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Directors of the Ohio Conference of Plasterers & Cement Masons Combined Funds, Inc. v. Akron Insulation and Supply, Inc.

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

June 18, 2019




         In this action to recover unpaid employee benefit contributions, plaintiffs Directors of the Ohio Conference of Plasterers & Cement Masons Combined Funds, Inc. (“plaintiffs”) have filed a request for an award of costs and attorney fees against defendant Akron Insulation and Supply, Inc. (“defendant”). (Doc. No. 21, Notice of Damages and Costs [“Not.”].) For the reasons set forth below, the Court enters final judgment in favor of plaintiffs and awards plaintiffs $16, 330.00.

         I. BACKGROUND

         Plaintiffs are the “Directors of the entity responsible for collections for various employee benefit plans[.]” (Doc. No. 1, Complaint [“Compl.”] ¶ 3.) On June 30, 2016, plaintiffs filed suit against defendant, pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 100, et seq., and § 301(a) of the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185(a), for violating a collective bargaining agreement by failing to make fringe benefit contributions. (Compl. ¶ 1.) After defendant failed to answer or otherwise respond to the complaint, plaintiffs applied to the Clerk for an entry of default, and the Clerk entered default against defendant on August 24, 2016. (Doc. No. 9.)

         Plaintiffs subsequently moved for default judgment against defendant and for an order requiring an audit of defendant's books to determine the amount of unpaid contributions due. (Doc. No. 10.) In a May 8, 2018 order, the Court granted the motion for default judgment as to liability and ordered defendant to submit to a financial audit by June 29, 2018, to determine the amount of unpaid contributions due under the collective bargaining agreement.[1] (Doc. No. 14.)

         Defendant failed to cooperate timely to accomplish the audit and, on July 27, 2018, plaintiffs filed a motion asking the Court to order defendant to show cause as to why defendant had failed to cooperate timely with the financial audit. (Doc. No. 15.) On August 7, 2018, this Court ordered defendant to show cause by August 21, 2018, as to why it should not be held in contempt for its failure to comply with this Court's May 8, 2018 order requiring timely cooperation with plaintiffs to complete a payroll audit of defendant's records. (Doc. No. 16.) On August 27, 2018-after defendant failed to respond by the show cause deadline-this Court extended the deadline to September 12, 2018, for defendant to show cause. (Doc. No. 17.) That same day, the clerk mailed a copy of the Court's order to defendant. (See 8/27/18 Docket Entry.)

         On September 25, 2018-after defendant still had not responded to the show cause order-this Court ordered plaintiffs to advise the Court in writing by October 5, 2018, how they planned to proceed. (Doc. No. 18.) On October 5, 2018, plaintiffs filed a status report advising the Court that they had received the necessary information from defendant to complete the audit but that plaintiffs needed more time to calculate and submit to the Court a sum certain total owed by defendant. (Doc. No. 19.) The Court ordered plaintiffs to calculate and submit the sum certain totals owed by defendant no later than November 30, 2018. (Doc. No. 20.)

         On November 30, 2018, plaintiffs submitted the instant notice of damages and costs. In their request for cost and fees, plaintiffs submit that the financial audit revealed no outstanding delinquencies. (Doc No. 21-2 [“Eyster Decl.”] ¶ 2; Not. at 187.[2]) Nevertheless, plaintiffs request $4, 920.00 for the audit, $609.50 for court costs, and $10, 800.50 in reasonable attorney fees for a total award of $16, 330.00. (Not. at 194.) In support of their request, plaintiffs submit the payroll audit report (Doc. No. 21-1), the declaration of David Eyster, CPA (Eyster Decl.), the declaration of Jennie G. Arnold, lead counsel for plaintiffs (Doc. No. 21-3 [“Arnold Decl.”]), and the detailed billing ledger for plaintiffs' counsel (Doc. No. 21-4).

         This Court now has sufficient materials before it to issue an award and final judgment in favor of plaintiffs pursuant to Fed.R.Civ.P. 55.


         Having previously entered default judgment in favor of plaintiffs on the question of liability, the Court turns to plaintiffs' request for costs and fees. ERISA requires an employer to pay multiemployer trust fund contributions according to the terms and conditions of the collective bargaining agreements and benefit plans to which the employer is a signatory. See 29 U.S.C. § 1145. Trust funds, as fiduciaries, are authorized to enforce this requirement. See 29 U.S.C. § 1132(a)(3) (providing that a civil action may be brought by a fiduciary to enforce § 1145 or the terms of a plan). Furthermore, ERISA contains a mandatory scheme for remedying unpaid contributions whereby, when a judgment in favor of the plan is awarded, the court shall award the plan reasonable attorney's fees and costs. 29 U.S.C. § 1132(g)(2)(D); see Foltice v. Guardsman Prods., Inc., 98 F.3d 933, 936 (6th Cir. 1996) (“Under . . . [§ 1132(g)(2)], the award of reasonable attorney fees is mandatory[.]”). “The starting point for determining the amount of a reasonable attorney fee is the ‘lodestar' amount, which is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.” Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 551-52 (6th Cir. 2008) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). “Where the party seeking the attorney fees has established that the number of hours and the rate claimed are reasonable, the lodestar is presumed to be the reasonable fee to which counsel is entitled.”[3] Id. at 552.

         The Court begins with the hourly rates charged. To determine a reasonable hourly rate, courts initially assess the “prevailing market rate in the relevant community.” Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 350 (6th Cir. 2000) (quotation marks, citation, and emphasis omitted); see Trs. of the N.W. Ohio Plumbers & Pipefitters Pension Plan v. Helm & Assocs., Inc., No. 3:10 CV 739, 2012 WL 3619827, at *1 (N.D. Ohio Aug. 21, 2012).

         In support of their request for fees, plaintiffs have submitted an affidavit from lead counsel, Jennifer Arnold (“Arnold”). This affidavit sets forth the hourly rates charged by each attorney and paralegal who worked on this case, and the attached billing ledger details the actual work performed by each legal professional.

         In her declaration, Arnold states that she graduated from law school in 2006. (Arnold Decl. ¶ 3.) She avers that she has litigated ERISA matters continuously since her admission to the Ohio bar in 2009. (Id. ΒΆ 4.) Further, plaintiffs note that nine years ago, while Arnold was still an associate with her law firm, she was awarded $375 as a reasonable hourly rate for ERISA cases. ...

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