Local #46 Metallic Lathers Union and Reinforcing Iron Workers Welfare Trust, Annuity Fund, Pension Fund, Apprenticeship Fund, Vacation Fund, Scholarship Fund and Other Funds et al v. Crops Design Corp.

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS: the court adopts damages calculations in Judge Levy's Report and Recommendation and will direct that judgment in those amounts be entered against defendant Crops Design Corp., provided plaintiff's counsel submits the additional information described in the attached Memorandum and Order by October 8, 2013. Plaintiff's counsel is directed to serve a copy of this order upon defendant and file proof of service by October 1, 2013 and to serve the proposed order of judgment upon defendant and file proof of that service by October 8, 2013.. Ordered by Judge Kiyo A. Matsumoto on 9/30/2013. (Keefe, Reed)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LOCAL #46 METALLIC LATHERS UNION AND
REINFORCING IRON WORKERS WELFARE
TRUST, ANNUITY FUND, PENSION FUND,
APPRENTICESHIP FUND, VACATION FUND,
SCHOLARSHIP FUND and OTHER FUNDS and
TERRENCE MOORE in his fiduciary
capacity as Trustee of the LOCAL #46
METALLIC LATHERS UNION AND REINFORCING
IRON WORKERS 12 WELFARE TRUST, ANNUITY
FUND, PENSION FUND, APPRENTICESHIP
FUND, VACATION FUND, SCHOLARSHIP FUND
and other FUNDS,

ORDER ADOPTING REPORT
AND RECOMMENDATION
12-CV-4218 (KAM)(RML)

-andTERRENCE MOORE, as Business Manager of
the LOCAL #46 METALLIC LATHERS UNION
AND REINFORCING IRON WORKERS and in
his fiduciary capacity as a Trustee of
the POLITICAL ACTION FUND and IRON
WORKERS POLITICAL EDUCATION FUND,
Plaintiffs,
-againstCROPS DESIGN CORP.,
Defendant.
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MATSUMOTO, United States District Judge:
On August 23, 2012, plaintiffs commenced this action
against defendant Crops Design Corp., pursuant to sections
502(a)(3) and 515 of the Employee Retirement Income Security Act
of 1974 (“ERISA”), 29 U.S.C. §§ 1001–1191c, and Section 301 of
the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. §
185, seeking to recover unpaid fringe benefit contributions and

union dues, along with interest, liquidated damages, attorneys’
fees, and costs.

(See generally ECF No. 1, Compl.)

Despite having been properly served, defendant failed
to timely answer or otherwise move with respect to the complaint.
(See ECF No. 6, Clerk’s Entry of Default.)

Plaintiffs

thereafter moved for a default judgment against defendant,
seeking damages, interest, fees, and costs.

(See ECF No. 7, Mot.

for Default J.)
On April 1, 2013, the court referred this matter to
Magistrate Judge Robert M. Levy for a Report and Recommendation.
(See Order Referring Mot., Apr. 1, 2013.)

On September 11, 2013,

Judge Levy issued a Report and Recommendation recommending that
the court grant plaintiffs’ motion and award damages, interest,
attorneys’ fees, and costs against defendant.
Report and Recommendation (“R&R”) at 11.)

(See ECF No. 16,

The Report and

Recommendation also directed plaintiffs to serve a copy of the
Report and Recommendation on defendant. (Id.)

On that same day,

the court directed plaintiffs’ counsel to serve defendants with a
copy of Judge Levy’s Report and Recommendation, and to file proof
of service via ECF, no later than September 12, 2013.
Sept. 11, 2013.)

(Order,

On September 12, 2013, plaintiffs’ counsel

filed an affidavit of service indicating that a copy of the
Report and Recommendation was sent to defendant via the United
States Postal Service on that same day.

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(See ECF No. 17, Aff. of

Service.)
The Report and Recommendation notified the parties of
the right to file written objections within fourteen (14) days of
its issuance.

(R&R at 11.)

Accordingly, the deadline for

defendant to file objections to the report was September 26,
2013.

To date, no objections to the Report and Recommendation

have been filed.

(See generally Docket No. 12-CV-4218.)

A district court reviews those portions of a Report and
Recommendation to which a party has timely objected under a de
novo standard of review and “may accept, reject, or modify, in
whole or in part, the findings or recommendations . . .”
U.S.C. § 636(b)(1)(C).

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However, where no objections to the

Report and Recommendation have been filed, the district court
“need only satisfy itself that 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)).
The court has carefully reviewed the record and Judge
Levy’s well-reasoned Report and Recommendation and affirms and
adopts the damages calculations set out in the Report. The court
will direct that judgment be entered against defendant Crops
Design Corp. for the following items, provided plaintiff’s
counsel submits additional information as provided below:
(1) $417,431.70 in unpaid contributions;

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(2) interest on unpaid contributions at a rate of
twelve percent (12%) per annum, as mandated by
Article XII(11)(b) of both the 2005 and 2008
Collective Bargaining Agreements, for the period
between July 1, 2009, the approximate midpoint of
defendant’s period of delinquency, and the date
that final judgment is entered;
(3)

$17,872.71 in unpaid union dues;

(4)

interest on unpaid union dues a rate of nine
percent (9%) per annum for the period between July
1, 2009, the approximate midpoint of defendant’s
period of delinquency, and the date that final
judgment is entered;

(5)

$83,486.34 in liquidated damages;

(6)

$1,400.00 in attorneys’ fees upon submission of

contemporaneous time records; and
(7)

$450 in costs.

By October 8, 2013, plaintiff shall submit to the court
an order of judgment including the above damages, as well as
precise calculations of the amount of interest to be awarded for
the items in (2) and (4) above.

Further, by October 8, 2013,

plaintiff’s counsel shall also provide contemporaneous time
records for the hours expended on the case, as required by New
York State Association for Retarded Children v. Carey, 711 F.2d

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1136, 1147 (2d Cir. 1983), to support the fees requested in item
(6) above.
Plaintiff’s counsel is directed to serve a copy of this
order upon defendant and file proof of service by October 1, 2013
and to serve the proposed order of judgment upon defendant and
file proof of that service by October 8, 2013.

SO ORDERED.
Dated:

September 30, 2013
Brooklyn, New York
_______ ___/s/
Kiyo A. Matsumoto
United States District Judge

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