Orrand et al v. Sanjects Group LLC

Filing 51

REPORT AND RECOMMENDATIONS re 44 Motion to Cite for Contempt for Failure to Obey Judgment. It is RECOMMENDED that the motion be DENIED. Objections to R&R due by 12/19/2014. Signed by Magistrate Judge Norah McCann King on 12/2/2014. (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.
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. No. 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”),

Doc.

No.

22,

defendant

was

directed to:
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.

On March 7, 2014, plaintiffs moved to enforce that judgment.

Motion to Cite for Contempt for Failure to Obey Judgment, Doc. No. 23.
That motion was denied because it did not appear that the Audit Order
had been served on defendant.

Order and Report and Recommendation,

Doc. No. 27; Order, Doc. No. 39.
On May 21, 2014, the Court ordered “Defendant to comply with the
directives set forth in the Audit Order within thirty (30) days.”
Order, Doc. No. 31.

Defendant was notified that its “failure to

comply with these directives may result in a finding of contempt, as
well

as

the

issuance

principal. . . .”

of

Id.

defendant’s

current

Defendant’s

Addresses

a

warrant

for

the

arrest

of

Defendant’s

Plaintiffs thereafter attempted to identify

principal
and

and

Principal,

address.
ECF

35;

Amended

Notice

Plaintiffs’

of

Second

Amended Notice of Defendant’s Addresses and Principal, ECF 36.
On October 2, 2014, plaintiffs filed a second Motion to Cite for
Contempt for Failure to Obey Judgment (“Plaintiffs’ Motion”), Doc. No.
44, asserting that defendant had failed to comply with the Court’s
Audit Order.

The matter was referred to the undersigned for a hearing

to be held on December 2, 2014, at 1:00 p.m.

Order, Doc. No. 45.

No

appearance was made by or on behalf of any party at that hearing.1

1

The Court waited until 1:30 p.m. before calling the case. The Court made no
effort to telephone counsel for plaintiffs, who received electronic notice of

2

It appears that plaintiffs do not intend to pursue Plaintiffs’
Motion.

In any event, the record is at best ambiguous as to whether

defendant received notice of the hearing, and it is unclear whether
plaintiffs have ever provided an effective address for defendant or
its principal. See, e.g., Doc. Nos. 46, 47, 48, 49. For all these
reasons, 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. 44,
be DENIED.
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 the 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 waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s
ability

recommendations
to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
the hearing because, lacking contact information for defendant and its
principal, the Court could not extend the same courtesy to defendant.

3

984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

to

preserve an issue for appeal . . . .”) (citation omitted)).

December 2, 2014

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

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