The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BOARD OF TRUSTEES OF THE OHIO
LABORERS’ FRINGE BENEFIT PROGRAMS,
Plaintiffs, Case No. 2:19-cv-5339
JUDGE EDMUND A. SARGUS, JR.
v. Magistrate Judge Chelsey M. Vascura
S & D TRAFFIC CONTROL, LLC,
Defendant.
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Default Judgment (ECF No. 44),
which is unopposed and hereby GRANTED. The Clerk entered default against Defendant S&D
Traffic Control, LLC on February 4, 2020. (ECF No. 12.)
I.
Plaintiffs are the fiduciaries of three employee benefit plans—the Ohio Laborers’ District
Council – Ohio Contractors’ Association Insurance Fund, the Laborers’ District Council and
Contractors’ Pension Fund of Ohio, the Ohio Laborers’ Training and Apprenticeship Trust Fund
– and one labor-management cooperative trust known as Ohio Laborers’ District Council – Ohio
Contractors’ Association Cooperation and Education Trust (“Plans”). (Gaston Dec. at ¶ 3.) The
Plans are multiemployer plans and are collectively known as the “Ohio Laborers Benefits,” and
maintain their principal office and place of business at 800 Hillsdowne Road, Westerville, Ohio
43081. (Id. at ¶ 4.) The Plans also collect contributions on behalf of three national labor-
management cooperative trusts referred to as the LIUNA Tri-Funds. (Id. at ¶ 5.)
Defendant S&D Traffic Control, LLC maintains its principal place of business in
Thornville, Ohio. Defendant is an “employer” in “commerce” or “affecting commerce” within
the meaning of 29 U.S.C. § 1002(5), 29 U.S.C. § 1002(1), and 29 U.S.C. § 1002(12), and within
the meaning of 29 U.S.C. § 152(2), 29 U.S.C. § 152(5), and 29 U.S.C. § 152(7). (Gaston Dec. at
¶ 6.) Laborers’ District Council of Ohio and its local affiliates are labor organizations affiliated
with the Laborers’ International Union of North America. (Id. at ¶ 7.) Defendant and Laborers’
District Council of Ohio are signatory to a Heavy Highway Agreement (HHW Agreement), and
Defendant and Laborers’ International Union of North America are signatory to National
Distribution Agreement (attached as Ex. 3, National Distribution Agreement) (“Agreements”).
(Id. at. ¶ 8.) Defendant was at all times relevant bound to the Agreements, and by virtue of
executing them, the Declarations of Trust establishing the Plans and the LIUNA Tri-Funds. (Id.
at ¶ 9.)
The Agreements, the Declarations of Trust, and the Plans obligated Defendant to file
monthly contribution reports, permit audits of its financial records, and make hourly
contributions to the Plans and the LIUNA Tri-Funds on behalf of all persons as defined in the
Agreements. (Id. at ¶ 10.) These Governing Documents authorize Plaintiffs to conduct an audit
of financial records, collect delinquent contributions, and assess and collect liquidated damages
where an employer like Defendant fails to timely remit required contributions and deductions.
(Id. at ¶ 11.)
Defendant employed laborers who performed work covered by the Agreements. (Id. at ¶
12.) The Agreements required Defendant to pay contributions at specified rates on behalf of its
employees for each hour worked in covered employment. (Id.) All contributions are due the 15th
day of the month following the month in which employees performed work in covered
employment. (Id.)
Defendant failed to make contributions timely to the Plans for the months of September
2018 through November 2018, as required by the Agreements entered into by Defendant and
pursuant to the Trust Agreements covering the various Plans. (Id. at ¶ 13.) Under such
circumstances, the Agreements adopted by Defendant provide for unconditional assessment of
liquidated damages in the amount of 10% of the late principal contributions, plus 1% interest per
month on late contributions. (Id. at ¶ 14; HHW Agreement, Article IX, p. 27; National
Distribution Agreement, Article XII, p. 14.)
Defendant failed to make contributions for the months of September 2018 through
November 2018 totaling $17,459.00 (Gaston Dec. at ¶ 15.) The 10% charge imposed upon
delinquent contributions generally is related to the scope of Plaintiffs’ administrative losses
caused by late payments, though precise computations of such costs would be most difficult, if
not impossible. (Id. at ¶ 16.) The Plans calculated the amount of liquidated damages due upon
said untimely contributions to total $1,745.90, and assessed 1% interest per month on late
contributions. (Id. at ¶¶ 17-18.)
II.
Rule 55 of the Federal Rules of Civil Procedure governs default judgment. Once a default
is entered under Rule 55(a), the defendants are considered to have admitted all of the well-
pleaded allegations in the complaint. While a plaintiff’s well-plead allegations have established
liability, it “must still establish the extent of damages.” Antoine v. Atlas Turner, Inc., 66 F.3d
105, 110 (6th Cir. 1995) (internal citations omitted).
