Wilson et al v. Porter
REPORT AND RECOMMENDATION that 16 MOTION for Summary Judgment be granted and that the Court enter judgment in favor of Plaintiffs and against Mr. Porter for delinquent contributions to the Funds in the amount of $10,807.26; accumulated inte rest on that amount of $1,270.18 through 8/15/2015, plus late charges of $5.33 per day thereafter. Objections to R&R due by 3/7/2017. Signed by Magistrate Judge Terence P. Kemp on 2/21/2017. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Carol A. Wilson, et al.,
Case No. 2:15-cv-2702
CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
Rodney D. Porter,
REPORT AND RECOMMENDATION
This lawsuit was brought by Carol A. Wilson in her capacity
as the Administrator of various state pension funds and the
trustees of those funds against Rodney D. Porter d/b/a Val’s
Crane Service. This matter is now before the Court on the
plaintiffs’ unopposed motion for summary judgment. (Doc. 16).
For the following reasons, it will be recommended that the motion
The plaintiffs are the Administrator and Trustees of the
Ohio Operating Engineers Health and Welfare Plan, the Ohio
Operating Engineers Pension Fund, the Ohio Operating Engineers
Education and Safety Fund, and the Ohio Operating Engineers
Apprenticeship Fund (the “Funds”). The Funds are jointlyadministered, multi-employer fringe benefit programs established
for the benefit of employees of contractors who perform work
pursuant to an agreement with the International Union of
Operating Engineers, Local Nos. 18, 18A and 18B (the “Union”).
The Funds provide health and welfare, retirement, and other
fringe benefits to their beneficiaries. Mr. Porter (d/b/a Val’s
Crane Service) employs workers in construction contracting. He
entered into various collective bargaining agreements with the
Union (“CBAs”) which obligated him to make fringe benefit
contributions to the Funds on behalf of his employees.
On September 12, 2013, Mr. Porter entered into two CBAs.
The first was the Associated General Contractors of Ohio Building
Agreement between the Union and the Labor Relations Division of
the Associated General Contractors of Ohio (“ACG Agreement”).
Doc. 1, Ex. A at 1. The second was the Ohio Highway Heavy
Agreement between the Labor Relations Division of the Ohio
Contractors Association (“Highway Agreement”). Both the ACG and
Highway Agreements ran from May 8, 2013 through April 30, 2017.
Id. at 2. On October 2, 2013, Mr. Porter entered into a third
CBA, which was a short form agreement adopting the Construction
Employers Association Building Agreement between the Construction
Employers Association and the Union (“CEA Agreement”), dated May
1, 2012 through April 30, 2015. Id. at 3. Mr. Porter was
obligated under these CBAs to make certain fringe benefit
contributions to the Funds on behalf of his employees for all
hours paid to covered employees. Id.
An audit conducted in January of 2015 revealed that Mr.
Porter had failed to pay certain fringe benefit contributions
owed under the CBAs. (Doc. 1, ¶¶8, 13, 18, and 23). The audit
covered the time period of September 1, 2013 through January 1,
2015. Id. The audit looked into whether, based on the hours of
work performed by his employees, Mr. Porter had made the required
contributions to the applicable Funds. Based on the rates for
the Funds, the audit determined that he owed $10,807.26 in
delinquent contributions for the audit period, $5,566.90 of which
is owed to the Health and Welfare Plan; $4,665.00 of which is
owed to the Pension Fund; $520.93 of which is owed to the
Apprenticeship Fund; and $54.43 of which is owed to the Education
and Safety Fund. Id. at §§29; Doc. 16, Ex. A (Affidavit of Carol
Wilson) at §6. The plaintiffs sued on August 11, 2015 pursuant to
the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.
§§1132(a)(3) & 1145 to recover these unpaid contributions. Id. at
§1. Mr. Porter filed a timely answer (Doc. 7) and on April 19,
2016, his counsel moved to withdraw from the case. (Doc. 12). On
June 1, 2016, the plaintiffs filed this motion for summary
judgment. After Mr. Porter failed to file a memorandum opposing
his counsel’s motion to withdraw, the Court granted that motion
on June 14, 2016. (Doc. 19). There has been no appearance of
counsel on Mr. Porter’s behalf and no activity on the docket
since the June 14, 2016 Order granting the motion to withdraw.
