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Wilson v. Fioritto Construction LLC

United States District Court, S.D. Ohio, Eastern Division

August 1, 2018

CAROL A. WILSON, Administrator, et al., Plaintiffs,
v.
FIORITTO CONSTRUCTION, LLC, Defendant.

          Deavers, Magistrate Judge.

          OPINION AND ORDER

          GEORGE C. SMITH, JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court upon the Supplemental Brief to the Motion for Summary Judgment of Plaintiffs Carol A. Wilson, Administrator, and Trustees of the Ohio Operating Engineers Health and Welfare Plan, the Ohio Operating Engineers Pension Fund, the Ohio Operating Engineers Education and Training Fund, and the Ohio Operating Engineers Apprenticeship Fund (“Plaintiffs' Motion for Summary Judgment”) (Doc. 19). Defendant Fioritto Construction, LLC declined to file a brief opposing any of Plaintiffs' new evidence or arguments and the time to do so has now expired.

         For the reasons that follow, Plaintiffs are entitled to judgment in the amount of $17, 034.04 in delinquent fringe benefit contributions, $5, 594.77 through July 15, 2018 plus $8.00 for each day thereafter that payment remains outstanding in interest, and $5, 594.77 through July 15, 2018 plus $8.00 for each day thereafter that payment remains outstanding in liquidated damages.

         I. BACKGROUND

         Plaintiffs are the Administrator and Trustees of the Ohio Operating Engineers Health and Welfare Plan, the Ohio Operating Engineers Pension Fund, the Ohio Operating Engineers Education and Safety Fund, and the Ohio Operating Engineers Apprenticeship Fund (the “Funds”). The Funds are jointly administered, multiemployer fringe benefit programs established for the benefit of employees of contractors who perform work pursuant to the “Ohio Highway Heavy Agreement Effective May 1, 2010 through April 30, 2013” between the International Union of Operating Engineers, Local 18 and its Branches (AFL-CIO) (the “Union”) and the Labor Relations Division of the Ohio Contractors Association (Doc. 13-1, Collective Bargaining Agreement (“CBA”)). The Funds provide health and welfare, retirement, and other fringe benefits to their beneficiaries. (Doc. 1, Compl. ¶¶ 2-3).

         Defendant Fioritto Construction, LLC is in the business of heavy highway construction and typically has four to five employees. (Doc. 14-7, Fioritto Dep. at 9). Shortly after it was formed in 2011, Defendant entered into a one-page “AGREEMENT - Highway Heavy Construction” with the Union (Doc. 1, PAGEID #12) on March 14, 2011, whereby Defendant agreed to adopt all terms of the CBA, including obligations to contribute to the Funds.

         Plaintiffs commenced this action under 29 U.S.C. §§ 1145 and 1132 on April 14, 2017. (Doc. 1, Compl.). Plaintiffs seek to recover the amount of unpaid delinquent fringe benefit contributions owing for three of Defendant's employees “in the amount of $17, 034.04, plus accumulated interest charges in the amount of $3, 968.26 calculated through November 30, 2017, plus late charges of $8.40 per day thereafter and statutory interest in the amount of $3, 968.26 calculated through November 30, 2017, plus late charges of $8.40 per day thereafter as long as the judgment remains unpaid, ” in addition to attorneys' fees and costs. (Doc. 13, Mot. at 9).

         Plaintiffs moved on November 30, 2017 for summary judgment on all of their claims (other than attorneys' fees and costs, which Plaintiffs indicate they will seek in a post-judgment motion). On May 10, 2018, this Court entered an Order finding Defendant liable for delinquent fringe benefit contributions as to Defendant's employees Tom Yelling and Thomas Fioritto, but the Court was unable to determine whether a payment made in January 2017 extinguished liability as to outstanding contributions attributable to Defendant's employee Mario Finelli. The Court was also unable to calculate the total amount owing or the associated interest or liquidated damages to which Plaintiff may be entitled. (Doc. 18). The Court therefore ordered Plaintiffs to submit a supplemental brief, along with admissible evidence, to support the amount claimed. (Id.). Plaintiffs did so on June 6, 2018. (Doc. 19). Defendant was given until June 20, 2018 to oppose Plaintiffs' supplemental brief but has not done so.

         II. DISCUSSION

         A. Liability as to contributions on behalf of Mario Finelli

         The Court is satisfied by Carol Wilson's affidavit describing the Funds' standard practice of crediting post-audit contribution payments toward the oldest outstanding hours. (Doc. 19-1). The Court also recognizes that this practice was expressly approved of in Bunn Enters., Inc. v. Ohio Operating Eng'rs Fringe Ben. Programs, No. 2:13-CV-357, 2013 WL 3147956, at *11 (S.D. Ohio June 19, 2013) (Marbley, J.). Accordingly, the Funds were permitted to credit (at least a portion of) the January 12, 2017 payment that Defendant designated for Mario Finelli (whose hours accrued beginning April 2016) to hours accrued by other employees in March 2016. As a result, Defendant's January 12, 2017 payment representing the amount of outstanding unpaid contributions attributable to Mario Finelli did not extinguish Defendant's liability as to Mr. Finelli. Plaintiffs are therefore entitled to judgment on liability as to Mr. Finelli's unpaid contributions.

         B. Damages calculations

         All that remains at this stage is to calculate the amount owing to Plaintiffs representing the total amount of delinquent ...


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