United States District Court, S.D. Ohio, Eastern Division
BOARDS OF TRUSTEES OF THE OHIO LABORERS' FRINGE BENEFITS PROGRAMS, et al Plaintiffs,
FREISTHLER PAVING, INC., Defendant.
Deavers Magistrate Judge
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion for
Default Judgment. (ECF No. 10). Plaintiffs Boards of Trustees
of the Ohio Laborers' Fringe Benefits Programs
(“Boards of Trustees”) have successfully applied
to the Clerk for Entry of Default as to Defendant Fresithler
Paving, Inc. (“Freisthler”), and the Clerk has so
entered. (ECF Nos. 8-9). Plaintiffs now request this Court to
enter an order of default judgment and award damages.
are trustees for four trust funds-three employer benefit
plans governed by ERISA and one additional “labor
management cooperation trust.” (ECF No. 10 at 2).
Freisthler Paving Inc. has a contract “with a local
union affiliated with the Laborers' District Council of
Ohio, AFL-CIO.” (ECF No. 10 at 2). Under the agreement,
Freisthler was obligated to contribute to the Plaintiff
sued Freisthler Paving, Inc. on November 14, 2018 for Breach
of Contract and filed an Amended Complaint on November 19,
2018. (ECF Nos. 1, 3). Plaintiffs alleged that Freisthler
made late payments from December 2017 to September 30, 2018.
(ECF No. 3 at 2). A summons was issued on November 16, 2018
and sent via Certified Mail to Defendant on November 21,
2018. (ECF Nos. 2, 4). The summons was served on Defendant on
November 29, 2018 (ECF No. 6), and thus Defendant's reply
to Plaintiffs' complaint was due on December 20, 2018,
twenty-one days after service. Fed.R.Civ.P. 12. Defendant
never replied. (ECF No. 8). On December 27, 2018, Plaintiffs
applied for an entry of default and the clerk entered default
on January 3, 2019. (ECF Nos. 8-9). Plaintiffs then moved for
default judgment and damages on that same day. (ECF No. 10).
Rule of Civil Procedure 55(a) provides that when a party
“against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must
enter the party's default.” Fed.R.Civ.P. 55(a).
Rule 55(b) governs awarding damages in the form of a default
judgment. To obtain a default judgment under Rule 55(b),
there must first be an entry of default from the Clerk under
Rule 55(a). See Shepard Claims Serv. Inc. v. William
Darrah & Assoc., 796 F.2d 190, 193 (6th Cir. 1986)
(stating “entry of default is . . . the first
procedural step on the road to obtaining a default
judgment.”). Because the Clerk has properly entered
default against Fresithler, this Court next considers the
court's determination of damages in a default judgment
depends on whether the damages are calculable or liquidated.
If the damages are calculable or liquidated, then the court
will award the calculable damages to the plaintiff without an
evidentiary hearing because the facts establishing the damage
are not distinct from the facts establishing liability.
See United States v. Di Mucci, 879 F.2d 1488,
1497-98 (7th Cir. 1989) (stating that an evidentiary hearing
is not required if the damages are liquidated or can be
definitively calculated from evidence and that in such cases
the same facts establish the need for liability as well as
damages); Barnes v. Abraham, Inc., No. 2:17-CV-279,
2017 WL 5714091 at *2 (S.D. Ohio Nov. 28, 2017) (quoting
United States v. Parker-Billingsley, No.
3:14-CV-307, 2015 WL 4539843, at *1 (S.D. Ohio Feb. 10,
2015)) (“A court may determine damages without holding
an evidentiary hearing if the damages are ‘capable of
ascertainment from definite figures contained in the
documentary evidence or in detailed affidavits.'”).
However, if the damages are unliquidated, the default
judgment establishes only that the defendant is liable, and
the plaintiff must prove damages. See Antoine v. Atlas
Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995) (quoting
Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1026 (5th
Cir. 1982)) (citing Kelley v. Carr, 567 F.Supp. 831,
841 (W.D. Mich. 1983)). Typically, such cases will
necessitate the court holding an evidentiary hearing where
the court can evaluate the plaintiff's claims for
damages, and the defendant can respond to such claims before
the court makes its determination. See Id. at 110-11
(citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty
Corp., 973 F.2d 155, 158 (2d. Cir. 1992).
have provided evidence establishing the calculability of
their damages, and thus this Court can determine the
appropriate amount of damages without an evidentiary hearing.
See Ironworkers Dist. Council of Southern Ohio v.
Reinforcing Servs. Co., LLC, No. 3-:09-CV-067, 2009 WL
4154905, at *3 (S.D. Ohio Nov. 20, 2009) (finding that
“the amount of unpaid employer contributions, interest
and liquidated damages are sums certain that can be
calculated from the terms of the Trust Agreements.”).
