Opinion

Boards of Trustees of the Ohio Laborers Benefits v. USA Concrete Specialists, Inc.

Court
District Court, S.D. Ohio
Filed
Sep 2, 2020
Cited by
0 cases
Authority
More cited than 28.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BOARD OF TRUSTEES OF

THE OHIO LABORERS BENEFITS,

Plaintiff,

v. Civil Action 2:20-cv-457

Judge Michael H. Watson

Magistrate Judge Jolson

USA CONCRETE SPECIALISTS, INC.,

Defendant.

REPORT AND RECOMMENDATION

This is an action, initiated on January 27, 2020, for unpaid fringe benefit contributions,

liquidated damages, and interest allegedly owed certain employee benefits plans pursuant to a

collective bargaining agreement. (See Doc. 1). Plaintiffs, the fiduciaries of three employee benefit

plans, assert claims under ERISA, 29 U.S.C. § 1132 and the Labor Management Relations Act, 29

U.S.C. § 185. (Id. at 1). Defendant was served on January 29, 2020, (Doc. 4), but has failed to

plead or otherwise defend this action, (Doc. 5-1, ¶ 4). Plaintiffs applied to the Clerk for entry of

default (Doc. 5), and the Clerk entered default pursuant to Fed. R. Civ. P. 55(a) as to Defendant

USA Concrete Specialists on February 27, 2020, (Doc. 6). When Plaintiffs had not moved for

default judgment on April 28, 2020, the Undersigned directed Plaintiff to show cause within

fourteen days why this action should not be dismissed. (Doc. 7). Plaintiffs responded and

represented that they were attempting to resolve the matter extrajudicially, (Doc. 8), and the

Undersigned afforded them several opportunities to do so, (see Docs. 9, 11, 13). Apparently, the

parties were unable to fully resolve the matter, because Plaintiffs now move for default judgment.

(Doc. 14).

Plaintiffs have established that Defendant entered into an agreement with a local union

affiliated with the Laborers’ District Council of Ohio, 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. (Doc. 14 at 3; Doc. 14-1, ¶ 12). The affidavit of Plaintiffs’

Communications/Contractor Relations Manager (Doc. 14-1) establishes that Defendant, post-

litigation, paid $6,342.07 of the amount that was due and owing when suit was filed but has not

paid any additional liquidated damages, interest, attorney’s fees, or costs. (Id., ¶ 13). Plaintiffs,

therefore, seek $48.38 in liquidated damages and interest. (Id.). Plaintiffs are entitled to liquidated

damages, interest, and attorney fees on these unpaid contributions. 29 U.S.C. § 1132(g)(2); Mich.

Carpenters Council Health and Welfare Fund v. C.J. Rogers, Inc., 933 F.2d 376, 388–89 (6th Cir.

1991).

Plaintiffs also seek an award of attorney’s fees in the amount of $2,940.33, for 10.9 hours

billed at the rate of $350.00 per hour. (Doc. 14-2, ¶¶ 2–3). Plaintiffs have provided evidentiary

support that the number of hours billed, as well as the hourly rate charged are reasonable. (See id.,

¶ 4). Plaintiffs also seek costs in the amount of $406.95 for the filing fee and postage fees. (Id.,

¶ 6). The Undersigned also finds this request to be reasonable.

Plaintiffs are, therefore, entitled to judgment in the amount of $48.38 in unpaid fringe

benefit contributions, liquidated damages, and prejudgment interest, an award of attorney’s fees in

the amount of $2,940.33, and award of costs in the amount of $406.95.

Accordingly, it is RECOMMENDED that Plaintiffs’ Motion for Default Judgment (Doc.

14) be GRANTED. It is further RECOMMENDED that the Clerk enter judgment against

Defendant USA Concrete Specialists, Inc., and that Plaintiffs Boards of Trustees of the Ohio

Laborers’ Benefits have and recover from Defendant the sum of Forty-Eight Dollars and Thirty-

Eight Cents ($48.38), including unpaid fringe benefit contributions through December 2019,

prejudgment interest, and liquidated damages, a reasonable attorney’s fee in the amount of Two

Thousand Nine Hundred Forty Dollars and Thirty Three Cents ($2,940.33), plus interest from the

date of judgment at the rate of one percent (1%) per month, as well as an award of costs in the

amount of Four Hundred and Six Dollars and Ninety Five Cents ($406.95).

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 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).

IT IS SO ORDERED.

Date: September 2, 2020 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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