Queenan's decision is flawed because he has disregarded a decision by the United States Bankruptcy Appellate Panel for the First Circuit which is directly on point. In re Coughlin, 27 B.R. 632 (Bankr. 1st Cir. 1983).
The appellants also direct this Court's attention to In re Day, 54 B.R. 570 (Bankr. D.Mass.1985), in which Bankruptcy Judge Glennon wrote:
Because the primary purpose of bankruptcy law is to relieve debtors from the *416 burden of indebtedness and exceptions to discharge are narrowly construed in favor of debtors and against creditors, an objector to discharge must establish [the elements of section 523(a)(2)(B)] with clear and convincing evidence.
Id. at 572 (citations omitted).
The Kings suggest that further support for the "clear and convincing" standard is also contained in In re Toscano, 23 B.R. 736, 741 (Bankr.D.Mass.1983) and in In re Valley, 21 B.R. 674, 680 (Bankr.D.Mass. 1982).
In disputing appellants' position, SIS relies heavily on a split of authority in this district. Specifically, the appellee acknowledges the Coughlin ruling ("clear and convincing"), but argues that Daboul and Dubian ("preponderance") are entitled to equal precedential weight, and that this Court is free to choose the quantum of proof it thinks is most appropriate.
SIS may technically be correct in stating that the Coughlin decision is entitled to no more precedential value than a district court decision. Nonetheless, this Court must still be conscious of the fact that a Bankruptcy Appellate Panel is likely better versed in the intricacies of the Bankruptcy Code than a district court such as this which deals in bankruptcy matters on an irregular basis. Upon review of the authorities cited by the parties and in light of its own research, this Court concludes that the "clear and convincing evidence" is required under these circumstances. The Court does so in large part because the cases cited by SIS are either distinguishable from the case at hand or are authority from outside this jurisdiction. Appellee's brief is marked in its failure to identify the relevant case law in this district, the weight of which clearly contradicts the bank's position.
2. Discussion of Relevant Case Law
SIS begins its argument by suggesting that another district court in this jurisdiction has "expressed substantial doubts about application of the clear and convincing standard. . . ." Appellee's Response at 7, citing Kwiat v. Doucette, 81 B.R. 184 (D.Mass.1987) (Young, J.). It is true that Judge Young expounds on the difficulties of applying the clear and convincing standard. Kwiat, 81 B.R. at 190 n. 13. However, the distinction between Kwiat and the case at hand lies in the fact that Kwiat deals almost exclusively with defalcation under section 523(a)(4), a "negligent failure to act in a fiduciary capacity." Id. at 190 (emphasis added). By contrast, section 523(a)(2) deals with intentional fraud of one kind or another. As Judge Young himself recognized, "a more exacting standard is tradtionally required for positive fraud involving `moral turpitude' or some willful or intentional conduct. . . ." Id. at 190, citing generally McCormick on Evidence § 340 (1984).
Dubian and Daboul, both heavily relied upon by SIS, are likewise unpersuasive, in light of the fact that both decisions are based on events readily distinguishable from the instant case. Creditors of both Dubian and Daboul had secured state court fraud judgments against them, and sought to have the Bankruptcy Court declare the underlying debts nondischargeable. Dubian, 85 B.R. at 198; Daboul, 77 B.R. at 333. The standard of proof in Massachusetts in all civil cases, including fraud, is a preponderance of the evidence. As a result, Judge Queenan concluded that it would be a waste of judicial resources to require a higher degree of proof in the Bankruptcy Court than already determined sufficient in the state court. Such a requirement would necessitate a second trial at the federal level of the issue of intent, which Judge Queenan describes as "an unnecessary exercise of judicial machinery." Daboul, 85 B.R. at 201; Dubian, 77 B.R. at 339.
This Court recognizes the importance of efficient allocation of judicial resources. However, not all bankruptcy judges in this district have concluded that requiring a higher level of proof places an unnecessary strain on the federal judiciary. For instance, in In re D'Annolfo, 54 B.R. 887 (Bankr.D.Mass.1985), Judge Gabriel specifically denied issue preclusion based on a Massachusetts state court judgment because he concluded that the standard of *417 proof is higher under section 523(a)(2) than under the state fraud statute. Id. at 889. Judge Gabriel wrote that "[t]he overwhelming majority of courts (including this court) requires clear and convincing evidence in nondischargeability proceedings under § 523(a)(2)(A)." Id. While noting that some courts have opted for a "preponderance of the evidence" standard, Judge Gabriel stated that a similar section in the form Bankruptcy Act, section 17(a)(2), as well as the legislative history of section 523(a)(2), both require "clear and convincing" evidence. Id., citing L. King, 3 Collier on Bankruptcy, ¶ 523.09, at 523-24 (15th ed. Sup.1984).
As SIS should recognize, the strength of Judge Queenan's analysis in both Daboul and Dubian is undercut by the inexplicable failure to reconcile the unequivocal holdings in Coughlin or D'Annolfo with his view that the correct burden of proof should be a "preponderance of the evidence."[2]
Lastly, the appellee argues that Judge Queenan's "thoughtful analysis" has altered the view of at least one court in this district. Appellee's Brief, at 10. However, the support to be drawn from In re Jackson, 89 B.R. 308 (Bankr.D.Mass.1988) is shaky at best. In a case arising under sections 523(a)(2)(A) and (B), Chief Bankruptcy Judge Gabriel stated that the parties did not make an issue of the applicable standard of proof. Id. at 313 n. 4. While noting that he "has consistently held that the clear and convincing standard applies[,]" see D'Annolfo, supra, Chief Judge Gabriel acknowledged Judge Queenan's opinion in Daboul and concluded that "[f]or purposes of this opinion only and in recognition of the fact that `[v]ariations in the wording of the burden of proof . . . [may be] . . . pure abstractions unsuited to the realities of decisionmaking,' [Daboul,] 85 B.R. at 201, the Court will utilize the preponderance of the evidence standard." Id. No one should mistake Chief Judge Gabriel's tightly limited decision for a general statement in favor of the "preponderance of the evidence."
As for the appellee's citations to authority from other jurisdictions, only two need specific comment. Both Combs v. Richardson, 838 F.2d 112 (4th Cir.1988) and In re Watkins, 89 B.R. 848 (Bankr.D.Wis. 1988) are cases that explicitly arise under section 523(a)(6), and as such are distinguishable for the reasons set forth in this Court's discussion of Kwiat, supra. Combs also suffers from the defect that the ruling arose in the context of issue preclusion, similar to that found in Daboul and Dubian.
The effect of issue preclusion on the Fourth Circuit's decision in Combs takes on particular significance in light of the fact that other courts of appeal have consistently chosen the higher standard when not faced with the question of issue preclusion. The Eighth Circuit held that under section 523(a)(2)(A), "[c]reditors bear the burden of proof . . . and must prove each element of their claim by clear and convincing evidence." Matter of Van Horne, 823 F.2d 1285 (8th Cir.1987). The Sixth Circuit wrote that "[t]he party seeking an exception from discharge under section 523(a)(2) has the burden of proof by clear and convincing evidence." In re Martin, 761 F.2d 1163 (6th Cir.1985). It is worth noting that the Martin case arose under the same subsection as the instant case, section 523(a)(2)(B). See also, In re Bogstad, 779 F.2d 370 (7th Cir.1985) ("The standard of proof is one of `clear and convincing evidence.'").
Even if this Court were to agree with the appellee that its citations reflect a legitimate split of authority in this district regarding the appropriate burden of proof, it would still opt for the higher standard. Research in this area reveals a number of cases in this district which support the use of the higher standard. See, e.g., In re Salett, 53 B.R. 925 (Bankr.D.Mass.1985) ("The plaintiff bears the burden of proving *418 each element by clear and convincing evidence."); In re Santore, 51 B.R. 122 (Bankr.D.Mass.1985) ("The Bank, as the party seeking to except the debt from discharge, has the burden of proving by clear and convincing evidence. . . ."); In re Delano, 50 B.R. 613 (Bankr.Mass.1985) ("Each element [of section 523(a)(2)(B)] must be shown by clear and convincing evidence."); In re Mann, 40 B.R. 496 (Bankr.D.Mass. 1984) (Under section 523(a)(2)(B), "[a] creditor seeking a determination of nondischargeability of a debt has the burden of proving each element by clear and convincing evidence."); In re Leger, 34 B.R. 873 (Bankr.D.Mass.1983) ("The plaintiff bears the burden of proving each element by clear and convincing evidence."); In re Andrews, 33 B.R. 970 (Bankr.D.Mass.1983) ("The lender has the burden of proving each element of its claim under [section 523(a)(2)(B)] by clear and convincing evidence.").
Based on the weight of authority before it, and lacking any compelling reason to act to the contrary, the Court hereby rules that Judge Queenan applied the incorrect burden of proof, and that SIS should have been required to prove its case by "clear and convincing" evidence.
B. Did SIS Meet the Correct Burden of Proof?
Having determined that the correct burden of proof is "clear and convincing," the Court now looks to see if SIS met that burden.
Judge Queenan ruled that SIS had met its burden of proof by a fair preponderance of the evidence. In a somewhat unusual but helpful step, he also ruled that had he decided that the appropriate burden was "clear and convincing," SIS "would not have sustained its burden on the issue of intent. . . ." In re King, slip op. at 4. Judge Queenan's rulings in this regard are findings of fact and, as such, are reviewable under a different standard. Bankruptcy Rule 8013 states in relevant part that: "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous."
Foreseeing the possibility that this Court would rule against it, SIS filed a post-trial motion in the Bankruptcy Court stating that it had met the "clear and convincing" standard. Judge Queenan denied the motion, the substance of which is presented to this Court.
In essence, SIS attempts to demonstrate that the facts of this case are similar to those in Coughlin, in which it was held that a showing by clear and convincing evidence had been made. Coughlin, who was self-employed, also submitted materially false financial statements and tax returns. As the plaintiff points out, the Bankruptcy Appellate Panel concluded that the creditor had established intent by clear and convincing evidence by showing Coughlin's "reckless indifference to, or reckless disregard of, the accuracy of the information in the financial statement. . . ." Coughlin, 27 B.R. at 636.
A quick examination of the specifies of Coughlin's application, however, illustrates the differences between that case and the present one. Coughlin claimed assets of $1.73 million, liabilities of $73,500, net worth of $1.66 million and annual income of $125,000. In actuality, Coughlin's true net worth was $50,000 to $60,000, and his annual income was approximately $11,500. Id. at 634. Despite some confusion as to the source of the figures, it was not unreasonable for the Bankruptcy Court to find that Coughlin's adoption of the vastly erroneous claims was "clear and convincing" evidence of his intent to deceive.
Although incomplete, the application submitted by the Kings was far closer to the truth than Coughlin's. In addition, Judge Queenan received mitigating testimony as to the various omissions. For instance, although the Kings had undisclosed trade debt on the order of $15,000 to $16,000, they each testified that they thought the actual amount was closer to $8,000 to $9,000. They further testified that although they had not disclosed information regarding two lawsuits brought against them, they had set up payment plans with the respective creditors. In looking at all the facts, including the debtors' relative *419 lack of financial sophistication, Judge Queenan clearly concluded that the proof of intent offered by SIS was not "clear and convincing."
This Court concludes that Judge Queenan's finding that SIS did not meet its burden of proof by "clear and convincing" evidence was not clearly erroneous, and will be upheld.
C. The Denial of SIS' Motion to Amend the Complaint
On the day of trial, SIS moved to amend its complaint to include the allegation that the Kings made false representations to the bank beyond those contained on their loan application. Judge Queenan denied the motion and also denied the bank's motion for reconsideration following trial.
SIS claims that it did not become aware that it had a claim under section 523(a)(2)(A) until after depositions of the Kings were taken. The bank also claims that the motion was not untimely in light of the fact that it did not finally receive transcripts of those depositions until just eight days before trial.
SIS also challenges any suggestion that allowing their motion to amend the complaint would have prejudiced the debtors. The evidence needed to support the section 523(a)(2)(A) charge, SIS says, was elicited during direct examination of the Kings, and the Kings' counsel had ample opportunity to challenge the evidence during cross-examination of both the debtors and the bank's loan officer, Michael Farrell.
The Kings argue that the motion to amend the complaint would certainly have prejudiced them, as they prepared their case and conducted discovery on the assumption that the basis for the bank's claim was section 523(a)(2)(B). Moreover, the debtors point out that their depositions were completed nearly a month before trial, and suggest that the bank's counsel did not need copies of the transcripts to determine that a claim might lie under section 523(a)(2)(A).
Judge Queenan had two opportunities to weigh the potential prejudice to debtors against the reasons for SIS' delay in filing its motion, and in both instances, he determined that the balance lay with the debtors. Upon review of the situation, this Court determines that he did not abuse his discretion in denying either motion.

