Boards of Trustees of Ohio Laborers' Fringe Benefit Programs v. Freisthler Paving, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BOARDS OF TRUSTEES OF THE OHIO :

LABORERS’ FRINGE :

BENEFITS PROGRAMS, et al :

: Case No. 2:18-cv-1463

Plaintiffs, :

: JUDGE ALGENON L. MARBLEY

v. :

:

FREISTHLER PAVING, INC., : Magistrate Judge Deavers

:

Defendant. :

OPINION & ORDER

This matter is before the Court on Plaintiffs’ Motion for Default Judgment. (ECF No.

10). Plaintiffs Boards of Trustees of the Ohio Laborers’ Fringe Benefits Programs (“Boards of

Trustees”) have successfully applied to the Clerk for Entry of Default as to Defendant Fresithler

Paving, Inc. (“Freisthler”), and the Clerk has so entered. (ECF Nos. 8–9). Plaintiffs now request

this Court to enter an order of default judgment and award damages.

Plaintiffs are trustees for four trust funds—three employer benefit plans governed by

ERISA and one additional “labor management cooperation trust.” (ECF No. 10 at 2). Freisthler

Paving Inc. has a contract “with a local union affiliated with the Laborers’ District Council of

Ohio, AFL-CIO.” (ECF No. 10 at 2). Under the agreement, Freisthler was obligated to

contribute to the Plaintiff funds.

Plaintiffs sued Freisthler Paving, Inc. on November 14, 2018 for Breach of Contract and

filed an Amended Complaint on November 19, 2018. (ECF Nos. 1, 3). Plaintiffs alleged that

Freisthler made late payments from December 2017 to September 30, 2018. (ECF No. 3 at 2).

A summons was issued on November 16, 2018 and sent via Certified Mail to Defendant on

November 21, 2018. (ECF Nos. 2, 4). The summons was served on Defendant on November

29, 2018 (ECF No. 6), and thus Defendant’s reply to Plaintiffs’ complaint was due on December

20, 2018, twenty-one days after service. Fed. R. Civ. P. 12. Defendant never replied. (ECF No.

8). On December 27, 2018, Plaintiffs applied for an entry of default and the clerk entered default

on January 3, 2019. (ECF Nos. 8-9). Plaintiffs then moved for default judgment and damages

on that same day. (ECF No. 10).

Federal Rule of Civil Procedure 55(a) provides that when a party “against whom a

judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure

is shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P.

55(a). Rule 55(b) governs awarding damages in the form of a default judgment. To obtain a

default judgment under Rule 55(b), there must first be an entry of default from the Clerk under

Rule 55(a). See Shepard Claims Serv. Inc. v. William Darrah & Assoc., 796 F.2d 190, 193 (6th

Cir. 1986) (stating “entry of default is . . . the first procedural step on the road to obtaining a

default judgment.”). Because the Clerk has properly entered default against Fresithler, this Court

next considers the appropriate damages.

A court’s determination of damages in a default judgment depends on whether the

damages are calculable or liquidated. If the damages are calculable or liquidated, then the court

will award the calculable damages to the plaintiff without an evidentiary hearing because the

facts establishing the damage are not distinct from the facts establishing liability. See United

States v. Di Mucci, 879 F.2d 1488, 1497-98 (7th Cir. 1989) (stating that an evidentiary hearing is

not required if the damages are liquidated or can be definitively calculated from evidence and

that in such cases the same facts establish the need for liability as well as damages); Barnes v.

Abraham, Inc., No. 2:17-CV-279, 2017 WL 5714091 at *2 (S.D. Ohio Nov. 28, 2017) (quoting

United States v. Parker-Billingsley, No. 3:14-CV-307, 2015 WL 4539843, at *1 (S.D. Ohio Feb.

10, 2015)) (“A court may determine damages without holding an evidentiary hearing if the

damages are ‘capable of ascertainment from definite figures contained in the documentary

evidence or in detailed affidavits.’”). However, if the damages are unliquidated, the default

judgment establishes only that the defendant is liable, and the plaintiff must prove damages. See

Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995) (quoting Fehlhaber v. Fehlhaber,

681 F.2d 1015, 1026 (5th Cir. 1982)) (citing Kelley v. Carr, 567 F.Supp. 831, 841 (W.D. Mich.

1983)). Typically, such cases will necessitate the court holding an evidentiary hearing where the

court can evaluate the plaintiff’s claims for damages, and the defendant can respond to such

claims before the court makes its determination. See Id. at 110-11 (citing Greyhound

Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d. Cir. 1992).

Plaintiffs have provided evidence establishing the calculability of their damages, and thus

this Court can determine the appropriate amount of damages without an evidentiary hearing. See

Ironworkers Dist. Council of Southern Ohio v. Reinforcing Servs. Co., LLC, No. 3–:09–CV–067,

2009 WL 4154905, at *3 (S.D. Ohio Nov. 20, 2009) (finding that “the amount of unpaid

employer contributions, interest and liquidated damages are sums certain that can be calculated

from the terms of the Trust Agreements.”).

