The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Boards of Trustees of the
Ohio Laborers Benefits, Case No: 2:23-cv-2476
Plaintiffs, Judge Graham
v.
Magistrate Judge Jolson
Kyle J. Sherman Excavating, LLC,
Defendant.
ORDER
This matter is before the Court upon Plaintiffs’ Motion for Default Judgment, filed
December 15, 2023. ECF No. 10. An Entry of Default against Defendant was entered by the Clerk
on October 10, 2023. ECF No. 6. Plaintiffs seek a judgment for liquidated damages, interest,
attorney’s fees, and costs. Pls.’ Mot., 2. Plaintiffs have submitted a Declaration of Brian Gaston
(ECF No 10-1) and Declaration of Ryan K. Hymore (ECF No. 10-7) in support of the amounts
sought. Plaintiffs represent that they have served their motion on the Defendant by regular mail.
Plaintiffs are fiduciaries of four (4) employee benefit plans established pursuant to various
collective bargaining agreements. In examining a motion for default judgment under Fed. R. Civ.
P. 55(b)(2), the Court accepts plaintiff’s well-pled allegations as to a defendant’s liability as true.
Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995). The court reviews “the pleadings
as a whole to determine whether a sufficient basis exists entitling Plaintiff to judgment pursuant to
Rule 55(b).” United States v. Allen, No. 2:12-CV-1034, 2014 WL 5305518, at *2 (S.D. Ohio Oct.
15, 2014) (quoting Nishimatsu Construction Co., Ltd. v. Houston National Bank, 515 F.2d 1200,
1206 (5th Cir. 1975)) (internal quotations omitted).
Employers violate 29 U.S.C. § 185 when they breach the terms of a collective bargaining
agreement. The elements of a breach of collective bargaining agreement claim mirror the standard
breach of contract elements, and Plaintiffs must prove that they are entitled to enforce the collective
bargaining agreement as third-party beneficiaries. Anderson v. AT&T Corp., 147 F.3d 467, 473
(6th Cir. 1998). Additionally, 29 U.S.C. § 1145 empowers trustees of union employee benefit plans
to sue employers in federal court to enforce the terms of contractual agreements when employers
are not timely paying into the benefit plan on behalf of their employees. Laborers Health &
Welfare Tr. Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539, 546, 108 S. Ct. 830, 834
(1988).
The complaint alleges that Defendant entered into collective bargaining agreements which
required Defendant to “file monthly contribution reports, permit audits of its financial records, and
make hourly contributions to the Ohio Laborers Benefits.” Pls.’ Comp., ¶¶ 7-9. The Complaint
alleges that Defendant failed to perform these obligations. Id. at ¶ 17.
The Court finds that the allegations sufficiently allege that Plaintiffs are fiduciaries entitled
to enforce the collective bargaining agreement. Additionally, the Court finds that these allegations
set forth a sufficient basis to sustain a claim for breach of the collective bargaining agreement in
violation of 29 U.S.C. § 185 as well as a violation of 29 U.S.C. § 1145, and that Plaintiffs are
therefore entitled to default judgment under Rule 55(b).
The Court may enter an award without a hearing when “plaintiff’s claim is for a sum certain
or a sum that can be made certain by computation.” Fed. R. Civ. P. 55(b)(1). Plaintiffs have
submitted documentation supporting the calculated damages and interest (ECF No 10-1) and
supporting the amount of attorney fees and court costs (ECF No. 10-7). The Court finds these
damages to be for a “sum certain,” and the Court further finds the attorney fees and costs to be
reasonable.
The Court finds, upon the materials before it, that Plaintiffs are entitled to judgment in the
amounts as follows: $13,472.01 in liquidated damages, $1,105.86 in interest, $3,285.76 in
attorneys’ fees, and $536.73 in court costs. Plaintiffs have stated that Defendant is entitled to a
credit of $1,813.56. See Pl.’s Mot., 2 n.1. Accordingly, the Court GRANTS default judgment in
the total amount of $16,586.80.
IT IS SO ORDERED.
s/ James L. Graham
JAMES L. GRAHAM
DATE: February 28, 2024 United States District Judge