III. CONCLUSION
For the reasons set forth above, the appellant debtors' Appeal from a Judgment of Nondischargeability of Debt of the Bankruptcy Court is ALLOWED and SIS' Cross Appeal is DENIED.
The Bankruptcy Judge is reversed as to the standard of proof applicable under section 523(a)(2), and affirmed as to his finding that SIS did not meet its burden of proof. Judge Queenan is also affirmed on his denial of SIS' motion to amend its complaint. Accordingly, this case is REMANDED to the Bankruptcy Judge for proceedings not inconsistent with this opinion.
It is So Ordered.
NOTES
[1]  On cross appeal, SIS challenges the weight given the facts by Judge Queenan, who stated that while SIS had satisfied the "preponderance of the evidence" standard, it had not met the "clear and convincing" standard. See infra.
[2]  In fact, Judge Queenan does not even cite Coughlin. He does cite but does not discuss In re Toscano, 23 B.R. 736 (Bankr.D.Mass.1982), which held that "[f]raud and misrepresentation within the purview of Section 523(a)(2)(A) must be demonstrated by clear and convincing evidence." Id. at 739.


                       Note: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2007-1367

                             MGM WELL SERVICES, INC,

                                                      Plaintiff-Appellee,

                                           v.

                             MEGA LIFT SYSTEMS, LLC,

                                                      Defendant-Appellant.

       J. Dean Lechtenberger, Howrey LLP, of Houston, Texas, argued for plaintiff-
appellee. With him on the brief were Richard L. Stanley, Eric S. Schlichter, and Tyler T.
VanHoutan.

      Charles W. Alworth, Alworth Law & Engineering, of Tyler, Texas, argued for
defendant-appellant.

Appeal from: United States District Court for the Southern District of Texas

Judge Nancy F. Atlas
                      NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

                                     2007-1367

                           MGM WELL SERVICES, INC.,

                                                     Plaintiff-Appellee,

                                          v.

                           MEGA LIFT SYSTEMS, LLC,

                                                     Defendant-Appellant.

                                  Judgment

ON APPEAL from the       United States District Court for the Southern District of Texas

in CASE NO(S).           05-CV-1634

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

      Per Curiam (NEWMAN, SCHALL, and LINN, Circuit Judges).

                         AFFIRMED. See Fed. Cir. R. 36.

                                          ENTERED BY ORDER OF THE COURT

DATED: _February 19, 2008____            / s / Jan Horbaly
                                        Jan Horbaly, Clerk


                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-6003-17T3

DAVID PINCKNEY,

          Plaintiff-Appellant,

v.

CATHERINE DERY,

     Defendant-Respondent.
______________________________

                   Submitted April 29, 2020 – Decided May 28, 2020

                   Before Judges Whipple and Gooden Brown.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Essex County, Docket
                   No. FD-07-2588-12.

                   David Pinckney, appellant pro se.

                   Respondent has not filed a brief.

PER CURIAM

          Plaintiff David Pinckney (father) appeals from the July 13, 2018 Family

Part order, entering judgment in favor of defendant Catherine Dery (mother) in
the amount of $51,028.89 for plaintiff's unpaid child support, and transferring

venue from Essex to Somerset County where defendant and the parties' two

children currently reside. We affirm.

      Plaintiff and defendant were married in 2004 in Accra, Ghana, and

separated in 2011. Two children were born of the marriage, one in 2005, and

the other in 2009, both girls. Following the separation, the parties engaged in

extensive motion practice regarding custody, parenting time, and child support.

