Trustees of the Local 7 Tile Industry Welfare Fund et al v. Star Construction Marble & Granite, Inc.

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; granting in part and denying in part 11 Motion for Default Judgment; adopting Report and Recommendations as to 12 Report and Recommendations: Pursuant to the attached Order, plaintiffs' motion f or default judgment is GRANTED with respect to liability only, and DENIED with respect to damages and attorneys fees, without prejudice to renew upon a showing consistent with the R&R. Any application for damages and fees shall be filed by October 7, 2011, and shall be supported by proper documentation. Ordered by Judge Roslynn R. Mauskopf on 9/23/2011. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TRUSTEES OF THE LOCAL 7 TILE
INDUSTRY WELFARE FUND, et al.,
Plaintiffs,

ORDER
10-CV-1882 (RRM)(ALC)

- against STAR CONSTRUCTION MARBLE &
GRANITE,
Defendant.
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ROSLYNN R. MAUSKOPF, United States District Judge.
By motion filed October 15, 2010, plaintiffs moved for default judgment against
defendant alleging failure to contribute to pension funds as required by the Employee Retirement
Income Security Act, 29 U.S.C. §§ 1132, 1145, and the governing Collective Bargaining
Agreement. (Doc. No. 11.) By Order entered October 15, 2010, this Court referred that motion
to the assigned Magistrate Judge, the Honorable Andrew L. Carter, for a Report and
Recommendation.1 On September 6, 2011, Judge Carter issued a Report and Recommendation
(the “R&R”) (Doc. No. 12) recommending that plaintiffs’ motion be granted with respect to
liability, and denied with respect to damages, without prejudice to renew upon further
application accompanied by an affidavit explaining plaintiffs’ fluctuating damage requests and
other discrepancies, based on the personal knowledge of the affiant.2 (R&R at 4–5, 7.) Judge

1

As more fully explained in the R&R, plaintiffs initially moved for default judgment on June 21, 2010, voluntarily
withdrew the motion citing settlement discussions, and ultimately submitted the renewed instant motion for
increased damages on October 15, 2010. (See R&R at 2.)
2
Namely, plaintiffs’ attorney Judy Wong submitted a sworn declaration with three audit reports attached, but
Wong’s declaration does not allege personal knowledge of the documents on which the audit reports were based, nor
does it bear the sworn imprimatur of the custodian of the documents. (See R&R at 4; Wong Decl. (Doc. No. 11-2)
¶¶ 5–11.) Moreover, the second motion for default judgment requests a significant increase in damages, and the
second damages request itself is for an amount less than the total delinquencies requested in the March 2010 audit.
(Compare Pls.’ Mot. for Default J. at 1–2 with Wong Decl. Exs. C–D.)

Carter also recommended that plaintiffs be found to have demonstrated their entitlement to
attorneys’ fees, but recommended that plaintiffs’ motion for attorneys’ fees be held in abeyance
until the entry of a judgment incorporating all amounts due. (R&R at 6–7.) Judge Carter
reminded the parties that, pursuant to Rule 72 of the Federal Rules of Civil Procedure, any
objection to the R&R was due within 14 days of the date of entry of the R&R. No party has filed
any objection.
Pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72, the Court has
reviewed the R&R for clear error and, finding none, concurs with the R&R in its entirety. See
Covey v. Simonton, 481 F. Supp. 2d 224, 226 (E.D.N.Y. 2007).
Accordingly, plaintiffs’ motion for default judgment is GRANTED with respect to
liability only, and DENIED with respect to damages and attorneys’ fees, without prejudice to
renew upon a showing consistent with the R&R. Any application for damages and fees shall be
filed by October 7, 2011, and shall be supported by proper documentation.

SO ORDERED.

Roslynn R. Mauskopf

Dated: Brooklyn, New York
September 23, 2011

____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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