Boards of Trustees of Ohio Laborers' Fringe Benefit Programs v. McVay Masonry, LLC

Filing 10

REPORT AND RECOMMENDATIONS. It is RECOMMENDED that Plaintiffs' Motion for Default Judgment, ECF 9 , be GRANTED. Objections to R&R due by 7/13/2015. Signed by Magistrate Judge Norah McCann King on 6/26/2015. (pes)

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,
vs.

Civil Action 2:15-CV-1126
Judge Marbley
Magistrate Judge King

MCVAY MASONRY, LLC.
Defendant.

REPORT AND RECOMMENDATION
This is an action for unpaid fringe benefit contributions,
liquidated damages, and interest allegedly owed certain employee
benefits plans pursuant to a collective bargaining agreement.
Plaintiffs, the trustees of four trust funds, assert claims under
ERISA, 29 U.S.C. § 1132, and the LMRA, 29 U.S.C. § 185.

Defendant

McVay Masonry, LLC (“defendant”), was served with a summons and a copy
of the Complaint on April 14, 2015, see ECF 3, but has failed to plead
or otherwise defend this action.

Plaintiff applied to the Clerk for

entry of default, Plaintiffs’ Application for Entry of Default against
Defendant, ECF 6, and the Clerk entered default pursuant to Fed. R.
Civ. P. 55(a) on June 22, 2015.

Entry of Default, ECF 7.

This matter

is now before the Court on Plaintiffs’ Motion for Default Judgment,
ECF 9.
Plaintiffs have established that defendant entered into an
agreement with a local union affiliated with the Laborers’ District
Council of Ohio, AFL-CIO, by which defendant agreed to pay
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contributions to the funds, by the 15th of each month, on behalf of its
employees working within the work jurisdiction of the union.
Plaintiffs’ Motion for Default Judgment, Exhibits A, B.

The Affidavit

of Plaintiffs’ Contractor Relations Manager, attached to Plaintiffs’
Motion for Default Judgment as ECF 9-2, establishes that defendant
owes $3,586.81 in unpaid fringe benefit contributions for the period
February 2014 through April 2015.
Default Judgment, Exhibit C.

Id. at ¶ 3; Plaintiffs’ Motion for

Plaintiffs are entitled to liquidated

damages, interest, and attorney fees on these unpaid contributions.
29 U.S.C. § 1132(g)(2); Mich. Carpenters Council Health & Welfare Fund
v. C.J. Rogers, Inc., 933 F.2d 376 (6th Cir. 1991).

Plaintiffs have

established that defendant owes $889.31 in liquidated damages and
interest on the unpaid contributions through April 2015.

Affidavit of

Plaintiffs’ Contractor Relations Manager, ¶ 3; Plaintiffs’ Motion for
Default Judgment, Exhibit C.
Plaintiffs seek an award of attorney’s fees in the amount of
$2,040.00, for eight attorney hours billed at the rate of $255 per
hour.

Plaintiffs’ Motion for Default Judgment, p. 4, Exhibit D.

Plaintiffs have provided evidentiary support that the number of hours
billed and the hourly rate charged are reasonable.

Plaintiffs’

Affidavit in Support of Their Motion for Default Judgment, attached to
Plaintiffs’ Motion for Default Judgment as ECF 9-1; Plaintiffs’ Motion
for Default Judgment, Exhibit D.
Plaintiffs are therefore entitled to judgment in the amount of
$4,476.12 in unpaid fringe benefit contributions, liquidated damages,

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and prejudgment interest, and an award of attorney’s fees in the
amount of $2,040.
Accordingly, it is RECOMMENDED that Plaintiffs’ Motion for
Default Judgment, ECF 9, be GRANTED.

It is FURTHER RECOMMENDED that

the Clerk enter judgment against defendant and that plaintiffs Boards
of Trustees of the Ohio Laborers’ Fringe Benefit Programs have and
recover from McVay Masonry, LLC, the sum of Four Thousand Four Hundred
Seventy-Six Dollars and Twelve Cents ($4,476.12), including unpaid
fringe benefit contributions through April 2015, prejudgment interest,
and liquidated damages, and a reasonable attorney’s fee in the amount
of Two Thousand Forty Dollars ($2,040), plus interest from the date of
judgment at the rate of one percent (1%) per month.
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).

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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

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v. Walters, 638 F.2d 947 (6th Cir. 1981).

June 26, 2015

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

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