United States District Court, S.D. Ohio, Eastern Division
TRUSTEES OF THE OHIO LABORERS' FRINGE BENEFIT PROGRAMS, Plaintiffs,
ANTHONY GIORDANO, Defendant.
C. Smith, Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE
an action, initiated on February 17, 2017, 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 trustees of four trust funds, assert claims
under ERISA, 29 U.S.C. § 1132. Defendant Anthony
Giordano doing business as Anthony Giordano Construction
(“Defendant”), was served with a summons and a
copy of the complaint by certified mail on February 17, 2017
(Doc. 2), but has failed to plead or otherwise defend this
action. Plaintiffs applied to the Clerk for entry of default
(Doc. 6), and the Clerk entered default pursuant to Federal
Rule Civil Procedure 55(a) on April 25, 2017 (Doc. 7).
18, 2017, this Court issued an Order noting that Plaintiffs
had obtained an entry of default, but they had not filed a
motion for a default judgment or requested a hearing or trial
on the issue of damages. (Doc. 8). Thus, the Court directed
Plaintiffs to show cause within fourteen days why this action
should not be dismissed. (Id. at 2). Plaintiffs
responded on June 1, 2017 (Doc. 10), and simultaneously filed
a Motion for Default Judgment against Defendant under
Fed.R.Civ.P. 55. (Doc. 9). The Court finds Plaintiffs have
set forth good cause and shall consider the pending Motion.
the clerk's entry of default pursuant to Rule 55(a) of
the Federal Rules of Civil Procedure and the party's
application for default under Rule 55(b), ‘the
complaint's factual allegations regarding liability are
taken as true, while allegations regarding the amount of
damages must be proven.'” Bogard v. Nat'l
Credit Consultants, No. 1:12 CV 02509, 2013 WL 2209154,
at *3 (N.D. Ohio May 20, 2013) (citing Morisaki v.
Davenport, Allen & Malone, Inc., No. 2:09-cv-0298,
2010 WL 3341566, at *1 (E.D. Cal. Aug.23, 2010)).
Accordingly, Plaintiffs allegations that Defendant Anthony
Giordano is (and was) the alter ego of, and a single employer
with, non-party Mason Anthony Construction, LLC is taken as
true. However, as noted above, Plaintiffs bear the burden of
establishing damages. Id.
case is unique, however, in that this Court has already
entered judgment against non-party Mason Anthony
Construction, LLC for the very same damages sought here. In
Bds. of Trs. of the Ohio Laborers' Fringe Benefit
Programs v. Mason Anthony Constr., LLC, No. 2:14-
cv-2248, Judge Marbley entered an order of default judgment
the sum of Twenty-Eight Thousand Forty-Five Dollars and
Thirty-Four Cents ($28, 045.34), including unpaid fringe
benefit contributions through August, 2014, and prejudgment
interest and liquidated damages, plus attorneys' fees of
Two Thousand Three Hundred Fifty-Eight Dollars and
Seventy-Five Cents ($2, 358.75), plus interest from the time
of judgment at the rate of 1 % per month, and the costs of
No. 12:14-cv-2248, Doc. 10. Accordingly, Plaintiffs have
provided evidentiary support as to their damages and included
an affidavit swearing Defendant is not a minor, incompetent
person, member of the armed services, or officer or agency of
the United States. (See Doc. 9-1).
are therefore entitled to judgment.
it is RECOMMENDED that Plaintiffs' Motion for Default
Judgment (Doc. 9), be GRANTED. It is FURTHER RECOMMENDED that
the Clerk enter judgment against Defendant Anthony Giordano
and that Plaintiffs Trustees of the Ohio Laborers' Fringe
Benefit Programs have and recover in the amount of
Twenty-Eight Thousand Forty-Five Dollars and Thirty-Four
Cents ($28, 045.34), including unpaid fringe benefit
contributions through August, 2014, and prejudgment interest
and liquidated damages, plus attorneys' fees of Two
Thousand Three Hundred Fifty-Eight Dollars and Seventy-Five
Cents ($2, 358.75), plus interest from the time of judgment
at the rate of 1 % per month, and the costs of this action.
party seeks review by the District Judge of this Report and
Recommendation, that party may, within fourteen (14) days,
file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and
Recommendation, and the part thereof in question, as well as
the basis for objection thereto. 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). Response to objections must be filed
within fourteen (14) days after being served with a copy
thereof. Fed.R.Civ.P. 72(b).
parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the
right to de novo review by the District Judge and 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); Smith v. Detroit Fed'n
of Teachers, ...