Ohio & Vicinity Carpenters' Fringe Benefit Funds, Inc. v. Bunting Graphics, Inc.

[[COURTLISTENER_SUBOPINION {"id":"11131520","type":"100trialcourt","part":"opinion","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT                         
                NORTHERN DISTRICT OF OHIO                              
                     EASTERN DIVISION                                  


OHIO & VICINITY CARPENTERS’        CASE NO. 1:24-cv-995                
FRINGE BENEFIT FUNDS, INC.,                                            
                                   DISTRICT JUDGE                      
          Plaintiff,               DAVID A. RUIZ                       

vs.                                MAGISTRATE JUDGE                    
                                   JAMES E. GRIMES JR.                 
BUNTING GRAPHICS, INC.,                                                

          Defendant.              REPORT AND                           
                                  RECOMMENDATION                       

    Pending before the Court are the motion and supplemental motions for 
default  judgment  and  related  damages  filed  by  Plaintiff  Ohio  &  Vicinity 
Carpenters’ Fringe Benefit Funds, Inc (the “Fund”). Docs. 9, 15, 17. The Court 
referred to me these motions for a report and recommendation. Doc. 11. For 
the  reasons  explained  below,  I  recommend  that  the  Court  deny,  without 
prejudice, the Fund’s motions.                                          
    Background1                                                        
    The Fund, an Ohio corporation, administers funds under a Collective 
Bargaining Agreement that was entered into between Indiana/Kentucky/Ohio 
Regional  Council  of  Carpenters  (the  “Union”)  and  certain  employers  and 
employer associations. Doc. 1, at 1–2. Bunting Graphics is a Pennsylvania 
corporation that performs construction work. Id. at 2, ¶8(a).           

1    The background facts are taken from the Complaint, Doc. 1, and items 
that the Fund submitted with its motion for default judgment, Doc. 9.   
    In 2008, Bunting Graphics signed a Memorandum of Agreement with    
the  “Indiana/Kentucky  Regional  Council  of  Carpenters.”  Doc.  9-3.  In  this 
agreement,  Bunting  Graphics  agreed  to  be  bound  by  the  then-existing 

collective bargaining agreement for work it performed in Indiana, Kentucky, 
and certain counties in Tennessee. Id. The agreement does not mention Ohio. 
Id.                                                                     
    Meanwhile,  at  some  unidentified  time,  an  entity  called  the 
“Indiana/Kentucky/Ohio  Regional  Council  of  Carpenters”  adopted  a  new 
Collective  Bargaining  Agreement.  Doc.  15-1.  This  Collective  Bargaining 

Agreement, effective from 2023 through 2027, covers work done in certain Ohio 
counties. Id. at 1, 4. Bunting Graphics did not sign this Collective Bargaining 
Agreement. Doc. 1, at 2.                                                
    Also at some unidentified time, Bunting Graphics submitted a bid for 
work on a construction project in Ohio. Doc. 1, at 2, ¶8(a). The bid was accepted. 
Id. The Ohio project required the bidder to use Union labor. Id. In August 2023, 
Bunting Graphics used Union labor for the Ohio project and paid to Union 

members their wages in accordance with the Indiana/Kentucky/Ohio Regional 
Council of Carpenters’ Collective Bargaining Agreement. Id. at 3, ¶8(b),(d),(e). 
When the Fund demanded from Bunting Graphics the Union members’ fringe  
benefit contributions, which the Collective Bargaining Agreement requires 
employers to pay, Bunting Graphics did not pay and advised that it was not 
bound by the Collective Bargaining Agreement. Id. at 4, ¶10.            
    The  Fund  filed  a  Complaint  in  this  Court  alleging  that  Bunting 
Graphics’s failure to pay fringe benefit contributions violated the Collective 
Bargaining Agreement and the Employee Retirement Income Security Act of 

1974,
29  U.S.C.  §  1145
(ERISA).  Doc.  1,  at  5.  It  also  cites  the  Labor 
Management Relations Act of 1947,
29 U.S.C. § 185
(LMRA).
Id. at 1, 4
.  
Bunting Graphics did not respond to the complaint or otherwise appear in this 
lawsuit. So the Fund filed an Application to the Clerk for entry of default under 
Federal Rule of Civil Procedure 55(a), Doc. 6, which the Clerk entered in 
August 2024, Doc. 7.                                                    

