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
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
TRUSTEES OF THE UNITED UNION OF ROOFERS,
WATERPROOFERS AND ALLIED WORKERS
LOCAL 154 WELFARE, PENSION, ANNUITY,
AND APPRENTICESHIP AND TRAINING FUNDS,
MEMORANDUM & ORDER
DME CONSTRUCTION ASSOCIATES, and
ACSTAR INSURANCE COMPANY,
Charles R. Virginia, Esq.
Nicole Marimon, Esq.
Adam Arthur Biggs, Esq.
Virginia & Ambinder LLP
40 Broad Street, 7th Floor
New York, NY 10004
Michael Marc Rabinowitz, Esq.
Rabinowitz & Galina
94 Willis Avenue
Mineola, NY 11501
SEYBERT, District Judge:
Presently pending before the Court is Magistrate Judge
February 27, 2017, (the “R&R,” Docket Entry 34), recommending that
the Court deny Plaintiffs Trustees of the United Union of Roofers,
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.
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.
(Compl. ¶¶ 1,
On February 8, 2016, the parties filed a Stipulation of
Dismissal without prejudice.
(Stip., Docket Entry 28.)
February 10, 2016, the Court “So Ordered” the parties’ Stipulation
of Dismissal and directed the Clerk of the Court to mark this case
(Order, Docket Entry 29.)
On March 1, 2016, Plaintiffs filed a motion requesting
that the Court approve a consent judgment and enter judgment
(Pls.’ Mot., Docket Entry 30.)
that they entered into a Stipulation of Settlement with DME in
which DME agreed to remit a total of $131,573.00 (the “Settlement
(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.)
Plaintiffs request that the Court enter the
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.
Docket Entry 33.)
On February 27, 2017, Judge Tomlinson issued her R&R
recommending that Plaintiffs’ motion be denied.
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
(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
(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
(R&R at 11-19.)
In reviewing an R&R, a district court “may accept,
recommendations made by the magistrate judge.”
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
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
Tomlinson’s R&R (Docket Entry 34) in its entirety.
motion (Docket Entry 30) is DENIED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
27 , 2017
Central Islip, New York
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