Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Management Cooperation, Pension and Welfare Funds v. AG Construction Corporation

Filing 17

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Wall's R&R is ADOPTED as specified, and Plaintiffs' motion for default/unopposed summary judgment is GRANTED. Plaintiffs are hereby awarded a judgment against Defendant in the a mount of $323,952.94, broken down as follows: (1) unpaid contributions in the amount of $193,463.85; (2) interest of $82,446.82 through July 27, 2013, plus additional interest at the rate of.75% per month, compounded, through t he date of judgment; (3) liquidated damages in the amount of $38,692.77; (4) attorneys' fees in the total amount of $1,772.00; and (5) costs in the total amount of $7,577.50. The Clerk of the Court is directed to enter a Judgment consistent with this Memorandum and Order and to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 7/10/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
TRUSTEES OF EMPIRE STATE CARPENTERS
ANNUITY, APPRENTICESHIP, LABORMANAGEMENT COOPERATION, PENSION
AND WELFARE FUNDS,

MEMORANDUM & ORDER
13-CV-5087(JS)(WDW)

Plaintiffs,
-againstAG CONSTRUCTION CORPORATION,
Defendant.
------------------------------------X
APPEARANCES
For Plaintiffs:
Charles R. Virginia, Esq.
Richard B. Epstein, Esq.
Elina Turetskaya, Esq.
Virginia & Ambinder LLP
111 Broadway, 14th Floor
New York, NY 10006
For Defendant:

No appearances.

SEYBERT, District Judge:
Currently
Trustees

pending

of

State

Empire

Labor-Management

before
Carpenters

Cooperation,

the

Court

is

Annuity,

Pension

and

plaintiffs

Apprenticeship,
Welfare

Funds’

(“Plaintiffs”) motion for default judgment and Magistrate Judge
William D. Wall’s Report and Recommendation (“R&R”).
following

reasons,

the

Court

ADOPTS

this

R&R

For the
with

one

clarification.
BACKGROUND
Plaintiffs commenced this action on September 12, 2013
against

defendant

AG

Construction

Corporation

(“Defendant”)

seeking to confirm an arbitration award entered in favor of
Plaintiffs.

Specifically,

Plaintiffs

brought

this

action

pursuant to Section 502(a)(3) of the Employee Retirement Income
Security

Act

of

1974

(“ERISA”),

as

amended,

29

U.S.C.

§ 1132(a)(3); Section 301 of the Labor Management Relations Act
of

1947,

as

amended

29

U.S.C.

§ 185;

and

Section

9

of

the

Federal Arbitration Act, 9 U.S.C. § 9 regarding an arbitrator’s
award

rendered

pursuant

to

binding upon Defendant.

a

collective

bargaining

agreement

Defendant did not answer or otherwise

appear in this action.
Plaintiffs

requested

a

certificate

of

default

on

November 4, 2013 (Docket Entry 5), which was entered by the
Clerk of the Court that same day (Docket Entry 6).

On November

19, 2013, Plaintiffs moved for default (Docket Entry 7), and, on
November

21,

2013,

the

Court

referred

Plaintiffs’

motion

to

Judge Wall (Docket Entry 10).
On April 28, 2014, Judge Wall issued an R&R analyzing
Plaintiffs’ motion under the standard for default judgment as
well

as

judgment.

the

standard

for

Ultimately,

an

unopposed

Judge

Wall

motion

recommends

for

summary

that

the

arbitrator’s award be confirmed and that Plaintiffs be awarded a
total of $323,952.94.
No party has objected to any portion of Judge Wall’s
R&R.
2

DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations

made

§ 636(b)(1)(C).

in

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 Wall’s R&R.

And the

Court finds his R&R to be correct, comprehensive, well-reasoned
and free of clear error, with one exception.

The R&R notes that

Joint Policy for Collection of Delinquent Contributions (“Joint
Policy”) provides for interest calculated at the rate of .75%
per

month,

paid.

compounded,

(R&R at 10.)

interest

include

until

the

date

the

contributions

are

However, it then goes on to suggest that

$82,446.82

additional

interest

of

judgment.

(R&R at 11.)

through

$67.34

per

day

July

27,

through

2013,
the

plus

date

of

Rather than calculating interest at a

specified monetary amount daily, which does not take compounding
into account, the Court will use the terms of the Joint Policy-i.e., .75% per month, compounded.
Accordingly, the Court ADOPTS the R&R, with the one
exception of the calculation of interest.
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CONCLUSION
Judge
Plaintiffs’
GRANTED.

Wall’s

motion

R&R

for

Plaintiffs

is

ADOPTED

default/unopposed

are

hereby

as

specified,

summary

awarded

a

and

judgment

judgment

is

against

Defendant in the amount of $323,952.94, broken down as follows:
(1) unpaid contributions in the amount of $193,463.85;
(2) interest of $82,446.82 through July 27, 2013, plus
additional interest at the rate of .75% per month,
compounded, through the date of judgment;
(3) liquidated damages in the amount of $38,692.77;
(4) attorneys’ fees in the total amount of $1,772.00;
and
(5) costs in the total amount of $7,577.50.
The Clerk of the Court is directed to enter a Judgment
consistent

with

this

Memorandum

and

Order

and

to

mark

this

matter CLOSED.

SO ORDERED.

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

July
10 , 2014
Central Islip, NY

4