Ohio & Vicinity Carpenters' Fringe Benefit Funds, Inc. v. Bunting Graphics, Inc.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

OHIO & VICINITY CARPENTERS’ CASE NO. 1:24-cv-995

FRINGE BENEFIT FUNDS, INC.,

DISTRICT JUDGE

Plaintiff, DAVID A. RUIZ

vs. MAGISTRATE JUDGE

JAMES E. GRIMES JR.

BUNTING GRAPHICS, INC.,

Defendant. REPORT AND

RECOMMENDATION

Pending before the Court are the motion and supplemental motions for

default judgment and related damages filed by Plaintiff Ohio & Vicinity

Carpenters’ Fringe Benefit Funds, Inc (the “Fund”). Docs. 9, 15, 17. The Court

referred to me these motions for a report and recommendation. Doc. 11. For

the reasons explained below, I recommend that the Court deny, without

prejudice, the Fund’s motions.

Background1

The Fund, an Ohio corporation, administers funds under a Collective

Bargaining Agreement that was entered into between Indiana/Kentucky/Ohio

Regional Council of Carpenters (the “Union”) and certain employers and

employer associations. Doc. 1, at 1–2. Bunting Graphics is a Pennsylvania

corporation that performs construction work. Id. at 2, ¶8(a).

1 The background facts are taken from the Complaint, Doc. 1, and items

that the Fund submitted with its motion for default judgment, Doc. 9.

In 2008, Bunting Graphics signed a Memorandum of Agreement with

the “Indiana/Kentucky Regional Council of Carpenters.” Doc. 9-3. In this

agreement, Bunting Graphics agreed to be bound by the then-existing

collective bargaining agreement for work it performed in Indiana, Kentucky,

and certain counties in Tennessee. Id. The agreement does not mention Ohio.

Id.

Meanwhile, at some unidentified time, an entity called the

“Indiana/Kentucky/Ohio Regional Council of Carpenters” adopted a new

Collective Bargaining Agreement. Doc. 15-1. This Collective Bargaining

Agreement, effective from 2023 through 2027, covers work done in certain Ohio

counties. Id. at 1, 4. Bunting Graphics did not sign this Collective Bargaining

Agreement. Doc. 1, at 2.

Also at some unidentified time, Bunting Graphics submitted a bid for

work on a construction project in Ohio. Doc. 1, at 2, ¶8(a). The bid was accepted.

Id. The Ohio project required the bidder to use Union labor. Id. In August 2023,

Bunting Graphics used Union labor for the Ohio project and paid to Union

members their wages in accordance with the Indiana/Kentucky/Ohio Regional

Council of Carpenters’ Collective Bargaining Agreement. Id. at 3, ¶8(b),(d),(e).

When the Fund demanded from Bunting Graphics the Union members’ fringe

benefit contributions, which the Collective Bargaining Agreement requires

employers to pay, Bunting Graphics did not pay and advised that it was not

bound by the Collective Bargaining Agreement. Id. at 4, ¶10.

The Fund filed a Complaint in this Court alleging that Bunting

Graphics’s failure to pay fringe benefit contributions violated the Collective

Bargaining Agreement and the Employee Retirement Income Security Act of

1974, 29 U.S.C. § 1145 (ERISA). Doc. 1, at 5. It also cites the Labor

Management Relations Act of 1947, 29 U.S.C. § 185 (LMRA). Id. at 1, 4.

Bunting Graphics did not respond to the complaint or otherwise appear in this

lawsuit. So the Fund filed an Application to the Clerk for entry of default under

Federal Rule of Civil Procedure 55(a), Doc. 6, which the Clerk entered in

August 2024, Doc. 7.

In December 2024, the Fund filed a motion for entry of default judgment.

