Trustees of the Laborers' District Council and Contractors' Pension Fund of Ohio v. Concrete Restoration Specialists LLC

Filing 17

REPORT AND RECOMMENDATIONS re 15 MOTION for Default Judgment against Concrete Restoration Specialists, LLC filed by Trustees of the Laborers' District Council and Contractors' Pension Fund of Ohio. Objections to R&R due by 8/11/2016. Signed by Magistrate Judge Norah McCann King on 7/25/2016. (pes)

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

TRUSTEES OF THE LABORERS’
DISTRICT COUNCIL AND
CONTRACTORS’ PENSION FUND
OF OHIO
Plaintiff,
Civil Action 2:16-cv-110
Judge Graham
Magistrate Judge King

vs.

CONCRETE RESTORATION
SPECIALISTS, LLC,
Defendant.

REPORT AND RECOMMENDATION

This is an action by a multiemployer pension plan and its
trustees asserting a claim for withdrawal liability pursuant to
the Employee Retirement Income Security Act of 1974, as amended
by the Multiemployer Pension Plan Amendments Act of 1980, 29
U.S.C. § 1001 et seq., in the amount of $815,934.00, plus
accrued interest on that amount, liquidated damages, costs, and
attorneys’ fees. Amended Complaint, ECF No. 2. Defendant
Concrete Restoration Specialists, LLC (“defendant”), was
properly served with process. Order, ECF No. 12. Defendant
failed to plead or otherwise properly defend, see id., and the
Clerk entered defendant’s default pursuant to Fed. R. Civ. P.

55(a) on June 16, 2016.

Clerk’s Entry of Default, ECF 13.

This

matter is now before the Court on Plaintiffs’ Motion for Default
Judgment against Defendant Concrete Restoration Specialist, LLC,
ECF 15 (“Motion for Default Judgment”).
Matthew A. Archer, the Administrative Manager of the
Laborers’ District Council and Contractors’ Pension Fund of
Ohio, Affidavit of Matthew A. Archer, ¶ 1, Exhibit 1, attached
to Motion for Default Judgment (“Archer Affidavit”), avers that
defendant executed a collective bargaining agreement (“CBA”)
with the union, pursuant to which defendant was obligated to
submit contributions to the pension fund on behalf of its
laborers. Id. at ¶¶ 4-5. By December 31, 2013, defendant
effectuated a complete withdrawal from the pension fund. Id. at
¶ 6. Defendant was notified of its withdrawal liability, id. at
¶ 7, but failed to either challenge the assessment of withdrawal
liability or to pursue its rights under the plan documents in
connection with that liability, id. at ¶ 8-11. See also Excerpts
of Plan Documents, attached to Archer Affidavit.
Plaintiffs have established that defendant owes $815,934.00
in withdrawal liability. Id. at ¶ 14. The plan documents provide
for interest on this amount, id. at ¶ 15, which is to be
calculated at the prime rate in effect in April of each year
after judgment is entered, as determined by JPMorgan Chase Bank,
2

N.A., which is currently 3.50% per annum. Id. at ¶ 16.
Plaintiffs are also entitled under the plan documents to
liquidated damages of 20% of the principal amount of withdrawal
liability, and interest thereon, id. at ¶ 19, which amounts to
$163,186.80. Id. at ¶ 20.
Plaintiffs have therefore established that they are
entitled to judgment in the amount of $979,120.80 and interest
on the unpaid balance (including accrued interest) at the prime
rate in effect in April of each year after judgment is entered,
as determined by JPMorgan Chase Bank, N.A.
Accordingly, it is RECOMMENDED that the Motion for Default
Judgment, ECF 15, be granted and that the Clerk enter judgment
as follows:
Judgment is hereby rendered in favor of plaintiffs and
against defendant Concrete Restoration Specialists, LLC, in
the amount of $979,120.80 (i.e., $815,934.00 in withdrawal
liability and $163,186.80 in liquidated damages), plus
interest at the rate of 3.50% from April 5, 2016; and for
each succeeding 12-month period that any amount in default
remains unpaid, interest on the unpaid balance (including
accrued interest) at the prime rate (as determined by
JPMorgan Chase Bank, N.A.) in effect on April 1st of each
year after judgment is rendered.
Plaintiffs should file their motion for costs and attorneys' fees
within 45 days of entry of judgment. See S.D. Ohio Civ. R. 54.2.

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 the 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 waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
July 25, 2016

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to