Here, Boards of Trustees are entitled to $15,630.90 in damages. The agreement between

Boards of Trustees and Freisthler requires Freisthler to contribute to fringe benefits programs for

its unionized laborers by the fifteenth day of the month for the previous month’s work. (Pls.’

Mot. Default J. Exs. A, B, ECF No. 10). The agreement penalized late payments with a ten

percent liquidated damage charge for each late contribution and a one percent per month interest

upon those late contributions until they are paid. (Mot. Gaston Aff. ¶ 5, ECF No. 10). Between

December 2017 and September 2018, Freisthler made all of the necessary contributions to the

Fringe Benefits Program, a total of $152,569.58. (Mot. Ex. C, ECF No. 10). However, all of

these payments were late, and thus Freisthler incurred liquidated damages of $15,256.98 and

$373.92 of interest as penalties per the agreement for their lateness. (Id.). Thus, Freisthler owes

a combined total of $15,630.90 in liquidated damages and interest. (Mot. Gaston Aff. ¶ 3, ECF

No. 10).

Boards of Trustees are also entitled to $2,380 in attorney fees and costs. The agreement

between Boards of Trustees and Freisthler requires Freisthler to pay such fees and costs if a

dispute over the fringe benefits program goes to court. (ECF No. 10 Ex. B). Additionally, a

successful plaintiff under 29 U.S.C. § 1132(g)(2) is entitled to “reasonable attorney’s fees and

costs of the action.” 29 U.S.C. § 1132(g)(2)(D). When determining reasonable attorney fees, the

court employs the “lodestar” method. Building Serv. Local 47 Cleaning Contractors Pension

Plan v. Grandview Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995). The lodestar calculation

begins with “the number of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Although the resulting

fee award may be adjusted based on various factors, “the lodestar is presumed to be the

reasonable fee to which counsel is entitled.” Imwalle v. Reliance Medical Products, Inc., 515

F.3d 531, 552 (6th Cir. 2008).

To determine a reasonable hourly rate, this Court begins with the “prevailing market rate

in the relevant community.” Adcock-Ladd v. Sec. of Treasury, 227 F.3d 343, 350 (6th Cir. 2000)

(quoting Blum v. Stenson, 465 U.S. 886, 893 (1984)). Courts may determine prevailing market

rate by reference to several sources “including affidavit, fee award studies, citations to prior

precedent regarding reasonable rate adjudications, and the court’s own expertise in recognizing

reasonable applicable prevailing rates.” Ohio & Vicinity Carpenters’ Fringe Ben. Funds, Inc. v.

BCS Contractors, Inc., No. 5:12-cv-1565, 2015 WL 710955, at *2 (N.D. Ohio Feb. 18, 2015).

See also Bds. of Trustees of Ohio Laborers’ Fringe Benefits Programs v. LA Williams

Construction, LLC, No. 2:16-CV-00304, 2017 WL 285277, at *3 (S.D. Ohio July 5, 2017).

Plaintiffs’ counsel has submitted a time sheet detailing the number of hours worked on

the case. Plaintiffs’ counsel spent eight and a half hours drafting three motions: the summons,

complaint, etc.; the amended complaint; and the motion for default judgment. Plaintiffs’ counsel

billed this time at an hourly rate of $280. (ECF No. 10 Ex. C). Plaintiffs’ counsel submitted an

affidavit attesting that his billing rate and number of hours are reasonable. (ECF No. 10 Ex. A).

Plaintiffs’ counsel’s hours and hourly rate are reasonable. Counsel’s hours reflect a

reasonable amount of time billed for motions in this case. Counsel’s work was not “redundant,

or otherwise unnecessary.” Hensley, 461 U.S. at 434. Although Plaintiffs’ counsel did not

submit any evidence on the reasonable hourly fee, Plaintiffs’ counsel’s hourly rate is reasonable

based on the hourly rates that this Court has approved in other cases. See Bds. of Trustees of

Ohio Laborers’ Fringe Benefits Programs v. LA Williams Construction, LLC, 2017 WL 285277,

at *4 (approving $255 for 12.25 hours and $280 for 5.75 hours depending on the type of work).

For the foregoing reasons, this Court GRANTS IN PART and DENIES IN PART

Plaintiffs’ Motion for Default Judgment. This Court AWARDS against Defendant, Freisthler

Paving, Inc., $15,630.90 in liquidated damages and interest and $2,380 in attorney fees, as well

as interest from the time of judgment at the rate of one percent per month. Plaintiffs have also

requested costs but have provided no supporting documentation for the costs incurred in this

case. The request for costs is therefore DENIED WITHOUT PREJUDICE. Plaintiffs may

refile, within the next thirty days, their request for costs with supporting documentation of the

costs incurred in this case.

IT IS SO ORDERED.

s/Algenon L. Marbley

ALGENON L. MARBLEY

UNITED STATES DISTRICT JUDGE

Dated: August 30, 2019