Doc. 9. In its motion, the Fund asked the Court to order Bunting Graphics to

submit to an audit to determine the amount of contributions Bunting Graphics

owed for work performed from August 2023 to October 2023. Id. at 2–3. The

Court found that the prerequisites for default judgment were met but did not

find liability. Doc. 11. The Court referred to me for a report and

recommendation the Fund’s motion for default judgment, including, if

necessary, holding a hearing on damages and “to otherwise investigate any

matters necessary to resolve the claim.” Id. I granted the Fund’s audit request,

and instructed the Fund to thereafter file a supplemental motion detailing its

request for damages. Doc. 12. The audit was completed, see Doc. 14, and the

Fund filed a supplemental motion requesting damages totaling $68,699.69,

Doc. 15. These damages include $52,736.69 in unpaid fringe benefit

contributions, $7,910.50 in liquidated damages, $7,542.50 in attorneys’ fees,

and $510.00 in costs. Doc. 15, at 5; Doc. 15-3. I advised the Fund that the

materials it used to support its attorneys’ fee request were insufficient, Doc.

16, and it filed a supplemental motion to cure the deficiencies, Doc. 17.

Legal Standard

Federal Rule of Civil Procedure 55 governs default and default

judgment. Here, the Clerk has entered default under Rule 55(a). Doc. 7. “Once

default is entered, the defaulting party is deemed to have admitted all the well-

pleaded factual allegations in the complaint regarding liability, including

jurisdictional averments.” Renouf v. Aegis Relocation Co. Corp., 641 F. Supp.

3d 439, 444 (N.D. Ohio 2022) (citing Ford Motor Co. v. Cross, 441 F. Supp. 2d

837, 846 (E.D. Mich. 2006)). But “legal conclusions in the complaint are not

deemed admitted by a defendant’s default.” Renouf, 641 F. Supp. 3d at 445. A

court must therefore “determine whether the factual allegations in the

complaint,” which are deemed admitted, “and reasonable inferences derived

therefrom, are sufficient to satisfy the elements of [the plaintiff’s] legal claims

for which [it] seeks default judgment.” Id. (citing Zinganything, LLC v. Imp.

Store, 158 F. Supp. 3d 668, 672 (N.D. Ohio 2016), and Kwik–Sew Pattern Co.

v. Gendron, No. 1:08-cv-309, 2008 WL 4960159, at *1 (W.D. Mich. Nov. 19,

2008)).

Also, damages allegations are not deemed admitted. See Painting Indus.

Funds v. Indus. Painting & Rigging, No. 1:24-cv-886, 2024 WL 5075167, at *2

(N.D. Ohio Dec. 11, 2024) (collecting cases); Renouf, 641 F. Supp. 3d at 448.

Rather, damages allegations must be proved. See Painting Indus. Funds, 2024

WL 5075167, at *2. Where, as here, damages are not certain, a party must

move the Court under Rule 55(b) for default judgment. Fed. R. Civ. P. 55(b). A

Court may conduct a hearing or enter default judgment on damages without a

hearing. See Rule 55(b)(2); Renouf, 641 F. Supp. 3d at 445.

Analysis

A. The Fund has not shown that it is entitled to default judgment as to

liability

In the Complaint, the Fund, a third-party beneficiary of the Collective

Bargaining Agreement that covers certain counties in Ohio, alleges that

Bunting Graphics worked on an Ohio construction project, which required it to

use Union labor. Doc. 1, at 2, ¶5, 8(a). But Bunting Graphics didn’t sign the

Collective Bargaining Agreement that the Fund seeks to enforce against it.

Bunting Graphics only signed in 2008 a Memorandum of Understanding with

the “Indiana/Kentucky Reginal Council of Carpenters”—an agreement with a

different-named entity that did not cover work in Ohio. Doc. 9-3.

The Fund concedes that “Defendant Bunting did not sign a Collective

Bargaining Agreement with the Union,” but alleges that Bunting Graphics “is

bound to the terms of the Collective Bargaining Agreement by its actions.” Doc.

