UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RAYMOND ORRAND, et al.,

Plaintiffs,

 Civil Action 2:11-cv-00125

v. Judge Edmund A. Sargus

 Magistrate Judge E.A. Preston Deavers

ROCK DRILLERS, INC., 

 

Defendant.

REPORT AND RECOMMENDATION

Plaintiffs are the Administrator and Trustees of the Ohio Operating Engineers Health and

Welfare Plan, Ohio Operating Engineers Pension Fund, Ohio Operating Engineers

Apprenticeship Fund and Ohio Operating Engineers Education and Safety Fund (the “Funds”).

They have brought suit against Defendant Rock Drillers, Inc. pursuant to a collective bargaining

agreement, alleging that Defendant has failed to comply with the fringe benefit contribution and

audit requirements of their agreement. Although Plaintiffs completed personal service of their

Complaint through the Ohio Secretary of State on April 13, 2011, Defendant has not moved or

pled in response to the Complaint. On May 2, 2011 the Clerk of Court entered default against

Defendant; Plaintiffs have now filed a motion for default judgment.1

Fed. R. Civ. Pro. 55(b)(2), permits the Court to enter default judgment in cases when a

sum certain amount or damages have not been ascertained. In this case, an affidavit executed by

Raymond Orrand, Administrator of the Funds, indicated that upon his review of the relevant

1

 Plaintiffs originally moved for default judgment on May 17, 2011. They have since

amended their Motion to make corrections with respect to certain dates for which they seek

damages.

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employer monthly reports and Trustees’ field auditor’s audit report, he determined from the audit

performed on August 19, 2011, Defendants failed to pay late charges to the Funds in the amount

of $727.16.

The Court is satisfied that judgment in this amount is a sum which can be made certain

by computation, and that Defendant has failed to move or plead in response to Plaintiffs’

Complaint. Therefore, for good cause shown, it is RECOMMENDED that Plaintiffs’ Amended

Motion for Default Judgment (ECF No. 16) be GRANTED and that the Clerk ENTER

JUDGMENT in favor of Plaintiffs Raymond Orrand, et al., and against Defendant Rock

Drillers, Inc., as follows:

1. Interest from an audit performed on August 19, 2010 in the amount of $727.16

calculated to February 15, 2011;

2. Statutory interest in the amount of $727.16 calculated to February 15, 2011;

3. Court costs in the amount of $350.00.

In light of Plaintiffs’ amended Motion, it is further RECOMMENDED that Plaintiff’s

original Motion for Default Judgment (ECF No. 13) be DENIED as moot. 

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

2

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waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: July 5, 2011 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

3

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