Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Management Cooperation, Pension and Welfare Funds, v. Arbor Concrete Corp.

Filing 18

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Brown's R&R (Docket Entry 16) is ADOPTED in its entirety and Plaintiffs' motion for a default judgment (Docket Entry 11) is GRANTED. The Court hereby confirms the arbitration award entered in favor of Plaintiffs and against Defendants. (Compl., Docket Entry 1, Ex. A.) Defendant and its officers are hereby ORDERED to make available to Plaintiffs, or their authorized representatives, any and all books and records Plaintiffs deem necessary to conduct an audit. In addition, the Clerk of the Court is directed to enter judgment in favor of Plaintiffs and against Defendant as follows: (1) $12,950.89 plus interest from March 9, 2014 through the date of judgment at the rate of 0.75% per month and (2) $1,245.00 in attorneys' fees and costs. The Clerk of the Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 3/25/2015. C/ECF (Valle, Christine)

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

MEMORANDUM & ORDER
14-CV-2893(JS)(GRB)

ARBOR CONCRETE CORP.,
Defendant.
------------------------------------X
APPEARANCES
For Plaintiffs:
Charles R. Virginia, Esq.
Elina Burke, Esq.
Richard B. Epstein, Esq.
Virginia & Ambinder LLP
40 Broad Street, 7th Floor
New York, NY 10004
For Defendant:

No appearances.

SEYBERT, District Judge:
Pending before the Court are (1) Plaintiffs’ motion for
default judgment (Docket Entry 11); and (2) Magistrate Judge Gary
R. Brown’s Report and Recommendation (“R&R”), recommending that
this Court grant Plaintiffs’ motion (Docket Entry 16).

For the

following reasons, the Court ADOPTS the R&R in its entirety,
BACKGROUND
Plaintiffs Trustees of Empire State Carpenters Annuity,
Apprenticeship, Labor-Management Cooperation, Pension and Welfare
Funds (“Plaintiffs”) commenced this action on May 7, 2014 against
defendant

Arbor

Concrete

Corp.

(“Defendant”),

to

confirm

and

enforce an arbitration award under Section 301 of the Labor
Management

Relations

502(e)(1)

of

the

Act

(“LMRA”),

Employee

29

U.S.C.

Retirement

§

Income

185,

Section

Security

Act

(“ERISA”), 29 U.S.C. § 1132(e)(1), and the Federal Arbitration Act
(“FAA”), 9 U.S.C. § 9.

The arbitration award, issued on March 9,

2014, found that Defendant failed to pay certain fringe benefit
contributions

and

directed

Defendant

to

pay

Plaintiffs

“$12,950.89, consisting of contributions of $8,592.76, interest of
$389.58,

liquidated

damages

of

$1,718.55,

attorneys’

$1,500.00, and the arbitrator’s fee of $750.00.”

fees

of

(R&R at 5-6;

Compl. Ex. A.)
On

May

27,

2014,

Plaintiffs

filed

an

affidavit

of

service, affirming that the Summons and Complaint were served on
Defendant through the Secretary of State on May 9, 2014.
Entry 4.)

(Docket

Defendant did not answer or otherwise respond to the

Complaint, and Plaintiffs requested a Certificate of Default on
July 2, 2014.
Defendant’s

(Docket Entry 7.)

default

that

The Clerk of the Court certified

same

day.

(Docket

Entry

August 11, 2014, Plaintiffs moved for a default judgment.
Entry

11.)

On

August

12,

2014,

the

undersigned

8.)

On

(Docket
referred

Plaintiffs’ motion to Magistrate Judge Gary R. Brown for a report
and recommendation as to whether the pending motion should be
granted.

(Docket Entry 14.)

2

On

February

(Docket Entry 16.)
order:

(1)

27,

2015,

Judge

Brown

issued

his

R&R.

The R&R recommends that the Court enter an

confirming

the

arbitration

award;

(2)

awarding

Plaintiffs damages in the amount of $12,950.89 plus interest from
March 9, 2014, the date of the arbitration award, through the date
of judgment at the rate of 0.75% per month; (3) awarding Plaintiffs
$1,245.00 in attorneys’ fees and costs; and (4) ordering Defendant
and

its

officers

authorized

to

make

available

representatives,

any

and

to

Plaintiffs,

all

books

or

and

their

records

Plaintiffs deem necessary to conduct an audit. (R&R at 6, 17-18.)
DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations

made

in
by

whole
the

or

in

part,

magistrate

the

judge.”

findings
28

and

U.S.C.

§ 636(b)(1)(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 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

has objected.

Accordingly, all objections are hereby deemed to

have been waived.

3

Upon careful review and consideration, the Court finds
Judge Brown’s R&R to be comprehensive, well-reasoned, and free of
clear error, and it ADOPTS the R&R in its entirety.
CONCLUSION
Judge Brown’s R&R (Docket Entry 16) is ADOPTED in its
entirety and Plaintiffs’ motion for a default judgment (Docket
Entry 11) is GRANTED.

The Court hereby confirms the arbitration

award entered in favor of Plaintiffs and against Defendants.
(Compl., Docket Entry 1, Ex. A.) Defendant and its officers are
hereby ORDERED to make available to Plaintiffs, or their authorized
representatives, any and all books and records Plaintiffs deem
necessary to conduct an audit. In addition, the Clerk of the Court
is directed to enter judgment in favor of Plaintiffs and against
Defendant as follows:

(1) $12,950.89 plus interest from March 9,

2014 through the date of judgment at the rate of 0.75% per month
and (2) $1,245.00 in attorneys’ fees and costs.

The Clerk of the

Court is directed to mark this matter CLOSED.

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

March
25 , 2015
Central Islip, New York

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