As a result of the various motions, the parties were awarded joint legal custody

of the children in an October 4, 2011 order, "plaintiff's request for a change in

custody [was] denied" in a January 11, 2012 order, plaintiff's child support

obligation was established in a March 1, 2012 order in the amount of $198

weekly, "payable by income withholding from [plaintiff's] employer, Irvington

Board of Education,"1 and plaintiff's parenting time every weekend was

continued in an April 5, 2012 order. The latter order also noted that "plaintiff

1
  Plaintiff's child support was calculated based on 104 overnights and an annual
salary of $80,171 as a teacher. An annual income of $37,000 was imputed to
defendant, then an unemployed hotel manager.

                                                                         A-6003-17T3
                                        2
withdrew his application for custody." Neither party appealed any of these

earlier orders.2

      On May 31, 2012, plaintiff filed for divorce in Essex County. On October

17, 2014, the parties executed a custody and parenting time agreement, which

was approved by the court in a consent order. In the agreement, the parties

"agree[d] that they shall have joint legal custody of the minor children and

[defendant] shall be the [p]arent of [p]rimary [r]esidence." The parties also

agreed to a detailed parenting time schedule, with plaintiff "enjoy[ing] parenting

time" every weekend, over one month in the summer, alternate winter and spring

breaks, and specified holidays. When the agreement was executed, both parties

were represented by counsel.

      On April 18, 2018, defendant moved to enforce litigant's rights in

connection with plaintiff's non-payment of child support, and sought a warrant

for his arrest. Plaintiff also requested a transfer of venue from Essex to Somerset

County and other relief. On April 24, 2018, plaintiff cross-moved to enforce

litigant's rights to prevent defendant from "interfering with . . . plaintiff's

2
  The March 1 and April 5, 2012 orders were entered by Judge Donald A.
Kessler.
                                                                           A-6003-17T3
                                        3
custodial right[s]" and "alienating the affection between [plaintiff]" and his

children. Plaintiff also sought other relief not pertinent to this appeal.

      On July 13, 2018, the judge conducted oral argument on the motions with

both parties appearing pro se. The judge confirmed that neither party resided in

Essex County, defendant having moved with the children to Somerset County

and plaintiff having moved to Passaic County in 2016. Further, defendant

acknowledged that he was $51,028.89 in arrears in his child support payments

and only paid defendant $3 per week through "automatic" bank payments.

Defendant told the judge he had "lost [his] job" as "a teacher," his

"unemployment ran out in 2016," and he had no "steady income." However, he

acknowledged that he was "an independent contractor," and that he "[did] odd

jobs," including working as "a security guard," "a substitute teacher," and a

"Lyft" driver.

      Plaintiff claimed he did not have to pay child support as previously

ordered because "there was never a hearing" regarding custody.               Instead,

plaintiff contended that in October 2011, the parties "were given a joint custody

. . . order," but when he came "back [to court] in March," he was improperly

ordered to pay "child support and [had his] custody rights changed" without a

hearing. Plaintiff explained that he had filed an action "in [f]ederal [c]ourt,"

                                                                             A-6003-17T3
                                         4
because his "due process ha[d] been trampled" by "previous judges."               He

claimed that because the "child support order" was entered without "a hearing"

to change his "custody rights," it constituted "a Bill of Attain[d]er."3           As

indicated in his moving papers, plaintiff "request[ed] that the [c]ourt refrain

from doing anything . . . until [his] case in [f]ederal [c]ourt [was] finished"

because he had "the Essex County Family Court as a party in [his] [f]ederal

[c]ourt lawsuit" and it would be "a conflict of interest" for the court to take any

punitive action against him while the lawsuit was pending. Defendant countered

that although this was not a "custody hearing," she had been awarded residential

custody of the children dating back to 2011, but plaintiff kept insisting that

custody was never adjudicated. 4

      In an oral decision from the bench, the judge noted there were no "disputes

of material facts with respect to the specific items . . . before the [c]ourt ," and

3
    "A bill of attainder, by the common law, as . . . imported . . . from England
. . . , before the adoption of the Constitution, was an act of sovereign power in
the form of a special statute by which a [person] was pronounced guilty or
attainted of some crime, and punished . . . without trial or judgment . . . ." United
States v. Lovett, 328 U.S. 303, 322 (1946) (Frankfurter, J., concurring). Under
the United States Constitution, a bill of attainder is "a legislative act which
inflicts punishment without a judicial trial." Id. at 315.
4
  The judge agreed that there was no "change in custody" application before the
court.

                                                                             A-6003-17T3
                                         5
determined that plaintiff "ha[d] violated" the "child support order." Citing Rule

5:3-7 and Rule 1:10-3,5 the judge determined that instead of issuing a warrant

for plaintiff's arrest as requested by defendant, it was "appropriate" to enter "a

judgment in the amount of $51,028.89 as of July 2[], 2018" with interest to

accrue. The judge explained

            [P]laintiff has indicated that he works various
            endeavors, but does not have a full-time job that could
            be subject to garnishment.

                    The remedy of fixing a judgment upon which
            interest accrues allows the other party, the obligee, to
            have a judgment for those amounts in order to be able
            to determine whether or not there are assets upon which
            . . . defendant could . . . seek to execute . . . .

                     The [c]ourt will, in addition to fixing the amount
            and entering that as a judgment[,] provide that . . .
            plaintiff shall, within [thirty] days of today, provide to
            [d]efendant a certified list of all his assets including any
            automobiles, bank accounts or any other real . . . or
            personal property of any sort. And that could provide
            . . . information to [d]efendant on which she could seek
            recourse to . . . obtain some payment on her support
            arrears.

5
   "Rule 1:10-3 allows a court to enter an order to enforce litigant's rights
commanding a disobedient party to comply with a prior order" or face sanctions.
Milne v. Goldenberg, 428 N.J. Super. 184, 198 (App. Div. 2012). Rule 5:3-7,
which is cross-referenced in Rule 1:10-3, offers useful remedies to coerce a
recalcitrant litigant. The remedies are tailored to address the issues in the case,
and include the "issuance of a warrant" as well as "fixing the amount of
arrearages and entering a judgment upon which interest accrues." R. 5:3-7(a)
and (b).
                                                                           A-6003-17T3
                                         6
      Additionally, "[w]ith respect to the change of venue request," citing Rule

4:3-3(a), the judge confirmed that he had been "designated" by the assignment

judge "to rule on the venue application." In that regard, the judge found that

             defendant is residing in Somerset County and has
             brought an application to change venue to the county in
             which she now resides. . . . [P]laintiff indicated at oral
             argument today that he lost his house in Essex County
             in November of 2016. And at that point he . . . moved
             to . . . his brother's house in Passaic. So[,] he's been
             residing in Passaic. It'll be two years . . . in November.

                   So the [c]ourt finds that under [Rule] 4:3-
             3[(a)](4) both parties now reside outside the county of
             original venue which was Essex. . . . So[,] the [c]ourt
             will grant . . . defendant's application to change venue
             to Somerset County.

The judge entered a memorializing order and this appeal followed.

      On appeal, plaintiff argues that given his federal lawsuit in which the

Family Part of the Essex Vicinage was named as a defendant, there was "a

'conflict of interest'" that precluded the judge from acting "as a neutral arbiter in

the dispute." Accordingly, relying on Rule 1:12-1, plaintiff asserts the judge

"erred as a matter of law in proceeding in any manner," instead of

"disqualif[ying]" himself from the proceedings. We disagree.

      Under Rule 1:12-1(g), a judge "shall be disqualified . . . and shall not sit

in any matter," when "there is any . . . reason which might preclude a fair and

                                                                             A-6003-17T3
                                         7
unbiased hearing and judgment, or which might reasonably lead counsel or the

parties to believe so." Pursuant to Rule 1:12-2, "[a]ny party, on motion made to

the judge before trial or argument and stating the reasons therefor, may seek that

judge's disqualification." The disposition of such a "motion is, at least in the

first instance, entrusted to the 'sound discretion' of the trial judge whose recusal

is sought." Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001) (quoting

Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990)).

      It is well settled that "[l]itigants ought not have to face a judge where there

is reasonable question of impartiality."       Id. at 67 (quoting Alexander v.

Primerica Holdings, Inc., 10 F.3d 155, 162 (3d Cir. 1993)). Notably, "Canon

3(C)(1) of the Code of Judicial Conduct provides that '[a] judge should

disqualify himself or herself in a proceeding in which the judge's impartiality

might reasonably be questioned.'" DeNike v. Cupo, 196 N.J. 502, 516 (2008)

(alteration in original). Under both Canon 3(C)(1) and Rule 1:12-1(g), "'it is not

necessary to prove actual prejudice on the part of the court' to establish an

appearance of impropriety; an 'objectively reasonable' belief that the

proceedings were unfair is sufficient." Id. at 517 (quoting State v. Marshall, 148

N.J. 89, 279 (1997)).

