1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LABORERS PENSION TRUST FUND - 

DETROIT and VICINITY, ET AL.,

Plaintiff(s), CASE NUMBER: 09-10527

HONORABLE VICTORIA A. ROBERTS

v.

J&G EXCAVATING CO., INC., 

Defendant(s).

 /

 

ORDER GRANTING PLAINTIFFS’

MOTION FOR DEFAULT JUDGMENT

On February 12, 2009, Plaintiffs filed a Complaint against Defendant for unpaid

fringe benefit contributions. On April 30, 2009, counsel for Plaintiffs served a copy of

the Summons and Complaint upon Joseph Gerbe, Defendant’s Resident Agent. 

Defendant did not plead or otherwise defend the lawsuit. On August 7, 2009, Plaintiffs

received a Clerk’s Entry of Default pursuant to Fed. R. Civ. P. 55(a).

Before the Court is Plaintiffs’ “Motion for Default Judgment.” (Doc. #10). 

Plaintiffs provide: 

(1) an Affidavit from C.D. Nichols, a Compliance Auditor with the firm of Stefansky,

Holloway & Nichols, Inc., that says he conducted a payroll audit on Defendant’s

books and records. Nichols says the audit shows Defendant owes $15,666.72 in

fringe benefit contributions (including contractual late payment assessments or

liquidated damages, and excluding employee D. Main from the computation) for

January 2005 through March 2008;

(2) a copy of Nichols’s audit billing dated September 16, 2008 that shows Defendant

owes $20,628.32;

(3) a re-computation of Nichols’s audit billing dated August 11, 2009 that removes

employee D. Main from the computation and shows Defendant owes $15,666.72.

2:09-cv-10527-VAR-MKM Doc # 12 Filed 08/27/09 Pg 1 of 3 Pg ID 80
2

(4) an Affidavit from Amy Bachelder, one of Plaintiffs’ attorneys, that says: (a) she

performed 5.6 hours of work on Plaintiffs’ case through August 13, 2009 at a rate

of $150.00 per hour for a total of $840.00; (b) Attorney George H. Kruszewski

performed .1 hours of work on Plaintiffs’ case through August 13, 2009 at a rate

of $190.00 per hour for a total of $19.00; (c) the costs incurred in prosecuting

Plaintiffs’ case include $350.00 for filing fees and $295.00 for service of the

Complaint; (d) she anticipates spending one additional hour attending a hearing

on this motion and preparing an order for $150.00; and (e) the total in attorneys’

fees and costs is $1,654.00 ($840.00 + $19.00 + $350.00 + $295.00 + $150.00);

(5) a Detail Fee Transaction File List, which is a summary of the actual time

Bachelder and Kruszewski spent in representing Plaintiffs in this case; and

(6) a computer spreadsheet that outlines the interest Defendant owes on delinquent

fringe benefit contributions. The total amount of interest calculated is $4,047.55.

The Court reviewed Plaintiffs’ motion and the supporting documents. Plaintiffs’

motion is GRANTED. The Court:

(1) Finds that Defendant entered into (or adopted) collective bargaining agreements

with Plaintiffs that required Defendant to make fringe benefit contributions to

Plaintiffs for work performed by employees that Plaintiffs represent; 

(2) Finds that Defendant was contractually obligated to Plaintiffs beginning January

2005; 

(3) Orders Defendant to specifically perform all of the fringe benefit provisions of the

collective bargaining agreements;

(4) Finds that Defendant was and is obligated to maintain books and records

sufficient to determine the fringe benefit contributions due or which may become

due to its employees via contributions to Plaintiffs and to submit to an audit by

Plaintiffs of its books and records to determine the accuracy and timeliness of

such contributions;

(5) Orders Defendant to provide Plaintiffs the books and records needed to

determine the amount of Defendant’s indebtedness beginning March 2008;

(6) Awards Plaintiffs $21,218.27, which includes: (a) the amount of the audited

indebtedness from January 2005 through March 2008 of $15,666.72; (b) interest

in the amount of $4,047.55; and (c) attorneys’ fees and costs of $1,504.00

($150.00 was excluded; a hearing on this motion was not necessary); and 

2:09-cv-10527-VAR-MKM Doc # 12 Filed 08/27/09 Pg 2 of 3 Pg ID 81
3

(7) Upon submission of a motion to amend the Judgment, will award Plaintiffs the

amount owing, if any, from March 2008 through the date on which Plaintiffs

receive Defendant’s books and records.

IT IS ORDERED. 

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: August 27, 2009

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

August 27, 2009.

s/Carol A. Pinegar 

Deputy Clerk

2:09-cv-10527-VAR-MKM Doc # 12 Filed 08/27/09 Pg 3 of 3 Pg ID 82