Trustees of the IBEW Local No. 683 Fringe Benefit Funds, Inc. et al v. Lumbee Electrical Service, LLC

Filing 34

REPORT AND RECOMMENDATION re 33 MOTION for Default Judgment against Lumbee Electrical Service LLC. The Magistrate Judge RECOMMENDS that the Court GRANT Plaintiffs' request to the extent that it seeks to enforce the audit provision of the collective bargaining agreement but that the remainder of Plaintiffs' request be DENIED. Objections to R&R due by 4/21/2017. Signed by Magistrate Judge Kimberly A. Jolson on 4/7/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TRUSTEES OF THE IBEW LOCAL NO. 683
FRINGE BENEFIT FUNDS, INC., et al.,
Plaintiffs,
v.

Civil Action 2:16-cv-934
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Jolson

LUMBEE ELECTRICAL SERVICE, LLC,
Defendant.

REPORT AND RECOMMENDATION
This ERISA collections case is before the Court on Plaintiffs’ Motion for Default
Judgment, Assessment of Damages, and Attorney Fees. (Doc. 33). Plaintiffs’

Motion

is

somewhat confusing. Plaintiffs request, inter alia, the “amount of $24,831.89 for fringe benefit
contributions, $3,724.78 in liquidated damages and $2,250.80 in interest for a total amount of
$30,807.47 for the period of May 1, 2016 to the present,” but also request that the Court “[o]rder
Defendant to make all of his books and records for the period of June 1, 2016, through the
present available for inspection upon request of the Funds’ auditor so that Plaintiffs may
determine the amount of damages due [to] them.” (Id. at 4). Thus, it appears that Plaintiffs may
seek additional monetary damages beyond those requested based upon the results of their audit.
To the extent that Plaintiffs seek to conduct an audit as requested in the Complaint, the
Motion is tantamount to one for preliminary injunctive relief. For good cause shown, it is
RECOMMENDED that the Court GRANT Plaintiffs’ request to the extent that it seeks to
enforce the audit provision of the collective bargaining agreement.

However, it is further RECOMMENDED that the remainder of Plaintiffs’ request be
DENIED. Because the full amount of monetary damages is not yet known, Plaintiffs’ request
for monetary damages is tantamount to a partial motion for summary judgment, which would
have the practical effect of awarding relief while allowing the case to remain open. However,
that Motion, which also includes a request for attorney’s fees, is not properly supported.
Specifically, Plaintiffs have not attached an affidavit or other evidence to establish that
Defendant owes $30,807.47 for the period of May 1, 2016 to the present. Further, Plaintiffs have
not attached any itemized billing or other evidentiary support that the number of hours billed and
the hourly rate charged are reasonable.
Based upon the foregoing, it is RECOMMENDED that the Court GRANT Plaintiffs’
request to the extent that it seeks to enforce the audit provision of the collective bargaining
agreement but that the remainder of Plaintiffs’ request be DENIED.
IT IS SO ORDERED.

Date: April 7, 2017

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

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