                                                                             A-6003-17T3
                                         8
      To assess whether recusal is required, "[i]n DeNike, the Court stated the

key question that must be answered when a claim is made challenging a judge's

impartiality is, '[w]ould a reasonable, fully informed person have doubts about

the judge's impartiality?'" P.M. v. N.P., 441 N.J. Super. 127, 145 (App. Div.

2015) (second alteration in original) (quoting DeNike, 196 N.J. at 517). See

also In re Advisory Letter No. 7-11 of the Supreme Court Advisory Comm., 213

N.J. 63, 73 (2013) (finding that "the overarching objective of the Code of

Judicial Conduct is to maintain public confidence in the integrity of the

judiciary."). However, "DeNike does not set forth any bright-line rules." State

v. Dalal, 221 N.J. 601, 607 (2015).          Instead, "the standard calls for an

individualized consideration of the facts in a given case." Ibid. Nonetheless,

"judges are not free to err on the side of caution," Marshall, 148 N.J. at 276, and

"[i]t is improper for a judge to withdraw from a case upon a mere suggestion

that he is disqualified 'unless the alleged cause of recusal is known by him to

exist or is shown to be true in fact.'" Panitch, 339 N.J. Super. at 66-67 (quoting

Hundred E. Credit Corp. v. Eric Schuster Corp., 212 N.J. Super. 350, 358 (App.

Div. 1986)).

      Here, on July 10, 2017, prior to the filing of the parties' motions, plaintiff

filed a pro se complaint in the United States District Court for the District of

                                                                            A-6003-17T3
                                         9
New Jersey, naming the New Jersey Superior Court, Essex Vicinage, Family

Division, and Judge Donald H. Kessler as defendants. The complaint alleged

that plaintiff's constitutional rights were violated when Judge Kessler ordered

him to pay $198 per week in child support and changed his child custody status

from joint custody to that of a non-custodial parent. See Pinckney v. Superior

Court of N.J. Essex Vicinage Family Div., 757 F. App'x 198 (3d Cir. 2018). On

May 23, 2018, the District Court dismissed the federal action, finding that " it

lacked jurisdiction over the claims against the Family Court and against Judge

Kessler in his official capacity, as those claims are barred under the Eleventh

Amendment." Id. at 200. On December 14, 2018, the United States Court of

Appeals for the Third Circuit affirmed the District Court's dismissal of plaintiff's

federal action. Id. at 199.

      In these circumstances, we are satisfied that plaintiff's "belief of

unfairness" was not "objectively reasonable," Chandok v. Chandok, 406 N.J.

Super. 595, 604 (App. Div. 2009) (quoting Panitch, 339 N.J. Super. at 67), and

it is highly unlikely that "a reasonable, fully informed person [would] have

doubts about the judge's impartiality." DeNike, 196 N.J. at 517. First, plaintiff

did not appeal Judge Kessler's order or any of the previous orders adjudicating

custody or child support. "In cases like this one, there is an additional concern:

                                                                            A-6003-17T3
                                        10
that [litigants] not be allowed to manipulate the judicial system and engage in

forum shopping." Dalal, 221 N.J. at 607.

      Secondly, the motion judge, who was not Judge Kessler, only adjudicated

the parties' motions to enforce litigants' rights. No application to change custody

or modify child support was presented to or addressed by the judge.

Additionally, when the motion was adjudicated on July 13, 2018, the District

Court had already dismissed the federal action. Thus, there was no basis to

believe that "a fair and unbiased hearing and judgment" could not be rendered.

See id. at 606 (quoting R. 1:12-1(g)).        In fact, at the conclusion of the

proceeding, plaintiff commended the judge, stating that his decision was "the

fairest decision." As "judges are not free to err on the side of caution," Marshall,

148 N.J. at 276, it would have been "improper for [the] judge to withdraw from

[the] case upon [plaintiff's] mere suggestion that he [was] disqualified."

Panitch, 339 N.J. Super. at 66. Indeed, because "the alleged cause of recusal"

did not "exist" and was not "true in fact," disqualification was not warranted.

Id. at 66-67 (quoting Hundred, 212 N.J. Super. at 358).

      Plaintiff also argues that the judge erred in transferring venue from Essex

to Somerset County. Under Rule 4:3-3(a), "[i]n actions in the Superior Court[,]

a change of venue may be ordered by the Assignment Judge or the designee of

                                                                            A-6003-17T3
                                        11
the Assignment Judge of the county in which venue is laid." Specifically, "in

Family Part post-judgment motions," a change of venue may be properly

considered "if both parties reside outside the county of original venue and

application is made to the court by either party to change venue to a county

where one of the parties now resides." R. 4:3-3(a)(4).

      Here, the judge's decision to transfer venue from Essex to Somerset is

amply supported by the record and thus entitled to deference on appeal. See

Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) ("The general rule is that findings

by the trial court are binding on appeal when supported by adequate, substantial,

credible evidence," and "an appellate court should not disturb the 'factual

findings and legal conclusions of the trial judge unless [it is] convinced that they

are so manifestly unsupported by or inconsistent with the competent, relevant

and reasonably credible evidence as to offend the interests of justice.'"

(alteration in original) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65

N.J. 474, 484 (1974))).

      Plaintiff's remaining arguments challenge the earlier orders entered by the

court, including Judge Kessler's orders. However, the only order that is subject

to review on this appeal is the July 13, 2018 order identified in plaintiff's notice

of appeal. See 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super.

                                                                            A-6003-17T3
                                        12
456, 459 (App. Div. 2004) (explaining that "it is only the judgment or orders

designated in the notice of appeal which are subject to the appeal process and

review" (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App.

Div. 1994))). Stated differently, any arguments raised by plaintiff that fall

outside the four corners of the notice of appeal likewise fall outside the scope of

our appellate jurisdiction and are not reviewable as a matter of law. Moreover,

any appeal of the earlier orders would be untimely and equally beyond our

jurisdiction. See In re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990) ("Where

the appeal is untimely, the Appellate Division has no jurisdiction to decide the

merits of the appeal.").

      Affirmed.

                                                                           A-6003-17T3
                                       13


34 So.3d 1166 (2010)
STATE
v.
MORGAN.
No. 2009 KA 1745.
Court of Appeal of Louisiana, First Circuit.
April 1, 2010.
KUHN, J.
Decision Without Published Opinion Conviction and Sentence Affirmed.


                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        December 9, 2003

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                       _____________________                     Clerk

                            No. 03-10710
                          Summary Calendar
                       _____________________

In The Matter Of: PIRANHA INC,

                                                               Debtor,

------------------------

RICHARD S BERGER,

                                                           Appellant,
versus

ROBERT NEWHOUSE, Chapter 7 Trustee of the Bankruptcy Estate of In
Re: Piranha, Inc, as successor to Piranha, Inc,

                                                           Appellees.

                      ---------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                        (3:01-CV-2223-D)
                      ---------------------

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Appellant Richard S. Berger appeals the district court’s June

20, 2003 Order affirming an earlier Bankruptcy Court decision on

jurisdiction over a case involving a debtor in bankruptcy, Piranha,

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Inc. (“Piranha”).1    Berger contends that the Bankruptcy Court has

no jurisdiction to consider Piranha’s bankruptcy filing because the

filing was not a valid action of Piranha’s board of directors under

the company’s bylaws and Delaware state law.2       The Bankruptcy Court

concluded that the filing was valid, vesting that court with

jurisdiction over the case.     We affirm.

                      I.    Facts and Proceedings

     In May 2001, the chairman of Piranha’s board of directors,

Edward Sample, called a special board meeting for May 25 to

consider    restructuring   Piranha’s   management.     In   addition   to

Sample, Piranha’s directors were Michael Steele, Larry Greybill,

and Berger.    Claiming lack of sufficient notice, Berger protested

the May 25 meeting and refused to attend.     The other directors held

the meeting despite Berger’s objection, as they had a quorum

without him, and voted to adopt a number of resolutions.       If valid,

those resolutions accepted the resignations of Greybill and Steele

and appointed Mike Churchill a director.       Greybill submitted his

written resignation following the May 25 meeting, as required by

Piranha’s bylaws and Delaware law.3        Steele, however, did not.

