Gesualdi et al v. Specialty Flooring Systems, Inc.

Filing 36

MEMORANDUM & ORDER: ADOPTING the 35 REPORT AND RECOMMENDATIONS of Magistrate Judge Lindsay in its entirety with one minor clarification, and Plaintiffs' motion for default judgment is GRANTED. Plaintiffs are hereby awarded a judgment against Defendant in the amount of $25,858.05, comprising of $7,079.39 in unpaid contributions, $7,270.58 in interest on the unpaidcontributions (plus accrued interest until the date of payment), $7,270.58 in liquidated damages (plus acc rued liquidated damages until the date of judgment), and $4,237.50 in audit fees. The Clerk of the Court is directed to enter a Judgment consistent with this Memorandum and Order and to mark this matter CLOSED. Ordered by Judge Joanna Seybert on 9/3/2014. c/m by ecf to Plaintiff's counsel and by first-class mail to defendant. A copy of the M & O was forwarded to judgment clerk. (Mahon, Cinthia)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------X THOMAS GESUALDI, LOUIS BISIGNANO, DOMINICK MARROCCO, ANTHONY PIROZZI, JOSEPH A. FERRARA, SR., FRANK H. FINKEL, MARC HERBST, DENISE RICHARDSON, THOMAS F. CORBETT, ANTHONY D’AQUILA, 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 Local 282 Vacation and Sick Leave Trust Fund, MEMORANDUM & ORDER 13-CV-5937(JS)(ARL) Plaintiffs, -againstSPECIALTY FLOORING SYSTEMS, INC., Defendant. ---------------------------------------X APPEARANCES For Plaintiffs: Jonathan Michael Bardavid, Esq. Trivella & Forte, LLP 1311 Mamaroneck Avenue, Suite 170 White Plains, NY 10605 For Defendant: No appearances. SEYBERT, District Judge: Currently pending before the Court is Magistrate Judge Arlene R. Lindsay’s Report and Recommendation (“R&R”) regarding a request Bisignano, for damages Dominick by plaintiffs Marrocco, Thomas Anthony Gesualdi, Pirozzi, Louis Joseph A. Ferrara, Sr., Frank H. Finkel, Marc Herbst, Denise Richardson, Thomas F. Corbett, and Anthony D’Aquila, as Trustees and fiduciaries of the Local 282 Welfare, Pension, Annuity, Job Training Trust, Vacation, and Sick Leave Funds (“Plaintiffs”). For the following reasons, the Court ADOPTS this R&R in its entirety with one minor clarification. BACKGROUND The background Court of this presumes case, familiarity which is with detailed the in factual the Court’s September 27, 2013 Memorandum and Order (the “September 2013 Order,” Docket Entry 34) and Judge Lindsay’s currently pending R&R. Briefly, Plaintiffs previously sought a default judgment against defendant (“Defendant”). Specialty undersigned The Flooring referred Systems, that Inc. motion for default, and Judge Lindsay issued a prior R&R on June 6, 2013 (the “June 2013 R&R,” Docket Entry 30). (See Sept. 2013 Order at 2.) The June 2013 R&R addressed damages for each of five audits. object (See Sept. 2013 Order at 5-7.) to a number of Judge Plaintiffs did not Lindsay’s findings and recommendations regarding certain audits, and this Court adopted the R&R in those respects in the September 2013 Order. Plaintiffs did object to the June 2013 R&R as it pertained to certain other audits, however. For example, as to Audit #08-0425-RI, Judge Lindsay found that there was no basis 2 upon which to determine the appropriate amount of damages for the period covered by the audit and therefore recommended that Plaintiffs’ request damages in this regard be denied with leave to renew. Sept. 2013 Order at 9 (citing June 2013 R&R at 7).) for (See She also recommended that interest, liquidated damages, and audit fees be denied with leave to renew. (Sept. 2013 Order at 9.) Following objections, this Court agreed with Plaintiffs that the necessary documentation had been provided. (Sept. 2013 Order at 10.) Accordingly, the Court rejected the June 2013 R&R insofar as it denied Plaintiffs’ damages for delinquent contributions, interest, liquidated damages, and audit fees for Audit #08-0425RI and referred the matter back to Judge Lindsay for a proper calculation of damages. (Sept. 2013 Order at 10.) As to Audit #09-403 and Audit #09-404, Judge Lindsay determined that the amounts reflected in the audits exceeded the amounts that Plaintiffs requested and therefore found that there was no basis upon which to determine the appropriate amount of damages for the relevant time periods. She recommended that Palintiff’s request for damages, including liquidated damages and audit fees for Audit #09-403 and Audit #09-404 be denied with leave to renew. (Sept. 2013 Order at 10-11.) Plaintiffs’ objections, however, appropriately explained that the amounts they sought were offset by contributions documented in accompanying declarations. 