Orrand et al v. Sanjects Group LLC

Filing 27

ORDER AND REPORT AND RECOMMENDATIONS re 23 MOTION for Order to Show Cause . Objections to R&R due by 6/2/2014. Signed by Magistrate Judge Norah McCann King on 5/14/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RAYMOND ORRAND, etc., et al.,
Plaintiffs,
vs.

Civil Action 2:13-cv-504
Judge Smith
Magistrate Judge King

SANJECTS GROUP, LLC,
Defendant.
ORDER AND
REPORT AND RECOMMENDATION
Plaintiffs, Trustees of the Ohio Operating Engineers Health &
Welfare Plan, Ohio Operating Engineers Pension Fund, Ohio Operating
Engineers Apprenticeship Fund, Ohio Operating Engineers Education &
Safety

Fund,

employee

and

benefit

Trustee

Raymond

Orrand

plans

pursuant

to

Complaint, Doc. 1, ¶¶ 1-6.

(“plaintiffs”),
various

Trust

administer
Agreements.

Plaintiffs filed the Complaint on May 24,

2013, alleging that defendant, Sanjects Group, LLC, failed to make
required contributions to the employee benefits plans.
11, 19.

Id. at ¶¶ 9-

Plaintiffs further allege that they are entitled to audit

defendant’s books and records regarding hours worked by and wages paid
to employees covered by the benefit plans.

Id. at ¶ 12.

Defendant did not move or plead in response to the Complaint.
Accordingly,
2013.

the

Clerk

entered

defendant’s

Clerk’s Entry of Default, Doc. No. 18.

default

on

October

25,

Plaintiff subsequently

filed a motion for default judgment, which was granted on January 22,
2014.
Order

Doc. Nos. 21, 22.
for

Audit

(“the

In the Order Granting Default Judgment and
Audit

Order”),

directed to:

1

Doc.

No.

22,

defendant

was

make available to Plaintiffs for audit all of the individual
earnings records, weekly payroll journals, and other payroll
records of defendant, all quarterly withholding tax and FICA tax
returns (Form 941); and all Form W-3 of Defendant for the period
December 1, 2011 to the present within thirty (30) days from the
date hereof.
Id.

Plaintiffs now represent that defendant failed to comply with

these directives and move to enforce that judgment. Motion to Cite for
Contempt for Failure to Obey Judgment (“Plaintiffs’ Motion”).
No.

23.

The

matter

Order, Doc. No. 26.

was

referred

to

the

undersigned

for

A hearing was held on May 13, 2014.

Doc.

hearing.

Plaintiffs

were represented at that hearing; no appearance was made by or on
behalf of defendant.
It does not appear that the Audit Order was served by the Court
on defendant.

Plaintiffs’ counsel sent a copy of the Audit Order to

defendant by certified mail, but that mailing was returned unclaimed.
Exhibit B, attached to Plaintiffs’ Motion.

At least one of the orders

scheduling the contempt hearing and referring to the Audit Order was
mailed by the Court to defendant, by both regular and certified mail.
However, that Order, Doc. No. 26, did not contain all the specific
directives contained in the Audit Order.1
Under these circumstances, the Court concludes that a finding of
contempt on the part of defendant is unwarranted at this juncture.
It is therefore RECOMMENDED that Plaintiffs’ Motion, Doc. No. 23,
be denied.
Plaintiffs

are

ORDERED

to

provide

the

defendant’s

address

addresses, as well as the name and address of defendant’s principal.

1

It is unclear whether either mailing has been successful. To date, neither
the regular nor the certified mailing has been returned to the Court.

or

It is FURTHER RECOMMENDED that the Court issue – and serve upon
defendant

and

its

principal

-

an

amended

audit

order

granting

defendant an additional thirty (30) days to comply with the directives
specified in the Audit Order, Doc. No. 22, and specifically advising
defendant

and

its

principal

that

a

failure

to

comply

with

those

directives may result in a finding of contempt and the issuance of a
warrant for the arrest of defendant’s principal.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

Date: May 14, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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