Gesualdi et al v. Dan Yant Inc.

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS. The court hereby affirms and adopts the Report and Recommendation as the opinion of the court. Accordingly, judgment should be entered for plaintiffs and against defendant Dan Yant Inc. as follows: $2 ,418.28 in unpaid contributions, $1,300.00 in audit fees, $3,313.64 in attorney's fees and costs, prejudgment interest from September 1, 2008 to the entry of judgment that is to be calculated upon entry of judgment by the clerk of cour t using the formulas and figures provided by Magistrate Judge Mann on pages 11-12 of the R&R, and liquidated damages in an amount equal to the amount of prejudgment interest. The clerk of court is further respectfully requested to mail a copy of the judgment and this Order to defendant, note service on the docket, and to close this case. Ordered by Judge Kiyo A. Matsumoto on 3/19/2014. (Raghunathan, Abhishek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THOMAS GESAULDI, LOUIS BISIGNANO,
ANTHONY D’AQUILA, MICHAEL O’TOOLE,
BENNY UMBRA, JOSEPH A. FERRARA, SR.,
FRANK H. FINKEL, MARC HERBST, DENISE
RICHARDSON, and THOMAS F. CORBETT as
Trustees and Fiduciaries of the Local
282 Welfare Trust Fund, the Local 282
Pension Trust Fund, the Local 282
Annuity Trust Fund, the Local 282 Job
Training Trust Fund, and the Local 282
Vacation and Sick Leave Trust Fund,

ORDER ADOPTING REPORT
AND RECOMMENDATION

13-CV-1872 (KAM)(RLM)

Plaintiffs,
-againstDAN YANT INC.,
Defendant.
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MATSUMOTO, United States District Judge:
On April 4, 2013, the trustees and fiduciaries of the
Local 282 Welfare Trust Fund, the Local 282 Pension Trust Fund,
the Local 282 Annuity Trust Fund, the Local 282 Job Training
Trust Fund, and the Local 282 Vacation and Sick Leave Trust Fund
(the “Funds”) commenced this action against defendant Dan Yant
Inc.

(ECF No. 1, Complaint, 4/4/13.)

Defendant was served with

the Summons and Complaint on April 24, 2013.
Affidavit of Service, 3/12/14.)

(ECF No. 23,

Plaintiffs alleged that

defendant failed to make contributions to the Funds as required
by a collective bargaining agreement, thereby violating Section

515 of the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1145, as amended, and Section 301 of the
Labor Management Relations Act (“LMRA”), as amended, 29 U.S.C. §
185.

(Id.)
The clerk of court entered a certificate of default

against defendant on June 5, 2013, because it had failed to
appear or otherwise defend this action after being served with
process.

(ECF No. 7, Clerk’s Entry of Default, 6/5/13.)

Plaintiff moved for entry of default judgment against defendant
on July 26, 2013.
Judgment, 7/26/13.)

(ECF No. 8, Notice of Motion for Default
On October 7, 2013, the court referred the

motion for default judgment to Magistrate Judge Roanne L. Mann
for a Report and Recommendation.
10/7/13.)

(See Order Referring Motion,

On February 18, 2014, Magistrate Judge Mann issued a

Report and Recommendation (ECF No. 22, Report and Recommendation
(“R&R”), 2/18/14), in which she recommended that plaintiffs be
awarded judgment against defendant in the sum of $2,418.28 in
unpaid contributions, $1,300.00 in audit fees, $3,313.64 in
attorney’s fees and costs, prejudgment interest to be calculated
by the clerk of court upon entry of judgment for the time period
from September 1, 2008 to the entry of judgment using the
figures and formulas provided on pages 11-12 of the R&R, and
liquidated damages in an amount equal to the amount of

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prejudgment interest.

(Id. at 17.)

The R&R, which was mailed to defendant on February 27,
2014, notified the parties of the right to file written
objections, pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule
of Civil Procedure 72(b). (Id.)

The statutory period for filing

objections has now expired, and no objections to Magistrate
Judge Mann’s R&R have been filed.
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate.”
§ 636(b)(1)(C).

28 U.S.C.

Where no objection to the Report and

Recommendation has 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) (citations omitted)).
Upon a review of the Report and Recommendation, and
considering that the parties have failed to object to any of
Magistrate Judge Mann’s thorough and well-reasoned
recommendations, the court finds no clear error in Magistrate
Judge Mann’s Report and Recommendation and hereby affirms and
adopts the Report and Recommendation as the opinion of the
court.

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Accordingly, judgment should be entered for plaintiffs
and against defendant Dan Yant Inc. as follows: $2,418.28 in
unpaid contributions, $1,300.00 in audit fees, $3,313.64 in
attorney’s fees and costs, prejudgment interest from September
1, 2008 to the entry of judgment that is to be calculated upon
entry of judgment by the clerk of court using the formulas and
figures provided by Magistrate Judge Mann on pages 11-12 of the
R&R, and liquidated damages in an amount equal to the amount of
prejudgment interest.

The clerk of court is further

respectfully requested to mail a copy of the judgment and this
Order to defendant, note service on the docket, and to close
this case.
SO ORDERED.

Dated:

March 19, 2014
Brooklyn, New York

_______ ___/s/
Kiyo A. Matsumoto
United States District Judge

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