    In December 2024, the Fund filed a motion for entry of default judgment. 
Doc. 9. In its motion, the Fund asked the Court to order Bunting Graphics to 
submit to an audit to determine the amount of contributions Bunting Graphics 
owed for work performed from August 2023 to October 2023.
Id.
at 2–3. The 
Court found that the prerequisites for default judgment were met but did not 
find  liability.  Doc.  11.  The  Court  referred  to  me  for  a  report  and 
recommendation  the  Fund’s  motion  for  default  judgment,  including,  if 

necessary, holding a hearing on damages and “to otherwise investigate any 
matters necessary to resolve the claim.”
Id.
I granted the Fund’s audit request, 
and instructed the Fund to thereafter file a supplemental motion detailing its 
request for damages. Doc. 12. The audit was completed, see Doc. 14, and the 
Fund filed a supplemental motion requesting damages totaling $68,699.69, 
Doc.  15.  These  damages  include  $52,736.69  in  unpaid  fringe  benefit 
contributions, $7,910.50 in liquidated damages, $7,542.50 in attorneys’ fees, 
and $510.00 in costs. Doc. 15, at 5; Doc. 15-3. I advised the Fund that the 
materials it used to support its attorneys’ fee request were insufficient, Doc. 

16, and it filed a supplemental motion to cure the deficiencies, Doc. 17. 
    Legal Standard                                                     
    Federal  Rule  of  Civil  Procedure  55  governs  default  and  default 
judgment. Here, the Clerk has entered default under Rule 55(a). Doc. 7. “Once 
default is entered, the defaulting party is deemed to have admitted all the well-
pleaded  factual  allegations  in  the  complaint  regarding  liability,  including 

jurisdictional averments.” Renouf v. Aegis Relocation Co. Corp.,
641 F. Supp. 
3d 439
, 444 (N.D. Ohio 2022) (citing Ford Motor Co. v. Cross,
441 F. Supp. 2d 
837, 846
(E.D. Mich. 2006)). But “legal conclusions in the complaint are not 
deemed admitted by a defendant’s default.” Renouf, 641 F. Supp. 3d at 445. A 
court  must  therefore  “determine  whether  the  factual  allegations  in  the 
complaint,” which are deemed admitted, “and reasonable inferences derived 
therefrom, are sufficient to satisfy the elements of [the plaintiff’s] legal claims 

for which [it] seeks default judgment.” Id. (citing Zinganything, LLC v. Imp. 
Store,
158 F. Supp. 3d 668, 672
(N.D. Ohio 2016), and Kwik–Sew Pattern Co. 
v. Gendron, No. 1:08-cv-309,
2008 WL 4960159
, at *1 (W.D. Mich. Nov. 19, 
2008)).                                                                 
    Also, damages allegations are not deemed admitted. See Painting Indus. 
Funds v. Indus. Painting & Rigging, No. 1:24-cv-886,
2024 WL 5075167
, at *2 
(N.D. Ohio Dec. 11, 2024) (collecting cases); Renouf, 641 F. Supp. 3d at 448. 
Rather, damages allegations must be proved. See Painting Indus. Funds,
2024 
WL 5075167
, at *2. Where, as here, damages are not certain, a party must 

move the Court under Rule 55(b) for default judgment. Fed. R. Civ. P. 55(b). A 
Court may conduct a hearing or enter default judgment on damages without a 
hearing. See Rule 55(b)(2); Renouf, 641 F. Supp. 3d at 445.             
    Analysis                                                           
    A. The Fund has not shown that it is entitled to default judgment as to 
    liability                                                          

    In the Complaint, the Fund, a third-party beneficiary of the Collective 
Bargaining  Agreement  that  covers  certain  counties  in  Ohio,  alleges  that 
Bunting Graphics worked on an Ohio construction project, which required it to 
use Union labor. Doc. 1, at 2, ¶5, 8(a). But Bunting Graphics didn’t sign the 
Collective Bargaining Agreement that the Fund seeks to enforce against it. 
Bunting Graphics only signed in 2008 a Memorandum of Understanding with 
the “Indiana/Kentucky Reginal Council of Carpenters”—an agreement with a 
different-named entity that did not cover work in Ohio. Doc. 9-3.       
    The Fund concedes that “Defendant Bunting did not sign a Collective 
Bargaining Agreement with the Union,” but alleges that Bunting Graphics “is 
bound to the terms of the Collective Bargaining Agreement by its actions.” Doc. 

