Trustees of the Local 813 Pension Trust Fund v. Frank Miceli Jr. Contracting, Inc.

Filing 52

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Memorandum and Order, the Court adopts 51 Magistrate Judge James Orenstein's report and recommendation. The Court directs the Clerk of Court to award Plaintiff interest of $9410.44, liquidated damages of $9410.44, reasonable attorneys' fees of $33,682.25 and costs of $350. Ordered by Judge Margo K. Brodie on 3/13/2017. (Daugherty, Shannon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------TRUSTEES OF THE LOCAL 813 PENSION
TRUST FUND,
v.

Plaintiff,

MEMORANDUM & ORDER
13-CV-0198 (MKB) (JO)

FRANK MICELI JR. CONTRACTING, INC.,
MAR-NIC EQUIPTMENT & LEASING CO., INC.,
QUEEN CITY RECYCLING, and 19-17 CLIFF
STREET PROPERTIES LLC,
Defendants.
-------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Trustees of the Local 813 Pension Trust Fund commenced the above-captioned
action against Defendant Frank Miceli Jr. Contracting, Inc. (“FMC”), Mar-Nic Equipment &
Leasing Co., Inc., Queen City Recycling and 19-17 Cliff Street Properties LLC on January 11,
2013, asserting claims for withdrawal liability, interest, liquidated damages and attorneys’ fees
and costs pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 4201 et
seq., as amended by the Multiemployer Pension Plan Amendment Act of 1980, 29 U.S.C. § 1381
et seq. On March 31, 2016, the Court granted Plaintiff’s motion for summary judgment and
awarded Plaintiff damages in the amount of $79,574 for withdrawal liability, jointly and severally
against all Defendants. (Memorandum and Order dated March 31, 2016, Docket Entry No. 47.)
Plaintiff subsequently moved for an award of interest for the period between August 28, 2012 and

April 15, 2016,1 liquidated damages and attorneys’ fees and costs. (Pl. Mot. for Attorneys’ Fees,
Docket Entry No. 48.)
On May 16, 2016, the Court referred this matter to Magistrate Judge James Orenstein for a
report and recommendation. (Order dated May 16, 2016.) By report and recommendation dated
February 21, 2017 (the “R&R”), Judge Orenstein recommended that the Court award Plaintiff:
$9396.27 in interest;2 $9396.27 in liquidated damages; $33,682.25 in reasonable attorneys’ fees;
and $350 in costs. (R&R at 1.) Combined with the previously awarded withdrawal liability,

1

The R&R identifies April 15, 2016 as the “date of the summary judgment motion,”
(R&R at 2–3), but the Court granted summary judgment on March 31, 2016. (Memorandum and
Order dated March 31, 2016.) The parties do not dispute that interest damages should be awarded
from August 28, 2012 through April 15, 2016.
2

In the R&R, Judge Orenstein does not rely on the interest rate provided for in the
Withdrawal Liability Procedures (Docket Entry No. 48-5) because Plaintiff failed to establish that
the procedures were in effect during the relevant period. (R&R at 3–4.) Judge Orenstein
calculated the interest rate relying on the regulatory annual rates of the Pension Benefit Guaranty
Corporation (“PBGC”), (id. at 4), as provided by 29 C.F.R. § 4219.32 and 29 U.S.C. § 1399(c),
instead of the statutory default rate provided in 29 U.S.C. § 1132(g)(2)(E) (“For purposes of this
paragraph, interest on unpaid contributions shall be determined by using the rate provided under
the plan, or, if none, the rate prescribed under section 6621 of title 26.”). Courts have approved
both approaches in the absence of a plan that dictates the applicable interest rate. Compare Trs. of
the United Teamster Pension Fund v. Juniors Produce Inc., No. 15-CV-6927, 2016 WL 4995023,
at *5 (E.D.N.Y. Aug. 31, 2016) (applying the statutory default rate provided in 29 U.S.C. §
1132(g)(2)(E) where the plan documents and collective bargaining agreement did not set forth an
interest rate to calculate withdrawal liability), report and recommendation adopted, 2016 WL
4995154 (Sept. 16, 2016), with Bd. of Trs. of UFCW Local 342 Pension Fund v. Merrick
Associated Market, Inc., No. 11-CV-4310, 2012 WL 4049845, at *4 (E.D.N.Y. Aug. 21, 2012)
(applying PBGC interest rate where “no plan document specifie[d] a particular interest rate for
withdrawal liability”), report and recommendation adopted, 2012 WL 4049996 (Sept. 13, 2012),
and Bd. of Trs. of the UFCW Local 174 Pension Fund v. Jerry WWHS Co., Inc., No. 8-CV-2325,
2009 WL 982424, at *5 (E.D.N.Y. Apr. 10, 2009) (applying PBGC interest rates where the record
did not include any information about the terms of the fund, because “the court may look only to
the regulatory interest rate in computing interest”) (adopting report and recommendation). Here,
because neither party objected to the use of the PBGC rates, the Court declines to decide whether
Judge Orenstein applied it appropriately.
2

Judge Orenstein recommended a total award of $132,398.79. (Id.) No party has objected to the
R&R.
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). When a party submits a timely objection to a report and
recommendation, the district court reviews de novo the parts of the report and recommendation to
which the party objected. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir.
2015). The district court may adopt those portions of the recommended ruling to which no timely
objections have been made, provided no clear error is apparent from the face of the record. John
Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1 (E.D.N.Y. Nov. 24,
2015). The clear error standard also applies when a party makes only conclusory or general
objections, or simply reiterates its original arguments. Chime v. Peak Sec. Plus, Inc., 137 F.
Supp. 3d 183, 187 (E.D.N.Y. 2015) (“General or conclusory objections, or objections which
merely recite the same arguments presented to the magistrate judge, are reviewed for clear error.”
(citation omitted)); see also DePrima v. N.Y.C. Dep’t of Educ., No. 12-CV-3626, 2014 WL
1155282, at *3 (E.D.N.Y. Mar. 20, 2014) (collecting cases).
The Court has reviewed the unopposed R&R and, finding no clear error, the Court adopts
Judge Orenstein’s R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1).3 Accordingly, the Court

3

The Court, however, corrects Judge Orenstein’s interest award which, without rounding
and accounting for 1312 days between August 28, 2012 and March 31, 2016, totals $9410.44
($79,574*((0.0325*(1312/365)) + (0.035*(15/365)))), instead of $9396.27
($79,574*((0.0325*(1310/365)) + (0.035*(15/365)))). Accordingly, both the interest and
liquidated damages awards are $9410.44.
3

directs the Clerk of Court to award Plaintiff interest of $9410.44, liquidated damages of $9410.44,
reasonable attorneys’ fees of $33,682.25 and costs of $350.

SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge

Dated: March 13, 2017
Brooklyn, New York

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