Flanagan, as a Trustee of the General Building Laborers' Local 66 Pension Fund et al v. North Star Concrete Construction, Corp. et al
Filing
18
MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Tomlinson's R&R (Docket Entry 16) is ADOPTED in its entirety and Plaintiff's motion for a default judgment (Docket Entry 12) is GRANTED. The Clerk of the Court is directed to en ter judgment in favor of Plaintiff and against Defendants as follows: (1) $13,992.18 for unpaid contributions; (2) prejudgment interest on unpaid contributions in an amount to be determined by the Clerk of the Court based on the interest rate pr escribed under 26 U.S.C. § 1132(g)(2)(C) through the date of entry of final judgment; (3) liquidated damages in an amount equal to the amount of prejudgment interest; (4) $3,308.33 in attorneys' fees; and (5) $425.00 in costs. The Clerk of Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 9/16/2014. 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 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
MEMORANDUM & ORDER
13-CV-2300(JS)(AKT)
Plaintiff,
-againstNORTH STAR CONCRETE CONSTRUCTION, INC.
and MARIO SALGADO,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Alicia M. Menechino, Esq.
LaVelle & Menechino Law Office, LLP
The LaVelle Building
57 East Main Street
Patchogue, NY 11772
For Defendants:
No appearances.
SEYBERT, District Judge:
Pending before the Court is (1) a motion for default
judgment filed by plaintiff Stephen Flanagan, as Trustee of the
General Building Laborers’ Local 66 Pension Fund, Welfare Fund,
Annuity
Trust
Fund,
Fund,
Laborers’
Greater
Employer
NY
Cooperative
Laborers’
Employer
and
Educational
Cooperative
and
Educational Trust Fund, New York State Health and Safety Fund,
and Training Program, and as Business Manager of the General
Building
Laborers’
International
(Docket
Entry
Union
12);
Local
of
Union
North
and
No.
66
America,
of
AFL-CIO
(2) Magistrate
Judge
the
Laborers’
(“Plaintiff”)
A.
Kathleen
Tomlinson’s Report and Recommendation (“R&R”), recommending that
the Court grant the motion for default judgment (Docket Entry
16).
For the following reasons, the Court ADOPTS the R&R in its
entirety.
BACKGROUND
Plaintiff
commenced
this
action
against
defendants
North Star Concrete Construction, Inc. (“North Star”) and Mario
Salgado (“Salgado,” and together with North Star, “Defendants”),
alleging violations of the Employee Retirement Income Security
Act of 1974 (“ERISA”) and the Labor Management Relations Act of
1947 (“LMRA”).
2
On
August
30,
2013,
Plaintiffs
filed
Affidavits
of
Service, affirming that the Summons and Complaint were served on
Defendants.
(Docket Entry 8.)
Defendant did not answer or
otherwise respond to the Complaint, and Plaintiff requested a
Certificate of Default.
Court
certified
Defendants’
(Docket Entry 10.)
default
(Docket Entry 9.)
judgment,
default
on
The Clerk of the
September
3,
2013.
On September 26, 2013, Plaintiff moved for a
(Docket
Entry
12),
and
filed
supplemental
papers on September 27, 2013 (Docket Entry 13).
Judge Tomlinson’s R&R recommends that the Court grant
default
judgment
and
against
Defendants
unpaid
award
contributions;
jointly
Plaintiff
and
the
severally:
(2) prejudgment
following
damages
(1) $13,992.18
interest
on
for
unpaid
contributions in an amount to be determined by the Clerk of the
Court; (3) liquidated damages in an amount equal to the amount
of prejudgment interest; (4) $3,308.33 in attorneys’ fees; and
(5) $425.00 in costs.
(R&R, Docket Entry 16, at 21.)
DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,
or
modify,
recommendations
§ 636(b)(1)(C).
made
in
by
whole
the
or
in
part,
magistrate
the
judge.”
findings
28
and
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.”
Urena v. New York, 160 F. Supp. 2d
3
606,
609-10
(S.D.N.Y.
2001)
(internal
quotation
marks
and
citation omitted).
Objections were due within fourteen days of service of
the R&R.
The time for filing objections has expired, and no
party
objected.
has
Accordingly,
all
objections
are
hereby
deemed to have been waived.
Upon careful review and consideration, the Court finds
Judge
Tomlinson’s
R&R
to
be
comprehensive,
well-reasoned
and
free of clear error, and it ADOPTS the R&R in its entirety.
CONCLUSION
Judge Tomlinson’s R&R (Docket Entry 16) is ADOPTED in
its
entirety
(Docket
Entry
and
12)
Plaintiff’s
is
motion
GRANTED.
The
for
a
Clerk
default
of
the
judgment
Court
is
directed to enter judgment in favor of Plaintiff and against
Defendants as follows: (1) $13,992.18 for unpaid contributions;
(2) prejudgment interest on unpaid contributions in an amount to
be determined by the Clerk of the Court based on the interest
rate prescribed under 26 U.S.C. § 1132(g)(2)(C) through the date
of entry of final judgment; (3) liquidated damages in an amount
equal to the amount of prejudgment interest; (4) $3,308.33 in
attorneys’ fees; and (5) $425.00 in costs.
4
The Clerk of the Court is directed to mark this matter
CLOSED.
SO ORDERED
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
September
16 , 2014
Central Islip, New York
5
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