Thus, the Court will proceed to consider the motion for summary
II. Legal Standard
Summary judgment is not a substitute for a trial when facts
material to the Court’s ultimate resolution of the case are in
It may be rendered only when appropriate evidentiary
materials, as described in Fed. R. Civ. P. 56(c), demonstrate the
absence of a material factual dispute and the moving party is
entitled to judgment as a matter of law.
Broad. Sys., Inc., 368 U.S. 464 (1962).
Poller v. Columbia
The moving party bears
the burden of demonstrating that no material facts are in
dispute, and the evidence submitted must be viewed in the light
most favorable to the nonmoving party.
Co., 398 U.S. 144 (1970).
Adickes v. S.H. Kress &
“[I]f the evidence is insufficient to
reasonably support a jury verdict in favor of the nonmoving
party, the motion for summary judgment will be granted.”
Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir.
Additionally, the Court must draw all
reasonable inferences from that evidence in favor of the
United States v. Diebold, Inc., 369 U.S. 654
The nonmoving party does have the burden, however, after
completion of sufficient discovery, to submit evidence in support
of any material element of a claim or defense on which that party
would bear the burden of proof at trial, even if the moving party
has not submitted evidence to negate the existence of that
See Celotex Corp. v. Catrett, 477 U.S. 317
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
course, since “a party seeking summary judgment ... bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine
issue of material fact,” Celotex, 477 U.S. at 323, the responding
party is only required to respond to those issues clearly
identified by the moving party as being subject to the motion.
Mr. Porter has not opposed the motion for partial summary
Nonetheless, even where a party “offer[s] no timely
response to [a] [ ] motion for summary judgment, the District
Court [may] not use that as a reason for granting summary
judgment without first examining all the materials properly
before it under Rule 56(c).”
Smith v. Hudson, 600 F.2d 60, 65
(6th Cir. 1979). This is so because “[a] party is never required
to respond to a motion for summary judgment in order to prevail
since the burden of establishing the nonexistence of a material
factual dispute always rests with the movant.” Id. at 64.
However, the non-moving party cannot rest solely on the defenses
in his pleadings, but must come forward with some evidence to
show that there is at least a genuine issue of material fact.
Celotex, 477 U.S. at 342.
Therefore, a district court must
review carefully the portions of the record submitted by the
moving party to determine whether a genuine dispute of material
It is with these standards in mind that the instant
motion will be decided.
Mr. Porter, by his own admission in his answer, entered into
the CBAs at issue in this case, which contractually obligated him
to make contributions to the Funds for all hours paid to his
employees. He entered into the Highway Agreement and AGC
Agreement on September 12, 2013 and the CEA Agreement on October
2, 2013. (Doc. 1, Ex. A at 1-3). The Highway Agreement states
that “[Val’s Crane Service] agrees to adopt and accept all the
terms, wage rates and conditions of the 2013-2017 Ohio Highway
Heavy Agreement.” Id. at 2, ¶3. It also states that “[Val’s Crane
Service] further agrees to make contributions to the [Funds] as
outlined in the Ohio Highway Heavy Agreement.” Id. The
acceptance of agreements for the AGC Agreement and the CEA
Agreements have identical provisions. Id. at 1, ¶3; 3, ¶3. The
CBAs each expressly require employers who are party to them to
make contributions to the Funds based on all hours paid to
covered employees. The Highway Agreement provides that “[f]ringe
benefit contributions shall be paid at the following rates for
all hours paid to each employee....” (Doc., 1, Ex. A at 2). Both
the AGC and CEA Agreements contain identical provisions. Id. at
1, ¶3; 3, ¶3.