1, at 2, ¶6. The Fund identifies these actions as follows: Bunting Graphics bid

on the Ohio project, which it knew required Union labor; it requested in August

2023 a Union apprentice, and in its request stated that “it was a contractor

‘who is signatory to a current collective bargaining agreement with the

Indiana/Kentucky/Ohio Regional Council of Carpenters’” and “‘agree[d] to

abide by the rules and procedures established by [the Union’s] Committee’”;

Bunting Graphics requested the Collective Bargaining Agreement and the

wage rates for Union members; and it paid Union members wages consistent

with the Collective Bargaining Agreement. Id., at 2–3, ¶8(a)–(e). The Fund

alleges that by performing these acts, Bunting Graphics “assumed the

contractual obligations under the Collective Bargaining Agreement.” Id. at ¶8.

In support of its legal conclusion that Bunting Graphics’s actions alone

created liability under the Collective Bargaining Agreement, the Fund states:

A non-signatory employer may be bound to a

collective bargaining agreement even without

signing it where (1) a non-signatory has

incorporated the arbitration agreement by

reference; (2) where a non-signatory has assumed

contractual obligations under the contract; (3) where

traditional agency principles so require; (4) where

veil-piercing/alter ego theories so require; or (5)

where theories of equitable estoppel so require.

Javitch v. First Union Secs., Inc., 315 F.3d 619, 629

(6th Cir. 2003).

Doc. 1, at 2, ¶7. The Fund cites no other legal authority for its assumed

contractual obligations theory and does not advance any other legal theory for

Bunting Graphics’s liability.2 See Doc. 1, at 2; Doc. 15, at 2.

2 In its Supplemental Motion for Default Judgment, the Fund states that

Bunting Graphics “was bound to a Collective Bargaining Agreement with the

OHIO & VICINITY CARPENTERS’ FRINGE BENEFIT FUNDS, INC. by

assumption” and cites the Ohio Collective Bargaining Agreement and the

Memorandum of Agreement. Doc. 15, at 2, ¶3. But Bunting Graphics did not

But Javitch—the only authority that the Fund cites—is not an ERISA

or LMRA case and it doesn’t involve a union or a collective bargaining

agreement. Javitch instead dealt with the Federal Arbitration Act in a non-

labor, commercial dispute. 315 F.3d at 624. The court in Javitch stated that

“nonsignatories may be bound to an arbitration agreement under ordinary

contract and agency principles” and listed the “[f]ive [recognized] theories for

binding nonsignatories to arbitration agreements.” Id. at 629. The Fund has

not explained how the assumed contractual obligations theory for

nonsignatories to arbitration agreements mentioned in Javitch would apply

here, to this labor case, and it hasn’t cited any labor cases applying this theory.

My research hasn’t uncovered a case, either. Simply put, the Fund hasn’t cited

an applicable legal theory showing that non-signor Bunting Graphics can be

found to have assumed the contractual obligations of the Union’s Collective

Bargaining Agreement solely by its actions—which is what the Fund alleges.

See Doc. 1, at 2–3.

In short, whether Bunting Graphics was bound by the Collective

Bargaining Agreement through its admitted actions is a legal conclusion, not

a factual allegation. So Bunting Graphics did not by virtue of its default admit

sign the Collective Bargaining Agreement. Further, the Union wasn’t a party

to the Memorandum of Agreement and the Memorandum of Agreement doesn’t

cover Ohio. The Fund has not explained how these two documents could or

should be read together to create liability for Bunting Graphics in this case.

Indeed, after making this statement, the Fund reiterates its assumption-by-

action theory. Id. at ¶4–5.

this legal conclusion. This means that the Fund has to show that its legal

conclusion about Bunting Graphics’s liability holds water. But it has not done

so. I therefore recommend that the Court deny the Fund’s Motion for Default

Judgment as to liability, without prejudice.

2. The Fund has not proved that it is entitled to the damages it seeks

The Fund must prove its damages allegations to recover the amount it

seeks on default judgment. See Painting Indus. Funds, 2024 WL 5075167, at

*2. Without a showing that Bunting Graphics was bound by the Collective

Bargaining Agreement, the Fund may not recover from Bunting Graphics

damages under that agreement. Even if this Court were to find that the Fund

established Bunting Graphics’s liability, the Fund has not proved that it is

entitled to the damages it seeks.

