Boards of Trustees of Ohio Laborers' Fringe Benefit Programs v. J Childers Trucking & Construction, LLC

Filing 12

REPORT AND RECOMMENDATION: It is therefore RECOMMENDED that Defendant be held in contempt and that a fine of $100.00 PER DAY be imposed on Defendant until it complies with the Court's Order to produce responses to Plaintiff's written discovery. It is further RECOMMENDED that Defendant be ordered to pay the attorney's fees and costs Plaintiff reasonably incurred in connection with its Motion for Contempt and the show cause hearing. It is RECOMMENDED that these sanctions no t be imposed, however, should Defendant comply with ECF No. 7 concerning an audit within the time allowed for objections to this Report and Recommendation (fourteen days). Plaintiff is ORDERED to file a notice informing the Court of any such compliance. Objections to R&R due by 9/7/2018. Signed by Magistrate Judge Chelsey M. Vascura on 8/24/2018. (daf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BOARDS OF TRUSTEES OF OHIO
LABORERS’ FRINGE BENEFIT
PROGRAMS,
Plaintiff,
Case No. 2:18-cv-316
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura

v.
J CHILDERS TRUCKING &
CONSTRUCTION, LLC,
Defendant.

REPORT AND RECOMMENDATIONS
On July 19, 2018, this Court issued a Show Cause Order (ECF No. 10) requiring
Defendant, through its authorized officer, to appear before this Court to show cause for why it
should not be held in contempt for failing to comply with the Court’s May 25, 2018 Order (ECF
No. 7), which required Defendant to appear for deposition and respond to Plaintiff’s written
discovery. Plaintiff’s counsel appeared at the August 23, 2018 show cause hearing, but
Defendant did not.
Federal Rule of Civil Procedure 37(b)(2) sets forth a laundry list of sanctions for failure
to comply with a discovery order, including “treating as contempt of court the failure to obey any
order except an order to submit to a physical or mental examination.” Fed. R. Civ. P.
37(b)(2)(A)(vii).
Based upon Plaintiff’s Motion for Contempt (ECF No. 9) and the attached exhibits (ECF
Nos. 9-1 and 9-2), the undersigned finds that Defendant has violated the Court’s May 25, 2018
Order (ECF No. 7) by failing to permit an audit of its records. It is therefore

RECOMMENDED that Defendant be held in contempt and that a fine of $100.00 PER DAY be
imposed on Defendant until it complies with the Court’s Order to produce responses to
Plaintiff’s written discovery. It is further RECOMMENDED that Defendant be ordered to pay
the attorney’s fees and costs Plaintiff reasonably incurred in connection with its Motion for
Contempt and the show cause hearing. It is RECOMMENDED that these sanctions not be
imposed, however, should Defendant comply with the Court’s May 25, 2018 Order (ECF No. 7)
concerning an audit within the time allowed for objections to this Report and Recommendation
(fourteen days). Plaintiff is ORDERED to file a notice informing the Court of any such
compliance.
The United States Marshal is DIRECTED to serve this Report and Recommendation,
the Court’s May 25, 2018 Order (ECF No. 7), and the Court’s July 19, 2018 Show Cause Order
(ECF No. 10) on Defendant by personal service at its last known address and file a return of
service. In addition, the Clerk is DIRECTED to send a copy of this Report and
Recommendation via regular and certified mail to J. Childers Trucking & Construction, LLC and
Jesse Childers, 4630 Lindford Ave., Canton, Ohio 44705.
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
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

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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/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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