Trustees of the Metal Polishers Local 8A-28A Funds v. Prestige Restoration and Maintenance, LLC
ORDER ADOPTING IN PART REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Memorandum & Order, the Court adopts Magistrate Judge Mann's Recommendation to grant default judgment as to liability against Defendant Prestige Restora tion and Maintenance, and to deny Plaintiff's application for attorneys' fees with prejudice. After reviewing Plaintiff's amended motion for default judgment, the Court declines to adopt the recommendation that Plaintiff's request for damages be denied. The Court awards damages in the amount of $5051.75. The Court further awards Plaintiff $430 in court costs. Ordered by Judge Margo K. Brodie on 11/26/2013. (Prakash, Swati)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------TRUSTEES OF THE METAL POLISHERS
LOCAL 8A-28A FUNDS,
MEMORANDUM & ORDER
PRESTIGE RESTORATION AND
---------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff, Trustees of the Metal Polishers Local 8A-28A Funds, moved for a default
judgment against Defendant Prestige Restoration and Maintenance, LLC, on June 12, 2013,
which motion was referred to Magistrate Judge Roanne L. Mann. By report and
recommendation dated August 8, 2013, Judge Mann recommended that the Court grant
Plaintiff’s request for a default judgment against Defendant as to liability but deny Plaintiff’s
request for damages and attorneys’ fees. No objections were filed to the report and
recommendation. Instead, on August 26, 2013, Plaintiff filed an amended motion for a default
judgment. After reviewing Plaintiff’s amended motion for default judgment, the Court declines
to adopt the recommendation that Plaintiff’s request for damages be denied. The Court adopts
the recommendation to grant the default judgment as to liability and to deny Plaintiff’s
application for attorneys’ fees.
On August 24, 2012, Plaintiff commenced this action alleging violations of § 302 of the
Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185, and §§ 502(a)(3) and
515 of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(3) and §
1145. Although properly served, Defendant failed to respond to the Complaint and on January 7,
2013, Plaintiff sought a notice of default which was entered by the Clerk of the Court on that
day. (Docket Entry Nos. 5 and 6.) Plaintiff moved for a default judgment on January 8, 2013,
which was denied by the Court as deficient on February 25, 2013, because, in part, Plaintiff
failed to submit any evidence in support of its claim for damages. (February 25, 2013 Order.)
On June 12, 2013, Plaintiff filed a renewed default motion which was referred to Judge Mann.
(Docket Entry No. 9 and June 21, 2013 Order.) On June 21, 2013, Judge Mann issued an order
finding Plaintiff’s renewed motion “inadequate in a number of respects.” (Docket Entry No. 11,
Order re: Motion to Amend 1.) Specifically, Judge Mann found that no explanation was
provided as to how the audit was performed, that the auditor’s report was authenticated only
through an affidavit of counsel, and not by the auditor who performed the audit, and the auditor
who performed the work was not identified by name. (Id.) Judge Mann also noted that
Plaintiff’s application for attorneys’ fees was deficient in that it provided only a summary of total
hours, in half-hour increments, did not supply contemporaneous time records, and did not
describe the background of each associate and paralegal. (Id.) Plaintiff was afforded “one final
opportunity to cure these deficiencies.” (Id.) On July 2, 2013, Plaintiff timely filed an additional
submission, which included an “affidavit of Kimesha Hines,” an auditor of the Payroll Auditing
firm of Marshall & Moss, but was otherwise substantially identical to Plaintiff’s June 12, 2013
submission. (Docket Entry No. 12.) Plaintiff did not address the deficiencies in its application
for attorneys’ fees. (Id.)
