Ferrara et al v. CMR Contracting LLC et al

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS: So Ordered that 32 Judge Boyle's Report and Recommendation is adopted in its entirety. The Court awards the plaintiffs damages with respect to CMR Contracting LLC as follows: (I) $172,569.92 in u npaid employee benefit contributions; (2) $115,987.36 in interest, with additional interest to be calculated at a rate of $85.I 0 per day from January 20, 2012 through the date of judgment; (3) $115,987.36 in liquidated damages, with a dditional liquidated damages to be calculated at a rate of $85.10 per day from January 20, 2012 through the date of judgment; (4) audit fees in the amount of$700.00; (5) $9,618.00 in attorney's fees; and (6) $2,115.68 in cost s, for a total monetary award of $416,978.32, plus additional interest and liquidated damages. The Court also awards the plaintiffs damages with respect to L TU Industries as follows: (I) $11,272.04 in unpaid employee benefit contributions; (2) $5,192.60 in interest, with additional interest to be calculated at a rate of $5.56 per day from January 20, 2012 through the date of judgment; (3) $5,192.60 in liquidated damages, with additional liquidated damages to be calculat ed at a rate of$5.56 per day from January 20,2012 through the date of judgment; (4) audit fees in the amount of$3,1 09.88; (5) $8,482.00 in attorney's fees; and (6) $2,115.68 in costs, for a total monetary award of $35, 364.80, plus additional interest and liquidated damages, and it is further ORDERED, that the Clerk of the Court is directed to enter judgment in favor of the plaintiffs as set forth above, and it is further; ORDERED, that the Clerk of the Court is directed to close this case. Ordered by Senior Judge Arthur D. Spatt on 3/2/2012. (Padilla, Kristin) (Main Document 34 replaced on 3/6/2012, replaced due to clerical error) (Padilla, Kristin).

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-... FILED IN CLER!<,'S ~r-nrE US Oi.3TR!c:' (, .. D N.Y UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------------------------- )( JOSEPH A. FERRARA, SR., FRANK H. FINKEL, MARC HERBST, DENISE RICHARDSON, THOMAS F. CORBETT, A THONY D' AQUILA, THOMAS GESUALDI, LOUIS BISIGNANO, DOMINICK MARROCCO, and ANTHONY PIROZZI, as Trustees and Fiduciaries of the Local 282 Welfare Trust Fund, the Local 282 Pension Trust Fund, the Local 282 Annuity Trust Fund, the Local 282 Job Training Trust Fund, and the Loca1282 Vacation and Sick Leave Trust Fund, :ONG\~:~ ORDER 10-CV-5905 (ADS) (ETB) Plaintiffs, -vs.CMR CONTRACTING LLC, and LTV INDUSTRIES INC. alk/a L TU INDUSTRY INC., Defendants. ----------------------------------------------------------------------------)( APPEARANCES: Cohen, Weiss and Simon LLP Attorneys for the plaintiffs 330 W. 42"d Street, 25th Floor New York, NY I 0036 By: Michael Seth Adler, Esq. Joseph J. Vitale, Esq., Of Counsel NO APPEARANCE: CMR Contracting LLC L TU Industries Inc. alk/a L TU Industry Inc., SPATT, District Judge. On December 17, 20 I 0, the plaintiffs commenced this action against the defendants, CMR Contracting LLC ("CMR Contracting"), and L TU Industries Inc. alk/a L TU Industry Inc., ("L TU Industries" and collectively "the defendants") pursuant to Section 502 of the Employee Retirement Income Security Act of 1974, as amended, 29 U .S.C. § 1132, seeking to collect unpaid employee benefit contributions due under collective bargaining agreements entered into by the parties, as well as interest, liquidated damages, audit fees, and attorney's fees and costs. On April II, 2011, the Court entered a default judgment against the defendants and referred the matter to United States Magistrate Judge E. Thomas Boyle for an inquest as to damages, appropriate injunctive relief, attorney's fees and costs. On January 20,2012, Judge Boyle issued a Report and Recommendation, recommending that the Court award the plaintiffs damages with respect to CMR Contracting LLC as follows: (I) $172,569.92 in unpaid employee benefit contributions; (2) $115,987.36 in interest, with additional interest to be calculated at a rate of$85.10 per day through the date of judgment; (3) $115,987.36 in liquidated damages, with additional liquidated damages to be calculated at a rate of$85.10 per day through the date of judgment; (4) audit fees in the amount of$700.00; (5) $9,618.00 in attorney's fees; and (6) $2,115.68 in costs, for a total monetary award of $416,978.32, plus additional interest and liquidated damages. Judge Boyle further recommended that the Court award the plaintiffs damages with respect to LTU Industries as follows: (I) $11,272.04 in unpaid employee benefit contributions; (2) $5,192.60 in interest, with additional interest to be calculated at a rate of$5.56 per day through the date of judgment; (3) $5,192.60 in liquidated damages, with additional liquidated damages to be calculated at a rate of$5.56 per day through the date of judgment; (4) audit fees in the amount of$3,109.88; (5) $8,482.00 in attorney's fees; and (6) $2,115.68 in costs, for a total monetary award of $35,364.80, plus additional interest and liquidated damages. To date, there have been no objections filed to Judge Boyle's Report. In reviewing a report and recommendation, a 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)(l)(C). "To accept the report and recommendation of a magistrate, to which no timely 2 objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (citing Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)). The Court has reviewed Judge Boyle's Report and finds it to be persuasive and without any legal or factual errors. There being no objection to Judge Boyle's Report, it is hereby ORDERED, that Judge Boyle's Report and Recommendation is adopted in its entirety. The Court awards the plaintiffs damages with respect to CMR Contracting LLC as follows: (I) $172,569.92 in unpaid employee benefit contributions; (2) $115,987.36 in interest, with additional interest to be calculated at a rate of $85 .I 0 per day from January 20, 2012 through the date of judgment; (3) $115,987.36 in liquidated damages, with additional liquidated damages to be calculated at a rate of $85 .I 0 per day from January 20, 20 12 through the date of judgment; (4) audit fees in the amount of$700.00; (5) $9,618.00 in attorney's fees; and (6) $2,115.68 in costs, for a total monetary award of $416,978.32, plus additional interest and liquidated damages. The Court also awards the plaintiffs damages with respect to LTU Industries as follows: (I) $11,272.04 in unpaid employee benefit contributions; (2) $5,192.60 in interest, with additional interest to be calculated at a rate of$5.56 per day from January 20,2012 through the date of judgment; (3) $5,192.60 in liquidated damages, with additional liquidated damages to be calculated at a rate of $5.56 per day from January 20, 20 12 through the date of judgment; (4) audit fees in the amount of$3,109.88; (5) $8,482.00 in attorney's fees; and (6) $2,115.68 in costs, for a total monetary award of $35,364.80, plus additional interest and liquidated damages, and it is further ORDERED, that the Clerk of the Court is directed to enter judgment in favor of the plaintiffs as set forth above, and it is further 3 .-- ORDERED, that the Clerk of the Court is directed to close this case. SO ORDERED. Dated: Central Islip, New York March 2, 2012 Is/ Arthur D. Spatt ARTHUR D. SPATT United States District Judge 4

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