United States District Court, S.D. Ohio, Eastern Division
BOARD OF TRUSTEES OF THE OHIO LABORERS' FRINGE BENEFIT PROGRAMS, Plaintiffs,
MASONRY CONTRACTING CORP., Defendant.
KIMBERLY A. JOLSON MAGISTRATE JUDGE
OPINION AND ORDER
D. MORRISON UNITED STATES DISTRICT JUDGE
matter is before the Court for consideration of a Report and
Recommendation (R&R) issued by the Magistrate Judge on
May 6, 2019 (ECF No. 26), and Defendant's Objection
thereto (ECF No. 28). In the R&R, the Magistrate Judge
recommended that the Court grant Plaintiffs' pending
Motion for Default Judgment (ECF No. 25) and enter judgment
against Defendant in the amount of $17, 599.00, plus interest
from the time of judgment at the rate of 1% per month, and
the costs of this action. For the reasons that follow, the
Court OVERRULES Defendant's objection,
AFFIRMS and ADOPTS the
R&R, and GRANTS Plaintiffs' Motion
for Default Judgment.
are the fiduciaries of three employee benefit trusts-the Ohio
Laborers' District Council-Ohio Contractors'
Association Insurance Fund, the Laborers' District
Council and Contractors' Pension Fund, and the Ohio
Laborers' Training and Apprenticeship Trust Fund-and one
labor management cooperative trust-the Ohio Laborers'
District Council-Ohio Contractors' Association
Cooperation and Education Trust. (Compl., ¶ 2, ECF No.
1). These trusts are collectively known as the “Ohio
Laborers Fringe Benefit Programs.” (Id.).
Plaintiffs are also required by contract to collect
contributions to the LIUNA Tri-Funds-three national labor
management cooperative trusts. (Id.).
filed a Complaint on March 7, 2018 against Defendant Masonry
Contracting Corporation. Plaintiffs allege that Defendant
breached various collective bargaining agreements by failing
to make monthly contributions to the Ohio Laborers Fringe
Benefit Programs and the LIUNA Tri-Funds. (Id.
¶ 6). Plaintiffs further allege that Defendant refused
to permit an audit of its payroll records. (Id.).
was served with the Complaint on April 12, 2018. (ECF No. 4).
Defendant did not, however, file an answer or otherwise
respond to the Complaint. As a result, Plaintiffs filed an
application for entry of default on May 29, and the Clerk
entered default the next day. (ECF Nos. 5, 6). On June 18,
Plaintiffs filed a Motion for Order Accelerating and
Compelling Discovery, in order to “complete an audit of
Defendant's payroll records and to seek the ultimate
judgments that may be appropriate for unpaid fringe benefit
contributions.” (ECF No. 7). Noting the default entered
against Defendant, the Magistrate Judge granted the Motion on
June 19. (ECF No. 8). On July 12, Plaintiffs moved for an
order to show cause why Defendant should not be held in
contempt of court for failure to appear for a noticed
deposition and production of documents. (ECF No. 9). However,
Plaintiffs ultimately withdrew the request based on
Defendant's cooperation in producing the requested
documents. (ECF No. 19).
December 30, 2018, Plaintiffs filed their initial Motion for
Default Judgment (ECF No. 22). After withdrawing that
document due to additional late contributions made by
Defendant (ECF No. 24), Plaintiffs file a second Motion for
Default Judgment on March 7, 2019, seeking $3, 274.95 in
unpaid contributions for February 2017 through December 2018,
$7, 464.12 in liquidated damages and interest, and $6, 860.00
in attorney fees, plus interest from the time of judgment at
the rate of 1% per month and court costs. (ECF No. 25). In
support of the request, Plaintiffs filed an affidavit of
attorney Steven Ball (ECF No. 25-1), an affidavit of Brian
Gaston (Contractor Relations Manager of the Ohio
Laborers' Fringe Benefit Programs (ECF No. 25-2)), and
the applicable collective bargaining agreement, an accounting
of Defendant's late payment contributions, and Mr.
Ball's billing statement (ECF No. 25-3).
6, 2019, the Magistrate Judge recommended that the Court
grant Plaintiffs' Motion for Default Judgment, noting
that Defendant had been served, Defendant had failed to
obtain counsel, and default had been entered against it. (ECF
No. 26). The Magistrate Judge also recommended awarding the
damages requested in Plaintiffs' Motion in the amount of
$17, 599.00, plus interest from the time of judgment at the
rate of 1% per month, and the costs of this action.
(Id.) (citing ECF Nos. 25-1, 25-2).
20, 2019, attorney Todd A. Harpst entered an appearance on
behalf of Defendant and filed a timely Objection to the
R&R. (ECF Nos. 27, 28). The Court proceeds to consider
party objects within the allotted time to a report and
recommendation, the Court “shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
Upon review, the Court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1).
Defendant challenges that “contrary to the
Magistrate's finding, Defendant has now obtained
counsel.” (ECF No. 28). Defendant explains that while
no formal appearance was entered until May 20, 2019, defense
counsel Todd Harpst has been involved in the case since July
25, 2018. As a result, Defendant argues that “it is
unfair to impose the full liquidated damages and
attorney's fees against [Defendant]” because Mr.
Harpst had long been cooperating with Plaintiffs to determine
the amount due for unpaid benefits through the production of
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 the
following: the unpaid contributions, interest on the unpaid
contributions, an amount equal to the greater of the interest
on the unpaid contributions or liquidated damages, and
reasonable attorney's fees and costs.”
Directors of Ohio Conference of Plasters & Cement
Masons Combined Funds, Inc. v. Industrial Contracting
Co., No. 17CV125, 2018 WL 2735655, at * 2 (N.D. Ohio
June 7, 2018) (citing 29 U.S.C. § 1132(g)(2)). Notably
absent is any discretion for the Court to reduce the