It is well settled that the language in the CBAs require
signatories to make contributions based upon the hours worked by
employees. See, e.g. Bunn Enterprises, Inc. v. Ohio Operating
Eng’rs Fringe Benefit Programs, 505 F.App’x 798 (6th Cir. 2015)
(holding that the language of the CBAs “unambiguously requires
employer signatories to contribute the appropriate benefits
contributions for all hours worked by their employees, regardless
of whether those hours are ‘covered’ under the contract.)”; cf.
Board of Trustees of the Plumbers, Pipe Fitters & Mechanical
Equipment Service, Local Union No. 392 Pension Fund v. B & B
Mechanical Services, Inc., 813 F.3d 603 (6th Cir. 2015) (holding
that even though it did not sign the CBA independently, employer
was obligated to make contributions pursuant to the CBA by virtue
of his membership in a signatory Employer Association). There is
no question of fact that as a signatory to the CBAs that Mr.
Porter was bound by the unambiguous language in those agreements
to make contributions to the Funds.
The Plaintiffs point out that in addition to his obligation
under the CBAs, Mr. Porter is required by statute to make the
fringe benefit contributions at issue in this case. 29 U.S.C.
§1145 requires employers to make contribution to plans in
accordance with the terms of the agreement. Thus, when Mr.
Porter became a signatory to the CBAs he was also under a
statutory obligation to make contributions and to otherwise
comply with the terms and conditions of the CBAs. See Wilson v.
Bridge Overlay Systems, Inc., 129 F.Supp.3d 560, 568 (S.D. Ohio
2015), citing Orrand v. Scassa Asphalt, Inc.,794 F.3d 556, 562
(6th Cir. 2015). The Wilson court also noted that “[t]hus far,
this Circuit has only permitted the following defenses to a
collection action: illegality of the contributions, the contract
requiring the contribution was void at its inception, the union
was decertified, and a limited contract termination defense.” Id.
at 569, citing Operating Engineers Local 324 Health Care Plan v.
G & W Const. Co., 324 F.3d 1045, 1056 (6th Cir. 2015).
When an employer fails to pay the required fringe benefit
contributions, fund trustees may recover the delinquent
contributions, interest, liquidated damages, attorneys’ fees and
court costs as part of a judgment against the employer. Orrand,
supra, at 560. 29 U.S.C. §1132(g) provides as follows:
In any action under this title by a fiduciary or on
behalf of a plan to enforce Section 515 in which a
judgment in favor of the [Fund] is awarded, the court
shall award the plan(A)
the unpaid contributions,
interest on the unpaid contributions,
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
reasonable attorneys’ fees and costs of the
action, to be paid by the Defendant, and
(E) such other legal or equitable relief as the court
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 Section 6621 of the Internal Revenue
Code of 1986.
29 U.S.C. § 1132(g) (1990).
Plaintiffs assert that the Funds require all employers to
pay late charges or liquidated damages for delinquent
contributions at a rate of 18% per year. They state that the
audit findings reveal that Mr. Porter owes delinquent
contributions to the Funds in the amount of $10,807.26 for the
audit period of September 1, 2013 through January 1, 2015;
accumulated interest on that amount of $1,270.18 through August
15, 2015, plus late charges of $5.33 per day thereafter, an
amount equal to the interest on the unpaid contributions pursuant
to 29 U.S.C. §1132(g). (Doc. 67, Ex. A, at ¶6). As discussed
above, Mr. Porter was obligated both contractually and
statutorily to have contributed to the Funds. He has not
provided any evidence to refute the delinquency findings from the
audit. Thus, there is no genuine issue of material fact and the
Plaintiffs are entitled to judgment as a matter of law.
For the foregoing reasons, it is recommended that the
Plaintiffs’ motion for summary judgment (Doc. 16) be granted and
that the Court enter judgment in favor of Plaintiffs and against
Mr. Porter for delinquent contributions to the Funds in the
amount of $10,807.26; accumulated interest on that amount of
$1,270.18 through August 15, 2015, plus late charges of $5.33 per
PROCEDURE ON OBJECTIONS
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).
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.
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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