Orrand et al v. Deer Creek Excavating LLC

Filing 21

REPORT AND RECOMMENDATIONS re 20 MOTION for Summary Judgment. It is RECOMMENDED that Plaintiffs' Motion be GRANTED. Objections to R&R due by 12/18/2014. Signed by Magistrate Judge Norah McCann King on 12/1/2014. (pes1) (This document has been sent by the Clerks Office by regular and certified mail to the party(ies) listed in the NEF that did not receive electronic notification. Tracking number is 7009 2820 0003 5796 2969.)

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

RAYMOND ORRAND, Administrator,
et al.,
Plaintiffs,
vs.

Civil Action 2:13-CV-1121
Judge Graham
Magistrate Judge King

DEER CREEK EXCAVATING, LLC,
Defendant.

REPORT AND RECOMMENDATION
Plaintiffs, acting on behalf of certain employee benefits
plans, seek injunctive and monetary relief in connection with defendant’s
alleged failure to make required reports and contributions to the plans.
Plaintiffs assert claims under 29 U.S.C. § 185 and 29 U.S.C. § 1132 as
required by a collective bargaining agreement and ERISA.

Defendant, a

corporate entity, was previously warned that it can proceed in this action
only through counsel. Order, ECF 17; Order, ECF 18. Defendant’s original
counsel was granted leave to withdraw, Order, ECF 18, and no successor
counsel has entered an appearance on behalf of defendant.

This matter is

now before the Court on Plaintiffs’ Motion for Summary Judgment, ECF 20
(“Motion for Summary Judgment”). There has been no response to the Motion
for Summary Judgment.
The plaintiff trustees bring this action on behalf of the Ohio
Operating Engineers Health and Welfare, Plan, the Ohio Operating Engineers
Pension Fund, the Ohio Operating Engineers Apprenticeship and Training Fund
and the Ohio Operating Engineers Safety & Education Fund, a collection of
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trust funds (“the Funds”).

Complaint, ECF 1, ¶¶ 2-3, 10-11, 15-16, 20-21;

Plaintiff Raymond Orrand’s Affidavit in Support of Motion for Summary
Judgment, ¶ 1, attached as Exhibit A to the Motion for Summary Judgment
(“Orrand Affidavit”).1

Deer Creek is an employer and corporation with its

principal place of business in Bellville, Ohio.

Complaint, ¶¶ 4-6.

Plaintiffs seek recovery of unpaid contributions, liquidated damages,
interest, attorney’s fees, court costs and injunctive relief.

Id. at pp.

11-13; Motion for Summary Judgment, pp. 8-9.
Summary judgment is appropriate if the record establishes that there
exists no genuine issue of material fact.

Fed. R. Civ. P. 56; Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

The mere existence

of a scintilla of evidence in support of the opposing party’s position will
be insufficient; there must be evidence on which the jury could reasonably
find for the opposing party.

Anderson, 477 U.S. at 251.

See also Celotex

Corp. v. Catrett, 477 U.S. 317 (1986).
Under ERISA, an “employer who is obligated to make contributions to
a multiemployer plan under the terms of the plan or under the terms of a
collectively bargained agreement shall . . . make such contributions in
accordance with the terms and conditions of such plan or such agreement.”
29 U.S.C. § 1145. The record reflects the following uncontroverted facts.
Deer Creek executed collective bargaining agreements requiring it to make
timely contributions to the Funds.

Orrand Affidavit, ¶ 2; Affidavit of

Douglas Baker, ¶ 8, attached as Exhibit C to the Motion for Summary Judgment
(“Baker Affidavit”);2 Exhibit A, attached to the Complaint.

Deer Creek

1 Raymond Orrand is the Administrator of the Funds. Id.
2 Douglas Baker is the field auditor for the Ohio Operating Engineers Fringe Benefit
Programs. Id. at ¶ 2.

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failed to make timely contributions to the Funds for the period November
1, 2012 through December 31, 2012 and for the period January 1, 2013 through
April 30, 2013.

Orrand Affidavit, ¶ 6; Baker Affidavit, ¶¶ 11-13.

contributions for these periods total $15,342.10.

