Boards of Trustees of Ohio Laborers' Fringe Benefit Programs v. Waugh Excavating, LLC
REPORT AND RECOMMENDATION that 6 MOTION for Default Judgment against Waugh Excavating, LLC be GRANTED. Objections to R&R due by 6/6/2016. Signed by Magistrate Judge Terence P. Kemp on 5/18/2016. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Boards of Trustees of Ohio
Laborers’ Fringe Benefit
Waugh Excavating, LLC ,
Case No. 2:16-cv-213
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
REPORT AND RECOMMENDATION
This matter is before the Court on a motion for default
judgment filed by plaintiff Boards of Trustees of Ohio Laborers’
Fringe Benefit Programs against defendant Waugh Excavating, LLC
For the reasons set forth below, the Court will
recommend that Plaintiff’s motion for default judgment be
The plaintiff organization is comprised of the trustees of
four trust funds that are collectively known as the Ohio
Laborers’ Fringe Benefit Programs: the funds are the Ohio
Laborers’ District Council – Ohio Contractors’ Association
Insurance Fund, the Laborers’ District Council and Contractors’
Pension Fund, the Ohio Laborers’ Training and Apprenticeship
Trust Fund, and the Ohio Laborers’ District Council – Ohio
Contractors’ Association Cooperation and Education Trust.
Pursuant to the collective bargaining agreements pertinent to
this case, Plaintiff is obligated to collect contributions to the
funds, which are administered jointly.
In a complaint filed on March 8, 2016, Plaintiff alleges
that the defendant was an employer who was bound, pursuant to
collective bargaining agreements, to file monthly contribution
reports, permit audits of its financial records, and make monthly
contributions to the Ohio Laborers’ Fringe Benefit Programs on
behalf of all persons employed within the trade and territorial
jurisdiction of a laborer, as defined in the collective
Plaintiff alleges that Defendant breached
the agreements by failing to make monthly contributions in the
amount and manner prescribed by the collective bargaining
Based upon this alleged breach, Plaintiff sought the
$18,787.79 in unpaid fringe benefit contributions,
$1,878.70 in liquidated damages, and $1,253.81 in
interest for late and unpaid contributions for the
period from January, 2015 through November, 2015;
judgment for an undetermined amount for any unpaid
contributions due to the funds from June 1, 2014
“to the date of this action and during its
pendency, as may be revealed by an examination of
its records, said Judgment to include liquidated
damages of 10% and interest at the rate of 1% per
month or double interest, whichever is greater...”;
a mandatory permanent injunction ordering the
defendant to submit monthly reports and to make
monthly contributions; and
the costs of
(Doc. 1 at 2-3).
In addition, Plaintiff requests that this Court
retain jurisdiction over this case pending Defendant’s compliance
with Court orders.
Plaintiff also requests that this Court
declare that the defendant is bound by the collective bargaining
agreements and various trust documents as alleged in the
Defendant was properly served with the complaint, did not
respond, and has been found in default.
On April 14, 2016.
Plaintiff filed its motion for default judgment.
No response has
II. The Motion for Default Judgment
Federal Rule of Civil Procedure 55(b)(2) authorizes a court
to enter default judgment against a party whose default has been
entered by the clerk.
Once default has been entered, a
defaulting defendant is considered to have admitted all the wellpleaded allegations relating to liability.
See Antoine v. Atlas
Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995).
determination of the defendant’s liability does not, however,
automatically entitle the plaintiff to default judgment.
when a default judgment is warranted based on a party’s failure
to defend, the allegations in the complaint with respect to the
amount of the damages are not deemed true.
The district court
must instead conduct an inquiry in order to ascertain the amount
of damages with reasonable certainty.”
Vesligaj v. Peterson, 331
Fed. Appx. 351, 355 (6th Cir. 2009), quoting Credit Lyonnais Sec.
(USA) Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). The
decision to grant default judgment falls within the Court’s
10A Charles Alan Wright & Arthur R. Miller, Fed.
Prac. & Proc. Civ. §2685 (3d ed.).
