Wilson et al v. All Phase Masonry and Construction LLC

Filing 17

REPORT AND RECOMMENDATION re 11 Motion for Contempt filed by Trustees of the Ohio Operating Engineers Health & Welfare Plan, Ohio Operating Pension Fund, Ohio Operating Engineers Apprenticeship & Training Fund, Ohio Operating Engineer s Education & Safety Fund, Carol A. Wilson in that it is RECOMMENDED that the defendant be held in contempt and that a fine of $100.00 per day be imposed on Defendant until it complies with the 3/14/16 Order. Objections to R&R due by 9/12/2016. Signed by Magistrate Judge Terence P. Kemp on 8/25/16. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Carol A. Wilson, Administrator,
et al.,
Plaintiffs,
v.

Case No. 2:15-cv-2760
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

All Phase Masonry and
Construction, LLC,
Defendant.

REPORT AND RECOMMENDATION
After Plaintiffs moved for an order to show cause why
defendant should not be held in contempt for failure to comply
with the Court's order of March 14, 2016, entering default
judgment and ordering an audit, and after that motion was
referred to the Magistrate Judge (Doc. 13), the Court directed
Defendant to appear on August 24, 2016, at 10:00 a.m. in
Courtroom 183, 85 Marconi Boulevard, Columbus, Ohio 43215, to
show cause why a finding of contempt should not be made.

That

order was served on the defendant on July 15 2016, by the United
States Marshals Service.

(Doc. 15).

The hearing was held, but

Defendant did not appear.
Based upon the motion for contempt (Doc. 11) and Exhibits
(Doc. 12), the Court finds that Defendant has violated the order
of March 14, 2016, by failing to permit an audit of its records.
It is therefore recommended that Defendant be held in contempt,
and that a fine of $100.00 per day be imposed on Defendant until
it complies with the order.

It is also recommended that

Defendant be ordered to pay all attorneys’ fees and costs
reasonably expended by Plaintiffs in connection with the contempt
proceedings.

Finally, it is recommended that any decision on the

motion for contempt be held in abeyance if, within the time
allowed for objections to this Report and Recommendation
(fourteen days), Defendant complies with the order concerning an
audit.
The United States Marshal is directed to serve this Report
and Recommendation on the Defendant by personal service.
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).

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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