On August 8, 2013, Judge Mann issued a report and recommendation (“R&R”)
recommending that the Court grant Plaintiff’s request for a default judgment against Defendant
as to liability, but deny Plaintiff’s request for damages and attorneys’ fees. (Docket Entry
No. 13.) Plaintiff failed to file any objections within the statutory time period and did not seek
any additional time to object to the R&R. Instead, on August 26, 2013, the deadline by which
objections to the R&R were to be filed, Plaintiff filed an amended motion seeking damages and
costs, but not attorneys’ fees. (Docket Entry No. 14, Am. Mot.) In support of the August 26,
2013 amended motion, Plaintiff submits a new affidavit by Kimesha Hines authenticating the
audit which forms the basis for Plaintiff’s claim for damages, (id., Hines Aff.), and for the first
time attaches a copy of the signed Trust Agreement between Plaintiff and Defendant. (Id., Ex.
B, Trust Agreement.) The amended motion is otherwise almost identical to Plaintiff’s July 2,
2013 submission, except that Plaintiff seeks $9,546.37 instead of $6,976.29 as the principal
amount of delinquent contributions due and owing for the same relevant time period, January 1,
2008 through December 31, 2010.
a. Standard of Review
A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). “Failure to object to a magistrate judge’s report and recommendation
within the prescribed time limit ‘may operate as a waiver of any further judicial review of the
decision, as long as the parties receive clear notice of the consequences of their failure to
object.’” Sepe v. New York State Ins. Fund, 466 F. App’x 49, 50 (2d Cir. 2012) (quoting United
States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)); see also Wagner & Wagner, LLP v.
Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010)
(“[A] party waives appellate review of a decision in a magistrate judge’s Report and
Recommendation if the party fails to file timely objections designating the particular issue.”).
When a party submits a timely objection to a report and recommendation, the district court
reviews the parts of the report and recommendation to which the party objected under a de novo
standard of review. 28 U.S.C. § 636(b)(1)(C); see also Larocco v. Jackson, No. 10-CV-1651,
2010 WL 5068006, at *2 (E.D.N.Y. Dec. 6, 2010). However, “even in a de novo review of a
party’s specific objections, the Court ordinarily will not consider ‘arguments, case law and/or
evidentiary material which could have been, but [were] not, presented to the magistrate judge in
the first instance.’” Gesualdi v. Specialty Flooring Sys., Inc., No. 11-CV-5937, 2013 WL
5439145, at *3 (E.D.N.Y. Sept. 27, 2013) (quoting Kennedy v. Adamo, No. 02-CV-1776, 2006
WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006)); see also Zamudio-Berges v. United States, No.
08-CV-8789, 2013 WL 2896978, at *3 (S.D.N.Y. June 13, 2013) (same).
Although a party’s default “‘is deemed to constitute a concession of all well pleaded
allegations of liability, it is not considered an admission of damages.’” Cement & Concrete
Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. & Training Fund &
Other Funds v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (quoting
Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). In
order to recover a default judgment, “[t]here must be an evidentiary basis for the damages sought
by plaintiff, and a district court may determine there is sufficient evidence either based upon
evidence presented at a hearing or upon a review of detailed affidavits and documentary
evidence.” Id. (citing Fed. R. Civ. P. 55(b)(2) and Fustok v. Conticommodity Servs., Inc., 873
F.2d 38, 40 (2d Cir. 1989)); see also Trustees of Empire State Carpenters Annuity,
Apprenticeship, Labor-Mgmt. Cooperation, Pension & Welfare Funds v. Infinity Glass &
Restoration LLC, No. 12-CV-5650, 2013 WL 5278200, at *8 (E.D.N.Y. Sept. 17, 2013) (noting
that, in calculating an award of damages in a motion for default judgment, a court may “rely on
detailed affidavits or documentary evidence . . . to evaluate the proposed sum.” (alteration in
original) (quoting Fustok, 873 F.2d at 40)).
b. Liability and Damages
The Report and Recommendation
Judge Mann found that the Complaint states a cause of action under ERISA and LMRA
and that Plaintiff is entitled to a judgment as to liability. (R&R at 5–6.) Judge Mann found,
however, that Plaintiff is not entitled to damages because Plaintiff has not provided any
admissible evidence upon which the court could ascertain the amount of damages to award.
