Trustees of the Building Trades Educational Benefit Fund et al v. Fervent Electrical Corp.

Filing 24

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, Judge Lindsay's R&R is ADOPTED in its entirety and Plaintiffs' motion to vacate the Default Judgment (Docket Entry 20) is GRANTED. The Clerk of the Court is directed to VACATE the Default Judgment entered on May 26, 2016 (Docket Entry 19) and enter an Amended Default Judgment in favor of Plaintiffs and against Defendant in the amount of $852,510.65 as set forth herein. The Clerk of the Court is fur ther directed to mark this case CLOSED. Plaintiffs are directed to serve a copy of this Order and the Amended Default Judgment on the Defendant and file proof of service on ECF. So Ordered by Judge Joanna Seybert on 12/20/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
TRUSTEES OF THE BUILDING TRADES
EDUCATIONAL BENEFIT FUND, THE
BUILDING TRADES ANNUITY BENEFIT FUND,
BUILDING TRADES WELFARE BENEFIT FUND
and BUILDING TRADES PENSION FUND,
Plaintiffs,

MEMORANDUM & ORDER
14-CV-5511(JS)(ARL)

-againstFERVENT ELECTRICAL CORP.,
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Danielle Marlene Carney, Esq.
Barnes, Iaccarino & Shepherd, LLP
3 Surrey Lane
Hempstead, NY 11550
Thailary Lim, Esq.
Barnes, Iaccarino & Shepherd, LLP
3 Surrey Lane
Hempstead, NY 11550
For Defendant:

No appearances

SEYBERT, District Judge:
Pending before the Court is Trustees of the Building
Trades

Educational

Benefit

Fund,

the

Building

Trades

Annuity

Benefit Fund, Building Trades Welfare Benefit Fund and Building
Trades Pension Fund’s (“Plaintiffs”) motion to vacate a default
judgment (Docket Entry 20) and Magistrate Judge Arlene R. Lindsay’s
Report and Recommendation dated November 15, 2016 (the “R&R”)
recommending that this Court grant Plaintiffs’ motion, reopen the
case, and amend the default judgment.

(R&R, Docket Entry 22, at

1.)

For the reasons that follow, the Court ADOPTS Judge Lindsay’s

R&R in its entirety.
BACKGROUND
Plaintiffs commenced this action on September 19, 2014,
alleging that Defendant violated the Employee Retirement Income
Security Act of 1974, 29 U.S.C. §§ 1145 and 1132(a), et seq.
(“ERISA”) and the Labor Management Relations Act of 1947, 29 U.S.C.
§ 185 (“LMRA”).

(Compl., Docket Entry 1.)

On January 9, 2015, Plaintiffs moved for a default
judgment.

(Docket Entry 7.)

The undersigned referred Plaintiffs’

motion to Judge Lindsay for an R&R on whether the motion should be
granted. (Docket Entry 10.) On June 15, 2015 Judge Lindsay issued
her

R&R.

(Docket

Entry

11.)

On

September

23,

2015,

the

undersigned adopted Judge Lindsay’s R&R in its entirety and awarded
Plaintiffs $458.00 with leave to file an additional motion seeking
damages with the proper documentation.

(Order, Docket Entry 17.)

At this Court’s direction, the Clerk of the Court entered a default
judgment for $458.00 on May 26, 2016 (the “Default Judgment”).
(Default Judgment, Docket Entry 19.)
On May 31, 2016, Plaintiffs filed a motion to vacate the
Default Judgment in light of additional documentation they filed
to

support

an

award

of

damages.

(Docket

Entry

20.)

The

undersigned referred the motion to Judge Lindsay for an R&R on
whether the motion should be granted, and, if necessary, to
2

determine the appropriate amount of damages, costs and/or fees to
be awarded. (Order, Docket Entry 21.) On November 15, 2016, Judge
Lindsay issued her R&R.

The R&R recommends that the Court grant

Plaintiffs’ motion to vacate the Default Judgment and enter an
Amended Default Judgment in favor of Plaintiffs for $852,510.65.
(R&R at 3-4.)
DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

in

whole

or

in

part,

recommendations made by the magistrate judge.”
(1)(C).

the

findings

and

28 U.S.C. § 636(b)

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.
Upon careful review and consideration, the Court finds
Judge Lindsay’s R&R to be comprehensive, well-reasoned, and free
of clear error, and it ADOPTS the R&R in its entirety.
CONCLUSION
For

the

foregoing

reasons,

Judge

Lindsay’s

R&R

is

ADOPTED in its entirety and Plaintiffs’ motion to vacate the
3

Default Judgment (Docket Entry 20) is GRANTED.

The Clerk of the

Court is directed to VACATE the Default Judgment entered on May 26,
2016 (Docket Entry 19) and enter an Amended Default Judgment in
favor

of

Plaintiffs

$852,510.65

and

allocated

against

as

Defendant

follows:

in

the

$681,351.35

amount
in

of

unpaid

contributions ($336,000.00 to the Welfare Fund; $150,028.10 to the
Annuity Fund; $17,185.26 to the Education Fund; and $178,137.99 to
the

Pension

Fund),

$32,151.03

in

interest,

$136,270.27

in

liquidated damages, $2,280.00 in attorneys’ fees and $458.00 in
costs.

The Clerk of the Court is further directed to mark this

case CLOSED. Plaintiffs are directed to serve a copy of this Order
and the Amended Default Judgment on the Defendant and file proof
of service on ECF.

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

December
20 , 2016
Central Islip, New York

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