Directors of the Ohio Conference of Plasterers & Cement Masons Combined Funds, Inc. v. Akron Insulation and Supply, Inc.

Filing 12

Memorandum Opinion and Order: Plaintiff's motion for default judgment (Doc. No. 10 ) is denied. Plaintiff is granted leave until August 4, 2017 to show cause why this case should not be dismissed. Judge Sara Lioi on 7/24/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DIRECTORS OF THE OHIO
CONFERENCE OF PLASTERERS &
CEMENT MASONS COMBINED
FUNDS, INC.,
PLAINTIFF,
vs.

AKRON INSULATION AND
SUPPLY, INC.
DEFENDANT.

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CASE NO. 5:16-cv-1674

JUDGE SARA LIOI

MEMORANDUM OPINION AND
ORDER

Presently before the Court is the motion of plaintiff Directors of the Ohio
Conference of Plasterers & Cement Masons Combined Funds, Inc. (“plaintiff” or
“Funds”) for entry of default judgment against defendant Akron Insulation and Supply,
Inc. (“defendant” or “AIS”) for unpaid contributions, liquidated damages, and interest for
the time period of January 1, 2014 through present, and for $4,532.50 in attorney fees and
$609.50 in costs. (See Doc. No. 10 [“Mot.”] at 113.1) In support of the motion, plaintiff
has submitted the affidavits of Tim Myers (Doc. No. 10-1 [“Myers Aff.”]) and Joshua
Hippenmeyer (Doc. No. 10-2 [“Hippenmeyer Aff.”]). Defendant did not oppose the
motion.
For the reasons that follow, the motion is denied.

All references to page numbers are to the page identification numbers generated by the Court’s electronic
filing system.
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A. Background
On June 30, 2016, plaintiff filed suit against AIS pursuant to the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq., and
Section 301(a) of the Labor Management Relations Act of 1947 (“LMRA”), for violating
the collective bargaining agreement to which AIS is a signatory (attached as Exhibit A to
the complaint (Doc. No. 1-2 [“CBA”])),2 and failing to make contributions to the Funds
as required by the agreement. (Doc. No. 1 [“Compl”] ¶¶ 1, 6). Plaintiff asserts six claims
for relief for violation of the CBA attached to the complaint. (Id. ¶¶ 5-44.) Defendant did
not answer or otherwise respond to the complaint, and default was entered by the Clerk
against defendant AIS on August 24, 2016. (Doc. No. 9.)
Thereafter, plaintiff filed the instant motion. Plaintiff argues in the motion
plaintiff has failed to file reports and make timely contributions as required by the
collective bargaining agreement to which defendant is a signatory for the months of
“October 2014, December 2014, January 2015, March 2015 through May 2015, August
2015, September 2015, November 2015, and December 2015.” (Mot. at 109-110.)
Plaintiff seeks an order that requires defendant to submit to an audit and provide all
necessary records in order to determine the amount of defendant’s obligations under the
CBA for those time periods, and for attorney fees and costs in the amount of $5,142.00.
B. Discussion
Federal Rule of Civil Procedure 55(b) governs the entry of default judgment. Rule
55(b) provides that default judgment may be entered against a defendant who is neither a

AIS is a signatory to the Plasterer’s Agreement for Local Union No. 109 of the Operative Plasterers’ and
Cement Masons’ International Association for the time period June 1, 2007 to May 31, 2010. (CBA at 13,
31.)
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minor nor an incompetent person. According to the complaint, AIS has at all relevant
times represented itself to be a corporation licensed to conduct business in Ohio with its
principal place of business in Akron Ohio, and is an employer as defined by ERISA.
(Compl. ¶ 4.) As a business entity, AIS is not a minor, incompetent person, or subject to
the Soldiers and Sailors Relief Act of 1940. Zinganything, LLC v. Tmart UK Ltd., No.
5:14-CV-629, 2016 WL 362359, at *2 (N.D. Ohio Jan. 29, 2016) (citation omitted).
Rule 55(b)(1) provides that judgment may be entered by the Clerk if the amount is
for a sum certain “on plaintiff’s request, with an affidavit showing the amount due[.]” In
this case, plaintiff has requested and requires an audit to determine the amount of alleged
damages.
The Court may enter default judgment pursuant to Rule 55(b)(2). That rule does
not set forth a standard to be applied in determining when a party is entitled to a
judgment by default. “When an application is made to the court under Rule 55(b)(2) for
the entry of a judgment by default, the district judge is required to exercise sound judicial
discretion in determining whether the judgment should be entered.” 10A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civ.3d §
2685 (1998) (footnotes omitted). “This element of discretion makes it clear that the party
making the request is not entitled to a default judgment as of right […].” Id.
Because default was entered against AIS, defendant is deemed to have admitted
all of the well-pleaded factual allegations in the complaint regarding liability, including
jurisdictional averments. Ford Motor Co. v. Cross, 441 F. Supp. 2d 837, 846 (E.D. Mich.
2006) (citing Visioneering Constr. v. U.S Fid. & Guar., 661 F.2d 119, 124 (6th Cir.
1981)); see also Fed. R. Civ. P. 8(b)(6) (“An allegation—other than one relating to the

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amount of damages—is admitted if a responsive pleading is required and the allegation is
not denied.”). Thus, AIS is deemed to have admitted that if failed to comply with the
CBA identified in the claims and attached to the complaint. That CBA covers the time
period from June 1, 2007 through May 31, 2010.
The default judgment and related damages that plaintiff seeks, however, is for
time periods in 2014 and 2015. Defendant’s default and admissions as to the 2007-2010
CBA asserted in the claims and attached to the complaint does not constitute an
admission by AIS of any violations of a collective bargaining agreement for time periods
in 2014 or 2015. Thus, plaintiff has failed to establish that it is entitled to default
judgment against defendant for breach of any collective bargaining agreement obligations
in 2014 and 2015.
C. Conclusion
For all of the foregoing reasons, plaintiff’s motion for default judgment (Doc. No.
10) is DENIED. Plaintiff is granted leave until August 4, 2017 to show cause why this
case should not be dismissed.
IT IS SO ORDERED.

Dated: July 24, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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