(R&R at 7 (citing, inter alia, House v. Kent Worldwide Mach. Works, Inc., 359 F. App’x 206,
207 (2d Cir. 2010) (“[E]ven when the defendant defaults and is not present to object, damages
must be based on admissible evidence.”))). For example, in support of its request for damages
under ERISA, Plaintiff submitted an audit report from an examination of Defendant’s records
that were inadequately authenticated.1 (Id. at 8–9.) In addition, Plaintiff submitted an affidavit
from its own counsel, Dana L. Henke, with conclusory statements about what damages were
owed to Plaintiff. Judge Mann concluded that “unsupported and conclusory assertions by
counsel, which are not based on first-hand knowledge, cannot support an award of damages,”
and recommended denying an award of damages. (Id. at 14 (citing, inter alia, Laborers’ Local
Union No. 91 Welfare Fund v. Danco Const., Inc., No. 94-CV-0318, 1996 WL 189510, at *1
The audit report was accompanied by an unsworn statement of Kimesha Hines of the
audit firm Marshall & Moss attesting that an auditor of the firm had reviewed Defendant’s books
and records. Judge Mann found that the statement failed to meet the standard of 28 U.S.C.
§ 1746, which allows the use of unsworn declarations in lieu of sworn affidavits when they are
expressly made “under penalty of perjury.” (See August 8, 2013 Report & Recommendation of
Judge Roanne L. Mann (“R&R”) at 9 n.5.) In addition, Hines’ affidavit provided no detail
describing how the audit was conducted, what documents were reviewed and relied on to prepare
the audit, or whether the affiant had personally conducted the audit. (Id. at 12–13.)
(W.D.N.Y. Apr. 17, 1996); Trustees of Local 522 Pension Fund v. Tri-Boro & Rest. Supply Co.,
Inc., No. 12-CV-0163, 2013 WL 685377, at *4 (E.D.N.Y. Feb. 24, 2013)).)
Judge Mann further noted that Plaintiff had been afforded two opportunities to cure the
deficiencies in its filings, yet both times Plaintiff failed to provide the requisite, admissible
documentation upon which the court could calculate an award of damages. (R&R at 16; see
February 25, 2013 Order denying Motion for Default Judgment; June 21, 2013 Order of Judge
Roann L. Mann (Docket Entry No. 11).) Accordingly, Judge Mann recommended that Plaintiff’s
request for damages be denied without leave to renew. (Id.)
Plaintiff’s Amended Motion
Plaintiff failed to file any objections within the statutory time period and did not seek any
additional time to object to Judge Mann’s R&R. However, on August 26, 2013, the deadline for
filing objections, Plaintiff filed an amended motion seeking damages and costs. In support of the
August 26, 2013 amended motion, Plaintiff submits a new affidavit from Kimesha Hines,
authenticating the audit which forms the basis for Plaintiff’s claim for damages, and providing
for the first time a signed copy of the Trust Agreement between Plaintiff and Defendant.
Plaintiff offered no legal support for why it should be allowed to further amend its motion for
damages where it was twice allowed to do so and where Judge Mann’s June 21, 2013 Order
informed Plaintiff that it was being afforded “one final opportunity” to cure the deficiencies.
Plaintiff offered no excuse for why it did not cure these deficiencies in response to the
February 25, 2013 Order or the June 21, 2013 Order. Nor did Plaintiff explain why it did not
timely object to the R&R.
Because Plaintiff failed to submit a timely objection to Judge Mann’s R&R, the Court
reviews the R&R under a “clear error” standard. See Wagner & Wagner, LLP, 596 F.3d at 92
(2d Cir. 2010). Having reviewed Judge Mann’s recommendation that the Court find Defendant
liable for default and finding no clear error, the Court adopts the recommendation.