Boards of Trustees are entitled to $15, 630.90 in damages.
The agreement between Boards of Trustees and Freisthler
requires Freisthler to contribute to fringe benefits programs
for its unionized laborers by the fifteenth day of the month
for the previous month's work. (Pls.' Mot. Default J.
Exs. A, B, ECF No. 10). The agreement penalized late payments
with a ten percent liquidated damage charge for each late
contribution and a one percent per month interest upon those
late contributions until they are paid. (Mot. Gaston Aff.
¶ 5, ECF No. 10). Between December 2017 and September
2018, Freisthler made all of the necessary contributions to
the Fringe Benefits Program, a total of $152, 569.58. (Mot.
Ex. C, ECF No. 10). However, all of these payments were late,
and thus Freisthler incurred liquidated damages of $15,
256.98 and $373.92 of interest as penalties per the agreement
for their lateness. (Id.). Thus, Freisthler owes a
combined total of $15, 630.90 in liquidated damages and
interest. (Mot. Gaston Aff. ¶ 3, ECF No. 10).
of Trustees are also entitled to $2, 380 in attorney fees and
costs. The agreement between Boards of Trustees and
Freisthler requires Freisthler to pay such fees and costs if
a dispute over the fringe benefits program goes to court.
(ECF No. 10 Ex. B). Additionally, a successful plaintiff
under 29 U.S.C. § 1132(g)(2) is entitled to
“reasonable attorney's fees and costs of the
action.” 29 U.S.C. § 1132(g)(2)(D). When
determining reasonable attorney fees, the court employs the
“lodestar” method. Building Serv. Local 47
Cleaning Contractors Pension Plan v. Grandview Raceway,
46 F.3d 1392, 1401 (6th Cir. 1995). The lodestar calculation
begins with “the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
Although the resulting fee award may be adjusted based on
various factors, “the lodestar is presumed to be the
reasonable fee to which counsel is entitled.”
Imwalle v. Reliance Medical Products, Inc., 515 F.3d
531, 552 (6th Cir. 2008).
determine a reasonable hourly rate, this Court begins with
the “prevailing market rate in the relevant
community.” Adcock-Ladd v. Sec. of Treasury,
227 F.3d 343, 350 (6th Cir. 2000) (quoting Blum v.
Stenson, 465 U.S. 886, 893 (1984)). Courts may determine
prevailing market rate by reference to several sources
“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.” Ohio & Vicinity
Carpenters' Fringe Ben. Funds, Inc. v. BCS Contractors,
Inc., No. 5:12-cv-1565, 2015 WL 710955, at *2 (N.D. Ohio
Feb. 18, 2015). See also Bds. of Trustees of Ohio
Laborers' Fringe Benefits Programs v. LA Williams
Construction, LLC, No. 2:16-CV-00304, 2017 WL 285277, at
*3 (S.D. Ohio July 5, 2017).
counsel has submitted a time sheet detailing the number of
hours worked on the case. Plaintiffs' counsel spent eight
and a half hours drafting three motions: the summons,
complaint, etc.; the amended complaint; and the motion for
default judgment. Plaintiffs' counsel billed this time at
an hourly rate of $280. (ECF No. 10 Ex. C). Plaintiffs'
counsel submitted an affidavit attesting that his billing
rate and number of hours are reasonable. (ECF No. 10 Ex. A).
counsel's hours and hourly rate are reasonable.
Counsel's hours reflect a reasonable amount of time
billed for motions in this case. Counsel's work was not
“redundant, or otherwise unnecessary.”
Hensley, 461 U.S. at 434. Although Plaintiffs'
counsel did not submit any evidence on the reasonable hourly
fee, Plaintiffs' counsel's hourly rate is reasonable
based on the hourly rates that this Court has approved in
other cases. See Bds. of Trustees of Ohio Laborers'
Fringe Benefits Programs v. LA Williams Construction,
LLC, 2017 WL 285277, at *4 (approving $255 for 12.25
hours and $280 for 5.75 hours depending on the type of work).
foregoing reasons, this Court GRANTS IN PART
and DENIES IN PART Plaintiffs' Motion
for Default Judgment. This Court AWARDS
against Defendant, Freisthler Paving, Inc., $15, 630.90 in
liquidated damages and interest and $2, 380 in attorney fees,
as well as interest from the time of judgment at the rate of
one percent per month. Plaintiffs have also requested costs
but have provided no supporting documentation for the costs
incurred in this case. The request for costs is therefore
DENIED WITHOUT PREJUDICE. ...