Boards of Trustees of Ohio Laborers' Fringe Benefit Programs v. P22 Utility Resotration, Inc.

Filing 12

REPORT AND RECOMMENDATION that 10 MOTION for Default Judgment against P22 Utility Restoration, Inc. be granted. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 6/19/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Boards of Trustees of the Ohio
Laborers’ Fringe Benefit
:
Programs,
:
Plaintiffs,
v.

:
:

:
P22 Utility Restoration, Inc.,
Defendant.

Case No. 2:14-cv-02562
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:
REPORT AND RECOMMENDATION

This matter is before the Court on a motion for default
judgment brought by Plaintiffs Boards of Trustees of the Ohio
Laborers’ Fringe Benefit Programs.

Plaintiffs filed this action

pursuant to a collective bargaining agreement, alleging that P22
Utility Restoration, Inc. has failed to comply with the fringe
benefit contribution requirements of that agreement.

The Clerk

entered default against P22 Utility Restoration on April 21,
2015, and Plaintiffs subsequently moved for a default judgment, a
motion which has been referred to the Magistrate Judge.

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.

Sums certain 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, according to the well-pleaded allegations of the

complaint, which are deemed admitted for purposes of ruling on
the motion for default judgment, P22 Utility Restoration entered
into certain collective bargaining obligating it to make
contributions to the Plaintiffs on behalf of all persons employed
within he trade and territorial jurisdiction of a laborer as
defined in the agreements.

The complaint alleges that P22

Utility Restoration has failed to make certain monthly
contributions as required by the agreements, and it specifically
identified unpaid contributions for the months of January, March,
and May of 2014, plus liquidated damages and interest.

Damages

and interest are also sought for November and December, 2013, and
June and July, 2014.
The funds involved in this case 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),

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(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.

In this case, Plaintiffs have submitted the affidavit of
Matthew A. Archer, fund administrator, stating that, based upon
computations made under his direction, he has determined that P22
Utility Restoration owes a total of $4,600.46 in unpaid
contributions and other amounts for the period from November,
2013 through August, 2014.

A worksheet attached to his affidavit

breaks this amount down into $3,454.69 in unpaid principal
contributions, $890.09 in damages, and $255.68 in interest.
Plaintiffs’ attorney, Steven L. Ball, has submitted a separate
affidavit requesting compensation for $1,976.25 based on the
expenditure of 7.75 hours on the case, billed at the rate of
$255.00 per hour.

The Court is satisfied that judgment in these

amounts is supported by competent evidence.

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. 10) be granted and that the
Clerk enter judgment in favor of the Plaintiffs and against
Defendant as follows:
1.

Audit finding/delinquent contributions, damages, and
interest for the period November, 2013 to August, 2104
in the amount of $4,600.46;

2.

Attorneys’ fees in the amount of $1,976.25; and

3.

Interest from the time of judgment at the rate of 1%
per month.

Plaintiffs are also entitled to an award of costs, and may submit
a separate bill of costs for taxation by the Clerk.
PROCEDURE ON OBJECTIONS
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If any party objects to this Report and Recommendation, that
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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