     1
       The original Bankruptcy Court decision was handed down in
2001, but protracted (and ultimately unsuccessful) settlement
negotiations delayed the appeal to district court.
     2
         See Price v. Gurney, 324 U.S. 100 (1945).
     3
       See 8 Del. Code Ann. § 141(b) (2003) (“Any director may
resign at any time upon notice given in writing or by electric
transmission to the corporation.”).

                                    2
Appellees contend that Steele did not do so because the directors

knew about Berger’s challenge to the meeting’s validity and wanted

to maintain control of Piranha in the event Berger’s notice claims

proved to be valid.4

      Piranha’s counsel later informed the directors, however, that

insufficient notice probably rendered the May 25 meeting a nullity.

To effect the changes that had not been validly made at that

invalidly called meeting, Sample furnished notice to the other

directors (Steele and Berger, according to Appellees) for a June 15

meeting.    Berger also protested the June 15 meeting and again did

not attend.    At the June 15 meeting, Sample and Steele voted to

elect Churchill a director, and on June 16 Steele tendered his

written resignation.5     At a June 20 meeting Piranha’s board of

directors   (then   consisting    of   Sample,   Berger,   and   Churchill,

according to Appellees) voted to file for bankruptcy relief under

Chapter 11.

                            II.    Analysis

A.   Standard of Review

      4
       There are underlying allegations in this case that Berger
absconded with Piranha funds without prior Board approval. We do
not pass on the substance of these allegations, but note that their
existence supports Appellees’ arguments, made before the Bankruptcy
Court, that all of the Board meetings and changes in Board
membership at issue here were attempts to ensure that Appellees
retained control of the Board so that any remedial measures
regarding the missing funds could be implemented.
      5
      Steele waited until June 16 to get Piranha’s legal counsel’s
opinion as to the validity of the June 15 meeting before submitting
his resignation.

                                       3
      Findings      of   fact    underlying      Bankruptcy   Court   orders   are

reviewed for clear error.             Conclusions of law are reviewed de

novo.6

B.   Berger’s Contentions

      Berger argues that, even though Steele did not tender a formal

written resignation prior to June 15, his resignation was effective

on May 29, 2001, the date on which Piranha’s legal counsel filed a

Form 8-K with the Securities and Exchange Commission (“SEC”)

indicating, inter alia, that Steele had resigned.                 Berger argues

that,     because    that       document       contained   Steele’s   electronic

signature, under the Uniform Electronic Transaction Act (“UETA”)7

Steele cannot disavow the document; as such, it served as a written

resignation effective May 29.              Berger contends that by virtue of

the invalidity of Churchill’s election, he and Sample were the sole

remaining directors as of 6/15.                According to Berger, this means

that the June 20 vote to proceed with the Chapter 11 filing was

invalid, as Berger did not vote for that action and Churchill was

not a director, because he had not been validly elected at either

the May 29 or June 15 meeting.              This case therefore turns on the

effective date of Steele’s resignation.

C.   Steele’s Resignation Date

      The Bankruptcy Court implicitly found that Steele did not

      6
       See, e.g., Krafsur v. Scurlock Permian Corp. (In re El Paso
Refinery, L.P.), 171 F.3d 249, 253 (5th Cir. 1999).
      7
          6 Del. Code Ann. §§ 101-117 (2003).

                                           4
resign until June 16, 2001, having refrained from submitting his

written resignation until that date.8 The court further found that

Steele did not resign orally —— a question of intent —— because his

conduct was inconsistent with his having done so.9           The district

court     agreed   with    the   Bankruptcy   Court,   deciding   that   its

construction of the UETA was correct and its factual findings not

clearly erroneous.        We agree.

1.   Steele’s Form 8-K

      Berger’s primary contention is that, because the Form 8-K

filed with the SEC contains Steele’s electronic signature, he may

not disavow it now under § 107(a) of the UETA, and it must

therefore stand as the written resignation required by Piranha’s

bylaws and Delaware law. Berger points to Section 107(a)’s dictate

that “[a] record or signature may not be denied legal effect or

      8
       As the district court notes, the Bankruptcy Court neither
explicitly stated that Steele did not resign until June 16, nor
squarely addressed the question whether the Form 8-K filed with the
SEC constituted a written resignation.      Its overall decision,
however, must by implication include a finding that Steele did not
resign until he submitted his written resignation in tangible form
on June 16. And, we will infer that the trial court made a finding
that is necessarily included in a broader holding, even if not
explicitly stated. See, e.g., Clinkenbeard v. Central Southwest
Oil Corp., 526 F.2d 649, 651-52 (5th Cir. 1976).
      9
       The Bankruptcy Court had noted that the Tenth Circuit,
interpreting a Kansas statute similar to the Delaware law here at
issue, ruled that the requirement of a writing is permissive rather
than mandatory, and an oral resignation can be effected if intent
to resign is evident. See Wylie v. Marley Co., 891 F.2d 1463, 1469
(10th Cir. 1989).

                                       5
enforceability solely because it is in electronic form.”10          Steele,

however, does not attempt to deny the legal effect of his signature

“solely because it is in electronic form,” but because he did not

“execute[], adopt[] or authorize[]” it as required by Treasury

Regulation S-T.11 In essence, Steele contends that the Form 8-K was

filed in error, three hours after being forwarded to him via email

by Piranha’s legal department for his review.

      As the district court noted, sections 109(a) and (b) of the

UETA indicate that a document bearing an electronic signature may

be contested on these very grounds.       Section 109(a) states that an

“electronic signature is attributable to a person if it was the act

of the person;”12 section 109(b) explains that “[t]he effect of an

electronic record or electronic signature attributed to a person

under subsection (a) of this section is determined from the context

and   surrounding    circumstances   at   the   time   of   its   creation,

execution, or adoption ....”13       Section 109(b) makes clear that a

litigant may challenge the effect of his electronic signature by

discussing its “context and surrounding circumstances” in front of

the reviewing court.      In the instant case, Steele did just that,

contending that the Form 8-K was filed in error and that he did not

      10
           6 Del. Code Ann. § 107(a) (2003)(emphasis added).
      11
           17 C.F.R. § 232.302(a) (2003).
      12
           6 Del. Code Ann. § 109(a) (2003).
      13
           6 Del. Code Ann. § 109(b) (2003).

                                     6
execute, adopt, or authorize the electronic signature it contained.

We cannot say that the Bankruptcy Court committed clear error by

agreeing with him.

2.   Steele’s Actions Prior to June 16

      The Bankruptcy Court also found that Steele’s actions between

May 25 and June 16 were more consistent with his having remained a

director of Piranha than with his having resigned effective either

May 25 or May 29.     This, in turn, forecloses a conclusion of oral

resignation.14    Again, we cannot say that this finding constitutes

clear error.      It is the province of the fact-finder to weigh the

evidence and make credibility determinations.      The trial court’s

factual determinations must stand unless we are “left with the

definite and firm conviction that a mistake has been committed,”15

which, in this case, we are not.

                            III. Conclusion

      For the foregoing reasons, the decision of the district

court affirming the Bankruptcy Court’s jurisdiction over the

underlying bankruptcy action is

AFFIRMED.

      14
           See note 9, supra, and accompanying text.
      15
           Century Marine, Inc. v. U.S., 153 F.3d 225, 229 (5th Cir.
1998).

