Mason Tenders District Council of Greater New York et al v. F.M.C. Construction, LLC
Filing
26
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 24 Report and Recommendations. Having conducted the appropriate levels of review of the Report and Recommendation of United States Magistrate Judge Henry Pitman dated November 22, 2013, the Court MODIFIES the Report as set forth above and, as modified, APPROVES, ADOPTS, and RATIFIES the Report's Findings of Fact (see Report paragraphs 1-20) and Conclusions of Law (see id. paragraphs 21-54). Accordingly, the Clerk of the Court is dire cted to enter judgment against Defendant and in favor of Plaintiffs in the amount of $907,332.87, consisting of (1) $430,303.33 in unpaid fringe benefit contributions; (2) $33,661.16 in unpaid dues checkoffs; (3) $2,301.63 in u npaid PAC contributions; (4) $143,434.44 for the imputed cost of the audit; (5) interest on the unpaid fringe benefit contributions in the amount of $133,385.59; (6) liquidated damages in the amount of $133,385.59; (7) interest on u npaid dues checkoffs and PAC contributions in the amount of $20,141.38; and (8) $10,329.75 in attorneys' fees and $390.00 in costs and expenses. The Clerk of the Court is respectfully directed to close this case. (Signed by Judge Deborah A. Batts on 8/26/2015) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------X
MASON TENDERS DISTRICT COUNCIL
OF GREATER NEW YORK, et al.,
Plaintiffs,
11 Civ. 5392 (DAB)
v.
ADOPTION OF REPORT
AND RECOMMENDATION
F.M.C. CONSTRUCTION, LLC,
Defendant.
----------------------------------X
DEBORAH A. BATTS, United States District Judge.
Plaintiffs initiated this action against F.M.C.
Construction, LLC (“Defendant”) for failure to make required
payments pursuant to the Employment Retirement Income Security
Act (“ERISA”), 29 U.S.C. ¶¶ 1001, et seq., and the Labor
Management Relations Act (“LMRA”), 29 U.S.C. ¶¶ 141, et seq. On
November 22, 2013, United States Magistrate Judge Henry Pitman
issued a Report and Recommendation (“Report”) recommending that
judgment be entered against Defendant in the amount of
$906,185.12. (Report at 29.) For the reasons set forth below,
after conducting a de novo review of Plaintiffs’ Objection, the
Report and Recommendation of Magistrate Judge Pitman is MODIFIED
in part and ADOPTED as modified. Accordingly, the Court directs
that Judgment be entered in favor of Plaintiffs in the amount of
$907,332.87.
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I.
Objections to the Report and Recommendation
“Within fourteen days after being served with a copy [of a
Magistrate Judge’s Report and Recommendation], a party may serve
and file specific written objections to the proposed findings
and recommendations.” Fed. R. Civ. P. 72(b)(2); accord 28 U.S.C.
§ 636(b)(1). The Court may adopt those portions of the report to
which no timely objection has been made, as long as there is no
clear error on the face of the record. DiPilato v. 7-Eleven,
Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009). A district court
must review de novo “those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). However, “to the extent that the
party makes only conclusory or general arguments, or simply
reiterates the original arguments, the Court will review the
Report strictly for clear error.” DiPilato, 662 F. Supp. 2d at
339 (internal quotation marks, brackets and ellipses omitted).
After conducting the appropriate levels of review, “the Court
may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1).
Objections that correct misstatements of previously pleaded
facts receive de novo review. See Kalderon v. Finkelstein, No.
08 Civ. 9440, 2010 WL 3359473, at *2 (S.D.N.Y. Aug. 25, 2010)
(giving de novo review to specific factual corrections of
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Magistrate Judge’s alleged “misstatements and inaccuracies”);
see also Bradley v. City of New York, No. 04 Civ. 8411, 2007 WL
232945, at *5 (S.D.N.Y. Jan. 26, 2007) (modifying inaccurate
facts in Magistrate Judge’s report in light of clarifying
objections). However, courts will not consider objections that
assert new factual allegations, unless the party justifies its
failure to present those allegations to the Magistrate Judge.
