UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RAYMOND ORRAND, et al., 

Plaintiffs, 

 Civil Action 2:12-cv-389

v. Judge Michael H. Watson

 Magistrate Judge Elizabeth P. Deavers

WALTERS EXCAVATING, et al., 

Defendants.

REPORT AND RECOMMENDATION

Plaintiffs brought this action against Defendants under the Employee Retirement Income 

Security Act (“ERISA”) to recover unpaid fringe benefit contributions. 29 U.S.C. § 1145. On 

September 30, 2014, the Court entered judgment against Defendant Walters Excavating, Inc. 

(“WEI”) and awarded Plaintiffs unpaid fringe benefit contributions, interest, and liquidated 

damages. (ECF No. 33.) On October 9, 2014, Plaintiffs moved the Court for an award of 

attorneys’ fees and costs against Defendant WEI in the amount of $29,424.75. (ECF No. 35.) 

This matter is currently before the Undersigned to issue a Report and Recommendation on 

Plaintiffs’ Motion for Attorneys’ Fees against Defendant WEI. (ECF No. 37.) Defendant WEI 

has not opposed Plaintiffs’ Motion. For the reasons that follow, it is RECOMMENDED that 

Plaintiffs’ Motion for Attorneys’ Fees be GRANTED. 

ERISA establishes a series of mandatory damages for unpaid contributions. See 29 

U.S.C. § 1132(g)(2). Specifically, ERISA provides:

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(2) In any action under this subchapter by a fiduciary for or on behalf of a plan to 

enforce section 1145 of this title in which a judgment in favor of the plan is 

awarded, the court shall award the plan–

(A) the unpaid contributions

(B) interest on the unpaid contributions

(C) an amount equal to the greater of

(i) interest on the unpaid contributions, or 

(ii) liquidated damages provided for under the plan in an amount not in 

excess of 20 percent (or such higher percentage as may be 

permitted under Federal or State law) of the amount determined by 

the court under subparagraph (A), 

(D) reasonable attorney’s fees and costs of the action, to be paid by the 

defendant, and 

(E) such other legal or equitable relief as the court deems appropriate.

29 U.S.C. § 1132(g)(2). 

Thus, because judgment was entered in their favor under 29 U.S.C. § 1145, Plaintiffs are 

entitled to reasonable attorneys’ fees and costs pursuant to Section 1132(g)(2)(D). See Bldg. 

Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1400 

(6th Cir. 1995) (“As this action was brought pursuant to 29 U.S.C. § 1145, an award of 

reasonable attorneys’ fees is mandated by 29 U.S.C. § 1132(g)(2)(D).”). While an award of 

attorneys’ fees is mandatory under Section 1132(g)(2)(D), the amount of the award must be 

reasonable. 29 U.S.C. § 1132(g)(2)(D).

“The starting point for determining the amount of reasonable attorney fees 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 (1983)). The resulting sum 

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may be adjusted to reflect factors such as the “results obtained.” Hensley, 461 U.S. at 434 

(quoting Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974));

Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 621 (6th Cir. 2007). “Determining a ‘reasonable 

attorney’s fee’ is a matter that is committed to the sound discretion of a trial judge.” Perdue v. 

Kenny A. ex rel. Winn, 559 U.S. 542, 558 (2010). 

Having reviewed Plaintiffs’ Memorandum in Support of their Motion for Attorneys’ 

Fees, as well as the accompanying affidavits and detailed billing entries from Plaintiffs’ counsel, 

the Undersigned concludes that the fees sought are reasonable. A review of the docket 

demonstrates that the attorneys expended a reasonable number of hours prosecuting this case. 

Plaintiffs conducted discovery and depositions, prepared their Motion for Summary Judgment, 

opposed Defendants’ Motion for Summary Judgment, and participated in mediation. 

Additionally, the hourly rates applied are reasonable for ERISA litigation in this Court and in 

relation to the results obtained in this action. Further, Defendant WEI does not contest the hours 

expended by Plaintiffs’ counsel or their hourly rates. Accordingly, it is RECCOMMENDED 

that Plaintiffs’ Motion for Attorneys’ Fees be GRANTED and that Plaintiffs be AWARDED

$29,424.75 in attorneys’ fees and costs from Defendant WEI. 

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PROCEDURE ON OBJECTIONS

If Plaintiff seeks review by the District Judge of this Report and Recommendation, he 

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).

Plaintiff is 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 

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: May 27, 2015 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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