1, at 2, ¶6. The Fund identifies these actions as follows: Bunting Graphics bid 
on the Ohio project, which it knew required Union labor; it requested in August 
2023 a Union apprentice, and in its request stated that “it was a contractor 
‘who  is  signatory  to  a  current  collective  bargaining  agreement  with  the 
Indiana/Kentucky/Ohio  Regional  Council  of  Carpenters’”  and  “‘agree[d]  to 
abide by the rules and procedures established by [the Union’s] Committee’”; 

Bunting Graphics requested the Collective Bargaining Agreement and the  
wage rates for Union members; and it paid Union members wages consistent 
with the Collective Bargaining Agreement. Id., at 2–3, ¶8(a)–(e). The Fund 
alleges  that  by  performing  these  acts,  Bunting  Graphics  “assumed  the 
contractual obligations under the Collective Bargaining Agreement.” Id. at ¶8. 
    In support of its legal conclusion that Bunting Graphics’s actions alone 

created liability under the Collective Bargaining Agreement, the Fund states: 
         A  non-signatory  employer  may  be  bound  to  a             
         collective  bargaining  agreement  even  without              
         signing  it  where  (1)  a  non-signatory  has                
         incorporated  the  arbitration  agreement  by                 
         reference; (2) where a non-signatory has assumed              
         contractual obligations under the contract; (3) where         
         traditional agency principles so require; (4) where           
         veil-piercing/alter  ego  theories  so  require;  or  (5)     
         where  theories  of  equitable  estoppel  so  require.        
         Javitch v. First Union Secs., Inc.,
315 F.3d 619, 629
(6th Cir. 2003).                                              

Doc. 1, at 2, ¶7. The Fund cites no other legal authority for its assumed 
contractual obligations theory and does not advance any other legal theory for 
Bunting Graphics’s liability.2 See Doc. 1, at 2; Doc. 15, at 2.         

2    In its Supplemental Motion for Default Judgment, the Fund states that 
Bunting Graphics “was bound to a Collective Bargaining Agreement with the 
OHIO & VICINITY CARPENTERS’ FRINGE BENEFIT FUNDS, INC. by               
assumption” and cites the Ohio Collective Bargaining Agreement and the  
Memorandum of Agreement. Doc. 15, at 2, ¶3. But Bunting Graphics did not 
    But Javitch—the only authority that the Fund cites—is not an ERISA 
or  LMRA  case  and  it  doesn’t  involve  a  union  or  a  collective  bargaining 
agreement. Javitch instead dealt with the Federal Arbitration Act in a non-

labor, commercial dispute.
315 F.3d at 624
. The court in Javitch stated that 
“nonsignatories may be bound to an arbitration agreement under ordinary 
contract and agency principles” and listed the “[f]ive [recognized] theories for 
binding nonsignatories to arbitration agreements.”
Id. at 629
. The Fund has 
not  explained  how  the  assumed  contractual  obligations  theory  for 
nonsignatories to arbitration agreements mentioned in Javitch would apply 

here, to this labor case, and it hasn’t cited any labor cases applying this theory. 
My research hasn’t uncovered a case, either. Simply put, the Fund hasn’t cited 
an applicable legal theory showing that non-signor Bunting Graphics can be 
found to have assumed the contractual obligations of the Union’s Collective 
Bargaining Agreement solely by its actions—which is what the Fund alleges. 
See Doc. 1, at 2–3.                                                     
    In  short,  whether  Bunting  Graphics  was  bound  by  the  Collective 

Bargaining Agreement through its admitted actions is a legal conclusion, not 
a factual allegation. So Bunting Graphics did not by virtue of its default admit 

sign the Collective Bargaining Agreement. Further, the Union wasn’t a party 
to the Memorandum of Agreement and the Memorandum of Agreement doesn’t  
cover Ohio. The Fund has not explained how these two documents could or 
should be read together to create liability for Bunting Graphics in this case. 
Indeed, after making this statement, the Fund reiterates its assumption-by-
action theory.
Id.
at ¶4–5.                                             
this legal conclusion. This means that the Fund has to show that its legal 
conclusion about Bunting Graphics’s liability holds water. But it has not done 
so. I therefore recommend that the Court deny the Fund’s Motion for Default 

Judgment as to liability, without prejudice.                            
    2.   The Fund has not proved that it is entitled to the damages it seeks 

    The Fund must prove its damages allegations to recover the amount it 
seeks on default judgment. See Painting Indus. Funds,
2024 WL 5075167
, at 
*2. Without a showing that Bunting Graphics was bound by the Collective 
Bargaining Agreement, the Fund may not recover from Bunting Graphics    
damages under that agreement. Even if this Court were to find that the Fund 
established Bunting Graphics’s liability, the Fund has not proved that it is 
entitled to the damages it seeks.                                       
    In support of its assertion that it is entitled to “unpaid fringe benefit 
contributions and deductions” from August 1 through October 31, 2023, the 
Fund provides a one-page document that it calls the “Bunting Audit Report.” 
Doc. 15, at 7; Doc. 15-3. This document is unauthenticated. It appears to be a 

