TERENCE P. KEMP, Magistrate Judge.
This matter is before the Court on a motion for default judgment brought by plaintiffs Raymond Orrand, Administrator and the Trustees of the Ohio Operating Engineers Pension Plan, Ohio Operating Engineers Pension Fund, Ohio Operating Engineers Apprenticeship Fund, and Ohio Operating Engineers Education and Safety Fund. Plaintiffs filed this action pursuant to a collective bargaining agreement, alleging that Brown's Excavating, Inc. has failed to comply with the fringe benefit contribution requirements of their agreement. Plaintiffs completed certified mail service on November 20, 2014, but Brown's Excavating has not moved or pled in response to the complaint. The Clerk entered default against Brown's Excavating on June 5, 2015. For the following reasons, the Court will recommend that the motion for default judgment be granted.
Plaintiffs have moved for default judgment under Rule 55(b)(1). That Rule provides that a judgment by default may be entered when the claim is for a sum certain or for a sum which can be made certain by computation. Sum certains are sums that can be calculated from the terms of a written document such as a contract.
Here, it is undisputed that Brown's Excavating entered into agreements with the plaintiffs obligating it to make employer contributions pursuant to those agreements. Further, it is undisputed that Brown's Excavating has failed to make certain contributions or pay interest as required. Finally, the plaintiff funds are multi-employee benefit plans within the meaning of ERISA, 29 U.S.C. §1145.
Section 1145 provides:
ERISA, 29 U.S.C. 1132(g) provides:
In this case, plaintiffs have submitted the affidavit of
Raymond Orrand, fund administrator, stating that, upon his review of the relevant employer monthly reports and Trustees' field auditor's report, he has determined that Brown's Excavating has failed to make timely contributions in the amount of $14,074.90 for the audit period February 1, 2013 to September 1, 2014. Further, Mr. Orrand states that, under the terms of their agreement, Brown's Excavating has accumulated interest charges in the amount of $1,806.50 calculated to December 15, 2014, plus $6.95 per day thereafter, as long as the judgment remains unpaid and that it has accumulated additional interest in the same amount under 29 U.S.C. §1132(g).
The Court is satisfied that judgment in this amount is a sum which can be made certain by computation, and that Brown's Excavating has failed to move or plead in response to the complaint. Consequently, it will be recommended that the motion for default judgment be granted.
For the reasons stated above, the Court recommends that the motion for default judgment (Doc. 6) be granted and that the Clerk enter judgment in favor of the plaintiffs and against Brown's Excavating, Inc. as follows:
If any party objects to this Report and Recommendation, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation