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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

DIRECTORS OF THE OHIO 

CONFERENCE OF PLASTERERS AND 

CEMENT MASONS COMBINED FUNDS, INC., Case No. 1:18-cv-188 

 

Plaintiffs, 

 Barrett, J. 

v. Bowman, M.J. 

S & S PLASTERING LLC, 

 Defendant. 

SUPPLEMENTAL REPORT AND RECOMMENDATION 

A default judgment was entered against Defendant S&S Plastering LLC more than 

a year ago, but the amount of that judgment has never been finalized. This matter is now 

before the undersigned regarding Plaintiffs’ motion for attorney’s fees. (Doc. 23). For the 

following reasons, the undersigned RECOMMENDS that the motion be granted. 

I. Background 

Plaintiffs, Directors of the Ohio Conference of Plasterers and Cement Masons 

Combined Funds, Inc. (“the Funds”) filed suit in March 2018 against the Defendant, S&S 

Plastering LLC (“S&S”), alleging multiple violations of ERISA and the LMRA. The 

complaint alleges that Defendant, an employer obligated to make contributions to the 

Funds, has failed to do so. S&S agreed to participate in the Funds on November 2, 2015 

when, through its duly authorized agent, Steven R. Doyle, it executed a Collective 

Bargaining Agreement (“CBA”). (See Doc. 1-5). 

 Summons of the complaint was returned as executed on the Defendant through 

service on Steven Doyle at what appears to be a residential address. After S&S failed to 
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appear, the Clerk filed an entry of default, and Plaintiffs moved for the entry of default 

judgment. (See Docs. 6, 9, 12, 14). The undersigned filed a Report and Recommendation 

(“R&R”) that recommended that judgment be granted, and that an Order requiring 

Defendant to submit to an audit be entered at the same time. (Doc. 12). The presiding 

district judge adopted that R&R. (Doc. 14). Through entry of default judgment (which 

assumes the veracity of all facts alleged in the complaint), this Court already has 

determined that S&S failed to submit any of the required reports concerning the number 

of covered employees or hours worked and failed to remit any contribution payments for 

four years – beginning in February 2016 through the present. 

Because the amount of judgment could not be determined without an accounting 

under Rule 55(b), the R&R recommended that an “Audit Order” that had been tendered 

by the Plaintiffs be entered along with the default judgment. (Doc. 12 at 2, incorporating 

Doc. 11-1). The presiding district judge’s adoption of that R&R in toto implicitly 

incorporated the Audit Order. 

On April 10, 2019 and again on July 8, 2019, Plaintiffs filed quarterly status reports 

indicating that Defendant had failed to respond to successive letters requesting that 

Defendant contact a third-party payroll auditor to submit to the necessary audit. (Docs.16, 

18). Without the audit, neither Plaintiffs nor this Court were able to finalize the precise 

amount of damages owed under the CBA. (Id.) Stymied by the lack of response and 

their inability to obtain the necessary records, Plaintiffs moved for a “show cause” order. 

(Doc. 17). On July 9, 2019, the undersigned granted Plaintiffs’ motion and directed 

Defendant, within 14 days of service of the Order, 

to show cause why S & S Plastering, LLC should not be held in contempt 

for Defendant's failure to comply with this Court's order requiring Defendant 
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to timely submit to an audit of its books and records. Failure to satisfy this 

order to show cause could result in the court imposing a fine to compensate 

those injured by the contemptuous act, awarding damages, or awarding 

attorney's fees. 

(Doc. 19). 

Once again, the Defendant failed to respond. Therefore, on August 14, 2019, the 

undersigned filed a second R&R recommending that S&S Plastering LLC and its agent, 

Mr. Doyle, be held in civil contempt of this Court.  

Based upon the presumed delivery by ordinary mail, Defendant now has 

failed to comply with the clear order of the undersigned directing Defendant 

to show cause for S&S’s failure to timely submit to an audit of its books and 

records. Defendant’s failure to respond to the show cause order constitutes 

disobedience of a lawful court order and thus represents contempt before 

the undersigned magistrate judge. See United States v. Ivie, 2005 WL 

1759727 at *2 (W.D. Tenn. June 14, 2005). 

Defendant’s failure to comply with the show cause order, standing alone, 

provides a sufficiently “clear and convincing” basis for holding Defendant 

and its agent, Mr. Doyle, in civil contempt of this Court. Arguably, the Audit 

Order provides an additional basis for contempt because it became part of 

the Court’s Order when the Court adopted the January 2019 R&R. Still, in 

recognition of the fact that the Audit Order was never explicitly signed and 

filed by a judicial officer notwithstanding its implicit adoption, the 

undersigned has docketed an additional Audit Order this same day. 

(Doc. 20 at PageID 168-169). 

As stated in the still-pending R&R,1 in addition to the recommendation that 

Defendant and its agent be held in civil contempt for the failure to comply with the July 9, 

2019 “show cause” order, the undersigned re-filed the Audit Order directing Defendant 

again to submit to an audit, within 14 days, to reduce to an amount certain the amount of 

contributions found due and owing, plus liquidated damages, interest, attorney’s fees, 

1 Although no objections were filed, the August 14, 2019 R&R has not yet been adopted as the opinion of 

this Court and remains pending. After the R&R was filed, the case was reassigned to U.S. District Judge 

Michael R. Barrett. (Doc. 22). 
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and the cost of said audit. (Doc. 21). Consistent with its history, Defendant failed to 

comply with the re-filed August 14, 2019 Audit Order. Faced with the prospect of never 

being able to reduce their default judgment to a sum certain, Plaintiffs now seek their 

attorney’s fees. 

II. Analysis 

A. Plaintiffs’ Motion for Fees Should be Granted 

ERISA provides, in relevant part, that “in any action [by an ERISA fiduciary to 

enforce an employer’s obligation to contribute to a multiemployer plan] in which a 

judgment in favor of the plan is awarded, the court shall award the plan . . . reasonable 

attorney’s fees and costs of the action, to be paid by the defendant . . . ” 29 U.S.C. § 

1132(g)(2)(D). Judgment was entered in Plaintiffs’ favor. (Doc. 14). Therefore, Plaintiffs 

are entitled to an award of reasonable attorney’s fees. 

In their motion for attorney’s fees, Plaintiffs include a summary of billing records in 

this matter by the law firm Ledbetter Parisi LLC (“Ledbetter”), which total 65.1 hours of 

legal work. (Doc. 23, Ex. C., Decl. Arnold ¶ 6). Ledbetter charged Plaintiffs $85 to $95 per 

hour for paralegal time, $185 to $200 per hour for associate time, and $200 to $215 per 

hour for shareholder time. Id. Accounting for all hours worked on this matter and the 

individuals who completed each task, billings to Plaintiffs totaled $10,137.00. Id. at ¶ 5. 

Plaintiffs have submitted adequate evidence to support a finding that the requested 

fees are reasonable. Defendant does not contest this, as Defendant has refused to 

respond to this Court’s orders. This Court finds that the hourly rates and the total hours 

expended in this matter are reasonable and proportionate to the work performed. 
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B. The Court Should Modify and Adopt the August 14, 2019 R&R 

The analysis of the R&R filed on August 14, 2019 that recommended finding S&S 

and Mr. Doyle in civil contempt of this Court remains sound. However, it has become 

abundantly clear that neither S&S nor its agent, Mr. Doyle, intend to submit to an audit or 

to comply with any Orders of this Court. In recognition of the additional judicial resources 

that would be required, and the apparent exercise in futility in entering such an order, the 

undersigned now recommends vacating paragraphs 1 and 4 of the prior R&R, including 

the recommendation that the Court issue one final order requiring S&S “through its 

registered agent, Steven Ray Doyle, to appear on a date certain, as soon as practicable, 

to show cause why Defendant and Mr. Doyle should not be adjudged in contempt by 

reason of the facts certified above, including Defendant and Mr. Doyle’s failure to respond 

to the undersigned’s July 9, 2019 “show cause” order.” (Doc. 20, PageID 169). 

Notwithstanding that proposed modification, the undersigned hereby reiterates the 

remaining recommendations contained therein, as fully supported by the prior analysis. 

III. Conclusion and Recommendations 

Accordingly, IT IS RECOMMENDED THAT: the Court should adopt the Report and 

Recommendation filed on August 14, 2019, as herein supplemented and amended:

1. Based upon the Defendant’s failure to comply with the Audit Order re-filed on 

August 14, 2019, the district judge should find Defendant and Mr. Doyle to be in 

civil contempt for violating both the July 9, 2019 “show cause” order and the August 

14, 2019 Audit Order; 
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2. The Court should order Defendant to pay Plaintiffs’ reasonable expenses 

including attorney’s fees, incurred in connection with its efforts to reduce the 

existing default judgment to an amount certain; and 

3. In accordance with the prior R&R and Plaintiffs’ well-supported motion for 

attorney’s fees, Plaintiffs’ motion (Doc. 23) should be GRANTED, with Defendant 

to pay Plaintiffs’ reasonable attorney’s fees in the amount of $10,137.00. 

 s/ Stephanie K. Bowman 

Stephanie K. Bowman 

United States Magistrate Judge 

 
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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

DIRECTORS OF THE OHIO 

CONFERENCE OF PLASTERERS AND 

CEMENT MASONS COMBINED FUNDS, INC., Case No. 1:18-cv-188 

 

Plaintiffs, 

 Barrett, J. 

v. Bowman, M.J. 

S & S PLASTERING LLC, 

 Defendant. 

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS

of the filing date of this R&R. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) 

of the R&R objected to, and shall be accompanied by a memorandum of law in support 

of the objections. A party shall respond to an opponent’s objections within FOURTEEN 

(14) DAYS after being served with a copy of those objections. Failure to make objections 

in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 

U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).