The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO et al v. Bar-Mac Construction, Inc.

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS, Since no objection has been filed by any party, and time to do so has passed, and after careful review of the record, the Court finds the R&R to be correct, well-reasoned, and free of any clear error. The C ourt, therefore, adopts the R&R as the opinion of the Court. Accordingly, the Clerk of Court is directed to enter default, pursuant to FRCP 55(b) in favor of the Operating Engineers, and directs deft Bar-Mac to produce books and records and otherwise cooperate in an audit for the time period from 9/11/14 through 3/31/16. As recommended by Magistrate Judge Kuo, pltffs are granted leave to seek an amended judgment if the audit reveals deficient contributions. Additionally, attorney's fees and costs in the amount of $3,165 are awarded to pltffs. The Clerk of Court is further directed to close this case for administrative purposes. (Ordered by Judge Eric N. Vitaliano on 4/12/2017) c/m Fwd. for Judgment. (Galeano, Sonia)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------------- " THE ANNUITY, WELFARE AND APPRENTICESHIP SKILL IMPROVEMENT & SAFETY FUNDS OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL IS, ISA, ISC & ISD, AFL-CIO, CENTRAL PENSION FUND OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS, and INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL IS, ISA, ISC & ISD, AFL-CIO, MEMORANDUM & 0 ER I 6-CV- I 66 I (ENV)( K) Plaintiffs, -againstBAR-MAC CONSTRUCTION, INC., Defendant. --------------------------------------------------------------------- " VITALIANO, D.J. On April 6, 20I6, plaintiffs the Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local I S, 1 ISA, ISC & ISD, AFL-CIO, Central Pension Fund of the International Union of Operating Engineers, and International Union of Operating Engineers Local IS, I SA, I SC & I SD, AF CIO ("Local IS") (collectively, "Operating Engineers"), brought this action against defend t Bar-Mac Construction, Inc. ("Bar-Mac"), pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § IOOI, et seq. and§ 30I of the Labor Management Relations Act of I947 ("LMRA"), 29 U.S.C. § 18S, et seq. I To cut to the heart of it, Local 15 and Bar-Mac are parties to a collective bargaining I I agreement ("CBA") that requires Bar-Mac, an employer, to make certain payments to trust funds maintained by the Operating Engineers. See Dkt. No. 1 ("Compl.") at 4. The Op~rati g Engineers seek, inter alia, an order compelling an audit of Bar-Mac and, in the event a deficiency is revealed, for appropriate monetary relief. Plaintiffs report that, to date, Bar-M c has refused to produce books and records so that an audit may be conducted in accordance with the CBA. Id. at 6. Bar-Mac has not appeared or otherwise responded to the complaint ·n this action. On June 14, 2016, the Operating Engineers moved for default judgment as authorize by Federal Rule of Civil Procedure 55(b) against Bar-Mac, seeking an order (i) compelling Bar-Mac to cooperate with an audit covering the period from September 11, 2014 through March 31, 2016; (ii) permitting them, once the audit is completed, to collect any outstandin I I contributions, and (iii) providing attorney's fees and costs. Dkt. No. 8. That motion wa~ i respectfully referred to Magistrate Judge Peggy Kuo on June 20, 2016, for an assessment of I I liability, an inquest as to damages, and a Report and Recommendation ("R&R") as to h~r findings. Magistrate Judge Kuo's R&R issued on March 13, 2017, which recommended th I the motion be granted in its entirety. Dkt. No. 15. The R&R gave appropriate notice that objection had to be filed within 14 days of service. 1 To date, much less in a timely fashion, no party has filed an objection. The Court now adopts the R&R as the opinion of the Court Plaintiffs mailed a copy of the R&R to defendant via certified mail on March 13, 2017. See Dkt. No. 16; Fed. R. Civ. P. 5(b)(2)(C) (service complete upon mailing). 2 Standard of Review In reviewing a report and recommendation of a magistrate judge, a district court 'fma accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). Further, a district judge is required to "determine de novo any part of the magistrate judge's disposition that has been properly objected to.;' Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(l); Arista Records, LLC v. Doe 3, 604 F.3d 110, 115-16 (2d Cir. 2010). But, where no timely objection has been made, which is th case here, a "district court need only satisfy itself that there is no clear error on the face of th record" to accept a magistrate judge's Report and Recommendation, Gesualdi v. Mack Excavation & Trailer Serv., Inc., No. 09-CV-2502 (KAM) (JO), 2010 WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010) (citation and internal quotations omitted), and "may adopt those portions of the [r]eport ... which are not facially erroneous[,]" Price v. City ofNew York, 797 F. Supp. 2d 219, 223 (E.D.N.Y. 2011) (citation omitted). Conclusion Since no objection has been filed by any party, and the time to do so has passed, and after careful review of the record, the Court finds the R&R to be correct, well-reasoned, and free of any clear error. The Court, therefore, adopts the R&R as the opinion of the Court. Accordingly, the Clerk of Court is directed to enter default judgment, pursuant to Federal Rule of Civil Procedure 55(b) in favor of the Operating Engineers, and directs defendant Bar-Mac to produce books and records and otherwise cooperate in an audit for the time period from September 11, 2014 through March 31, 2016. As recommended by Magistrate Judge Kuo, plaintiffs are granted leave to seek an amended judgment if the a~dit I 3 /s/ USDJ ERIC N. VITALIANO

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