Ohio & Vicinity Carpenters' Fringe Benefit Funds, Inc. v. Walters Building Company, LLC
Memorandum Opinion: Judgment is granted in favor of plaintiff and against defendant in the amount of $107,600.85 in damages, and $1,557.00 in attorney fees and $535.00 in costs. (Related Doc. No. #10 ). Judge Sara Lioi on 7/18/2017. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
OHIO & VICINITY CARPENTERS’
FRINGE BENEFIT FUNDS, INC.,
WALTERS BUILDING COMPANY,
CASE NO. 5:16-cv-2367
JUDGE SARA LIOI
Presently before the Court are affidavits submitted by plaintiff Ohio & Vicinity
Carpenters’ Fringe Benefit Funds, Inc. (“plaintiff” or “Funds”) in support of the damages,
attorney fees, and costs sought by plaintiff in its motion for default judgment. (Doc. No.
15.) For the reasons that follow, judgment is granted in favor of plaintiff and against
defendant in the amount of $107,600.85 in damages, and $1,557.00 in attorney fees and
$535.00 in costs.
The Court previously granted plaintiff’s motion for default judgment pursuant to
Fed. R. Civ. P. 55 against defendant Walters Building Company, LLC (“WBC”) as to
liability only for unpaid fringe benefit contributions, attorney fees and costs. (Doc. No.
14 [“Order”].) Plaintiff sought default judgment against defendant in the amount of
$107,690.85 for unpaid fringe benefits contributions, and attorney fees and costs in the
amount of $1,739.00. (Doc. No. 10 [“Mot.”].) The Court did not grant default judgment
as to damages, however, because plaintiff failed to provide any evidentiary support for
the amount of damages, fees, and costs sought in the motion. In denying plaintiff’s
motion as to damages without prejudice, the Court indicated that if plaintiff did not
submit evidentiary support for the claimed unpaid fringe benefit contributions, attorney
fees, and costs, the Court would schedule an evidentiary hearing. (Order at 51.1)
The well-pleaded allegations in a complaint are taken as true as to liability when a
defendant is in default, but not as to damages. 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)). Rule 55(b)(2) permits, but does not require, the district court to
conduct an evidentiary hearing to determine damages. Arthur v. Robert James & Assoc.
Asset Mgmt., Inc., No. 3:11-cv-460, 2012 WL 1122892, at *1 (S.D. Ohio Apr. 3, 2012)
(citing Vesligaj v. Peterson, 331 F. App’x. 351, 354-55 (6th Cir. 2009)). The Court may
rely on affidavits submitted by plaintiff in support of damages without the need for a
hearing. Id. at *2 (citation omitted).
Unpaid fringe benefit contributions
Plaintiff has submitted the affidavit of Eryka Stamatakos, an administrator for
plaintiff Funds, in support of its motion for default judgment. (Doc. No. 15-1
[“Stamatakos Aff.”] at 54.) Ms. Stamatakos’s affidavit avers that defendant owes unpaid
amounts under the terms of the collective bargaining agreement in the sum of
All references to page numbers are to the page identification numbers generated by the Court’s electronic
$107,600.85.2 (Stamatakos Aff. at 54.) (This amount is $90.00 less than the amount
sought in plaintiff’s motion.) Thus, damages are awarded in the amount of $107,600.85.
Attorney fees and costs
Plaintiff is entitled to reasonable attorney’s fees and costs pursuant to the
collective bargaining agreement applicable to the Fund and 29 USC § 1132(g)(2)(D).
Attorney fees are calculated using the “lodestar” method, which is determined by
multiplying the number of hours reasonably expended on this litigation by a reasonable
hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d
40 (1983); Building Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview
Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995). The lodestar calculation can be adjusted by
consideration of a number of factors.3 Hensley, 461 U.S. at 430, n.3.
Plaintiff has submitted the affidavit of Michael Asher (“Asher”) in support of
attorney fees in the amount of $1,557.00 and costs in the amount of $535.00,4 for a total
amount of $2,092.00. (Doc. No. 15. [“Asher Aff.”] ¶¶ 4, 6, 7.) Asher avers that his firm
bills plaintiff at an hourly rate of $200.00 for senior partners, $180.00 for partners, and
$150.00 for associates, and that those rates are “comparable, reasonable and consistent”
with rates for firms that represent funds like plaintiff. (Id. ¶¶ 4, 5.) Billing records are not
attached to the affidavit.
This sum is comprised of $99,272.14 in unpaid fringe benefit contributions for work performed and
$8,328.71 in liquidated damages.
These factors include: (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.
This sum is comprised of: (1) $400.00 complaint filing fee; (2) $85.00 service of summons and complaint;
and (3) $50.00 court reporter attendance. The Court finds these costs to be reasonably expended in this
The prevailing hourly market rate can be demonstrated in a number of ways,
including, affidavit, fee award studies, citations to prior precedent regarding reasonable
rate adjudications, and the court’s own expertise in recognizing reasonable applicable
prevailing rates. See Disabled Patriots of Am. v. Genesis Dreamplex, LLC, 3:05 CV
7153, 2006 WL 2404140, at *2 (N.D. Ohio 2006). Plaintiff has not submitted affidavits
from other attorneys regarding prevailing market rates in the community for attorneys
specializing in ERISA matters. Based on the Court’s experience in similar cases,
however, the billing rates charged by plaintiff’s counsel in this case ($150.00-$200.00)
are reasonable for purposes of the lodestar analysis. See Local Union No. 33 Trustees of
Sheet Metal Workers’ Akron Dist. Pension Fund v. Map Heating & Cooling, LLC, No.
5:08CV2954, 2010 WL 1995654, at *6 (N.D. Ohio May 19, 2010) (hourly rates between
$155.00 and $160.00 are reasonable); Gen. Truck Drivers & Helpers Local Union No. 92
ex rel. Exec. Bd. v. Smith Truck Serv., Inc., No. 5:11CV1683, 2012 WL 1658352, at *4
(N.D. Ohio May 11, 2012) (hourly rates of $200.00 and $225.00 are reasonable).
Plaintiff has not submitted billing statements to document the number of hours
expended by counsel on this litigation. Plaintiff seeks attorney fees in the amount of
$1,557.00. Based on the lowest hourly rate charged by plaintiff ($150.00), counsel
expended approximately 10 hours on this litigation. At the highest hourly rate, counsel
expended approximately 7.75 hours. Although plaintiff should have included billing
records to support its attorney fee request, based upon the information provided, the
Court finds that the number of hours expended in this case for which default judgment
was obtained appear to be reasonable for cases of this nature. See e.g. Trustees of
Michigan Laborers’ Pension Fund v. Improvement Techs. Co., No. 09-CV-11839, 2009
WL 5150349, at *2 (E.D. Mich. Dec. 18, 2009) (5.0 hours at a rate of $190.00 per hour);
Boards of Trustees of Ohio Laborers’ Fringe Benefits Programs v. LA Williams Constr.,
LLC,, No. 2:16-CV-00304, 2017 WL 2858277, at *4 (S.D. Ohio July 5, 2017) (hours
aggregated per the billing rates of $255.00 per hour for 12.25 hours and $280.00 per hour
for 5.75 hours for different types of work is reasonable) (citations omitted). Accordingly,
plaintiff’s motion for attorney fees in the amount of $1,557.00, and costs in the amount of
$535.00, is granted.
For all of the foregoing reasons, judgment is granted in favor of plaintiff and
against defendant in the amount of $107,600.85 in damages, and $1,557.00 in attorney
fees and $535.00 in costs.
IT IS SO ORDERED.
Dated: July 18, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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