Flanagan, as a Trustee of the General Building Laborers' Local 66 Pension Fund et al

Filing 29

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION - For the foregoing reasons, the Court SUSTAINS IN PART and OVERRULES IN PART Plaintiffs' objections, ADOPTS Judge Lindsay's Second R&R IN PART, and DENIES Plaintiffs' request for damages. The Clerk of the Court is directed to enter Judgment consistent with this Memorandum and Order and the Court's Memorandum and Order dated January 26, 2012 and to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 9/21/2012. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
STEPHEN FLANAGAN, as a Trustee of the
GENERAL BUILDING LABORERS’ LOCAL 66
PENSION FUND; STEPHEN FLANAGAN, as a
Trustee of the GENERAL BUILDING
LABORERS’ LOCAL 66 WELFARE FUND;
STEPHEN FLANAGAN, as a Trustee of the
GENERAL BUILDING LABORERS’ LOCAL 66
ANNUITY FUND; STEPHEN FLANAGAN, as a
Trustee of the GENERAL BUILDING
LABORERS’ LOCAL 66 LABORERS’ EMPLOYER
COOPERATIVE AND EDUCATIONAL TRUST
FUND; STEPHEN FLANAGAN, as a Trustee
of the GENERAL BUILDING LABORERS’
LOCAL 66 GREATER NY LABORERS’ EMPLOYER
COOPERATIVE AND EDUCATIONAL TRUST
FUND; STEPHEN FLANAGAN, as a Trustee
of the GENERAL BUILDING LABORERS’
LOCAL 66 TRAINING PROGRAM; STEPHEN
FLANAGAN, as a Trustee of the GENERAL
BUILDING LABORERS’ LOCAL 66 NEW YORK
STATE HEALTH AND SAFETY FUND; STEPHEN
FLANAGAN, as Business Manager of
GENERAL BUILDING LABORERS’ LOCAL UNION
NO. 66 of the LABORERS’ INTERNATIONAL
UNION OF NORTH AMERICA, AFL-CIO,

FILED 
CLERK 

9/21/2012 3:55 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

MEMORANDUM & ORDER
09-CV-1250(JS)(ARL)

Plaintiffs,
-againstM.N.T. DEVELOPMENT CORP. and ANDREW
ANTONACCI,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Alicia M. Menechino, Esq.
Law Offices of William T. LaVelle, P.C.
The LaVelle Building
57 East Main Street
Patchogue, NY 11772
For Defendants:

No appearances.

SEYBERT, District Judge:
Pending before the Court is Magistrate Judge Arlene R.
Lindsay’s second Report and Recommendation (the “Second R&R”) in
this action, recommending that Plaintiffs’ request for damages
be denied.

For the following reasons, Plaintiffs’ objections to

Judge Lindsay’s Second R&R are SUSTAINED IN PART and OVERRULED
IN PART, Judge Lindsay’s Second R&R is ADOPTED IN PART, and
Plaintiffs’ request for an award of damages is DENIED.
BACKGROUND
The
facts

of

this

Court
case

Lindsay’s Second R&R.

assumes
which

familiarity

are

described

with

the

in

detail

underlying
in

Judge

The Court will only discuss the relevant

procedural history.
Plaintiffs commenced this action on March 25, 2009
against M.N.T. Development Corp. (“MNT”) and Andrew Antonacci
(“Antonacci”) alleging violations of Section 515 of the Employee
Retirement Income Security Act (“ERISA”), codified as 29 U.S.C.
§ 1145.

(Docket Entry 1.)

After multiple extensions of time

(and one Notice of Impending Dismissal for lack of prosecution)
(Docket Entries 2, 4, 7-8), Plaintiffs served the Summons and
Complaint on MNT and Antonacci in November 2009 and January 2011
respectively (Docket Entries 5, 9).

Neither MNT nor Antonacci

answered or otherwise responded to the Complaint.

2

Eight
moved

months

simultaneously

judgment.

later,

for

an

on

August

entry

of

(Docket Entry 10.)