                                   7


534 So.2d 598 (1988)
Lonnie R. GLENN
v.
VULCAN MATERIALS COMPANY and William A. Miller.
86-1260.
Supreme Court of Alabama.
September 30, 1988.
Shay Samples of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellant.
John S. Civils, Jr., of Huie, Fernambucq and Stewart, Birmingham, for appellees.
HOUSTON, Justice.
This case involves a dispute over the payment of approximately $2,000 of medical expenses. The plaintiff, Lonnie R. *599 Glenn, appeals from a summary judgment in favor of defendants Vulcan Materials Company ("Vulcan") and William A. Miller. We affirm in part, reverse in part, and remand.
As a result of injuries sustained by Glenn on August 9, 1979, while working for Vulcan, Glenn and Vulcan entered into a settlement agreement, which the trial court approved on March 9, 1983. That agreement obligated Vulcan to pay Glenn's future medical expenses in accordance with the Workmen's Compensation Act (the "Act").[1] The applicable provision of the Act is § 25-5-77(a), which, in pertinent part, provides:
"[T]he employer shall pay the actual cost of reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, medical and surgical supplies.... The total liability of the employer shall be limited to such charges as prevail for similar treatment in the community where the injured employee resides.... All cases of dispute as to the necessity and value of such services shall be determined by the tribunal having jurisdiction of the claim of the injured employee for compensation." (Emphasis added.)
The record shows that, prior to the settlement agreement, Vulcan had paid $76,572.73 to Glenn's hospital, Baptist Medical CenterPrinceton, for medical expenses arising out of Glenn's on-the-job injury. The record further indicates that, since the settlement agreement, Vulcan has expended an additional $11,806.15 to cover Glenn's medical bills at Princeton. Thus, Vulcan has paid a total of $88,378.88 of Glenn's medical bills since his injury in 1979. This dispute arises from Vulcan's refusal to pay approximately $2,000, which constituted a portion of two medical bills totaling $16,189.80, on the ground that the refused amount represented excessive charges for certain drugs and supplies. Vulcan based its refusal to pay on an evaluation by PCC/Drug Data System, Inc. ("PCC"), which it had hired to audit its employees' medical expenses. In 1982, PCC had advised Vulcan that two of the hospital's bills contained excessive charges for certain drugs and supplies and that those charges should not be paid. The record shows that Vulcan informed Princeton of its refusal to pay those charges deemed by PCC to be unreasonable. Consequently, on March 17, 1984, Princeton sued Glenn to recover the unpaid amount and, in turn, on December 3, 1984, Glenn filed a complaint against Vulcan and Miller,[2] seeking damages for outrageous conduct and bad faith in Vulcan's refusal to pay the total charges submitted by Princeton. Glenn predicated his outrage claim on Vulcan's alleged legal obligation "to pay all future medical bills incurred by [him] relative to the on-the-job injury" and on Vulcan's alleged intentional refusal to pay the approximately $2,000 in hospital bills, with knowledge that such a refusal would subject him to a collection suit and cause him to suffer severe emotional distress. Glenn further alleged that Vulcan's decision to refuse payment was made maliciously and without legal justification and that Vulcan is therefore liable for damages in tort for "bad faith refusal to pay medical benefits." In the first of two amendments to Glenn's complaint, Lonnie Glenn's wife, Robin Glenn, was joined as a party plaintiff, claiming damages as a proximate result of Vulcan's alleged outrageous conduct and bad faith refusal to pay. In his second amendment, Glenn alleged that Vulcan's refusal to pay pursuant to the settlement agreement constituted a breach of contract under § 25-5-77(a), supra, and that Vulcan had fraudulently induced him to enter into the settlement agreement by misrepresenting that it would pay his future medical expenses. On November 6, 1985, the trial court entered a partial summary judgment in favor of Vulcan and Miller, dismissing all of Robin Glenn's claims[3] and Lonnie Glenn's claim based on bad faith. On February 5, *600 1986, with respect to Princeton's suit against Glenn for the unpaid charges, the trial court entered a default judgment against Glenn.[4] On May 21, 1987, the trial court granted summary judgment in favor of Vulcan and Miller as to Glenn's remaining claims. Hence, this appeal.
Summary judgment for a defendant is proper when there is no genuine issue of material fact and the defendant is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. If there is any evidence of every element of a cause of action, then, unless the defendant has conclusively established a defense, summary judgment is inappropriate. In determining whether there is any evidence to support every element of a cause of action in this case, this Court must review the record in a light most favorable to Glenn and resolve all reasonable doubts against the defendants. Wilson v. Brown, 496 So.2d 756 (Ala.1986).
Having so reviewed the record, we hold that Vulcan was not entitled to a judgment as a matter of law as to Glenn's claim for breach of contract. Pursuant to the settlement agreement and the Act, Vulcan was obligated to pay the cost of Glenn's reasonably necessary future medical expenses. As the movant, Vulcan bore the burden of showing the unreasonableness of the hospital's charges in question. Vulcan supported its motion primarily with Miller's deposition. Miller testified that he had hired PCC to audit two of Glenn's hospital bills in order to verify the reasonableness of the charges for drugs and supplies; that thereafter PCC sent Vulcan and Princeton a computerized audit report listing all the hospital charges and showing them in relation to its recommended charges; and that, in accordance with PCC's audit, Miller paid PCC's recommended amount and disputed the remaining charges as being unreasonable. Miller based his testimony as to the reasonableness of the charges entirely on PCC's audits, which are unauthenticated documents and which contain hearsay evidence.
Rule 32, A.R.Civ.P., sets out the rules governing the use of depositions in court proceedings; and, accordingly, we should analyze Rule 56 (summary judgment) in relation to Rule 32. Rule 32(a) and (b), in pertinent part, respectively provide:

"(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof....
". . .

"(b) Objections to Admissibility. Subject to the provisions of subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying."
Rule 32(d)(3) states:
"(A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

*601 "(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.
"(C) Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized."
Dean Gamble summarizes Rule 32(b) as follows:
"[A] party may object to a matter in a deposition introduced at trial [or at a hearing] even though he did not object at the taking of the deposition ... if the objection is to a matter of substance and, had he made an objection at the taking of the deposition, the objectionableness could not have been cured." C. Gamble, McElroy's Alabama Evidence, § 426.01(4) (3d ed. 1977).
Both parties, in arguing for or against summary judgment, relied upon the deposition testimony of William Miller. At the time of Miller's deposition, the parties entered a stipulation that incorporated the provisions of Rule 32(b). According to this stipulation, the parties agreed that objections would not be necessary except as to the form of questions and that "counsel for the parties may make objections and assign grounds at the time of the trial, or at the time said deposition is offered in evidence." This is a binding agreement to which this Court will give full force and effect. McElroy's, § 426.01(4) (citing National Union Fire Ins. Co. v. Weatherwax and Gentry, 247 Ala. 143, 22 So.2d 733 (1945)). During the taking of the deposition, Miller testified that Vulcan refused payment of the charges in question on the ground that PCC had deemed them to be unreasonable and unsubstantiated. Miller presented copies of PCC's letters to Princeton and copies of PCC's computerized audits of Princeton's bills. Apparently relying on Rule 32(b) and the stipulation, Glenn's attorney did not object to Miller's testimony, which was clearly based on hearsay statements and unauthenticated documents. Miller's testimony involved matters of substance, not form, and an objection at that time would not have cured the defect.
At the summary judgment hearing, Glenn and Vulcan offered into evidence Miller's deposition and exhibits showing the results of PCC's audits. Neither party objected to the admissibility of these matters as evidence. Under Rule 32(a), both parties had the right to use Miller's deposition against the other as long as the portion used was admissible under the rules of evidence. Under Rule 32(b), the hearing was a proper time to interpose an objection. When a party against whom inadmissible evidence is offered fails to make a timely objection, he waives his right on appeal to claim as error the introduction of that evidence. McElroy's, § 426.01(1). Because Glenn failed to object to the admissibility of the PCC audits as evidence, we must view these documents as evidence that was properly considered by the trial court. See also, Perry v. Mobile County, 533 So.2d 602 (Ala.1988) (regarding affidavits introduced in support of motions for summary judgment). In support of their motion for summary judgment, Vulcan and Miller introduced evidence, to which no objection was interposed, showing that PCC had audited some of Glenn's medical bills from Princeton and had determined that certain charges were excessive. Vulcan and Miller met their burden.
Glenn introduced his deposition in opposition to the motion for summary judgment. Glenn testified that the medical charges were reasonable. This testimony was objectionable, since there was nothing showing that Glenn was qualified to testify as to the reasonableness of such charges. See Ala.Code 1975, § 12-21-114, and cases construing that section. However, there was no objection to Glenn's deposition testimony; therefore, it was sufficient to create a fact question as to the reasonableness of *602 the medical charges. Again, see Perry v. Mobile County, supra (regarding affidavits introduced in opposition to motions for summary judgment). Summary judgment on Glenn's contract claim should not have been granted.
However, as to Glenn's claims for fraud, outrageous conduct, and bad faith refusal to pay, his evidence failed to raise a genuine issue of material fact. First, the exclusive remedy provisions of the Act bar Glenn's fraud and bad faith claims. Code 1975, § 25-5-52, -53; Moore v. Liberty Mutual Insurance Co., 468 So.2d 122 (Ala. 1985); Waldon v. Hartford Insurance Group, 435 So.2d 1271 (Ala.1983); Garvin v. Shewbart, 442 So.2d 80 (Ala.1983). Second, the record does not support the conclusion that Vulcan committed conduct "so outrageous in character and so extreme in degree as to ... be regarded as atrocious and utterly intolerable in a civilized society." American Road Service Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980); see, also, Garvin; Nabors v. St. Paul Insurance Co., 489 So.2d 573 (Ala.1986). This does not preclude, however, the application of the 10% penalty, if appropriate, pursuant to Code 1975, § 25-5-59.
Furthermore, Ala.Code 1975, § 25-5-77(a), provides the procedure for adjudicating a dispute between the employer and the employee with respect to the reasonableness of medical expenses. Vulcan's refusal to pay the full amount as billed and its offer to defend Princeton's suit against Glenn for the disputed amount of hospital expenses cannot be deemed to be in compliance with the statutory scheme for adjudication. Indeed, we perceive Glenn's contract claim in the instant suit as falling within the purview of § 25-5-77(a) and upon remand it should be so treated.
For the foregoing reasons, the judgment of the trial court is affirmed as to the fraud, outrageous conduct, and bad faith claims, but is reversed as to the contract claim, and this case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
NOTES
[1]  The record indicates that Vulcan is a self-insured employer under Code 1975, § 25-5-8(b).
[2]  Miller was claims manager for Vulcan and handled Glenn's claims for medical benefits.
[3]  Robin Glenn is not a party to this appeal.
[4]  The attorney for Glenn refused to permit Vulcan to defend the lawsuit against Glenn. In Vulcan's letter of July 27, 1984, to Glenn's then-attorney, the following appeared:

"As I indicated to you and as you have outlined in your letter, Vulcan Materials Company is willing to defend Mr. Glenn and pay all costs associated with that defense for any lawsuit filed in conjunction with our disagreement with the hospitals that treated Mr. Glenn and their overcharges.... Let me also add that failure to tender defense of this lawsuit to Vulcan does not provide us with the opportunity to adequately defend these charges lodged against Mr. Glenn, assuming this lawsuit results from his on the job injury and hospital treatment resulting therefrom. As a result, Vulcan will not be bound by any adverse judgment against Mr. Glenn without the opportunity to properly defend this lawsuit."
Glenn's attorney, by letter dated August 2, 1984, replied:
"I did not know that you were now an insurance company and defended lawsuits."


                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                              No. 15-7705

UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

TRAVIS DWAYNE POWELL, a/k/a Ahmed Khalid Ramadan,

                Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.  N. Carlton Tilley,
Jr., Senior District Judge.     (1:12-cr-00348-NCT-1; 1:13-cv-
01052-NCT-LPA)

Submitted:   March 29, 2016                    Decided:   May 4, 2016

Before GREGORY and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Travis Dwayne Powell, Appellant Pro Se. Angela Hewlett Miller,
Assistant United States Attorney, Kyle David Pousson, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Travis Dwayne Powell seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge and

denying relief on his 28 U.S.C. § 2255 (2012) motion.                           The order

is not appealable unless a circuit justice or judge issues a

certificate of appealability.              28 U.S.C. § 2253(c)(1)(B) (2012).

A   certificate       of      appealability        will     not    issue       absent    “a

substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2) (2012).                   When the district court denies

relief   on    the    merits,    a    prisoner         satisfies    this   standard      by

demonstrating        that     reasonable         jurists    would       find    that     the

district      court’s      assessment    of       the    constitutional        claims    is

debatable     or     wrong.      Slack     v.     McDaniel,       529   U.S.    473,    484

(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).

When the district court denies relief on procedural grounds, the

prisoner must demonstrate both that the dispositive procedural

ruling   is    debatable,       and   that       the    motion    states   a    debatable

claim of the denial of a constitutional right.                          Slack, 529 U.S.

at 484-85.

      We have independently reviewed the record and conclude that

Powell has not made the requisite showing.                       Accordingly, we deny

a   certificate      of     appealability        and    dismiss     the    appeal.        We

dispense      with    oral      argument      because       the    facts       and     legal

                                             2
contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.

                                                               DISMISSED

                                   3


537 U.S. 1092
ATKINSONv.IMMIGRATION AND NATURALIZATION SERVICE.
No. 02-7007.
Supreme Court of United States.
December 16, 2002.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

2
C. A. 2d Cir. Certiorari denied.


                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

 INTERNATIONAL PAINTERS AND
 ALLIED TRADES INDUSTRY PENSION
 FUND, et al.,

        Plaintiffs,
                                                          Civil Action No. 09-1945 (CKK)
        v.

 PORTER COUNTY GLASS & MIRROR,
 INC., et al.,

        Defendants.

                                 MEMORANDUM OPINION
                                     (May 14, 2010)

       This action is brought by Plaintiffs International Painters and Allied Trades Industry

Pension Fund (the “Pension Fund”), Gary J. Meyers, in his official capacity as a fiduciary

(“Meyers”), and the Painters and Allied Trades Labor Management Cooperation Initiative

(“LMCI”) (collectively, “Plaintiffs”) against Defendants Porter County Glass & Mirror, Inc.

(“Company”) and James Boyd (“Boyd”) (collectively, “Defendants”) for legal and equitable

relief under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29

U.S.C. §§ 1001 et seq. Plaintiffs seek to recover unpaid contributions, liquidated damages,

interest and attorneys’ fees and costs incurred by the Fund pursuant to 29 U.S.C.

§ 1132(g)(2)(A)-(D) and a collective bargaining agreement entered under 29 U.S.C. § 185 by the

Company and personally guaranteed by Boyd. Although properly and timely served with the

Complaint and Summons, Defendants failed to respond to the Complaint, and the Clerk of the

Court, upon request by Plaintiffs, entered default against Defendant on December 14, 2009. See
Default, Docket No. [6]. Presently before the Court is Plaintiffs’ [7] Motion for Judgment by

Default by the Court Pursuant to Federal Rule of Civil Procedure 55(b)(2) Against Defendants.

Having thoroughly considered the Complaint, Plaintiffs’ submissions and attachments thereto,

applicable case law, statutory authority, and the record of the case as a whole, the Court shall

GRANT Plaintiffs’ [7] Motion for Default Judgment, for the reasons stated below.

                                       I. BACKGROUND

       The Pension Fund is a trust fund established under 29 U.S.C. § 186(c)(5), and its Trustees

are fiduciaries and plan administrators for the International Painters and Allied Trades Industry

Pension Plan (“Pension Plan”) and International Painters and Allied Trades Industry Annuity

Plan (“Annuity Plan”), both of which are multiemployer employee benefit pension plans.

Compl. ¶¶ 4-6. The Pension Fund and Meyers are also authorized collection agents LMCI (an

“Ancillary Fund”), as well as for FTI, another multiemployer employee benefit pension plan. Id.

¶¶ 8-12. The Pension Fund, the Pension Plan, the Annuity Plan, FTI, and as allowed by law,

LMCI, are known as the “ERISA Funds,” and, together with LMCI, the “Funds.” Id. ¶ 13. The

Pension Fund and Meyers are suing on behalf of the Funds.

       As set forth in the Complaint, Plaintiffs assert that the Company was a party to or agreed

to abide by the terms of a collective bargaining agreement (“Labor Agreement”) with one or

more local labor unions or district councils affiliated with the International Union of Painters and

Allied Trades, AFL-CIO, CLC (collectively, the “Union”). Compl. ¶ 16. Plaintiffs also allege

that the Company has agreed to abide by an Agreement and Declaration of Trust of the Fund

(“Trust Agreement”) as well as plan documents for the ERISA Funds. Id. ¶ 17. Under the Labor

Agreement, the Trust Agreement, and the plan documents for the ERISA Funds, the Company

                                                 2
agreed to make certain contributions to the Funds based on the Company’s employees’ work, file

monthly remittance reports with the Funds detailing all employees’ work for which contributions

were required, produce records necessary to permit the Funds to conduct an audit, and pay certain

costs associated with litigation if the Company failed to comply with its obligations. Id. ¶ 18.

