Boards of Trustees of Ohio Laborers' Fringe Benefit Programs v. Olive Leaf Landscaping, Inc.

Filing 7

REPORT AND RECOMMENDATION that 6 MOTION for Default Judgment against Olive Leaf Landscaping, Inc. be granted and judgment be entered against Defendant in the amount of $6,755.70 in liquidated damages, and interest; interest from the date of judgement at the rate of 1% per month; and $400 in court costs. Objections to R&R due by 11/14/2016. Signed by Magistrate Judge Terence P. Kemp on 10/25/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Boards of Trustees of Ohio
Laborers’ Fringe Benefit
Programs,
Plaintiff,
v.

:
:
:
:

Case No. 2:16-cv-686

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

Olive Leaf Landscaping, Inc., :
Defendant.

:

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 Olive Leaf Landscaping,
Inc.(Doc. 6).

For the reasons set forth below, the Court will

recommend that the plaintiff’s motion for default judgment be
granted.
I. Background
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 its complaint filed on July 15, 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
bargaining agreements.

The complaint also alleges that

Defendant breached the agreements by failing to make monthly
contributions in the amount and manner prescribed by the
collective bargaining agreements.

Based upon this alleged

breach, the complaint sought the following relief:
!

$7,452.13. in unpaid fringe benefit contributions,
plus liquidated damages of $6,602.60, and interest
on late and unpaid contributions in the amount of
$370.13, for the period from August 1, 2015,
through June 30, 2016;

!

judgment for an undetermined amount for any unpaid
contributions due to the funds from April 1, 2016
“to the date of this action and during its
pendency, as may be revealed by an examination of
its records, said damages 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
attorney fees

(Doc. 1 at 2-3).

collection,

including

reasonable

In addition, Plaintiff requested that this

Court retain jurisdiction over this case pending the defendant’s
compliance with Court orders and that this Court declare that the
defendant is bound by the collective bargaining agreements and
various trust documents as alleged in the complaint.

Although

the record reflects that Defendant was properly served with the
complaint, it failed to respond.
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On August 29, 2016, Plaintiff filed an application for an
entry of default.

The Clerk entered default the following day.

Plaintiff then filed its motion for default judgment on September
27, 2016.

Again, despite the passage of time allowed for a

response under the Local Civil Rules, Defendant has not
responded.
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).

The mere

determination of the defendant’s liability does not, however,
automatically entitle the plaintiff to default judgment. “Even
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
discretion.

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
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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, the plaintiff seeks
a total of $6,755.70 in liquidated damages and interest.

In

addition, Plaintiff requests costs in the amount of $400.00,
which consists of 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 judgment
It is undisputed that Defendant entered into agreements
obligating it to make employer contributions pursuant to those
agreements.

Further, it is undisputed 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 with an affidavit from a
Contract Relations Manager, Megan Grosscup.

Attached to her

affidavit are the relevant collective bargaining agreement and a
memorandum setting forth the amount owed by Defendant.

It

reflects that Defendant owes the requested amount as liquidated
damages and interest on contributions not made in a timely
manner.
The affidavit is sufficient to allow a decision on the
record without an evidentiary hearing.

Based upon the foregoing,

the Court finds that the plaintiff seeks a sum certain which is
authorized under the relevant statutes and agreements.
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Thus, the

Court will recommend that the plaintiff be awarded $6,755.70 in
liquidated damages, and interest.

The Court will also recommend

that Plaintiff be awarded $400.00 in Court costs.
Finally, the Court notes that Plaintiff has submitted an
affidavit from its counsel listing the hours expended in this
case and his hourly rate.

However, the motion itself does not

request attorneys’ fees, nor is such relief included within the
proposed order.

Given the absence of a formal request for fees,

the Court makes no order on that issue.
III. Recommendation
For the reasons set forth above, it is recommended that the
motion for default judgment (Doc. 6) be granted and judgment be
entered against Defendant in the amount of $6,755.70 in
liquidated damages, and interest; interest from the date of
judgment at the rate of 1% per month; and $400.00 in costs.
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).

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
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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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