Trustees of the United Union of Roofers, Waterproofers and Allied Workers Local 154 Welfare, Pension, Annuity, and Apprenticeship and Training Funds v. DME Construction Associates et al

Filing 35

MEMORANDUM & ORDER: SO ORDERED that the Court ADOPTS Judge Tomlinson's R&R (Docket Entry 34) in its entirety. Plaintiffs' motion (Docket Entry 30) is DENIED. Ordered by Judge Joanna Seybert on 3/27/2017. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
TRUSTEES OF THE UNITED UNION OF ROOFERS,
WATERPROOFERS AND ALLIED WORKERS
LOCAL 154 WELFARE, PENSION, ANNUITY,
AND APPRENTICESHIP AND TRAINING FUNDS,
Plaintiff,

MEMORANDUM & ORDER
15-CV-4176(JS)(AKT)

-against–
DME CONSTRUCTION ASSOCIATES, and
ACSTAR INSURANCE COMPANY,
Defendants.
----------------------------------------X
APPEARANCES
For Plaintiff:
Charles R. Virginia, Esq.
Nicole Marimon, Esq.
Adam Arthur Biggs, Esq.
Virginia & Ambinder LLP
40 Broad Street, 7th Floor
New York, NY 10004
For Defendants:

Michael Marc Rabinowitz, Esq.
Rabinowitz & Galina
94 Willis Avenue
Mineola, NY 11501

SEYBERT, District Judge:
Presently pending before the Court is Magistrate Judge
A.

Kathleen

Tomlinson’s

Report

and

Recommendation

dated

February 27, 2017, (the “R&R,” Docket Entry 34), recommending that
the Court deny Plaintiffs Trustees of the United Union of Roofers,
Waterproofers

and

Allied

Workers

Local

154

Welfare,

Pension,

Annuity, and Apprenticeship and Training Funds’ (“Plaintiffs” or
the “Funds”) motion to approve consent judgment. For the following
reasons, the Court ADOPTS Judge Tomlinson’s R&R in its entirety.

BACKGROUND
On

July

16,

2015,

Plaintiffs

commenced

this

action

against defendants DME Construction Associates (“DME”) and Acstar
Insurance Company (collectively, “Defendants”), asserting claims
pursuant to the Employee Retirement Income Security Act of 1974
and the Labor Management Relations Act of 1947 with respect to
DME’s failure to remit employer contributions to the Funds in
connection with a collective bargaining agreement.
7-11.)

(Compl. ¶¶ 1,

On February 8, 2016, the parties filed a Stipulation of

Dismissal without prejudice.

(Stip., Docket Entry 28.)

On

February 10, 2016, the Court “So Ordered” the parties’ Stipulation
of Dismissal and directed the Clerk of the Court to mark this case
closed.

(Order, Docket Entry 29.)
On March 1, 2016, Plaintiffs filed a motion requesting

that the Court approve a consent judgment and enter judgment
against DME.

(Pls.’ Mot., Docket Entry 30.)

Plaintiffs allege

that they entered into a Stipulation of Settlement with DME in
which DME agreed to remit a total of $131,573.00 (the “Settlement
Agreement”).

(Pls.’ Aff., Docket Entry 31, ¶ 6.)

On February 9,

2016, Plaintiffs entered into a consent judgment with DME for the
total amount of $143,599.67 (the “Proposed Consent Judgment”).
(Pls.’ Aff. ¶ 8.)

Plaintiffs allege that DME failed to remit

installments due pursuant to the Settlement Agreement.
Aff. ¶¶ 11-13.)

(Pls.’

Plaintiffs request that the Court enter the
2

Proposed Consent Judgment and award damages totaling $87,795.20.
(Pls.’ Aff. ¶¶ 14-15.)
On October 13, 2016, the Court referred Plaintiffs’
motion to Judge Tomlinson for a report and recommendation on
whether the pending motion should be granted.

(Referral Order,

Docket Entry 33.)
On February 27, 2017, Judge Tomlinson issued her R&R
recommending that Plaintiffs’ motion be denied.
R&R.)

(See generally

Judge Tomlinson determined that although Plaintiffs style

their motion as a request for approval of the Proposed Consent
Judgment, they are effectively seeking enforcement of “the terms
of the Stipulation of Settlement as incorporated into the proposed
Consent Judgment.”

(R&R at 7-8.)

Judge Tomlinson noted that the

District Court did not “So Order” the Settlement Agreement or
Proposed Consent Judgment prior to the dismissal of this action,
and the Stipulation of Dismissal does not contain any language
indicating that the parties intended for the Court to retain
jurisdiction to enforce the Settlement Agreement after the case
was closed.

(R&R at 8-9.)

As a result, Judge Tomlinson sua sponte

addressed the issue of subject matter jurisdiction and concluded
that the Court lacked subject matter jurisdiction to determine
Plaintiffs’ motion.

(R&R at 11-19.)

3

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 (14) 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 Tomlinson’s R&R to be comprehensive, wellreasoned, and free of clear error, and it ADOPTS the R&R in its
entirety.
CONCLUSION
For

the

foregoing

reasons,

the

Court

Tomlinson’s R&R (Docket Entry 34) in its entirety.

ADOPTS

Plaintiffs’

motion (Docket Entry 30) is DENIED.
SO ORDERED.

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

March
27 , 2017
Central Islip, New York
4

Judge