Laborers' International Union of North America, Local 1410 v. Maple City Concrete LLC

Filing 7

DECISION AND ORDER DENYING MOTION FOR ATTACHMENT - Plaintiff's Motion for Prejudgment Attachment (Doc. No. 3) is denied. Signed by Magistrate Judge Michael R Merz on 4/29/2011. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LABORERS INTERNATIONAL UNION
OF NORTH AMERICA, LOCAL 1410,
Plaintiff,

:

Case No. 3:11-cv-131
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

-vs:
MAPLE CITY CONCRETE LLC,
Defendant.

DECISION AND ORDER DENYING MOTION FOR ATTACHMENT

This case is before the Court on Plaintiff’s Motion for Prejudgment Attachment (Doc. No. 3).
The case has been referred to the undersigned United States Magistrate Judge (Doc No. 6) and the
instant Motion is a pre-trial non-dispositive motion within the decisional authority of a magistrate
judge on referral.
Fed. R. Civ. P. 64 provides
At the commencement of and throughout an action, every remedy is
available that, under the law of the state where the court is located,
provides for seizing a person or property to secure satisfaction of the
potential judgment. But a federal statute governs to the extent it
applies.

The relevant law of Ohio is, as Plaintiff notes, Ohio Revised Code Ch. 2715. Ohio Revised Code §
2715.01 authorizes pre-judgment attachment on eleven different grounds and Plaintiff asserts its claims
come within Ohio Revised Code § 2715.01(A)(11) in that its claim is for work or labor.
Plaintiff avers that it is a labor union with a collective bargaining agreement with the
Defendant and that under that agreement, Defendant is bound to withhold and pay over to Plaintiff
union dues from Plaintiff’s members who perform services for Defendant under the collective
1

bargaining agreement. Plaintiff further avers that Defendant has either not withheld the dues or has
withheld them and failed to pay them to Plaintiff (Complaint, Doc. No. 1, ¶ 10.
The sole authority cited by Plaintiff for treating unpaid union dues as money owed for “work
or labor” is Henry v. Mangold, 84 Ohio App. 188, 81 N.E. 2d 345 (Ohio App. 2nd Dist. 1947). In that
case the Second District Court of Appeals was interpreting Ohio General Code § 11819, the
predecessor to Ohio Revised Code § 2715.01. The “work or labor” language appears to have been
carried forward to the Revised Code without any intention of changing the meaning, so this Court finds
Henry to be authoritative1.
Henry does not support Plaintiff’s interpretation of “work or labor.” The Henry court suggests
that these statutory terms are limited to personal services performed for an employer and would
exclude professional services:
The law of Ohio seems to be well established that claims for services
performed by executives of a corporation or by physicians or attorneys
are not claims for "work." However, in the case at bar, the record
discloses that the plaintiff was in the employ of the defendant, that he
performed services as an artisan in the production of wealth, and that
his exertions were primarily physical and not mental.
Id. at 189. But the union performed nothing like “work” or “labor” for the Defendant as those terms
are used in the statute. Rather, it is Plaintiff’s members who performed work or labor for defendant.
The Union’s claim is for dues owed it under the collective bargaining agreement, not for work or labor.
Plaintiff’s Motion for Pre-Judgment Attachment is denied.
April 29, 2011.
s/ Michael R. Merz
United States Magistrate Judge

1

The Ohio courts interpretation is generally binding in federal court on an incorporated
remedy such as attachment under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
2