Boards of Trustees of Ohio Laborers' Fringe Benefit Programs v. Eyler Asbestos, LLC

Filing 8

REPORT AND RECOMMENDATIONS re 7 MOTION for Default Judgment against Eyler Asbestos, LLC filed by Boards of Trustees of Ohio Laborers' Fringe Benefit Programs. It is RECOMMENDED that Plaintiffs' Motion for Default Judgment be GRANTED. Objections to R&R due by 5/13/2016. Signed by Magistrate Judge Kimberly A. Jolson on 4/26/2016. (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,
v.

Civil Action 2:16-cv-192
Judge Algenon L. Marbley
Magistrate Judge Jolson

EYLER ASBESTOS, LLC,
Defendant.

REPORT AND RECOMMENDATION
This is an action for unpaid fringe benefit contributions, liquidated damages, and interest
allegedly owed to 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 Eyler Asbestos, LLC was served with a summons and a
copy of the complaint on March 8, 2016 (Doc. 4), but has failed to plead or otherwise defend this
action. Plaintiffs applied to the Clerk for entry of default (Doc. 5), and the Clerk entered default
pursuant to Fed. R. Civ. P. 55(a) on March 30, 2016 (Doc. 6). This matter is now before the
Court on Plaintiffs’ Motion for Default Judgment (Doc. 7), seeking default judgment against
Defendant.
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. (Doc. 7, Ex. A, B). The affidavit of Plaintiffs’
Contractor Relations Manager establishes that Defendant owes $29,727.33 in unpaid fringe

benefit contributions for the period January, 2015 through December, 2015. Id., Ex. A at 2, ¶ 3,
Ex. C. Plaintiffs are entitled to liquidated damages, interest, and attorney fees on these unpaid
contributions. 29 U.S.C. § 1132(g)(2); Michigan Carpenters Council Health and Welfare Fund
v. C.J. Rogers, Inc., 933 F.2d 376, 388–89 (6th Cir. 1991).
Plaintiffs seek an award of attorney’s fees in the amount of $1,785.00, for seven hours
billed at the rate of $255.00 per hour. (Doc. 7, Ex. D). Plaintiffs have provided evidentiary
support that the number of hours billed and the hourly rate charged are reasonable.
Plaintiffs are therefore entitled to judgment in the amount of $29,727.33 in unpaid fringe
benefit contributions, liquidated damages, and prejudgment interest, and an award of attorney’s
fees in the amount of $1,785.00.
Accordingly, it is RECOMMENDED that Plaintiffs’ Motion for Default Judgment (Doc.
7) be GRANTED. It is further RECOMMENDED that the Clerk enter judgment against
Defendant Eyler Asbestos, LLC, and that Plaintiffs Boards of Trustees of the Ohio Laborers’
Fringe Benefit Programs have and recover from Eyler Asbestos, LLC the sum of Twenty-Nine
Thousand Seven Hundred Twenty-Seven Dollars and Thirty-Three Cents ($29,727.33), including
unpaid fringe benefit contributions through December, 2015, prejudgment interest, and
liquidated damages, and a reasonable attorney’s fee in the amount of One Thousand Seven
Hundred Eighty-Five Dollars and No Cents ($1,785.00), plus interest from the date of judgment
at the rate of one percent (1%) per month.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) 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

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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).
IT IS SO ORDERED.

Date: April 26, 2016

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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