See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir.
1994) (“In objecting to a magistrate's report before the
district court, a party has no right to present further
testimony when it offer[s] no justification for not offering the
testimony at the hearing before the magistrate.”) (internal
quotation marks omitted).
II.
Plaintiff’s Objections
Plaintiffs filed a timely Objection to Judge Pitman’s
Report; Defendant did not file Objections of its own, nor any
memorandum responsive to Plaintiffs’ Objection.
Plaintiffs’ sole Objection pertains to the Report’s
conclusion that the 71 hours Plaintiffs’ counsel spent
litigating this action were “excessive,” and to the resultant
10% reduction in its fee award. (Report ¶¶ 46-48.) More
specifically, Plaintiffs object to the Report’s assertion that
Plaintiffs’ time sheets reflected “only the preparation of the
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complaint and the motion for a default judgment.” (Report ¶ 46.)
Plaintiffs’ Objection is warranted. Plaintiffs submitted to the
magistrate a declaration in support of its proposed findings of
fact and conclusions of law that describes how its efforts went
beyond a typical default action, including preparation for and
attendance at an initial scheduling conference following
Defendant’s Answer and a modest amount of paper discovery prior
to the withdrawal of Defendant’s counsel. (Bond Decl. ¶¶ 7-10 &
Ex. B.) In light of the Report’s 10% reduction in Plaintiffs’
fee award to account for the vague nature of the descriptions of
the actual legal work performed, which the Court finds quite
sensible and to which Plaintiffs have declined to object, it is
appropriate to eliminate the 10% reduction Plaintiffs object to.
Accordingly, the Report is hereby modified to reduce the
Plaintiffs’ fee award by 10%, instead of 20%, which results in
attorneys’ fees of $10,329.75. 1
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The total award consists of $5,166 for Deke Bond (25.83 hours
at $200 per hour), $2,846.25 for Jeffrey Olshansky (22.77 hours
at $125 per hour), $1,338.75 for Isaac Glovinsky (10.71 hours at
$125 per hour), $951.75 for Andrew Gorlick (4.23 hours at $225
per hour), and $27 for paralegal Tiffany Lewis (0.45 hours at
$60 per hour). (See Report ¶ 49.)
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III. Portions of the Report to Which Neither Party Has Objected
The Court reviews those portions of the Report to which
neither party has objected for clear error. DiPilato, 662 F.
Supp. 2d at 339. Having found no clear error, the Court ADOPTS
Magistrate Judge Pitman’s remaining Findings of Fact and
Conclusions of Law.
IV.
Conclusion
Having conducted the appropriate levels of review of the
Report and Recommendation of United States Magistrate Judge
Henry Pitman dated November 22, 2013, the Court MODIFIES the
Report as set forth above and, as modified, APPROVES, ADOPTS,
and RATIFIES the Report’s Findings of Fact (see Report ¶¶ 1-20)
and Conclusions of Law (see id. ¶¶ 21-54). Accordingly, the
Clerk of the Court is directed to enter judgment against
Defendant and in favor of Plaintiffs in the amount of
$907,332.87, consisting of (1) $430,303.33 in unpaid fringe
benefit contributions; (2) $33,661.16 in unpaid dues checkoffs;
(3) $2,301.63 in unpaid PAC contributions; (4) $143,434.44 for
the imputed cost of the audit; (5) interest on the unpaid fringe
benefit contributions in the amount of $133,385.59; (6)
liquidated damages in the amount of $133,385.59; (7) interest on
unpaid dues checkoffs and PAC contributions in the amount of
$20,141.38; and (8) $10,329.75 in attorneys' fees and $390.00 in
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costs and expenses. The Clerk of the Court is respectfully
directed to close this case.
SO ORDERED.
Dated: New York, New York
August 26, 2015
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