Ferrara et al v. Reliable Industries II, Inc.

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Ordered by Judge Eric N. Vitaliano on 1/9/2013. (Siegfried, Evan)

•

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------------------------------------}(

JOSEPH A. FERRARA, SR., ET AL.,

Plaintiff,

Memorandum and Order

-against-

11-CV-1434 (ENV) (MDG)

RELIABLE INDUSTRIES II, INC.,

Defendant.

-----------------------------------------------------------------){

VITALIANO, D.J.

Plaintiffs filed a complaint against defendant Reliable Industries II, Inc.
("Reliable") on March 23, 2011, seeking to recover unpaid benefit contributions
pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§
1001 et seq. ("ERISA"), as amended by the Multiemployer Pension Plan
Amendment Act of 1980, 29 U.S.C. §§ 1381 et seq. ("MPPAA"). (Docket No. 1.)
Defendant failed to make any submission at all or otherwise defend this action.
Plaintiff moved for default judgment on July 29, 2011. (Docket No. 6.) On
September 7, 2011, the Court granted the motion and referred the matter to The
Honorable Marilyn D. Go to determine the amount of the judgment, including any
costs and attorney's fees associated with this action. (Docket No. 12.)
Following review of the relevant submission, Judge Go issued a Report and
Recommendation ("R&R") on September 27, 2012, recommending damages of

I

$354,601.35 in unpaid contributions, prejudgment interest of $188,868 through
October 15,2012 and at a daily rate of$174.87 thereafter until the entry of
judgment; $188,868 in additional interest through October 15, 2012 and at a daily
rate of$17 4.87 thereafter until the entry of judgment; $350 in audit fees; $3,640.20
in attorneys' fees; and $443.06 in costs, for a total judgment of $736,770.61. (Docket
No. 13.) Judge Go further recommended that defendant be ordered to submit to an
audit of its books and records within 30 days from entry of judgment for the period
commencing June 1, 2007 and that plaintiffs be permitted to petition the Court to
amend the judgment to include an additional award of damages and prejudgment
interest, if appropriate, following the audit. /d. No objections to Judge Go's R&R
have been filed.

Discussion
In reviewing a report and recommendation, the court "may accept, reject, or
modify, in whole or in part, the findings and recommendations made by the
magistrate judge." 28 U.S.C. § 636(b) (1)(C). However, in order to accept a
magistrate judge's report and recommendation where no timely objection has been
made, the "court need only satisfy itself that there is no clear error on the face of the
record." Urena v. New York, 160 F.Supp.2d 606, 609-10 (S.D.N.Y.2001) (quoting

Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985)).
After careful review of all the evidence in the record, the Court finds Judge
Go's R&R to be correct, comprehensive, well-reasoned, and free of any clear error.
2

The Court, therefore, adopts the R&R in its entirety as the opinion of the Court.
Accordingly, for the reasons stated in the R&R, judgment shall enter against
defendants in the amount of$736,770.61, which includes $354,601.35 in unpaid
contributions, prejudgment interest of $188,868 through October 15, 2012, plus
additional prejudgment interest at a daily rate of$174.87 thereafter until the entry
of judgment; $188,868 in additional interest through October 15, 2012, plus
additional prejudgment interest at a daily rate of$174.87 thereafter until the entry
of judgment; $350 in audit fees; $3,640.20 in attorneys' fees; and $443.06 in costs.
The Clerk is directed to enter judgment and to close this case.

SO ORDERED.
Dated:
Brooklyn, New York
January 9, 2013

s/ ENV
ERIC ~{~~ALIANo'-'"cUnited States District Judge

3

c