United States District Court, N.D. Ohio, Eastern Division
OHIO & VICINITY CARPENTERS' FRINGE BENEFIT FUNDS, INC., PLAINTIFF,
ETA DEVELOPMENT, DEFENDANT.
HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE.
before the Court is a status report by plaintiff Ohio &
Vicinity Carpenters' Fringe Benefit Funds, Inc.
(“plaintiff”), with attached affidavit and audit
results, submitted in support of damages, attorney fees, and
costs sought by plaintiff in its motion for default judgment.
(Doc. No. 18.) For the reasons that follow, judgment is
granted in favor of plaintiff and against defendant in the
amount of $450.98 in damages, $1, 492.50 in attorney fees,
and $550.00 in costs.
Court previously granted plaintiff's motion for default
judgment pursuant to Fed.R.Civ.P. 55 against defendant ETA
Development (“defendant”) as to liability only
for unpaid fringe benefit contributions, attorney fees, and
costs. (Doc. No. 21.) The Court ordered defendant to submit
to an audit and for plaintiff, thereafter, to supplement its
motion for default judgment with evidentiary support for its
claim for damages, attorney fees, and cots. (Id.)
Defendant failed to submit to an audit and the Court
scheduled a show cause hearing for September 14, 2017. (Doc.
No. 14.) Neither defendant nor a representative appeared at
the hearing, and plaintiff's counsel indicated that
plaintiff would file a motion seeking further action by the
Court. (See Minutes of Proceedings September 14,
2017.) After the hearing, plaintiff filed a status report
stating that defendant had provided the records necessary for
an audit, and that an audit was being performed. (Doc. No.
17; Order [non-document] November 17, 2017.) Thereafter,
plaintiff submitted evidentiary support for its damages claim
for unpaid fringe benefits, and for attorney fees and costs.
(Doc. No. 18.)
well-pleaded allegations in a complaint are taken as true as
to liability when a defendant is in default, but not as to
damages. Ford Motor Co. v. Cross, 441 F.Supp.2d 837,
846 (E.D. Mich. 2006) (citing Visioneering Constr. v. U.S
Fid. & Guar., 661 F.2d 119, 124 (6th Cir. 1981)).
Rule 55(b)(2) permits, but does not require, the district
court to conduct an evidentiary hearing to determine damages.
Arthur v. Robert James & Assoc. Asset Mgmt.,
Inc., No. 3:11-cv-460, 2012 WL 1122892, at *1 (S.D. Ohio
Apr. 3, 2012) (citing Vesligaj v. Peterson, 331 F.
App'x. 351, 354-55 (6th Cir. 2009)). The Court may rely
on affidavits submitted by plaintiff in support of damages
without the need for a hearing. Id. at *2 (citation
fringe benefit damages
did not submit an affidavit in support of damages sought for
unpaid fringe benefits, but submitted the results of an audit
of defendant's records showing damages due in the total
amount of $450.98. (Doc. No. 18-2.) While an affidavit
submitted by plaintiff Fund's administrator attesting to
the damages due would be preferred, the Court will accept the
audit results attached to the status report filed by
plaintiff's counsel, Attorney Matthew Henzi, as an
officer of the Court. See Roberts v. Mahoning Cnty.,
495 F.Supp.2d 713, 717 n.5 (N.D. Ohio 2006) (reports filed by
counsel “enjoy a certain level of reliability by virtue
of their having been filed by attorneys who are officers of
the court and sworn to a level of ethical and professional
accountability”); Henderson v. Collins, No.
1:94-CV-106, 2015 WL 13021898, at *2 (S.D. Ohio Feb. 9, 2015)
(an attorney is an officer of the court and is bound by the
ethical obligations imposed by the rules of professional
conduct and this court).
damages are awarded to plaintiff in the amount of $450.98.
Attorney fees and costs
is entitled to reasonable attorney's fees and costs
pursuant to the collective bargaining agreement applicable to
the Fund and 29 U.S.C. § 1132(g)(2)(D). Attorney fees
are calculated using the “lodestar” method, which
is determined by multiplying the number of hours reasonably
expended on this litigation by a reasonable hourly rate.
See Hensley v. Eckerhart, 461 U.S. 424, 433, 103
S.Ct. 1933, 76 L.Ed.2d 40 (1983); Building Serv. Local 47
Cleaning Contractors Pension Plan v. Grandview Raceway,
46 F.3d 1392, 1401 (6th Cir. 1995). The lodestar calculation
can be adjusted by consideration of a number of
factors. Hensley, 461 U.S. at 430, n.3.
has submitted the affidavit of Attorney Matthew Henzi
(“Henzi”) in support of attorney fees in the
amount of $1, 492.50 and costs in the amount of $550.00,
a total amount of $2, 042.50. (Doc. No. 18-1. [“Henzi
Aff.”] ¶¶ 4, 6, 7.) Henzi avers that his firm
bills plaintiff at an hourly rate of $200.00 for senior
partners, $180.00 for partners, and $150.00 for associates,
and that those rates are “comparable, reasonable and
consistent” with rates for firms that represent funds
such as plaintiff. (Id. ¶¶ 4, 5.)
prevailing hourly market rate can be demonstrated in a number
of ways, including, affidavit, fee award studies, citations
to prior precedent regarding reasonable rate adjudications,
and the court's own expertise in recognizing reasonable
applicable prevailing rates. See Disabled Patriots of Am.
v. Genesis Dreamplex, LLC, 3:05 CV 7153, 2006 WL
2404140, at *2 (N.D. Ohio 2006). Plaintiff has not submitted
affidavits from other attorneys regarding prevailing market
rates in the community for attorneys specializing in ERISA
matters. Based on the Court's experience in similar
cases, however, the hourly billing rates charged by
plaintiff's counsel in this case ($150.00-$200.00) are
reasonable for purposes of the lodestar analysis. See
e.g. Local Union No. 33 Trustees of Sheet Metal Workers'
Akron Dist. Pension Fund v. Map Heating & Cooling,
LLC, No. 5:08CV2954, 2010 WL 1995654, at *6 (N.D. Ohio
May 19, 2010) (hourly rates between $155.00 and $160.00 are
reasonable); Gen. Truck Drivers & Helpers Local Union
No. 92 ex rel. Exec. Bd. v. Smith Truck Serv., Inc., No.
5:11CV1683, 2012 WL 1658352, at *4 (N.D. Ohio May 11, 2012)
(hourly rates of $200.00 and $225.00 are reasonable).
has not submitted billing statements to document the number
of hours expended by counsel on this litigation. Plaintiff
seeks attorney fees in the amount of $1, 492.50. Based on the
lowest hourly rate charged to plaintiff ($150.00), counsel
expended approximately 10 hours on this litigation. At the
highest hourly rate, counsel expended approximately 7.50
hours. Although plaintiff should have included billing
records to support its attorney fee request, based upon the
information provided, the Court finds that the number of
hours expended in this matter for which default judgment was
obtained appear to be reasonable for cases of this nature.
See e.g. Trustees of Michigan Laborers' Pension Fund
v. Improvement Techs. Co., No. 09-CV-11839, 2009 WL
5150349, at *2 (E.D. Mich. Dec. 18, 2009) (5.0 hours at a
rate of $190.00 per hour is reasonable); Boards of
Trustees of Ohio Laborers' Fringe Benefits Programs v. LA
Williams Constr., LLC,, No. 2:16-CV-00304, 2017 WL
2858277, at *4 (S.D. Ohio July 5, 2017) (hours aggregated ...