Plaintiffs allege that the Company has failed to make the required monthly payments for the

period from January 2009 through August 2009 and that the Company has otherwise failed to

make contributions required under the agreements. Id. ¶¶ 21-38. On September 1, 2009, Boyd

executed a Personal Guarantee and Promissory Note in which he agreed to pay the Company’s

obligations to the Fund. See id., Ex. 4 (Promissory Note). Plaintiffs allege that Boyd has failed

to make payments to the Funds as required under the Promissory Note and Personal Guarantee.

See id. ¶¶ 39-41.

       Pursuant to the terms of those agreements, Plaintiffs assert that they are entitled to: a

monetary award for violation of 29 U.S.C. § 1145 in the amount of the unpaid contributions to

the ERISA Funds, liquidated damages, interest on the unpaid contributions, as well as costs,

audit expenses and attorneys’ fees (Count I); an audit of the Company’s records to determine the

amounts owed (Count II); after an audit, a monetary award for violation of 29 U.S.C. § 1145 in

the amount of the contributions found due and owing by the audit, together with late charges,

interest, liquidated damages, costs, and fees (Count III); a monetary award for breach of the

Labor Agreement (and its incorporated agreements) in the amount of unpaid funds owed,

including liquidated damages, interest and costs, and reasonable attorneys’ fees (Count IV); a

monetary award for breach of the Labor Agreement (and its incorporated agreements) for unpaid

funds found due and owing by the audit (Count V); and a monetary award for breach of the

                                                 3
Promissory Note and Personal Guarantee, including unpaid amounts found after an audit,

together with liquidated damages and interest, and reasonable attorneys’ fees. Compl. ¶¶ 21-41.

Plaintiffs, in their instant motion, have moved for default judgment seeking: (1) a judgment for

$26,538.69, a sum known to be due and owing consisting of unpaid contributions, interest,

liquidated damages, and attorneys’ fees and costs; (2) an order declaring that the judgment shall

continue to bear interest until the date of actual payment; (3) an order enjoining the Company to

accurately complete and submit all outstanding remittance reports. See Pl.’s Proposed Order.

       Defendants were served with the Complaint and Summons on November 19, 2009, and

were therefore required to respond by December 9, 2009. See Notices of Filing Return of

Service, Docket Nos. [2]-[3]. Defendants failed to file an answer or otherwise respond to

Plaintiffs’ Complaint, and Plaintiffs subsequently moved for entry of default. See Pls.’ Request

to Clerk to Enter Default, Docket No. [5]. On December 14, 2009, the Clerk of the Court entered

default against Defendants. See Default, Docket No. [6]. Plaintiffs subsequently filed the instant

[6] Motion for Judgment by Default. As of the date of this Memorandum Opinion, Defendants

have not entered an appearance nor filed any pleadings in this case.

                         II. LEGAL STANDARD AND DISCUSSION

       Federal Rule of Civil Procedure 55(a) provides that the clerk of the court must enter a

party’s default “[w]hen 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.” Fed. R.

Civ. P. 55(a). After a default has been entered by the clerk of the court, a court may enter a

default judgment pursuant to Rule 55(b). Fed. R. Civ. P. 55(b). “The determination of whether

default judgment is appropriate is committed to the discretion of the trial court.” Int’l Painters &

                                                 4
Allied Trades Indus. Pension Fund v. Auxier Drywall, LLC, 531 F. Supp. 2d 56, 57 (D.D.C.

2008) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)).

        Where, as here, there is a complete “absence of any request to set aside the default or

suggestion by the defendant that it has a meritorious defense, it is clear that the standard for

default judgment has been satisfied.” Auxier Drywall, LLC, 531 F. Supp. 2d at 57 (internal

quotation marks omitted). The Clerk of the Court entered Defendant’s default, and the factual

allegations in the Complaint are therefore taken as true. See Int’l Painters & Allied Trades

Indus. Pension Fund v. R.W. Armine Drywall Co., Inc., 239 F. Supp. 2d 26, 30 (D.D.C. 2002).

The Court finds that Plaintiffs’ Complaint sufficiently alleges facts to support their claims.

Plaintiffs are thus entitled to default judgment as to Defendants’ liability for their failure to

timely pay contributions to the Funds and to supply records necessary to permit the Funds to

determine if Defendants are making the payments as required under the terms of Labor

Agreement, the Trust Agreement, the plan documents for the ERISA Funds, and other related

agreements, and the Promissory Note and Personal Guarantee.

        Although the default establishes a defendant’s liability, the Court makes an independent

determination of the sum to be awarded in the judgment unless the amount of damages is certain.

Adins v. Teseo, 180 F. Supp. 2d 15, 17 (D.D.C. 2001). Here, the amount of damages owed by

Defendants to the Funds were set forth in the Promissory Note and Personal Guarantee, as well

as in the declarations appended to Plaintiff’s motion for default judgment. Plaintiffs also seek a

monetary judgment of liquidated damages, interest, and an award of attorneys’ fees. The Court

shall review these amounts below.

                                                   5
       A.      Judgment for Damages

       Under Section 515 of ERISA, “[e]very employer who is obligated to make contributions

to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained

agreement shall . . . make such contributions in accordance with the terms and conditions of such

plan or such agreement.” 29 U.S.C. § 1145. When an employer fails to make such contributions,

ERISA provides that the fiduciary for a plan may bring an action and obtain a mandatory award

for the plan consisting of:

       (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 U.S.C. § 1132(g)(2). Interest is calculated using the rate provided under the plan, or, if none,

the rate prescribed by 26 U.S.C. § 6621. Id. In addition to the remedies available under ERISA,

a benefit trust fund may, as a third-party beneficiary, recover for breach of a collective bargaining

agreement under 29 U.S.C. § 185(a). See Hudson County Carpenters Union Local Union No. 6.

v. V.S.R. Constr. Corp., 127 F. Supp. 2d 565, 568 (D.N.J. 2000) (“It is well-established that the

failure to make contributions to a union trust fund as required by a collective bargaining

                                                   6
agreement constitutes a violation of ERISA § 515 and a violation of [29 U.S.C. § 185].”); see

also Bugher v. Feightner, 722 F.2d 1356, 1357-60 (7th Cir. 1983) (explaining that ERISA

remedies are intended to supplement rather than supersede rights existing under 29 U.S.C. §

185(a)).

       Plaintiffs have provided the Court with affidavits to support a damages award of

$26,538.69. Specifically, Plaintiffs argue that at the time this action was filed, Defendants owed

at least $18,649.02 in unpaid contributions for the period from January 2009 to August 2009.

See Pls.’ Mot. for J. by Default, Ex. 1 (Decl. of Thomas Montemore) ¶¶ 9-10.1 Plaintiffs have

also calculated that Defendants owe interest on the unpaid amounts through December 31, 2009,

in the amount of $561.98, based on the unpaid contributions and the fluctuating IRS interest rate

as provided in § 10 of the industry pension plan, which adopts the ERISA standard. See id.

¶¶ 11-13. ERISA also provides that liquidated damages be awarded in the amount of 20% of

unpaid contributions, which equals $3765.97. See id. ¶ 13.

       Plaintiffs also ask for attorneys’ fees and costs in the amount of $3561.72. See Pls.’ Mot.

for J. by Default, Ex. 6 (Decl. of Judith Sznyter) ¶ 2. Plaintiffs have attached supporting

documentation showing that they have incurred $2,817.00 in attorneys’ fees and $744.72 in costs

in litigating this action. See Pls.’ Mot. for J. by Default, Ex. 7 (December 2009 Attorneys’ Fees,

Time and Expense Details). This is based on 11.2 hours of attorney and paralegal time at rates of

$220 per hour and $70 per hour, respectively, plus expenses for the filing fee, photocopies, and

various other items. See id. Plaintiffs have provided documentation showing that these rates are

       1
        Mr. Montemore states in his declaration that the amount owed is at least $18,829.82.
However, because Plaintiffs have requested only $18,649.02 in their motion and proposed order,
the Court shall rely on this slightly lower figure for unpaid contributions.

                                                 7
reasonable for the services rendered. Accordingly, the Court shall award the attorneys’ fees and

costs requested. Thus, the total money judgment for Plaintiffs shall be $26,538.69.

                                     III. CONCLUSION

       For the reasons set forth above, the Court shall GRANT Plaintiffs’ [7] Motion for

Judgment by Default. The Court shall award damages in the amount of $26,538.69 and order

Defendants to provide all outstanding remittance reports.

Date: May 14, 2010
                                                          /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    United States District Judge

                                                8