Bleyenberg v. D&N Masonry, Inc. et al

Filing 56

ORDER REPORT AND RECOMMENDATIONS: Plf motion for prejudgment (doc. 51) be GRANTED; certified copy of this Order should be mailed to Howard Immel, Inc., National Corporate Research and Howard Immel, Inc. c/o Lauren Hentz Objections to R&R due by 5/20/2013. Signed by Magistrate Judge Mark R. Abel on 5/3/13. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Jim Bleyenberg,

:
Plaintiff

D&N Masonry, Inc., et al.,
Defendants

Civil Action 2:12-cv-00777

:

v.

:

Judge Smith

:

Magistrate Judge Abel

:

ORDER and
REPORT AND RECOMMENDATION
Plaintiff Jim Bleyenberg brings this action against defendants D&N Masonry,
Inc., Don DeBello, Nick DeBello, and Cathy DeBello (“D&N and the DeBello
defendants”) and Venture One Construction, Inc. (“Venture”) for recovery of wages.
Plaintiff seeks back pay, treble damages, interest, and reimbursement of his costs and
attorney fees incurred in prosecuting this action under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et seq., Ohio’s Minimum Fair Wage Standards Act, Ohio Rev.
Code Chapter 4111, and the Minimum Wage Amendment to the Ohio Constitution.
This matter was referred to the Magistrate Judge for a hearing and Report and
Recommendation on plaintiff Jim Bleyenberg’s April 12, 2013 ex parte motion for
prejudgment attachment of defendant D&N Masonry, Inc.’s assets under Rule 64 of the
Federal Rules of Civil Procedure and Ohio Revised Code § 2715.045 (doc. 51).
A hearing was held before the Magistrate Judge on May 3, 2013.
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On May 1, 2013, plaintiff served a subpoena on D&N Masonry, Inc. commanding
it to appear and testify at the hearing before the Magistrate Judge and produce the
documents listed in exhibit A to the subpoena. D&N Masonry, Inc. failed to appear at
the hearing. Therefore, Don Debello, President of D&N Masonry, Inc., is ORDERED to
SHOW CAUSE on or before May 10, 2013 why D&N Masonry, Inc. should not be held
in contempt for failing to comply with the subpoena.
For the reasons stated on the record, I find that defendant D&N Masonry, Inc.
failed to demonstrate good cause for its failure to timely respond to plaintiff’s March 15,
2013 admissions; accordingly, it is FURTHER ORDERED that these admissions are
DEEMED admitted.
Plaintiff provided the court with an Application and Certificate for Payment
from D&N Masonry, Inc., which was submitted on April 22, 2013 to Howard Immel,
Inc. for work performed on the construction of a Walmart New Supercenter in South
Euclid, Ohio. The Application and Certificate for Payment seeks payment of $20,000.
Howard Immel, Inc. has a retainage of $54,702.52. The balance remaining, including the
retainage, is $497.084.55.
Plaintiff seeks $14.557.00 for unpaid wages and statutory penalties/damages and
$18,000.00 in attorney fees. The Magistrate Judge RECOMMENDS that as monies
become due and owing by Howard Immel, Inc. to D&N Masonry, the monies should be
attached and paid to the Clerk of Court for the Southern District of Ohio. The
Magistrate Judge further RECOMMENDS that it be ORDERED that no monies be paid

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to D&N Masonry, Inc. by Howard Immel, Inc. until $32,557.00 has been paid to the
Clerk of Court.
Accordingly, the Magistrate Judge RECOMMENDS that plaintiff Jim
Bleyenberg’s April 12, 2013 motion for prejudgment attachment of defendant D&N
Masonry, Inc.’s assets under Rule 64 of the Federal Rules of Civil Procedure and Ohio
Revised Code § 2715.045 (doc. 51) be GRANTED.
The Clerk of Court is DIRECTED to mail a copy of this Order and Report and
Recommendation by certified mail to:
Howard Immel, Inc.
c/o Lauren Hentz, Contracts Administration
1820 Raddison Street
Green Bay, Wisconsin 54302
National Corporate Research
Statutory Agent for Howard Immel, Inc.,
4568 Mayfield Road, Suite 204
Cleveland, Ohio 44121
Howard Immel, Inc.
Walmart Superstore Construction Site
1868 Warrensville Center Road
South Euclid, Ohio 44121
If D&N Masonry, Inc. or Howard Immel, Inc. have objections to this attachment
based on Ohio law or the United States Constitution, they must appear before the
Magistrate Judge for a hearing on these objections on May 23, 2013 at 11:30 a.m. D&N
Masonry, Inc. and Howard Immel, Inc. are DIRECTED to file notice of their objections
and a request that the hearing be held as scheduled above on May 23, no later than May
17, 2013.
s/Mark R. Abel
United States Magistrate Judge

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