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BOURGAL v. ROBCO CONTR. ENTERPRISES

August 21, 1998

MICHAEL BOURGAL, JOHN PROBEYAHN, THEODORE KING, CHESTER BROMAN, BEN CIAVOLELLA, JR., FRANK FINKEL, JOSEPH FERRARA and ANIELLO MADONNA as Trustees and Fiduciaries of the Local 282 Welfare, Pension, Annuity and Job Training Trust Funds, Plaintiffs,
v.
ROBCO CONTRACTING ENTERPRISES, LTD., FERRAIOLI INDUSTRIES, INC., DANASAL EQUIP. CORP., ROBERTA DEFILLIPIS, and SAL FERRAIOLI, Defendants.



The opinion of the court was delivered by: SPATT

MEMORANDUM OF DECISION AND ORDER

 SPATT, District Judge :

 This lawsuit arises as a result of the alleged failure to pay benefit contributions to the Local 282 Welfare, Pension, Annuity and Job Training Funds, as required under the terms of the relevant collective bargaining agreement, by the defendants Robco Contracting Enterprises, Ltd. ("Robco"), Ferraioli Industries, Inc., Dana-Sal Equipment Corp., Roberta Defillipis ("Defillipis") and Sal Ferraioli. The plaintiffs, Michael Bourgal, John Probeyahn, Theodore King, Chester Broman, Ben Ciavolella, Jr., Frank Finkel, Joseph Ferrara and Aniello Madonna (collectively the "plaintiffs"), initiated this action as Trustees and Fiduciaries on behalf of the benefit funds pursuant to the Labor Management Relations Act, section 301, 29 U.S.C. § 185 and the Employee Retirement Income Security Act, sections 502 and 515, 29 U.S.C. §§ 1132 and 1145.

 Following Orders issued by this Court granting the plaintiffs' summary judgment motion and adopting the Reports and Recommendations of United States Magistrate Judge Viktor V. Pohorelsky concerning damages and attorneys' fees, the Clerk of the Court entered judgment against the defendants on December 10, 1997. Presently before the Court are the motions of the defendants Robco and Defilippis, filed on March 27, 1998, to reopen their time to appeal pursuant to Fed. R. App. P. 4(a)(6), and, alternatively, for an extension of time to file the motion to reopen pursuant to Fed. R. App. P. 26(b).

 I. BACKGROUND

 Familiarity with the Court's prior decisions is presumed.

 In a Memorandum of Decision and Order dated June 27, 1997, this Court granted the plaintiffs' motion for summary judgment on the issue of liability against the defendants. With the consent of the parties, the Court referred the case to United States Magistrate Judge Viktor V. Pohorelsky to issue a Report and Recommendation concerning the proper amount of damages and attorneys' fees. By a Report and Recommendation dated August 8, 1997, Judge Pohorelsky calculated the amount of damages as follows: (1) $ 190,640.11 for unpaid contributions; (2) $ 156,447.66 for interest through August 8, 1997; and (3) $ 156,447.66 for liquidated damages, for a total damages award of $ 503,535.43. In addition, Judge Pohorelsky computed that interest would continue to accrue at a rate of $ 83.57 per day from August 8, 1997. After reviewing the subsequently-filed objections of the defendants Robco and Defillipis, the Court concluded that they were "without merit" and, by an Order dated September 24, 1997, adopted the Report and Recommendation as the decision of the Court.

 In a subsequent Report dated November 17, 1997, Judge Pohorelsky recommended that the plaintiffs be awarded attorneys' fees in the amount of $ 69,635.00 and costs in the amount of $ 605.00, for a total sum of $ 70,240.00. None of the parties filed an objection to Judge Pohorelsky's Report and Recommendation, and by Order dated December 2, 1997, this Court adopted it and directed the Clerk of the Court to close the case.

 The docket reflects that on December 10, 1997, the Clerk of the Court entered judgment against the defendants. The judgment bears the handwritten notation "cm," which the Court judicially notices as an abbreviation indicating "copies were mailed" by the Clerk of the Court to all the parties, as required under F.R.C.P. 77(d). There is nothing in the docket indicating that any mailing was returned to the Clerk by the post office.

 On March 27, 1998, the defendants Robco and Defillipis filed motions to reopen their time to appeal pursuant to Fed. R. App. P. 4(a)(6), and, alternatively, for an extension of time to file the motion to reopen pursuant to Fed. R. App. P. 26(b). In his affirmation supporting the defendants' motion, counsel for the defendants Robco and Defillipis, Roger J. Bernstein, declares that he did not receive the judgment from the Clerk's Office after it was entered on December 10 1997. Bernstein states that counsel for the other defendants, J. Jeffrey Weisenfeld, informed him that he, too, did not receive a copy of the judgment from the Clerk's Office. Counsel for the plaintiff acknowledges that he also did not receive notice of entry of judgment from the Clerk in December 1997. Instead, during the last week of February 1998, plaintiffs' counsel states:

 
[I] began calling the Clerk's Office to ascertain the status of the judgment. I was informed that the judgment had been entered by the Clerk of the Court on December 10, 1997, but that the judgment was not in the Court's file. Numerous telephone calls ensued before a copy of the judgment was faxed to me from the Clerk's Office on March 11, 1998.

 Affirmation of James R. Grisi, at P 9.

 On March 17, 1998, plaintiffs' counsel wrote to defendants' attorneys demanding payment of the judgment amount, and enclosing a copy of the judgment with the letter. Defense counsel Bernstein declares that he received this correspondence on March 19, ...


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