Rule 55(b) provides that a district court “may” hold a hearing on a motion for default
judgment when necessary to “conduct an accounting,” or “determine the amount of damages.” In
other words, the Rule, “by its terms, allows but does not require the district court to conduct an
evidentiary hearing.” Vesligaj v. Peterson, 331 F. App'x 351, 354 (6th Cir. 2009) (citing Fustok
v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989) (“[I]t was not necessary for the
District Court to hold a hearing, as long as it ensured that there was a basis for the damages
specified in a default judgment.”)).
III.
Plaintiff has shown with the evidence presented to this Court that the Agreements require
Defendant to pay contributions to the Plans monthly, typically by the 15th day of the month
following the month its employees performed work. (Gaston Dec. at ¶ 12; HHW Agreement,
Article IX, p. 27; Ex. 3, National Distribution Agreement, XII, pp. 12-13.) Defendant failed to
make timely contributions. (Gaston Dec. at ¶¶ 13, 15
A. Damages
In the Sixth Circuit, trust funds may obtain double interest and liquidated damages
pursuant to the collective bargaining agreement arising from delinquent contributions. Michigan
Carpenters Council Health and Welfare Fund v. C.J. Rogers, Inc., 933 376, 390 (6th Cir. 1991)
(“[A] fund has a valid claim for late payment and/or audit damages pursuant to its collective
bargaining agreement with defendants, not covered by section 1132(g).”). When a contractor,
such as Defendant, fails to make contributions in a timely manner, the Agreements adopted by
Defendant provide for liquidated damages in the amount of 10% of the late principal
contributions, plus 1% per month on late contributions. (HHW Agreement, Article IX, p. 27;
National Distribution Agreement, Article XII, p. 14.)
Because Defendant failed to make any contributions for hours worked in September 2018
through November 2018, the Plans assessed 10% liquidated damages in the amount of
$1,745.90, plus interest at the rate of 1% per month, i.e., $8,689.72 to date, plus 1% per month
after August 5, 2022. (Gaston Dec. at ¶¶ 17-18.)
B. Attorney Fees
Plaintiff asks for attorney fees pursuant to the Employee Retirement Income Security Act
of 1974, § 1132 et seq. (“ERISA”). Section 514 of ERISA, 29 U.S.C. § 1145 provides:
Every employer who is obligated to make contributions to a multiemployer plan
under the terms of the plan or under the terms of a collectively bargained
agreement shall, to the extent not inconsistent with law, make such contributions
iDne afecncodardnta nisc oeb wligitaht etdh eto t emramkse acnodnt criobnudtiiotinosn tso oaf msuuclthie pmlapnlo oyre rs upclahn a ugnrdeeerm theen tte. r ms of the
Agreements. As noted above, Defendant was required to make contributions by the 15th day of the
month following the month in which employees performed work in covered employment. Defendant
failed to make such contributions in a timely manner. When a contractor, such as Defendant, fails to
make contributions in a timely manner, theAgreements subject such a delinquent contractor to all
collection costs, including attorney’s fees.” (HHW Agreement, Article IX, p. 27; Ex. 3, National
Distribution Agreement, Article XII, p. 14.)
Similarly, Section 502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2), provides, in part:
In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce
section 1145 of this title in which a judgment in favor of the plan is awarded, the court
shall award the plan—
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of—
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an amount not in
excess of 20 percent (or such higher percentage as may be permitted
under Federal or State law) of the amount determined by the court
under subparagraph (A),
(D) reasonable attorney’s fees and costs of the action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court deems appropriate.
(Emphasis added.) The Sixth Circuit has found that reasonable attorney fees are mandatory where
there is a judgment in favor of a fiduciary who is enforcing the payment of plan contributions
pursuant to a collective bargaining agreement. See e.g., Building Service Local 47 Cleaning
Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392 (6th Cir. 1995)
Accordingly, the Court finds in the instant action that Defendants are required to pay
reasonable attorneys’ fees and costs pursuant to the Agreements and Section 502(g)(2) of ERISA.
Plaintiffs are directed to file a Motion for Attorney’s Fees and Costs under S.D. Ohio Civ. R. 54.2(a)
once judgment is entered in their favor.
IV.
This matter is before the Court on Plaintiff’s Motion for Default Judgment (ECF No. 44),
which is unopposed and hereby GRANTED. The Clerk is DIRECTED to ENTER
JUDGMENT in favor of Plaintiff for $27,894.62, which is the total of the following:
Principal: $17,459.00
Liquidated Damages: $1,745.90
Interest: $8,689.72
Plaintiffs are DIRECTED to file their motion for attorney fees once judgement in their
favor is entered.
IT IS SO ORDERED.
10/28/2022 s/Edmund A. Sargus, Jr.
DATE EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE