Copper et al v. Cavalry Staffing, LLC et al

Filing 301

MEMORANDUM and ORDER ADOPTING REPORT AND RECOMMENDATION: No such error appears here. Accordingly, the Court adopts the Report and Recommendation 298 without de novo review and directs the Clerk to enter judgment in accordance with the Report and Recommendation. The motion 280 for default judgment is Granted. Ordered by Judge Frederic Block on 8/25/2021. (Innelli, Michael)

Case 1:14-cv-03676-FB-RLM Document 301 Filed 08/25/21 Page 1 of 3 PageID #: 1785

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DEREK COPPER, et. al.
Plaintiffs,
-againstMEMORANDUM AND ORDER

CAVALRY STAFFING, LLC, et al.,
Defendant.
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Case No. 1:14-cv-3676-FB

BORRELLI & ASSOCIATES, P.L.L.C.,
Third-party Plaintiff,
-againstFLEET STAFF, INC. and RONALD E.
HEINEMAN,
Third-party Defendants.
---------------------------------------------------x

BLOCK, Senior District Judge:
On July 27, 2021, Magistrate Judge Roanne L. Mann issued a Report and
Recommendation (“R&R”) recommending that the motion for default judgement
filed by third-party plaintiff Borrelli & Associates, P.L.L.C. (“B&A”) be granted
and that B&A be awarded judgment in the amount of $229,816.77, plus prejudgment interest at the rate of nine percent per annum from June 28, 2019 through
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the date of entry of final judgment, and post-judgment interest pursuant to 28 U.S.C.
§ 1961(a). Magistrate Judge Mann also concluded that both third-party defendant
Fleet Staff, Inc. (Fleet) and third-party defendant Ronald E. Heineman
(“Heineman”) are liable for the awarded judgement.
On a motion for default judgment, factual allegations that the plaintiff makes
in the complaint must be sufficient to establish a right to relief. See City of New York
v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011). Magistrate Judge
Mann concluded that B&A established an action for breach of contract by adequately
pleading: (1) the existence of a contract between third-party defendant Fleet and
Cavalry Staffing, LLC, et. al. (“Cavalry”); (2) performance of the contract by
Cavalry; (3) breach of the contract by Fleet by failing to pay the balance of damages
owed in this action; and (4) damages suffered by B&A because of the breach. See
Orlander v. Staples, Inc., 802 F.3d 289, 294 (2d Cir. 2015) (listing elements of
breach of contract).
In addition, Magistrate Judge Mann concluded that Heineman, the owner and
CEO of Fleet, is jointly and severally liable in his personal capacity for Fleet’s
breach of contract. Under New York law, the corporate veil may be pierced if an
individual exercised control over the corporation with respect to the transaction at
issue, and this control was used to commit the wrong for which damages are sought.
See MAG Portfolio Consult, GMBH v. Merlin Biomed Grp. LLC, 268 F. 3d 58, 63
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(2d Cir. 2001). Heineman exercised complete dominion over Fleet by intermingling
the corporation’s funds with his personal funds and by transacting for Fleet at his
sole discretion.
If clear notice has been given of the consequences of failing to object and
there are no objections, the Court may adopt the R&R without de novo review. See
Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015) (“Where parties receive clear
notice of the consequences, failure to timely object to a magistrate's report and
recommendation operates as a waiver of further judicial review of the magistrate's
decision.”) (internal citations omitted). The Court will excuse the failure to object
and conduct de novo review if it appears that the magistrate judge may have
committed plain error. See Spence v. Superintendent, Great Meadow Corr. Facility,
219 F .3d 162, 174 (2d Cir. 2000). No such error appears here. Accordingly, the
Court adopts the R&R without de novo review and directs the Clerk to enter
judgment in accordance with the R&R.

SO ORDERED.

__/S/ Frederic Block_________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
August 25, 2021
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