29,

2011,

default

Plaintiffs

and

a

default

On August 31, 2011, the Clerk of

the Court noted the default (Docket Entry 11), and on September
22, 2011, the Court referred Plaintiffs’ motion for a default
judgment to Judge Lindsay for an R&R (Docket Entry 12).

On

December 13, 2011, Judge Lindsay issued an R&R (the “First R&R”)
(Docket Entry 17), recommending that Plaintiffs’ motion for a
default judgment against MNT be granted and that Plaintiffs’
claims against Antonacci be dismissed.

Flanagan v. M.N.T. Dev.

Corp., No. 09-CV-1250, 2011 WL 6955892, at *2-3 (E.D.N.Y. Dec.
13,

2011).

Judge

Lindsay

also

recommended

that

Plaintiffs’

request for an award of damages be denied with leave to renew
because Plaintiffs had failed to provide the Court with a signed
copy of the operative collective bargaining agreement or with
notarized affidavits.

Id. at *3.

No party objected to Judge Lindsay’s First R&R, and
this

Court

(Docket

adopted

Entry

18),

it

in

its

entirety

dismissing

all

on

claims

January
against

26,

2012

Antonacci.

Flanagan v. M.N.T. Dev. Corp., No 09-CV-1250, 2012 WL 28299, at
*1 (E.D.N.Y. Jan. 5, 2012).

The Court granted Plaintiffs until

January 31, 2012 to renew their request for damages against MNT
“by filing a signed copy of the collective bargaining agreement
and proper affidavits as outlined in Judge Lindsay’s [First]
3

R&R.”

Id.

Plaintiffs were warned that the Court would not

accept any late submissions, as the case had already suffered
from inordinate delay.

Id.

On January 31, 2012, Plaintiffs renewed their motion
for damages against MNT by filing an affidavit (the “Original
Menechino Affidavit”) signed under penalty of perjury attaching
a signed copy of the collective bargaining agreement and various
other

exhibits.

attached

(Docket

exhibits

19.)

However,

filed

were

Entry

three

in

error--i.e.,

of

the

Plaintiffs

mistakenly submitted paystubs and other payroll information for
an entirely different lawsuit.
B, F.)

(Original Menechino Aff. Exs. A-

The Court referred Plaintiffs’ renewed motion to Judge

Lindsay for an R&R on February 1, 2012.
On

February

3,

2012,

(Docket Entry 21.)

notwithstanding

this

Court’s

warning that submissions filed after January 31, 2011 would not
be

accepted,

Judge

Lindsay

issued

an

order

directing

and

encouraging Plaintiffs to file supplemental papers in support of
their damages claim.

(Docket Entry 22.)

Plaintiffs

submitted

a

Menechino

Affidavit”)

supplemental

attaching

the

On February 10, 2012,

affidavit
proper

(the

Exhibits

“Amended
A

and

B

(Docket Entry 23) and a Memorandum in Support (Docket Entry 24).
On August 7, 2012, Judge Lindsay issued her Second R&R
recommending that the Court deny Plaintiffs’ renewed request for
damages against MNT because: (1) “[d]espite the court’s warning
4

that

no

late

submissions

would

be

accepted,”

Plaintiffs

submitted the Amended Menechino Affidavit in an attempt to cure
the fatal defects in the Original Menechino Affidavit after this
Court’s January 31, 2011 deadline “without permission from the
court” (Second R&R at 3), or (2) in the alternative, even if the
Court

considered

Plaintiffs’
impossible

the

untimely

submissions
for

the

are

court

to

Amended

“replete

Menechino

with

determine

Affidavit,

error

it

proper

the

making
amount

of

objections

to

damages to be awarded” (Second R&R at 4).
On

August

20,

2012,

Judge Lindsay’s Second R&R.

Plaintiffs

filed

(Docket Entry 27.)
DISCUSSION

I.

Standard of Review
“When evaluating the report and recommendation of a

magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are
not facially erroneous.”

Walker v. Vaughan, 216 F. Supp. 2d

290, 291 (S.D.N.Y. 2002) (citation omitted).

A party may serve

and file specific, written objections to a magistrate's report
and recommendation within fourteen days of being served with the
recommended disposition.
receiving

any

recommendation,

timely
the

See FED. R. CIV. P. 72(b)(2).

objections

district

to

“court

the
may

magistrate
accept,

Upon
judge's

reject,

or

modify, in whole or in part, the findings or recommendations
5

made by the magistrate judge.”
FED. R. CIV. P. 72(b)(3).
recommendation

must

28 U.S.C. § 636(b)(1); see also

A party that objects to a report and

point

out

the

specific

portions

report and recommendation to which they object.

of

the

See Barratt v.

Joie, No. 96–CV–0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4,
2002) (citation omitted).
When

a

party

raises

an

objection

to

a

magistrate

judge's report, the Court must conduct a de novo review of any
contested sections of the report.

See 28 U.S.C. § 636(b)(1);

Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991).

But

if a party “makes only conclusory or general objections, or
simply reiterates his original arguments, the Court reviews the
Report and Recommendation only for clear error.”
Entegris,

Inc.,

249

F.R.D.

48,

51

(E.D.N.Y.

Pall Corp. v.
2008)

(internal

quotation marks and citation omitted).

Furthermore, even in a

de

objections,

novo

review

ordinarily

will

evidentiary
presented

a

not

material
to

Kennedy

of

v.

the
Adamo,

party's

specific

consider
which

could

magistrate
No.

“arguments,
have

judge

02–CV–1776,

been

in
2006

the
WL

case
but
first

the
law

court
and/or

[were]

not,

instance.”

3704784,

at

*1

(E.D.N.Y. Sept. 1, 2006) (internal quotation marks and citation
omitted).

6

II.

Plaintiffs’ Objections
Plaintiffs’ objections to Judge Lindsay’s Second R&R

are as follows:

(1) Judge Lindsay should not have rejected the

Amended Menechino Affidavit as untimely, (2) the inclusion of
irrelevant exhibits should not preclude an award of damages, and
(3) the discrepancies in Plaintiffs’ affidavits and documentary
support are not so “replete with error” as to make it impossible
to calculate damages.
objections,

the

Court

Because Plaintiffs have filed specific
must

conduct

a

de

novo

review

of

Plaintiffs’ application for damages.
A.

Timeliness
Plaintiffs argue that the Amended Menechino Affidavit

“should be accepted as it only amended Exhibit A and Exhibit B
to

replace

erroneously

submitted

original Menechino Affidavit.

exhibits”

(Pls. Objs. 2.)1

attached

to

the

In other words,

because there was no substance to the amendments, they should
not be precluded.

The Court disagrees.

This Court’s January

26, 2012 Memorandum and Order could not have been clearer:
late submissions will be accepted.”

“No

Flanagan v. M.N.T. Dev.

Corp., 2012 WL 28299, at *1.
Nonetheless,
objection.

the

Court

must

sustain

Plaintiffs’

Notwithstanding the clear prohibition against late

1

Plaintiffs failed to number the pages of their objections, so
the Court’s citations are to the page numbers inserted by ECF.
7

submissions in this Court’s Order, Judge Lindsay’s February 3,
2012 Order “directed” plaintiffs “to serve and file supplemental
papers

in

support

of

its

(Docket Entry 22, at 1.)

damages

claim

by

March

5,

2012.”

Thus, the Amended Menechino Affidavit,

which was filed on February 10, 2012, was filed within the time
prescribed by Judge Lindsay and will not be precluded as timebarred.
B.

Errors and Inconsistencies in Plaintiffs’ Submissions
Plaintiffs

also

argue

that

Judge

Lindsay

erred

in

concluding that the errors and inconsistencies in the Amended
Menechino Affidavit and the exhibits attached thereto should not
preclude an award of damages because the discrepancies are only
minor.

The Court disagrees.
Every document and/or exhibit submitted by Plaintiffs

in

support

of

its

request

different information.

for

an

award

of

damages

includes

The Complaint alleges that MNT failed to

make payments owed to Plaintiffs pursuant to their collective
bargaining agreement in the following amounts:
Local
Local
Local
Local
Local
Local
Local
Local

66
66
66
66
66
66
66
66

Pension Plan:
Welfare Plan:
Annuity Plan:
LECET Fund:
Greater NY LECET Fund:
Training Fund:
Health and Safety Fund:
District Council:

8

$3,835.05
$5,727.30
$2,863.65
$56.15
$123.53
$140.38
$28.08
$954.55

(Compl. at 9.)