In support of its assertion that it is entitled to “unpaid fringe benefit

contributions and deductions” from August 1 through October 31, 2023, the

Fund provides a one-page document that it calls the “Bunting Audit Report.”

Doc. 15, at 7; Doc. 15-3. This document is unauthenticated. It appears to be a

summary conclusion and there is no accompanying explanation of the methods

the auditor used to calculate the damages. This document is therefore

insufficient to prove damages. Cf., Loc. Union 5 Trs. of Bricklayers & Masons’

Ohio Pension Fund v. United Masonry Constr. Co, LLC, No. 5:22-cv-406, 2023

WL 6554174, at *2–3 (N.D. Ohio July 28, 2023) (finding that the plaintiff

showed it was entitled to default judgment for an amount of delinquent fringe

benefit contributions when the plaintiff provided an affidavit from the plan

administrator explaining the contributions due, a copy of the audit report, and

the auditor’s explanation for how he made the calculations), report and

recommendation adopted, 2023 WL 5662613 (N.D. Ohio Sept. 1, 2023).

Liquidated damages are recoverable under a Collective Bargaining

Agreement. See, e.g., Bricklayers Pension Tr. Fund v. Rosati, Inc., 23 F. App’x

360, 362 (6th Cir. 2001). In support of its 15 percent liquidated damages

request, the Fund relies on a provision in the Collective Bargaining Agreement.

Doc. 15, at 5, ¶17. And it cites the one-page audit summary, which shows

“$7,910.50” as total liquidated damages. Doc. 15-3. Review of this document

shows that the auditor calculated this number by applying an across-the-board

15 percent liquidated damages penalty on $52,736.69, the total amount of

damages. See id.

But the Collective Bargaining Agreement provision that the Fund cites

doesn’t provide for an across-the-board 15 percent liquidated damages

assessment. The relevant provision in the Collective Bargaining Agreement

states:

24.13 Delinquency Penalties. Any Employer who

is delinquent in making its payments as herein

required or who fails to file an accurate and

acceptable monthly report by the fifteenth (15th)

day of any month shall be charged a delinquency

assessment of ten percent (10%) of the amount due

for the first (1st) week or first (1st) month, as the

case may be, and five percent (5%) for each week or

month thereafter.

Doc. 15-1, at 4. So a flat-rate 15 percent penalty for all damages, which the

auditor assessed, is not consistent with the Collective Bargaining Agreement,

which provides for an initial 10 percent penalty. If a flat-rate 15 percent

liquidated damages calculation was warranted, the Fund hasn’t explained why

this would be so.

In sum, I find that the Fund has not proved that it is entitled to the

damages it seeks.3

3. Attorneys’ fees

“To determine reasonable attorney fees, the Court uses the ‘lodestar’

method: it calculates ‘the number of hours reasonably expended on the

litigation multiplied by a reasonable hourly rate.’” See, e.g., Loc. Union No. 5

Trs. of Bricklayers & Masons’, Ohio Pension Fund v. Masonry Contracting

Corp., No. 1:19-cv-1273, 2021 WL 243187, at *11 (N.D. Ohio Jan. 25, 2021).

Because the Fund did not initially provide itemized billing records for the

Court to determine whether its fee request is reasonable, I ordered it to

supplement its fee request. Doc. 16. The Fund has done so. Doc. 17. But given

the deficiencies in the Fund’s motion and supplemental motions for default

3 Given my recommendation as to liability, I have not held a hearing on

damages. Cf. Ohio v. Roberts, 448 U.S. 56, 74 (1980) (“The law does not require

the doing of a futile act.”), abrogated on other grounds by Crawford v.

Washington, 541 U.S. 36 (2004). In the event that the Court does not accept

my recommendation as to liability, I will need to hold a hearing to determine

the amount of damages.

judgment, described above, I find that a calculation of attorneys’ fees is not

warranted at this time.

Conclusion

For the reasons explained above, I recommend that the Court deny,

without prejudice, the Fund’s motion and supplemental motions for default

judgment, Docs. 9, 15, 16.

So ordered.

Dated: September 2, 2025

/s/ James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th

Cir. 2019).