Unpaid

Id.; Exhibit 1,

attached to Baker Affidavit.
When an employer fails to make contributions under 29 U.S.C. § 1145,
ERISA requires that a court award the employee benefit plan the following
relief:
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of-(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an
amount not in excess of 20 percent (or such higher percentage
as may be permitted under Federal or State law) of the amount
determined by the court under subparagraph (A),
(D) reasonable attorney’s fees and costs of the action, to be
paid by the defendant, and
(E) such other legal or equitable relief as the court deems
appropriate.
For purposes of this paragraph, interest on unpaid
contributions shall be determined by using the rate provided
under the plan, or, if none, the rate prescribed under [26 U.S.C.
§ 6621].
29 U.S.C. § 1132(g)(2).

Subsection (C) therefore “‘contemplates a

remedial award in the form of either liquidated damages or a second
assessment of interest on the unpaid contributions (the so-called
‘double-interest penalty’).’”

Trs. of the Flint Area Sheet Metal Workers

Health & Welfare Fund v. C3 Mech., Inc., 450 F. Supp. 2d 762, 763 (E.D.
Mich. 2006) (quoting Laborers’ Pension Trust Fund-Detroit and Vicinity v.
Family Cement Co., 677 F. Supp. 896, 899 (E.D. Mich. 1987)).

See also Iron

Workers’ Local No. 25 Pension Fund v. MCS Gen’l Contractors, Inc., Nos.
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98-2107, 99-2262, 2000 U.S. App. LEXIS 22688, at *23 (6th Cir. Aug. 30,
2000).

Finally, any such awards under 29 U.S.C. § 1132(g) are mandatory,

although the award of attorneys’ fees must be reasonable.

See, e.g., id.;

Bricklayers Pension Trust Fund v. Rosati, Inc., No. 98-1552, 1999 U.S. App.
LEXIS 15678, at *5 (July 7, 1999); In re Michigan Carpenters Council Health
& Welfare Fund, 933 F.2d 376, 388 (6th Cir. 1991).
In the case presently before the Court, plaintiffs submit evidence
that Deer Creek has accumulated liquidated damages (or “late charges” or
interest on delinquent contributions) and interest in the amount of
$4,753.56 calculated to November 15, 2014, plus $7.57 per day thereafter,
so long as the judgment remains unpaid.

Orrand Affidavit, ¶¶ 4-6 (using

a rate of 18 percent per annum); Baker Affidavit, ¶ 5.
seek recovery of the $400.00 filing fee.

Plaintiffs also

Motion for Summary Judgment, p.

8 n.2.
Because Deer Creek has not responded to the Motion for Summary
Judgment, the accuracy of all these amounts is uncontroverted and the Court
therefore concludes that plaintiffs are entitled to judgment in these
amounts.
Finally, although the Motion for Summary Judgment requests
“injunctive relief as described above[,]” id. at 9, plaintiffs fail to
articulate the injunctive relief sought.

However, because plaintiffs are

entitled to equitable relief, see 29 U.S.C. § 1132(g)(2)(E), the Court
concludes that plaintiffs are entitled to the injunctive relief requested
in the Complaint. Complaint, pp. 11-13.
WHEREUPON, it is RECOMMENDED that Plaintiffs’ Motion for Summary
Judgment, ECF 20, be GRANTED.

It is SPECIFICALLY RECOMMENDED that

plaintiffs be awarded judgment as follows:
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1.

$15,342.10 in unpaid contributions from November 1, 2012
through April 30, 2013 pursuant to 29 U.S.C. § 1132(g)(2)(A);

2.

$4,753.56 in interest, calculated to November 15, 2014, plus
$7.57 per day thereafter, so long as the judgment remains unpaid
pursuant to 29 U.S.C. § 1132(g)(2)(B);

3.

$4,753.56 in liquidated damages, calculated to November 15,
2014, plus $7.57 per day thereafter, so long as the judgment
remains unpaid pursuant to 29 U.S.C. § 1132(g)(2)(C);

4.

Court costs in the amount of $400.00 pursuant to 29 U.S.C. §
1132(g)(2)(D);

5.

Reasonable attorney’s fees pursuant to 29 U.S.C.
§1132(g)(2)(D); and

6.

Injunctive relief pursuant to 29 U.S.C. § 1132(g)(2)(E),
including a mandatory injunction directing Deer Creek to comply
with its contribution and audit obligations under the various
agreements as set forth in more detail in the Complaint, pp.
11-13.

It is FURTHER RECOMMENDED that plaintiffs be ordered to file a
properly supported motion for attorney’s fees within fourteen (14) days
following a ruling on this Report and Recommendation.
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.
636(b)(1); Fed. R. Civ. P. 72(b).

28 U.S.C. §

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.
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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).

December 1, 2014

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

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