This totals $13,728.69.

The Complaint does not

state that these payments related to a particular period of
time,

nor

does

employees.

it

state

that

they

relate

to

particular

The Amended Menechino Affidavit also states that MNT

was delinquent $13,728.69 and adds that this amount covered the
period between March 1, 2008 and June 7, 2008.
Aff. ¶ 6.)

(Am. Menechino

The Amended Menechino Affidavit does not mention

specific employees.

It does state, however, that “[c]opies of

the payroll and paystubs for the time period sought [t]herein
are annexed [t]hereto as Exhibit ‘A’” and that “[c]opies of the
spreadsheets generated pursuant to the receipt of said payroll
and paystubs and setting forth the amounts due for per [sic]
fund

per

each

time

period

[t]hereto as Exhibit ‘B.’”

and

per

each

laborer

are

(Am. Menechino Aff. ¶ 5.)

annexed

Exhibit A

contains paystubs for Carlos Goncalves, Sr. for the period of
April 6, 2008 through June 7, 2008, and a paystub for Carlos A.
Goncalves for the period of May 11, 2008 through May 17, 2008.
It also includes weekly payroll charts for Carlos Goncalves,
Phillip Mosley, Jose Mendes, Carlos Goncalves, Sr., Robert Bile,
Timothy Brown, Raul Quinones, Alberto Mendez, and Tom D’atre for
the period of January 5, 2008 through April 26, 2008.

Exhibit B

contains a spreadsheet purporting to document the hours worked
by Carlos Goncalves between January 5, 2008 and April 26, 2008,
the hours worked by Jose Mendes between January 5, 2008 and
9

April 19, 2008, and the hours worked by Carlos Goncalves, Sr.
between May 3, 2008 and June 7, 2008.

Thus the Court is left

guessing what time period and which employees are covered under
the Complaint.
Plaintiffs assert in their objections for the first
time exactly what they are seeking in damages:
For the period from January 1, 2008 through
April 26, 2008, amounts are due as to Carlos
Goncalves Jr. and Jose Mendes for work they
performed as set forth in the weekly payroll
logs
which
were
submitted
as
Exhibit
A . . . .
For the period from April 26, 2008 through
June 7, 2008, amounts are due as to Carlos
Goncalves Sr. for work he performed as set
forth in paystubs which were also submitted
as Exhibit A . . . .
(Pls.

Objs.

5.)

While

this

clearly

explains

exactly

what

Plaintiffs are seeking in damages, the Court will not consider
new arguments or new evidence not presented to the magistrate
judge.

See Zhao v. State Univ. of N.Y., No. 04-CV-0210, 2011 WL

3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established
law that a district judge will not consider new arguments raised
in objections to a magistrate judge’s report and recommendation
that could have been raised before the magistrate but were not.”
(internal

quotation

marks

and

citation

omitted)).

This

information should have been laid out in Plaintiffs’ initial
submission.

Plaintiffs’ failure to articulate in the Amended

10

Menechino Affidavit (or in any properly filed document submitted
in support of their request for damages) how they arrived at the
$13,728.69 damages figure is fatal to their request for damages,
as it is not the Court’s duty “to ferret through sloppy records
in search of evidence supporting a party’s case.”

Mercado-

Alicea v. P.R. Tourism Co., 396 F.3d 46, 51 (1st Cir. 2005).
Accordingly, Plaintiffs’ remaining objections are overruled.
CONCLUSION
For the foregoing reasons, the Court SUSTAINS IN PART
and

OVERRULES

IN

PART

Plaintiffs’

objections,

ADOPTS

Judge

Lindsay’s Second R&R IN PART, and DENIES Plaintiffs’ request for
damages.
The Clerk of the Court is directed to enter Judgment
consistent

with

this

Memorandum

and

Order

and

the

Court’s

Memorandum and Order dated January 26, 2012 and to mark this
matter CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September
21 , 2012
Central Islip, NY

11