Division 1181 Amalgamated Transit Union - New York Employees Pension Fund et al v. D & A Bus Company, Inc. et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS : IT IS HEREBY ORDERED that plaintiffs' motion for default judgment against defendant D&A Bus Company, Inc. is granted and plaintiffs are awarded: (1) $575,545.00 in withdrawal liability; (2) $ 38,732.30 in accrued interest; (3) $115,109.00 in liquidated damages; (4) $3,806.00 in attorneys fees; (5) $846.03 in costs; and (6) an injunction compelling defendant D&A Bus Company, Inc. to provide plaintiffs with a complete list of each trade or business under its common control within twenty (20) days of service of a copy of the judgment upon it; and IT IS FURTHER ORDERED plaintiffs' claims against defendant Anchor Bus. Co., Inc. are dismissed without prejudice. The Clerk of Court is directed to enter judgment accordingly and to close this case. Ordered by Judge Denis R. Hurley on 9/12/2017. (Gapinski, Michele)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DIVISION 1181 AMALGAMATED TRANSIT
UNION - NEW YORK EMPLOYEES PENSION
FUND and its TRUSTEES

MEMORANDUM & ORDER
16-CV-5014 (DRH)(AKT)

Plaintiffs,
-againstD & A BUS COMPANY, INC. and ANCHOR
BUS CO., INC.
DefendantS.
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HURLEY, Senior District Judge:
Presently before the Court is the August 25, 2017 Report and Recommendation (“R&R”)
of Magistrate Judge A. Kathleen Tomlinson recommending that plaintiffs’ motion for default
judgment be granted in part and denied in part. More particularly, Judge Tomlinson
recommended that (1) default judgment be entered against defendant D&A and plaintiffs be
awarded (a) $575,545.00 in withdrawal liability; (b) $38,732.30 in accrued interest; (c)
$115,109.00 in liquidated damages; (d) $3,806.00 in attorneys’ fees; (e) $846.03 in costs: and (f)
the requested injunctive relief, to wit an injunction compelling D&A to provide plaintiffs with a
complete list of each trade or business under its common control; and (2) the motion for default
judgment against Anchor Bus. Co., In. be denied. More than fourteen days have elapsed since
service of the R&R and no objections have been filed by defendants. Plaintiffs have filed
objections limited to Judge Tomlinson’s recommendation regarding Anchor Bus. Co., Inc.
Unsure as to whether those claims would remain pending or dismissed under the R&R, Plaintiffs
seek dismissal of the claims against Anchor Bus Co., Inc. without prejudice and have in fact filed

a notice of voluntary dismissal of the claim against Anchor Bus Co., Inc. pursuant to Fed. R. Civ.
P. 41(a)(1)(A)(i).
As Plaintiff’s notice of voluntary dismissal is proper, the Court will dismiss the claims
against defendant Anchor Bus Co., Inc. without prejudice.
Pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72, this Court has reviewed the
unobjected to portions of the R&R for clear error, and finding none, now concurs in both its
reasoning and its result. The Court therefore adopts the August 25, 2017 R&R of Judge
Tomlinson as to defendant D&A as if set forth herein.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion for default judgment against
defendant D&A Bus Company, Inc. is granted and plaintiffs are awarded: (1) $575,545.00 in
withdrawal liability; (2) $38,732.30 in accrued interest; (3) $115,109.00 in liquidated damages;
(4) $3,806.00 in attorneys’ fees; (5) $846.03 in costs; and (6) an injunction compelling defendant
D&A Bus Company, Inc. to provide plaintiffs with a complete list of each trade or business
under its common control within twenty (20) days of service of a copy of the judgment upon it;
and
IT IS FURTHER ORDERED plaintiffs’ claims against defendant Anchor Bus. Co., Inc.
are dismissed without prejudice.
The Clerk of Court is directed to enter judgment accordingly and to close this case.
Dated: Central Islip, New York
September 12, 2017
s/ Denis R. Hurley
Denis R. Hurley
United States District Judge
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