Orrand et al v. Brown's Excavating, Inc.

Filing 9

REPORT AND RECOMMENDATION that 6 MOTION for Default Judgment against Brown's Excavating, Inc. be granted. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 6/8/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Raymond Orrand, Administrator,:
et al.,
:
Plaintiffs,
v.

:
:

Case No. 2:14-cv-02320

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

Brown’s Excavating, Inc.,
Defendant.

:
REPORT AND RECOMMENDATION

This matter is before the Court on a motion for default
judgment brought by plaintiffs Raymond Orrand, Administrator and
the Trustees of the Ohio Operating Engineers Pension Plan, Ohio
Operating Engineers Pension Fund, Ohio Operating Engineers
Apprenticeship Fund, and Ohio Operating Engineers Education and
Safety Fund.

Plaintiffs filed this action pursuant to a

collective bargaining agreement, alleging that Brown’s
Excavating, Inc. has failed to comply with the fringe benefit
contribution requirements of their agreement.

Plaintiffs

completed certified mail service on November 20, 2014, but
Brown’s Excavating has not moved or pled in response to the
complaint.

The Clerk entered default against Brown’s Excavating

on June 5, 2015.

For the following reasons, the Court will

recommend that the motion for default judgment be granted.
Plaintiffs have moved for default judgment under Rule
55(b)(1).

That Rule provides that a judgment by default may be

entered when the claim is for a sum certain or for a sum which
can be made certain by computation.

Sum certains are sums that

can be calculated from the terms of a written document such as a
contract.

Ironworkers Dist. Council of Southern Ohio v.

Reinforcing Services Co., LLC, 2009 WL 4154905, *2 (S.D Ohio Nov.
20, 2009).
Here, it is undisputed that Brown’s Excavating entered into
agreements with the plaintiffs obligating it to make employer
contributions pursuant to those agreements.

Further, it is

undisputed that Brown’s Excavating has failed to make certain
contributions or pay interest as required.

Finally, the

plaintiff funds are multi-employee benefit plans within the
meaning of ERISA, 29 U.S.C. §1145.
Section 1145 provides:
Every employer who is obligated to make contributions
to a multiemployer plan under the terms of a
collectively bargained agreement shall, to the extent
and not inconsistent with law, make such contributions
in accordance with the terms and conditions of such
plan or such agreement.
ERISA, 29 U.S.C. 1132(g) provides:
(2)

In any action under this subchapter by a fiduciary for
or on behalf of a plan to enforce section 1145 of this
title in which a judgment in favor of the plan is
awarded, the court shall award the plan–

(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 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.

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In this case, plaintiffs have submitted the affidavit of
Raymond Orrand, fund administrator, stating that, upon his review
of the relevant employer monthly reports and Trustees’ field
auditor’s report, he has determined that Brown’s Excavating has
failed to make timely contributions in the amount of $14,074.90
for the audit period February 1, 2013 to September 1, 2014.
Further, Mr. Orrand states that, under the terms of their
agreement, Brown’s Excavating has accumulated interest charges in
the amount of $1,806.50 calculated to December 15, 2014, plus
$6.95 per day thereafter, as long as the judgment remains unpaid
and that it has accumulated additional interest in the same
amount under 29 U.S.C. §1132(g).
The Court is satisfied that judgment in this amount is a sum
which can be made certain by computation, and that Brown’s
Excavating has failed to move or plead in response to the
complaint.

Consequently, it will be recommended that the motion

for default judgment be granted.
For the reasons stated above, the Court recommends that the
motion for default judgment (Doc. 6) be granted and that the
Clerk enter judgment in favor of the plaintiffs and against
Brown’s Excavating, Inc. as follows:
1.

Audit finding/delinquent contributions for the period
November 1, 2013 to September 1, 2104 in the amount of
$14,074.90;

2.

Interest in the amount of $1,806.50 calculated to
December 15, 2014, plus $6.95 per day thereafter as
long as the judgment remains unpaid;

3.

Statutory interest in the amount of $1,806.50
calculated to December 15, 2014, plus $6.95 per day
thereafter as long as the judgment remains unpaid;

4.

Court costs in the amount of $400.00.
PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that
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party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
.
/s/ Terence P. Kemp
United States Magistrate Judge

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