As for Plaintiff’s damages, the Court likewise finds no clear error in Judge Mann’s
recommendation that Plaintiff’s application for damages be denied, based on a failure to
establish damages through admissible, authenticated evidence. However, Plaintiff’s amended
motion, presumably filed in lieu of an objection, remedies the deficiencies identified in Judge
Mann’s R&R. Although Plaintiff’s August 26, 2013 amended motion was filed in patent
disregard of the rules of the Court and the relevant statutory provision, see 28 U.S.C.
§ 636(b)(1)(C) (“Within fourteen days after being served with a copy, any party may serve and
file written objections to such proposed findings and recommendations as provided by rules of
court.”), and the Court ordinarily will not review “evidentiary material which could have been,
but [were] not, presented to the magistrate judge in the first instance,” Gesualdi, 2013 WL
543145, at *3 (citing Kennedy, 2006 WL 3704784, at *1), in the interest of judicial economy and
justice, the Court will overlook Plaintiff’s repeated failures to comply with the rules of the Court
and consider the evidentiary material provided by Plaintiff in the August 26, 2013 amended
motion. The Court does so in lieu of granting Plaintiff leave to renew its application for damages
a third time.2
Where a plaintiff’s request for damages has been denied due to inadequate
authentication, courts in this Circuit freely give leave to renew the application. See, e.g., Trustees
of Local 522 Pension Fund v. Tri-Boro & Rest. Supply Co., Inc., No. 12-CV-0163, 2013 WL
685377, at *4 (E.D.N.Y. Feb. 24, 2013) (“[U]nsupported and conclusory assertions are
inadequate to establish damages. . . . Accordingly, the court denies plaintiffs’ application for
damages without prejudice to renew upon submission of proper documentation.” (citations
omitted)); Bd. of Trustees of the United Union of Roofers v. Dana Restoration, Inc., No. 09-CV1076, 2010 WL 3925115, at *2 (E.D.N.Y. Sept. 14, 2010) (denying Plaintiffs’ application for
damages with leave to renew “upon an appropriate affidavit or affidavits by people with actual
knowledge who can properly authenticate the funds’ damages and the records”), report and
recommendation adopted, 2010 WL 3909232 (E.D.N.Y. Sept. 29, 2010)); LaBarbera v.
The Court finds that the newly filed affidavit by Kimesha Hines is properly authenticated.
28 U.S.C. § 1746 permits an unsworn declaration to be treated as if it were sworn, if the
declarant were to: “(1) ‘declare (or certify, verify, or state),’ (2) ‘under penalty of perjury,’ (3)
that the matter sworn to is ‘true and correct.’” In re World Trade Ctr. Disaster Site Litig., 722
F.3d 483, 488 (2d Cir. 2013) (quoting 28 U.S.C. § 1746). In the new affidavit, Hines states, “I
declare under penalty of perjury that the foregoing is true and correct,” substantially meeting the
requirements of 28 U.S.C. § 1746. (Hines Aff. at 4.) Thus, the Court will treat the new affidavit
as a sworn statement.3 Attached to the Hines affidavit is the audit report prepared by Hines.
(Am. Mot. Ex. C, “Audit”).
Plaintiff attaches to the Henke affidavit a copy of the signed Collective Bargaining
Agreement (“CBA”) between the Metal Polishers Production and Novelty Workers Union Local
8A–28A and Defendant, effective June 1, 2008 through May 31, 2011. (Am. Mot. Ex. A,
“CBA”). In the August 26, 2013 amended motion Plaintiff for the first time attaches to the
motion4 the Trust Agreement creating the Local 8A-28A Welfare Fund (“the Fund”) and
Rockwala Inc., No. 06-CV-6641, 2007 WL 3353869, at *6 (E.D.N.Y. Nov. 8, 2007) (granting
plaintiffs leave to renew application for damages “upon an appropriate affidavit or affidavits by
people with actual knowledge who can properly authenticate the funds’ damages and the records
upon which the damages calculations are based.”); Bricklayers Ins. & Welfare Fund v. David &
Allen Contracting, Inc., No. 05-CV-4778, 2007 WL 3046359, at *5 (E.D.N.Y. Oct. 16, 2007)
(denying award of damages without prejudice to renew where submissions included only an
affidavit of counsel).
Henke’s affidavit, however, suffers from the same deficiencies identified by Judge
Mann in the R&R. As counsel for the Trustees, Henke has no personal knowledge as to key
paragraphs in her affidavit that establish damages owed by Defendant. (See Hines Aff. of
August 26, 2013 ¶¶ 10, 11, 13.) Thus, the Court does not consider any of these statements in
The Trust Agreement is attached as a freestanding Exhibit, and is not referenced in the
Henke affidavit or in the Memorandum of Law.
authorizing the Trustees of the Fund to collect contributions on behalf of the union. (Am. Mot.
Ex. B.) The Trust Agreement went into effect on July 1, 2009. (Id. at 24.) Although Plaintiff
seeks damages from January 1, 2008 through December 31, 2010, Plaintiff has not shown the
existence of a CBA prior to June 1, 2008, or of a Trust Agreement prior to July 1, 2009.
Although these documents are presented without the affidavit of a custodian of record,
the Court accepts them as evidence for the purpose of calculating damages in a default judgment.
See, e.g., Local No. 46 Metallic Lathers Union & Reinforcing Iron Workers Welfare Trust,
Annuity Fund, Pension Fund, Apprenticeship Fund, Vacation Funds, Scholarship Fund, & Other
Funds v. Brookman Const. Co., Inc., No. 12-CV-2180, 2013 WL 5304358, at *3 (E.D.N.Y.
Sept. 19, 2013) (awarding damages based on the submission of affidavits from plaintiff’s counsel
and from an independent auditor, a “copy of the audit, correspondence between plaintiffs’
counsel and defendant’s counsel discussing the audit,” and a copy of the CBA); Trustees of
Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt. Co-op., Pension & Welfare
Funds v. Miller Floor Covering, Inc., No. 12-CV-5660, 2013 WL 5366962, at *4 (E.D.N.Y.
Sept. 24, 2013) (affirming arbitrator’s award for damages upon plaintiff’s submission of the
Collective Bargaining Agreement and the trustees’ “Joint Policy for Collection of Delinquent
Contributions”). The information provided in Plaintiff’s August 26, 2013 amended motion,
along with the affidavit and audit of an independent auditor, provide sufficient evidence from
which the Court can make a determination of damages. See Trustees of Empire State Carpenters
Annuity, 2013 WL 5278200, at *8 (noting that, in calculating an award of damages in a motion
for default judgment, a court may “rely on detailed affidavits or documentary evidence . . . to
evaluate the proposed sum.” (alteration in original) (quoting Fustok, 873 F.2d at 40)).
Principal Delinquent Contributions
The Court finds that the evidence submitted by Plaintiff supports an award for a principal
amount of delinquent contributions of $4,036, exclusive of interest and liquidated damages.
These contributions were authorized by the CBA which (1) established the Welfare Fund and the
Pension Fund, (CBA Art. XVII–XVIII); (2) provided for employer deduction of union dues from
the wages of employees, (CBA Art. IV); and (3) authorized payments to the Trustees for union
dues, the welfare fund and the retirement fund, (CBA Art. XLI). In addition, the Trust
Agreement authorizes Plaintiff to collect contributions as provided for in the CBA. (Am. Mot.
Ex. B, Trust Agreement 17–19.)
While Plaintiff requested damages for the time period from January 1, 2008 through
December 31, 2010, the CBA and Trust Agreement submitted by Plaintiff only support the
recovery of damages as of July 1, 2009, the effective date of the Trust Agreement authorizing
Plaintiff to collect contributions from Defendant at the rates provided for in the CBA. Without
evidence that Plaintiff was authorized to collect contributions from the Defendant prior to that
date, the Court cannot award damages for the time period between January 1, 2008 and June 30,
2009.5 Thus, based on the documentation submitted by Plaintiff, Plaintiff is entitled to damages
for delinquent contributions from July 1, 2009 through December 31, 2010.
The Court calculates the damages due by looking to the revised affidavit of Hines, the
auditor retained by Plaintiff, and the audit prepared by Hines. In the revised affidavit, Hines
states that she personally conducted the audit pursuant to the terms in the CBA and the Trust
Agreement, (Hines Aff. ¶¶ 6, 10–11), and attaches the complete audit report, which itemizes
Even if Plaintiff had submitted a previous Trust Agreement authorizing the Trustees to
collect contributions prior to July 1, 2009, without a CBA establishing contribution rates prior to
June 1, 2008, the effective date of the CBA submitted by Plaintiff, the Court would still only be
able to award damages for the time period beginning June 1, 2008.
delinquent contributions by year, (see Audit). A review of the audit shows that the amount due
for delinquent contributions in 2009 is $2,264.81. (Audit at 2.) The Court awards half of this
figure to represent the delinquent contributions from July 1, 2009 — December 31, 2009, in
addition to the entire amount of the 2010 delinquency ($2,903.59), for a total of $4,036 in
delinquent principal contributions.6
Interest and Liquidated Damages
Under ERISA, a party seeking to recover unpaid contributions is entitled to “interest on
unpaid contributions,” which “shall be determined by using the rate provided under the plan, or,
if none, the rate prescribed under section 6621 of Title 26.” 29 U.S.C. § 1132(g)(2). Here,
neither the CBA nor the Trust Agreement submitted by Plaintiff provides for a specific interest
amount. The Trust Agreement states that Trustees may recover “interest thereon.” (Am. Mot.
Ex. B at 19.) With respect to the interest calculation, Hines states: “Since there was no exact rate
stated, the Trustees have advised me that they have established the interest rate that should be
charged to delinquent employees at 10% per year.” (Hines Aff. ¶ 11.) However, Plaintiff has
Even if Plaintiff had submitted a prior Collective Bargaining Agreement and Trust
Agreement covering the entire period for which damages are requested, the Hines affidavit and
accompanying audit support only an award of $6,976.29 in delinquent contributions for
January 1, 2008 through December 31, 2010, rather than the principal amount of $9,546.37
requested in the August 26, 2013 amended motion. (See Am. Mot. ¶ 13.) According to the
audit, the $9,546.37 figure actually represents the unpaid principal plus interest and liquidated
damages, calculated in the audit at 10% per year, and 20% of the total principal, respectively.
(See Am. Mot. Ex. C at 1, 2). Although in her affidavit Hines inexplicably states that the
“principal amount of unpaid fringe benefit contributions” is $9,546.37, (Hines Aff. ¶ 14), pages 1
and 2 of the audit prepared by Hines indicate that the total “deficiency amount” of delinquent
benefit contributions for 2008 through 2010 was $6,976.29. (Am. Motion, Ex. C at 1.) This
number comports with the principal listed on the “Schedule of Interest Calculation,” (id. at 2),
and is also consistent with Plaintiff’s prior submissions to the Court. (See July 2, 2013 Am.
Motion 1; January 8, 2013 Mot., Statement of Damages (listing “Principal Amount Due from
January 1, 2008 through December 31, 2010 as $6,976.29).) In addition, Hines states that
liquidated damages were calculated at 20%, (Hines Aff. ¶ 12), and that she calculated the
liquidated damages owed by Defendant as $1,395.26 (id. ¶ 13), which is 20% of $6,976.29, not
submitted no evidence from the Trustees to establish this interest rate. Therefore, the Court
rejects Plaintiff’s application for interest calculated at 10% per annum, and instead awards
interest in accordance with 26 U.S.C. § 6621(a)(2) (establishing a payment rate of the Federal
short-term interest rate plus 3 percentage points). The Court uses the average annual short-term
interest rate for July 1, 2009 through December 31, 2010. See Bd. of Trustees of Pointers,
Cleaners & Caulkers Welfare Fund, Pension Fund & Annuity Fund v. Super Eagle Contracting,
Inc., No. 12-CV-0399, 2013 WL 802034, at *3 (E.D.N.Y. Jan. 16, 2013) (collecting cases
applying average annual short-term interest), report and recommendation adopted, 2013 WL
802847 (E.D.N.Y. Mar. 5, 2013). Because Plaintiff is entitled to have interest compounded on
delinquent payments, the Court calculated interest in the same manner as that calculated by
Plaintiff’s auditor, but applying the applicable 6621(a)(2) interest rates instead. Between July 1,
2009 and December 31, 2010, the Federal short-term rate plus 3% was 4%. See United States
Department of Labor, IRC 6621 Table of Underpayment Rates, Column 1, “(a)(2)
Underpayment Rates”, available at http://www.dol.gov/ebsa/calculator/interestratetables.html.
Applying this interest rate results in compounded interest payments of $45.30 and $163.25 due at
the end of 2009 and 2010, respectively, for a total of $208.55 in interest due.7
As for liquidated damages, the Trust Agreement submitted by Plaintiff establishes
liquidated damages at 20%, as calculated in the audit. (Trust Agreement at 18, Art. VII, § 5.)
The Court’s calculations are as follows:
Balance (Total principal plus 6621(a)(2) interest
previous years’ interest)
Jul 1 - Dec
Jan 1 - Dec
Thus, the Court finds Plaintiff’s request for liquidated damages sufficiently supported by
evidence, and awards Plaintiff liquidated damages of 20% on $4036.00 (the principal amount of
delinquent contributions), or $807.20.
Attorneys’ Fees and Costs
Judge Mann found that Plaintiff is not entitled to attorneys’ fees, based on Plaintiff’s
failure to submit contemporaneous time records that distinguish the time spent by counsel and by
a paralegal on this case, that would permit the court to assess the reasonableness of the fees.
(R&R at 18–19.) In the August 26, 2013 amended motion, counsel for Plaintiff does not provide
additional detail as to the requested attorneys’ fees. Instead, counsel abandons her request for
attorneys’ fees. Because Plaintiff did not address Judge Mann’s recommendation that attorneys’
fees be denied, in either its amended motion of July 2, 2013 or in its August 26, 2013 amended
motion, and the Court finds no clear error in Judge Mann’s denial of attorneys’ fees, the Court
adopts Judge Mann’s recommendation and denies Plaintiff’s application for attorneys’ fees with
In her R&R, Judge Mann does not make a specific finding as to Plaintiff’s requested
costs. Based on a review of the record, the Court finds these costs to be reasonable, and awards
Plaintiff $430 in costs. See Finkel v. Universal Elec. Corp., No. 12-CV-2154, 2013 WL
4522594, at *18 (E.D.N.Y. Aug. 27, 2013) (awarding $433.06 in costs); Finkel v. Triple A Grp.,
Inc., 708 F. Supp. 2d 277, 290–91 (E.D.N.Y. 2010) (awarding $818.53 in costs); Masino v. A to
E, Inc., No. 09-CV-1651, 2010 WL 3780176, at *8 (E.D.N.Y. Sept. 3, 2010) (awarding $350 in
costs), report and recommendation adopted, No. 09-CV-1651, 2010 WL 3780973 (E.D.N.Y.
Sept. 21, 2010).
The Court grants Plaintiff’s motion for a default judgment as to liability against
Defendant Prestige Restoration and Maintenance. The Court grants Plaintiff’s request for
damages as follows: $4036.00 in unpaid principal delinquent contributions; $208.55 in interest,
and $807.20 in liquidated damages, for a total of $5051.75. The Court further awards Plaintiff
$430 in court costs, and denies Plaintiff’s request for attorneys’ fees, with prejudice.
MARGO K. BRODIE
United States District Judge
Dated: November 26, 2013
Brooklyn, New York
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