Southwest Payroll Service, Inc. v. Pioneer Bancorp, Inc. et al

Filing 150

MEMORANDUM-DECISION and ORDER accepting Report and Recommendations granting 23 Motion to Intervene by National Payment Corporation.. Signed by Senior Judge Frederick J. Scullin, Jr on 10/6/2021. (bjw, ) Modified on 10/6/2021 (bjw, ).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________
SOUTHWESTERN PAYROLL SERVICE, INC.,
Plaintiff,
NATIONAL PAYMENT CORPORATION,
Intervenor Plaintiff,
v.

1:19-CV-1349
(FJS/CFH)

PIONEER BANCORP, INC.; PIONEER BANK;
MICHAEL T. MANN; VALUE WISE COPORATION
doing business as Apogee doing business as Optix
Consulting doing business as Primary Search Group;
MYPAYROLLHR.COM, LLC; CLOUD PAYROLL,
LLC; ROSS PERSONNEL CONSULTANTS, INC.;
ALWAYS LIVE HOLDINGS, LLC; KANINGO,
LLC; HIRE FLUX, LLC; HIRE FLUX HOLDINGS,
LLC; VIVERANT LLC; and HEUTMAKER
BUSINESS ADVISORS, LLC,
Defendants.
_____________________________________________________
APPEARANCES

OF COUNSEL

COOPER ERVING & SAVAGE LLP
39 North Pearl Street, 4th Floor
Albany, New York 12207
Attorneys for Plaintiff

MIACHAEL A. KORNSTEIN, ESQ.

BAUM GLASS JAYNE CARWILE
& PETERS PLLC
401 South Boston Avenue, Suite 2000
Tulsa, Oklahoma 74103
Attorneys for Plaintiff

ANDREW JAYNE, ESQ.

GREENBERG TRAURIG, LLP
54 State Street, 6th Floor
Albany, New York 12207
Attorneys for Proposed Intervenor
Plaintiff National Payment
Corporation

CYNTHIA E. NEIDL, ESQ.
KATIE L. BIRCHENOUGH, ESQ.

GREENBERG TRAURIG, P.A.
1000 Louisiana, Suite 1700
Houston, Texas 77002
Attorneys for Proposed Intervenor
Plaintiff National Payment Corporation

JENNIFER TOMSEN, ESQ.
ROLAND GARCIA, ESQ.

DLA PIPER LLP
677 Broadway, Suite 1205
Albany, New York 12207-9705
Attorneys for Defendants Pioneer
Bancorp, Inc. and Pioneer Bank 1

JEFFREY D. KUHN, ESQ.
ROBERT J. ALESSI, ESQ.

SCULLIN, Senior Judge
ORDER
Pending before the Court are Defendants Pioneer Bancorp, Inc. and Pioneer Bank's
(collectively "Pioneer Defendants") objections, see Dkt. No. 79, to Magistrate Judge Hummel's
Report-Recommendation and Order, see Dkt. No. 76. 2
In their objections, the Pioneer Defendants request that the Court correct Magistrate
Judge Hummel's Report-Recommendation and Order in the following respects: (1) state the legal
standard governing National Payment Corporation's ("NatPay") motion to intervene; (2) clarify

1

Defendants Michael T. Mann, ValueWise Corporation, MyPayRollHR.Com, LLC, Cloud
Payroll, LLC, Ross Personnel Consultants, Inc., Always Live Holdings, LLC, Kaningo, LLC,
Hire Flux, LLC, Hire Flux Holdings, LLC, Viverant LLC, and Heutmaker Business Advisors,
LLC have not entered appearances in this action.
2

Although the Pioneer Defendants refer to their submission as a motion for reconsideration of
Magistrate Judge Hummel's Report-Recommendation and Order, the Court considers this
document as their objections to that Report-Recommendation and Order.
-2-

that the "Facts" set forth in the "Background" section are based on SWP's and NatPay's disputed
allegations, which are assumed to be true only for purposes of deciding NatPay's motion to
intervene, and that the Court in deciding NatPay's motion to intervene makes no factual findings
or determinations as to the many disputed factual and legal issues in this case; (3) remove
footnote 9 and the reference to or reliance on the unverified complaint in Case No. 1:20-cv-487;
(4) correct the text on pages 6-7 to clarify that the correspondence submitted by NatPay is the
NACHA Letter and not a "response to Justice Platkin" from "counsel for the Pioneer
Defendants"; and (5) correct the text on pages 6-7 and 13 stating that the Pioneer Defendants
"seized" the funds in Account No. 2440 "as 'collateral' for the Loan and pursuant to [Pioneer
Bank's] 'set off rights' with respect to the Loan." See Dkt. No. 79-1 at 21. 3 The Pioneer
Defendants, however, state that they "do not seek reconsideration with respect to the conclusion
of [Magistrate Judge Hummel's Report-Recommendation and Order] allowing NatPay to
intervene." See id. at 5 (emphasis added) (footnote omitted).
When a party does not object to a magistrate judge's report-recommendation, the court
reviews that report-recommendation for clear error or manifest injustice. See Linares v.
Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and
footnote omitted). After conducting this review, "the Court may 'accept, reject, or modify, in
whole or in part, the . . . recommendations made by the magistrate judge.'" Id. (quoting 28
U.S.C. § 636(b)(1)(C)).
As noted, the Pioneer Defendants do not object to Magistrate Judge Hummel's
recommendation that the Court grant NatPay's motion to intervene. Although they take issue

3

References to page numbers of documents in the record are to the page numbers that the Court's
Electronic Case Filing System generates and appear in the upper right corner of those pages.
-3-

with certain text that Magistrate Judge Hummel either included or excluded in his ReportRecommendation and Order, none of those items affects either his analysis or ultimate
conclusion that NatPay has met its burden to "demonstrat[e] that it has a substantial interest in
this litigation and that the interest may be impaired or impeded if it is not permitted to
intervene." See Dkt. No. 76 at 16. 4
Accordingly, having reviewed Magistrate Judge Hummel's August 4, 2020 ReportRecommendation and Order for clear error and manifest injustice and finding none, the Court
hereby
ORDERS that Magistrate Judge Hummel's recommendation that the Court grant
National Payment Corporation's motion to intervene pursuant to Rule24(a) of the Federal Rules
of Civil Procedure is ACCEPTED for the reasons stated in his well-reasoned ReportRecommendation and Order.

IT IS SO ORDERED.
Dated: October 6, 2021
Syracuse, New York

4

Moreover, nothing in Magistrate Judge Hummel's Report-Recommendation and Order
precludes the Pioneer Defendants from raising any of the issues that they assert in support of
their requested "corrections" at the appropriate time.
-4-