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. Getty Contracting, LLC

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Court has reviewed the record and, finding no clear error, adopts the well-reasoned R&R as the opinion of the Court. Accordingly, the claims brought on behalf of plaintiffs Local 15C and Local 15D and their related employee fringe benefit trust funds are dismissed. The Court grants Plaintiffs' motion for default judgment against Getty and orders Getty to promptly submit to an audit for the period July 1, 2013 through March 31, 201 8, and produce payroll records, including Tax Forms 941, quarterly payroll tax forms (NYS-45), corporate payroll records, cash disbursement records, W-2 tax forms, payroll reports, and cancelled checks. (see order for details) Ordered by Judge Carol Bagley Amon on 12/11/2018. (fwd for judgment) (Fernandez, Erica)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

THE ANNUITY, WELFARE AND
APPRENTICESHIP SKILL IMPROVEMENT
& SAFETY FUNDS OF THE
INTERNATIONAL UNION OF OPERATING

FILED
IN CLERK'S OFFICE

U.S. DISTRICT COURT E D.N.Y.

5 DEC 1 2 2018 5

ENGINEERS,LOCAL 15,15A, I5C & 15D,

AFL-CIO, By Their Trustees JAMES T.
CALLAHAN,THOMAS A. CALLAHAN,

BROOKLYN OFFICE

MICHAEL SALGO and DENISE M.

RICHARDSON;CENTRAL PENSION FUND
OF THE INTERNATIONAL UNION OF

OPERATING ENGINEERS,By Its Chief

NOT FOR PUBLICATION

Executive Officer MICHAEL A. CRABTREE;

ORDER

INTERNATIONAL UNION OF OPERATING

18-CV-1450(CBA)
(RLM)

ENGINEERS LOCAL 15,15A, 15C & 15D,

AFL-CIO, By Its President & Business
Manager THOMAS A. CALLAHAN,
Plaintiffs,

-againstGETTY CONTRACTING,LLC,
Defendant.
-X

AMON,United States District Judge:

Plaintiffs the International Union of Operating Engineers Local 15,15A,15C and 15D (the

"Union"), various employee fringe benefit trust funds ofthe Union, and the Central Pension Fimd
of the International Union of Operating Engineers bring this suit against defendant Getty
Contracting, LLC pursuant to the Employee Retirement Income Security Act of 1974, as amended,
29 U.S.C. § 1001 et seq.("ERISA"), and Section 301 ofthe Labor Management Relations Act of
1947, as amended, 29 U.S.C. § 185 et sea.("LMRA"). (D.E. # 1 ("Compl.").) Through their
trustees and officers. Plaintiffs seek to compel an audit of Getty's books and records to determine
whether benefit contributions were properly paid and to recover any delinquent contributions, as
1

well as interest, statutory damages, and costs and fees. (Id) Plaintiffs have moved for default
judgment against Getty. (D.E.# 8.) The Court referred the motion to the Honorable Roanne L.

Mann, United States Chief Magistrate Judge, who thereafter submitted a Report and
Recommendation ("R&R") recommending that the Court grant Plaintiffs motion for default
judgment against Getty. (D.E.# 18.)

No party has objected to the R&R,and the time for doing so has passed. When deciding

whether to adopt a report and recommendation, a 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). To accept those portions ofthe R&R to which no timely objection has been made,"a
district court need only satisfy itself that there is no clear error on the face of the record." Jarvis
V. N. Am.Globex Fund. L.P.. 823 F. Supp.2d 161,163(E.D.N.Y. 2011)(internal quotation marks
and citation omitted).

The Court has reviewed the record and, finding no clear error, adopts the well-reasoned
R&R as the opinion of the Court. Accordingly, the claims brought on behalf of plaintiffs Local

15C and Local 15D and their related employee fringe benefit trust funds are dismissed. The Court
grants Plaintiffs' motion for default judgment against Getty and orders Getty to promptly submit
to an audit for the period July 1, 2013 through March 31, 2018, and produce payroll records,
including Tax Forms 941, quarterly payroll tax forms(NYS—45), corporate payroll records, cash

disbursement records, W-2 tax forms, payroll reports, and cancelled checks. Plaintiffs may move
to reopen this case following an audit to seek an amended judgment against Getty for any

deficiency and related damages. Plaintiffs' request for fees and costs is denied without prejudice
to renewal thereof upon completion ofthe audit and any ensuing inquest proceeding.

The Court directs the Clerk of Court to close this case and to transmit a copy of this order
to Getty at the following address:
Getty Contracting, LLC
7 Block Alley
Monroe,NY 10950

SO ORDERED.

Dated: December // ,2018
Brooklyn, New York

s/Carol Bagley Amon
Carol Ba

United States Efetrict Judge