Boards of Trustees of Ohio Laborers' Fringe Benefit Programs v. Miami Valley Masonry, Inc.

Filing 7

REPORT AND RECOMMENDATIONS re 6 MOTION for Default Judgment. It is RECOMMENDED that the Motion be GRANTED and that the Clerk enter judgment against Defendant. Objections to R&R due by 9/19/2016. Signed by Magistrate Judge Kimberly A. Jolson on 9/1/2016. (pes)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION BOARDS OF TRUSTEES OF OHIO LABORERS’ FRINGE BENEFIT PROGRAMS, Plaintiffs, v. Civil Action 2:16-cv-714 Chief Judge Edmund A. Sargus, Jr. Magistrate Judge Jolson MIAMI VALLEY MASONRY, INC., Defendant. REPORT AND RECOMMENDATION This is an action for unpaid fringe benefit contributions, liquidated damages, and interest allegedly owed 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. Defendant Miami Valley Masonry, Inc. was served with a summons and a copy of the complaint on August 5, 2016 (Doc. 3), but has failed to plead or otherwise defend this action. Plaintiff applied to the Clerk for entry of default (Doc. 4), and the Clerk entered default pursuant to Federal Rule Civil Procedure 55(a) on August 30, 2016 (Doc. 5). This matter is now before the Court on Plaintiffs’ Motion for Default Judgment (Doc. 6), 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. (See Doc. 6-3, Ex. A, B). The affidavit of Plaintiffs’ Contractor Relations Manager (Doc. 6-2), establishes that Defendant owes $17,933.72 in unpaid fringe benefit contributions, liquidated damages, and interest for the period August 2015 through June 2016. (Id. at ¶ 3; Doc. 6-3, Ex. C); 29 U.S.C. § 1132(g)(2). 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. 6-3, Ex. D). Plaintiffs have provided evidentiary support that the number of hours billed and the hourly rate charged are reasonable. (Id.; Ex. 61). Plaintiffs are therefore entitled to judgment in the amount of $17,933.72 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. 6), be GRANTED. It is FURTHER RECOMMENDED that the Clerk enter judgment against Defendant Miami Valley Masonry, Inc., and that Plaintiffs Boards of Trustees of the Ohio Laborers’ Fringe Benefit Programs have and recover from Miami Valley Masonry, Inc., the sum of Seventeen Thousand Nine Hundred Thirty-Three Dollars and Seventy-Two Cents ($17,933.72), including unpaid fringe benefit contributions through June 2016, prejudgment interest, and liquidated damages, and reasonable attorney’s fees in the amount of One Thousand Seven Hundred Eighty-Five Dollars ($1,785.00), plus interest from the date of judgment at the rate of one percent (1%) per month. 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 2 in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 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 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 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); Smith v. Detroit Fed’n of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). IT IS SO ORDERED. Date: September 1, 2016 /s/ Kimberly A. Jolson KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE 3

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