Boards of Trustees of Ohio Laborers' Fringe Benefit Programs v. USA Concrete Specialists, Inc. et al

Filing 10

ORDER AND REPORT AND RECOMMENDATIONS re 9 MOTION for Default Judgment against USA Concrete Specialists, Inc. it is RECOMMENDED that Plaintiffs' Motion for Default Judgment be GRANTED. Plaintiffs are ORDERED to indicate, within fourteen (14) days, whether they intend to pursue any claims against defendant Rich. Objections to R&R due by 9/14/2015. Signed by Magistrate Judge Norah McCann King on 8/26/2015. (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-1334
Judge Smith
Magistrate Judge King

USA CONCRETE SPECIALISTS, INC,
et al.,
Defendants.

ORDER AND
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.

Defendants

USA Concrete Specialists, Inc. (“defendant”), and Joseph Rich,
allegedly defendant’s controlling officer, were served with a summons
and a copy of the Complaint on April 23, 2015, see ECF 3, 4, but have
failed to plead or otherwise defend this action.

Plaintiff applied to

the Clerk for entry of default, Plaintiffs’ Application for Entry of
Default against Defendants, ECF 5, and the Clerk entered both
defendants’ default pursuant to Fed. R. Civ. P. 55(a) on July 8, 2015.
Entry of Default, ECF 6.

This matter is now before the Court on

Plaintiffs’ Motion for Default Judgment, ECF 9, seeking default
judgment against only defendant.
1

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
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 $13,223.90 in unpaid fringe benefit contributions for the period
April 2013 through December 2014 .
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 $2,196.07 in liquidated damages and
interest on the unpaid contributions through December 2014.

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
$1,912.50, for seven and one-half 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.

2

Plaintiffs are therefore entitled to judgment in the amount of
$15,419.97 in unpaid fringe benefit contributions, liquidated damages,
and prejudgment interest, and an award of attorney’s fees in the
amount of $1,912.50.
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 USA Concrete Specialists,
Inc., and that plaintiffs Boards of Trustees of the Ohio Laborers’
Fringe Benefit Programs have and recover from USA Concrete
Specialists, Inc., the sum of Fifteen Thousand Four Hundred Nineteen
Dollars and Ninety-Seven Cents ($15,419.97), including unpaid fringe
benefit contributions through December 2014, prejudgment interest, and
liquidated damages, and a reasonable attorney’s fee in the amount of
One Thousand Nine Hundred Twelve Dollars and Fifty Cents ($1,912.50),
plus interest from the date of judgment at the rate of one percent
(1%) per month.
Plaintiffs are ORDERED to indicate, within fourteen (14) days,
whether they intend to pursue any claims against defendant Rich.
Their failure to so indicate may result in the dismissal of any
remaining claims against defendant Rich.

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.

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28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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

August 26, 2015

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

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