Trustees of the Elevator Constructors Union Local No. 1 Annuity and 401(k) Fund et al v. Keystone Iron & Wire Works, Inc.

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Memorandum & Order, plaintiffs' motion for default judgment is GRANTED, and judgment shall be entered against defendant Keystone Iron & Wire Works, Inc. for a total of $31,923.06 for damages, interest, attorneys' fees and costs. The clerk of court is respectfully requested to enter judgment in favor of plaintiffs and close this case. Plaintiffs' counsel shall serve a copy of this Memorandum & Order and the Judgment on defendant, and note service on the docket by April 3, 2017. Ordered by Judge Kiyo A. Matsumoto on 3/31/2017. (Newman, Alanna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------- X
TRUSTEES OF THE ELEVATOR
CONSTRUCTORS UNION LOCAL NO. 1
ANNUITY AND 40l(k) FUND, and
TRUSTEES OF THE ELEVATOR
CONSTRUCTORS UNION LOCAL NO. 1
EDUCATION AND APPRENTICE TRAINING
FUND,
Plaintiffs,

ORDER ADOPTING REPORT
AND RECOMMENDATION
16-cv-239 (KAM)(LB)

-againstKEYSTONE IRON & WIRE WORKS, INC.,
Defendant.
-------------------------------------X
MATSUMOTO, United States District Judge:
On January 15, 2016, plaintiffs Trustees of the Elevator
Constructors Union Local No. 1 Annuity and 401(k) Fund (the
“Annuity Fund”), and Trustees of the Elevator Constructors Union
Local No. 1 Education and Apprentice Training Fund (the “Education
Fund”) (collectively, the “Funds” or “plaintiffs”), commenced this
action

against

(“defendant”).

defendant

Keystone

Iron

&

Wire

Works,

(See ECF No. 1, Complaint, dated 1/15/2016.)

Plaintiffs filed an Amended Complaint on May 24, 2016.
No.

10,

Amended

Inc.

Complaint

(“Am.

Compl.”),

dated

(See ECF

5/24/2016.)

Plaintiffs allege that defendant failed to make contributions to
the Funds between January 2016 and April 2016, as required by a
collective bargaining agreement, and seek to recover delinquent

contributions

pursuant

to

Sections

502(a)(3)

and

515

of

the

Employee Retirement Income Security Act (“ERISA”), as amended, 29
U.S.C. §§ 1132(a)(3) and 1145, and Section 301 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. § 185.

(Am. Compl.

at ¶ 1.)
On February 16, 2016, plaintiffs requested a certificate
of default against defendant, on the basis that defendant failed
to plead or otherwise defend in the instant action.

(ECF Nos. 6-

7, Requests for Certificate of Default, dated 2/16/2016.)
was entered against defendant on February 17, 2016.
Entry of Default, dated 2/17/2016.)
complaint on May 24, 2016.

Default

(ECF No. 8,

Plaintiffs filed an amended

(ECF No. 10, Am. Compl.)

On June 29,

2016, after defendant again failed to timely respond to the Amended
Complaint, plaintiffs requested a certificate of default (ECF No.
12, Request for Default, dated 6/29/2016), and default was entered
against defendant on July 18, 2016.
dated 7/18/2016.)

(ECF No. 13, Entry of Default,

Plaintiffs moved for entry of default judgment

against defendant on July 19, 2016, seeking default judgment,
damages, attorneys’ fees and costs.

(ECF No. 14, Motion for

Default Judgment.)
On

October

7,

2016,

the

court

referred

plaintiff’s

motion for default judgment to Magistrate Judge Lois Bloom for a

2

Report and Recommendation (“R&R”).
dated 10/7/2016.)

(See Order Referring Motion,

On December 13, 2016, Judge Bloom ordered

plaintiffs to supplement their motion with supporting affidavits
and documentation regarding defendant’s liability and the basis
for calculating the damages sought.
Order,

dated

memorandum

of

documents

12/13/2016.)
law

on

Plaintiffs

supported

December

(See ECF No. 17, Scheduling

by

28,

filed

supplemental

2016.

a

supplemental

affidavits

and

ECF

18,

(See

No.

Affidavit/Declaration in Support re Motion for Default Judgment;
ECF No. 19, Affidavit/Declaration in Support re Motion for Default
Judgment; ECF No. 20, Memorandum in Support re Motion for Default
Judgment.)
On January 30, 2017, Judge Bloom issued an R&R, in which
she

recommended

defendant

in

that

the

plaintiffs

total

amount

be

awarded

judgment

of

$31,501.26,

against

comprised

of

$21,862.89 in unpaid contributions, $2,007.92 in interest on the
unpaid contributions to the Annuity Fund, $4,323.57 in liquidated
damages, $2,763.00 in attorneys’ fees, and $543.88 in costs, plus
$7.03 in daily interest on the unpaid contributions to the Annuity
Fund from January 31, 2017 through the date that judgment is
entered.

(ECF No. 21, Report and Recommendation (“R&R”), dated

1/30/2017, at 17.)

3

The R&R, which was served on defendant by certified mail
on February 1, 2017 (ECF No. 22, Affidavit of Service for Report
and Recommendation, dated 2/2/2017), 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).

(R&R at 17.)

To date,

defendant has not answered or otherwise responded to the Amended
Complaint, nor did defendant respond to the instant motion or
object to the R&R, despite having been served.

The statutory

period for filing objections has now expired.
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 judge.”

28

U.S.C. § 636(b)(1)(C). Where “no or merely perfunctory objections”
to the Report and Recommendation have been filed, however, the
district court reviews for clear error.

Caires v. Jp Morgan Chase

Bank N.A., No. 16-cv-2694, 2017 WL 384696, at *1 (S.D.N.Y. January
27, 2017).

The district court is permitted “to adopt those

sections of a magistrate judge’s report to which no specific
objection is made, so long as those sections are not facially
erroneous.”

S.E.C. v. Nadel, No. 11-cv-215, 2016 WL 4718188, at

*2 (E.D.N.Y. September 9, 2016) (citations omitted).
Upon a review of the Report and Recommendation, and

4

considering that the parties have failed to object to any of Judge
Bloom’s thorough and well-reasoned recommendations, the court
finds no clear error in the R&R and hereby affirms and adopts the
R&R in its entirety.
Accordingly, plaintiffs’ motion for default judgment is
granted, and judgment shall be entered against defendant for a
total

of

$31,923.06,

comprised

of:

$21,862.89

in

unpaid

contributions; $2,007.92 in interest on the unpaid contributions
to the Annuity Fund; $4,323.57 in liquidated damages; $2,763.00 in
attorneys’ fees; $543.88 in costs; and an additional $421.80 in
interest at the per diem rate of $7.03, on the unpaid contributions
to the Annuity Fund from January 31, 2017 to the date of judgment.1
The clerk of court is respectfully requested to enter judgment in
favor of plaintiffs and close this case.

SO ORDERED.
Dated:

March 31, 2017
Brooklyn, New York
_______ ___/s/
Kiyo A. Matsumoto
United States District Judge

The court’s calculation of additional interest begins on January 31, 2017,
the next date after Judge Bloom’s R&R, which calculated interest through
January 30, 2017. (See R&R at 17.)
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