3 from Defendant, as (See Sept. 2013 Order at 11-12.) insofar Accordingly, the Court rejected the June 2013 R&R as it denied Plaintiffs’ damages for delinquent contributions, interest, liquidated damages, and audit fees for Audit #09-403 and Audit #09-404 and referred the matter back to Judge Lindsay for a calculation of damages in this regard. Additionally, as to Audit #07-0775, Judge Lindsay found that the documentation was insufficient to provide a basis for the amount of interest sought. (citing June 2013 R&R at 11).) that they had cited the (Sept. 2013 Order at 13 Although Plaintiffs conceded incorrect exhibit in attempting to support their claim for interest on this audit, their objections did point the Court to the correct exhibit. at 13.) insofar Accordingly, as it the Court recommended rejected denying (Sept. 2013 Order the interest June and 2013 R&R liquidated damages as to Audit #07-0775 because Plaintiffs did not provide a sufficient basis for the amounts sought, and referred the matter to Judge Lindsay for a calculation of damages in this respect. On May 28, 2014, Judge Lindsay issued her current R&R (the “May 2014 R&R,” Docket Entry 35) addressing each of the aforementioned issues. Plaintiffs awarded be The May damages in 2014 the R&R recommends amount of that $26,488.05, comprising of $7,709.39 in unpaid contributions, $7,270.58 in interest on the unpaid contributions 4 (plus accrued interest until the date of payment), $7,270.58 in liquidated damages (plus accrued liquidated damages until the date of judgment), and $4,237.50 in audit fees. Specifically, she recommends that Plaintiffs be awarded the following: (1) $1,447.24 in unpaid contributions for Audit #08-0425-RI; (2) $338.65 in unpaid contributions for Audit #09-403; (3) $5,293.50 in unpaid contributions for Audit #09404; (4) interest on the unpaid contributions pursuant to Audit #08-0425-RI in the amount of $1,151.84 through March 12, 2012 plus accrued interest until the date of payment; (5) interest on the unpaid contributions pursuant to Audit #09-403 in the amount of $283.11 through March 12, 2012 plus accrued interest until the date of payment; (6) interest on the unpaid contributions pursuant to Audit #09-404 in the amount of $4,176.52 through March 12, 2012 plus accrued interest until the date of payment; (7) interest on the unpaid contributions pursuant to Audit #070775 in the amount of $1,659.11 through March 12, 2012 plus accrued interest until the date of payment; (8) $1,151.84 in liquidated damages for Audit #08-0425-RI plus accrued liquidated damages until the date of judgment; (9) $283.11 in liquidated damages for Audit #09-403 plus accrued liquidated damages until the date of judgment; (10) $4,176.52 in liquidated damages for Audit #09-404 plus accrued liquidated damages until the date of judgment; (11) $1,659.11 in liquidated damages for Audit #075 0775 plus accrued liquidated damages until the date of judgment1; and (12) $4,237.50 in audit fees for Audit #08-0425-RI, Audit #09-403, and Audit #09-404. DISCUSSION In reviewing an R&R, a district court “may accept, reject, or modify, recommendations in made § 636(b)(1)(C). whole by the or in part, magistrate the findings judge.” 28 or U.S.C. If no timely objections have been made, the “court need only satisfy itself that there is no clear error on the face of the record.” 606, 609-10 (S.D.N.Y. Urena v. New York, 160 F. Supp. 2d 2001) (internal quotation marks and citation omitted). Here, no party objected to Judge Lindsay’s R&R. And the Court finds her R&R to be correct, comprehensive, wellreasoned and free of any clear error with one minor exception. Adding unpaid the amounts of contributions $1,447.24, equals $338.65, $7,079.39, and $5,293.50 not for $7,709.39. Accordingly, the Court ADOPTS it in its entirety, except that unpaid contributions shall be awarded to Plaintiffs in the amount of $7,079.39. The May 2014 R&R appears to mistakenly exclude a specific reference to this amount, although Judge Lindsay seems to have included it in her overall recommendation for liquidated damages. 1 6 CONCLUSION Judge Lindsay’s R&R is ADOPTED in its entirety with one minor clarification, and Plaintiffs’ motion for default is GRANTED. Plaintiffs are hereby awarded a judgment against Defendant in the amount of $25,858.05, comprising of $7,079.39 in unpaid contributions, $7,270.58 in interest on the unpaid contributions (plus accrued interest until the date of payment), $7,270.58 in liquidated damages (plus accrued liquidated damages until the date of judgment), and $4,237.50 in audit fees. The Clerk of the Court is directed to enter a Judgment consistent with this Memorandum and Order and to mark matter CLOSED. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: September 3 , 2014 Central Islip, NY 7 this

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