Ohio & Vicinity Carpenters' Fringe Benefit Funds, Inc. v. Ohio Insulation, LLC

Filing 11

Order: Plaintiff is entitled to a default judgment and its motion for such relief is hereby granted. (Doc. No. 8 .) Judgment shall be entered against defendant and in favor of plaintiff in the amount of $11,496.34. Judge Sara Lioi on 11/4/2013. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
OHIO & VICINITY CARPENTERS’
FRINGE BENEFIT FUNDS, INC.,

PLAINTIFF,
vs.

OHIO INSULATION, LLC,

DEFENDANT.

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CASE NO. 5:13CV695

JUDGE SARA LIOI

ORDER

Plaintiff Ohio & Vicinity Carpenters’ Fringe Benefit Funds, Inc. has
moved for judgment by default on its Complaint against defendant Ohio Insulation, LLC
(Doc. No. 8). Defendant has not responded to the motion.
Rule 55(a) provides:
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).
With its motion, plaintiff has submitted the affidavit of Timothy Piatt,
demonstrating that defendant has failed to answer or otherwise plead to the Complaint.
(Doc. No. 8-1 at ¶ 3.) Pursuant to Rule 55(a), the Clerk of Courts of this District properly
entered default on August 6, 2013. (Doc. No. 10.)
Rule 55(b)(2) governs the Court’s consideration of a motion for default,

and provides, in relevant part:
[t]he party must apply to the court for a default judgment. A default
judgment may be entered against a minor or incompetent person only if
represented by a general guardian, conservator, or other like fiduciary who
has appeared. If the party against whom a default judgment is sought has
appeared personally or by a representative, that party or its representative
must be served with written notice of the application at least 7 days before
the hearing. The court may conduct hearings or make referrals—
preserving any federal statutory right to a jury—when, to enter or
effectuate judgment, it needs to (A) conduct an accounting; (B) determine
the amount of damages; (C) establish the truth of any allegation by
evidence; or (D) investigate any other matter.
Fed. R. Civ. P. 55(B)(2). Defendant failed to defend against the Complaint, and the time
for raising such defense has passed. As a corporation, defendant is clearly not an infant or
an incompetent person. (Doc. No. 8-1 at ¶ 4.) Plaintiff, therefore, is entitled to a default
judgment and its motion for such relief is hereby GRANTED.
Plaintiff’s Complaint charges defendant with liability under the Employee
Retirement Security Act of 1974 (ERISA), 29 U.S.C. §1001 et seq., for failing to make
mandatory contributions to the employee trust fund, which plaintiff established to provide
welfare and retirement benefits for its participants. (Doc. No. 1, Comp. at ¶ 9.) Sections
502 and 515 of ERISA, 29 U.S.C. §§ 1132 and 1145, provide a statutory remedy for a
trust fund suing to collect unpaid plan contributions. Section 515 provides:
Every 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, to the extent not inconsistent with
the law, make such contributions in accordance with the terms and
conditions of such plan or such agreement.
29 U.S.C. § 1145. Section 502 provides for civil enforcement of an employer’s duty to
make such contributions. 29 U.S.C. § 1132.
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In its motion, plaintiff seeks the sum of $11,496.34, said amount
representing $6,819.19 in fringe benefit contributions, $3,409.59 in late fees, and
$1,267.56 in attorney’s fees and costs under 29 U.S.C. § 1132(g)(2)(D). In support of its
entitlement to the fund contributions and penalties, plaintiff has appended an affidavit of
damages establishing the amount of contributions owed and late fees incurred. (Doc. No.
8-4.)
Consideration of plaintiff’s request for fees is made using the “lodestar”
approach. Building Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview
Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995). In making the lodestar calculation, “[t]he
most useful starting point . . . is the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433-434. “The
party seeking an award of fees should submit evidence supporting the hours worked and
the rates claimed.”1 Id.
Plaintiff’s request for attorney’s fees and costs is supported by the
affidavit of attorney Timothy Piatt, and a billing summary appended thereto as Exhibit A,
in which the work performed, the rate charged, and the time spent on each activity is set
forth in specific detail. (Doc. No. 8-3.) The Court finds that the hours expended and rates
charged are reasonable.
Based on the foregoing, it is ORDERED, ADJUDGED and DECREED

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Once the lodestar is calculated, the fee may be adjusted in consideration of a number of factors: (1) time
and labor; (2) difficulty of the case; (3) skill necessary; (4) the extent the attorney is precluded from
working on other matters; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time
limitations; (8) the amount involved and the results obtained; (9) the attorney’s experience, reputation and
ability; (10) the undesirability of the case; (11) the nature and length of the attorney-client relationship; and
(12) awards in similar cases. Hensley, 461 U.S. at 430, n.3.
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that judgment shall be entered against defendant and in favor of plaintiff in the amount of
$11,496.34.
IT IS SO ORDERED.
Dated: November 4, 2013
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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