summary conclusion and there is no accompanying explanation of the methods 
the  auditor  used  to  calculate  the  damages.  This  document  is  therefore 
insufficient to prove damages. Cf., Loc. Union 5 Trs. of Bricklayers & Masons’ 
Ohio Pension Fund v. United Masonry Constr. Co, LLC, No. 5:22-cv-406,
2023 
WL 6554174
, at *2–3 (N.D. Ohio July 28, 2023) (finding that the plaintiff 
showed it was entitled to default judgment for an amount of delinquent fringe 
benefit contributions when the plaintiff provided an affidavit from the plan 
administrator explaining the contributions due, a copy of the audit report, and 
the  auditor’s  explanation  for  how  he  made  the  calculations),  report  and 

recommendation adopted,
2023 WL 5662613
(N.D. Ohio Sept. 1, 2023).      
    Liquidated  damages  are  recoverable  under  a  Collective  Bargaining 
Agreement. See, e.g., Bricklayers Pension Tr. Fund v. Rosati, Inc.,
23 F. App’x 
360, 362
(6th Cir. 2001). In support of its 15 percent liquidated damages 
request, the Fund relies on a provision in the Collective Bargaining Agreement. 
Doc. 15, at 5, ¶17. And it cites the one-page audit summary, which shows 

“$7,910.50” as total liquidated damages. Doc. 15-3. Review of this document 
shows that the auditor calculated this number by applying an across-the-board 
15 percent liquidated damages penalty on $52,736.69, the total amount of 
damages. See
id.
But the Collective Bargaining Agreement provision that the Fund cites 
doesn’t  provide  for  an  across-the-board  15  percent  liquidated  damages 
assessment. The relevant provision in the Collective Bargaining Agreement 

states:                                                                 
         24.13 Delinquency Penalties. Any Employer who                 
         is  delinquent  in  making  its  payments  as  herein         
         required  or  who  fails  to  file  an  accurate  and         
         acceptable monthly report by the fifteenth (15th)             
         day of any month shall be charged a delinquency               
         assessment of ten percent (10%) of the amount due             
         for the first (1st) week or first (1st) month, as the         
         case may be, and five percent (5%) for each week or           
         month thereafter.                                             
Doc. 15-1, at 4. So a flat-rate 15 percent penalty for all damages, which the 
auditor assessed, is not consistent with the Collective Bargaining Agreement, 
which provides for an initial 10 percent penalty. If a flat-rate 15 percent 

liquidated damages calculation was warranted, the Fund hasn’t explained why 
this would be so.                                                       
    In sum, I find that the Fund has not proved that it is entitled to the 
damages it seeks.3                                                      
    3.   Attorneys’ fees                                               
    “To determine reasonable attorney fees, the Court uses the ‘lodestar’ 

method:  it  calculates  ‘the  number  of  hours  reasonably  expended  on  the 
litigation multiplied by a reasonable hourly rate.’” See, e.g., Loc. Union No. 5 
Trs. of Bricklayers & Masons’, Ohio Pension Fund v. Masonry Contracting 
Corp., No. 1:19-cv-1273,
2021 WL 243187
, at *11 (N.D. Ohio Jan. 25, 2021). 
Because the Fund did not initially provide itemized billing records for the 
Court  to  determine  whether  its  fee  request  is  reasonable,  I ordered  it  to 
supplement its fee request. Doc. 16. The Fund has done so. Doc. 17. But given 

the deficiencies in the Fund’s motion and supplemental motions for default 



3    Given my recommendation as to liability, I have not held a hearing on 
damages. Cf. Ohio v. Roberts,
448 U.S. 56, 74
(1980) (“The law does not require 
the  doing  of  a  futile  act.”),  abrogated  on  other  grounds  by  Crawford  v. 
Washington,
541 U.S. 36
(2004). In the event that the Court does not accept 
my recommendation as to liability, I will need to hold a hearing to determine 
the amount of damages.                                                  
judgment, described above, I find that a calculation of attorneys’ fees is not 
warranted at this time.                                                 
    Conclusion                                                         

    For the reasons explained above, I recommend that the Court deny,  
without prejudice, the Fund’s motion and supplemental motions for default 
judgment, Docs. 9, 15, 16.                                              
    So ordered.                                                        

Dated: September 2, 2025                                                
                             /s/ James E. Grimes Jr.                   
                             James E. Grimes Jr.                       
                             U.S. Magistrate Judge                     



                       OBJECTIONS                                      

    Any objections to this Report and Recommendation must be filed with 
the Clerk of Court within 14 days after the party objecting has been served 
with a copy of this Report and Recommendation.
28 U.S.C. § 636
(b)(1). Failure 
to file objections within the specified time may forfeit the right to appeal the 
District Court’s order. See Berkshire v. Beauvais,
928 F.3d 520
, 530–31 (6th 
Cir. 2019).