Boards of Trustees of Ohio Laborers' Fringe Benefit Programs v. Deer Creek Excavating, LLC et al

Filing 13

ORDER granting 12 Motion for Default Judgment. Deer Creek is ORDERED to pay Plaintiffs the sum of $30,181.71, as well as $1,610.00 in attorney fees, plus reasonable costs, and interest from the time of judgment at a rate of 1% per month. Plaintiffs claims against the remaining Defendants are hereby DISMISSED without prejudice. Signed by Judge Algenon L. Marbley on 12/2/2013. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BOARDS OF TRUSTEES OF OHIO
LABORERS’ FRINGE BENEFITS
PROGRAMS,
Plaintiffs,
v.
DEER CREEK EXCAVATING,
LLC, et al.,
Defendants.

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Case No. 2:13-cv-00078
JUDGE ALGENON L. MARBLEY
Magistrate Judge Deavers

ORDER
This matter is before the Court on Plaintiffs’ Motion for Default Judgment against
Defendant Deer Creek Excavating, LLC (Doc. 12). Plaintiffs seek $30,181.71 in unpaid
contributions, liquidated damages and interest, plus interest from the time of judgment at a rate
of 1% per month. (Doc. 12 at 1). Plaintiffs also seek $1,610.00 in attorney fees, as well as costs.
Plaintiffs move to dismiss the claims against the remaining Defendants without prejudice. (Id.).
For the reasons stated herein, default judgment is GRANTED.
Plaintiffs, the fiduciaries of three employee benefit trusts and one labor management
cooperative trust, brought this action against Defendants based on various collective bargaining
agreements between Defendants and a local union affiliated with the Laborers’ District Council
of Ohio, AFL-CIO. (Complaint, Doc. 1, ¶¶ 1-2). Plaintiffs allege that the agreements bound
Deer Creek to the Declarations of Trust establishing the funds, and obligated it to make
contributions on behalf of all its employees working within the work jurisdiction. (Id., ¶ 4).
Plaintiffs assert that Deer Creek breached these agreements by failing to make such payments in
the amount and manner set out in the agreements and Declarations of Trust. (Id., ¶ 6).

Plaintiffs filed their complaint on January 30, 2013. (Doc. 1). Summons were returned
as executed as to all Defendants (see Doc. 3, 4, 5, 6), and Defendants filed an Answer on March
6, 2013 (Doc. 7). Defendants’ answer, however, was filed by Richard J. Weemhoff and
Benjamin T. Flynn, who are not attorneys.
It is well-settled law “that a corporation may appear in the federal courts only through
licensed counsel.” Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506
U.S. 194, 202 (1993); see also Doherty v. Am. Motors Corp., 728 F.2d 334, 340 (6th Cir. 1984).
In addition, because Fed. R. Civ. P. 11(a) requires the signature of an attorney or the party itself
on “[e]very pleading, written motion, and other paper,” a “pleading by a corporation that is not
signed by an attorney is treated as unsigned for Rule 11(a) purposes.” White v. Smith, No. 2:09cv-00574, 2010 WL 795967, at *1 (S.D. Ohio March 2, 2010) (citation omitted). Unsigned
papers will be stricken. Fed. R. Civ. P. 11(a).
Accordingly, on March 12, 2013, Magistrate Judge Deavers ordered Defendants to retain
a trial attorney within 30 days. (Doc. 8). The Magistrate Judge cautioned that “failure to comply
with this order could result in an entry of default in Plaintiff’s favor.” (Id. at 2). Copies of this
order were sent to Weemhoff via ordinary and certified mail, and were delivered on March 14.
(Doc. 9). Nothing further has been filed by Defendants, and no attorneys have appeared.
On April 24, therefore, Plaintiffs applied for entry of default under Fed. R. Civ. P. 55(a)
against Deer Creek (Doc. 10), which the Clerk entered the next day (Doc. 11). Plaintiffs now
move for Default Judgment against Deer Creek, and move to dismiss their claims against the
remaining Defendants without prejudice. (Doc. 12 at 1).
Plaintiffs allege that Deer Creek owes the sum of $22,553.87 in unpaid contributions for
the period from October 2012 through January 2013. (Doc. 12 at 3). In addition, under 29

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U.S.C. § 1132(g)(2), Plaintiffs request liquidated damages and interest. See Sherman v. Carter,
353 U.S. 210 (1957); Michigan Carpenters Council v. C.J. Rogers, Inc., 933 F.2d 376 (6th Cir.
1991). The collective bargaining agreement upon which Plaintiffs base their claims provides for
a one-time 10% charge on all late contributions as liquidated damages, as well 1% interest per
month on late contributions until paid. (Id.; see also Plaintiffs’ Ex. B, Doc. 12-3). Plaintiffs
assert that Deer Creek made late payments totaling $47,579.80. (Doc. 12 at 3). Thus, Plaintiffs
ask for $22,553.87 in known unpaid contributions, together with $7,627.84 in liquidated
damages and interest. (Id.; Plaintiffs’ Ex. C, Doc. 12-3).
Finally, Plaintiffs assert that Deer Creek is obligated to pay attorney fees and costs under
29 U.S.C. § 1132(g)(2), the collective bargaining agreement, and common law. (Doc. 12 at 4).
See Trustees for Michigan Laborers Health Care Fund v. E. Concrete Paving Co., No. 90-2320,
948 F.2d 1290 (6th Cir. Oct. 31, 1991) (award of attorney fees under 29 U.S.C. § 1132(g)(2) is
mandatory). Plaintiffs provide an accounting of the time expended in pursuing this action (see
Plaintiffs’ Ex. E, Doc. 12-3), and request $1,610.00 in fees.
For the foregoing reasons, Plaintiffs’ Motion for Default Judgment against Defendant
Deer Creek is hereby GRANTED. Deer Creek is ORDERED to pay Plaintiffs the sum of
$30,181.71, as well as $1,610.00 in attorney fees, plus reasonable costs, and interest from the
time of judgment at a rate of 1% per month. Plaintiffs’ claims against the remaining Defendants
are hereby DISMISSED without prejudice.
IT IS SO ORDERED.

s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: December 2, 2013
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