IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BOARDS OF TRUSTEES OF OHIO : 

LABORERS’ FRINGE BENEFITS : 

PROGRAMS, : Case No. 2:13-cv-00078 

 : 

 Plaintiffs, : JUDGE ALGENON L. MARBLEY 

 : 

 v. : Magistrate Judge Deavers 

 : 

DEER CREEK EXCAVATING, : 

LLC, et al., : 

 : 

 Defendants. : 

ORDER 

 This matter is before the Court on Plaintiffs’ Motion for Default Judgment against 

Defendant Deer Creek Excavating, LLC (Doc. 12). Plaintiffs seek $30,181.71 in unpaid 

contributions, liquidated damages and interest, plus interest from the time of judgment at a rate 

of 1% per month. (Doc. 12 at 1). Plaintiffs also seek $1,610.00 in attorney fees, as well as costs. 

Plaintiffs move to dismiss the claims against the remaining Defendants without prejudice. (Id.). 

For the reasons stated herein, default judgment is GRANTED. 

 Plaintiffs, the fiduciaries of three employee benefit trusts and one labor management 

cooperative trust, brought this action against Defendants based on various collective bargaining 

agreements between Defendants and a local union affiliated with the Laborers’ District Council 

of Ohio, AFL-CIO. (Complaint, Doc. 1, ¶¶ 1-2). Plaintiffs allege that the agreements bound 

Deer Creek to the Declarations of Trust establishing the funds, and obligated it to make 

contributions on behalf of all its employees working within the work jurisdiction. (Id., ¶ 4). 

Plaintiffs assert that Deer Creek breached these agreements by failing to make such payments in 

the amount and manner set out in the agreements and Declarations of Trust. (Id., ¶ 6). 

Case: 2:13-cv-00078-ALM-EPD Doc #: 13 Filed: 12/02/13 Page: 1 of 3 PAGEID #: <pageID>
2 

 Plaintiffs filed their complaint on January 30, 2013. (Doc. 1). Summons were returned 

as executed as to all Defendants (see Doc. 3, 4, 5, 6), and Defendants filed an Answer on March 

6, 2013 (Doc. 7). Defendants’ answer, however, was filed by Richard J. Weemhoff and 

Benjamin T. Flynn, who are not attorneys. 

 It is well-settled law “that a corporation may appear in the federal courts only through 

licensed counsel.” Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 

U.S. 194, 202 (1993); see also Doherty v. Am. Motors Corp., 728 F.2d 334, 340 (6th Cir. 1984). 

In addition, because Fed. R. Civ. P. 11(a) requires the signature of an attorney or the party itself 

on “[e]very pleading, written motion, and other paper,” a “pleading by a corporation that is not 

signed by an attorney is treated as unsigned for Rule 11(a) purposes.” White v. Smith, No. 2:09-

cv-00574, 2010 WL 795967, at *1 (S.D. Ohio March 2, 2010) (citation omitted). Unsigned 

papers will be stricken. Fed. R. Civ. P. 11(a). 

 Accordingly, on March 12, 2013, Magistrate Judge Deavers ordered Defendants to retain 

a trial attorney within 30 days. (Doc. 8). The Magistrate Judge cautioned that “failure to comply 

with this order could result in an entry of default in Plaintiff’s favor.” (Id. at 2). Copies of this 

order were sent to Weemhoff via ordinary and certified mail, and were delivered on March 14. 

(Doc. 9). Nothing further has been filed by Defendants, and no attorneys have appeared. 

 On April 24, therefore, Plaintiffs applied for entry of default under Fed. R. Civ. P. 55(a) 

against Deer Creek (Doc. 10), which the Clerk entered the next day (Doc. 11). Plaintiffs now 

move for Default Judgment against Deer Creek, and move to dismiss their claims against the 

remaining Defendants without prejudice. (Doc. 12 at 1). 

Plaintiffs allege that Deer Creek owes the sum of $22,553.87 in unpaid contributions for 

the period from October 2012 through January 2013. (Doc. 12 at 3). In addition, under 29 

Case: 2:13-cv-00078-ALM-EPD Doc #: 13 Filed: 12/02/13 Page: 2 of 3 PAGEID #: <pageID>
3 

U.S.C. § 1132(g)(2), Plaintiffs request liquidated damages and interest. See Sherman v. Carter, 

353 U.S. 210 (1957); Michigan Carpenters Council v. C.J. Rogers, Inc., 933 F.2d 376 (6th Cir. 

1991). The collective bargaining agreement upon which Plaintiffs base their claims provides for 

a one-time 10% charge on all late contributions as liquidated damages, as well 1% interest per 

month on late contributions until paid. (Id.; see also Plaintiffs’ Ex. B, Doc. 12-3). Plaintiffs 

assert that Deer Creek made late payments totaling $47,579.80. (Doc. 12 at 3). Thus, Plaintiffs 

ask for $22,553.87 in known unpaid contributions, together with $7,627.84 in liquidated 

damages and interest. (Id.; Plaintiffs’ Ex. C, Doc. 12-3). 

Finally, Plaintiffs assert that Deer Creek is obligated to pay attorney fees and costs under 

29 U.S.C. § 1132(g)(2), the collective bargaining agreement, and common law. (Doc. 12 at 4). 

See Trustees for Michigan Laborers Health Care Fund v. E. Concrete Paving Co., No. 90-2320, 

948 F.2d 1290 (6th Cir. Oct. 31, 1991) (award of attorney fees under 29 U.S.C. § 1132(g)(2) is 

mandatory). Plaintiffs provide an accounting of the time expended in pursuing this action (see 

Plaintiffs’ Ex. E, Doc. 12-3), and request $1,610.00 in fees. 

For the foregoing reasons, Plaintiffs’ Motion for Default Judgment against Defendant 

Deer Creek is hereby GRANTED. Deer Creek is ORDERED to pay Plaintiffs the sum of 

$30,181.71, as well as $1,610.00 in attorney fees, plus reasonable costs, and interest from the 

time of judgment at a rate of 1% per month. Plaintiffs’ claims against the remaining Defendants 

are hereby DISMISSED without prejudice. 

IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

DATED: December 2, 2013 

Case: 2:13-cv-00078-ALM-EPD Doc #: 13 Filed: 12/02/13 Page: 3 of 3 PAGEID #: <pageID>