In determining whether to
enter judgment by default, courts often consider such factors as
the amount of money potentially involved; whether
material facts or issues of substantial public importance
are at issue; whether the default is largely technical;
whether plaintiff has been substantially prejudiced by
the delay involved; and whether the grounds for default
are clearly established or are in doubt. Furthermore,
the court may consider how harsh an effect a default
judgment might have; or whether the default was caused by
a good-faith mistake or by excusable or inexcusable
neglect on the part of the defendant.
Id. (footnotes omitted).
Although the court may conduct an
evidentiary hearing to determine damages, such a hearing is not a
prerequisite to the entry of a default judgment if a detailed
affidavit allows a decision on the record.
See Joe Hand
Promotions, Inc. v. RPM Mgmt. Co., LLC, 2011 WL 5389425 (S.D.
Ohio Nov. 7, 2011).
In its motion for default judgment, Plaintiff seeks
$21,920.40 in unpaid fringe benefit contributions through
November, 2015, liquidated damages, and interest, plus interest
from the time of judgment at the rate of 1% per month.
addition, Plaintiff requests $1,785.00 in attorney’s fees and
$400.00 in costs, which is the filing fee paid in this case.
Although Plaintiff requested injunctive relief in the complaint,
it does not request such relief in its motion for default
The complaint establishes that Defendant entered into
agreements obligating it to make employer contributions pursuant
to those agreements.
By failing to respond to the complaint,
Defendant has admitted that it failed to make contributions or
made contributions in a delinquent fashion and failed to pay
interest as required by the agreements.
Finally, the plan and
funds at issue fall within the provisions of ERISA, 29 U.S.C.
§1002(1) and 29 U.S.C. §1132(g), and LMRA, 29 U.S.C. §185.
Plaintiff supports its claim for monetary relief with an
affidavit from its Contract Relations Manager, Cyndi Zeller.
Attached to Ms. Zeller’s affidavit are the relevant portions of
the collective bargaining agreement and a memorandum setting
forth the amount owed.
That calculation shows that the
$21,920.40 consists of $18,787.79 in principal, $1878.80 in
liquidated damages, and $1253.81 interest for the audit period of
January, 2015 through November, 2015.
The assessment of interest
is authorized by 29 U.S.C. §1132(g)(2), which provides for the
award of the unpaid contribution, interest on the unpaid
contribution, and the amount equal to the greater of interest on
the unpaid contributions or liquidated damages provided for under
the plan in an amount that does not exceed 20% of unpaid
The collective bargaining agreement attached to
Ms. Zeller’s affidavit provides for a one-time 10% charge for
liquidated damages for delinquent contributions and a charge of
1% interest per month for each month that the defendant is
Ms. Zeller’s affidavit is sufficient to allow a decision on
the record without an evidentiary hearing.
On this record, the
Court will recommend that Plaintiff be awarded $21,920.40 in
fringe benefit contributions, liquidated damages, and interest.
29 U.S.C. §1132(g) allows for “reasonable attorney’s fees
and costs of the action, to be paid by the defendant....”
starting point for determining the amount of a reasonable
attorney fee is the ‘lodestar’ amount which is calculated by
multiplying the number of hours reasonably expended on the
litigation by a reasonable hourly rate.”
Imwalle v. Reliance
Med. Products, Inc., 515 F.3d 531, 551-52 (6th Cir. 2008), citing
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
“Where the party
seeking attorney fees has established that the number of hours
and the rate claimed are reasonable, the lodestar amount is
presumed to be reasonable fee to which counsel is entitled.” Id.
at 552 (citation omitted).
In support of its request for
attorney’s fees, Plaintiff has attached the affidavit of counsel
Steven L. Ball.
Mr. Ball avers that he worked 7 hours in this
matter at a rate of $255.00 per hour, which the Court finds to be
The Court will also recommend that Plaintiff be
awarded $400.00 in Court costs.
For the reasons set forth above, it is recommended that the
motion for default judgment (Doc. 6) be granted and judgment be
entered against the defendant in the amount of $21,920.40
representing fringe benefit contributions, liquidated damages,
and interest, $1,785.00 in attorney’s fees, costs of $400.00, and
interest from the date of judgment at the rate of 1% per month.
IV. 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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