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Jacobson v. Empire Electrical Contractors

March 25, 2008

LARRY JACOBSON, AS CHAIRMAN OF THE JOINT INDUSTRY BOARD OF THE ELECTRICAL INDUSTRY, PLAINTIFF,
v.
EMPIRE ELECTRICAL CONTRACTORS, INC. AND JOHN ESPOSITO, DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

Plaintiff Larry Jacobson, as Chairman of the Joint Industry Board of the Electrical Industry ("Joint Board"), commenced this action under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1132 and 1145 against defendants, Empire Electrical Contractors, Inc. (the "employer") and John Esposito, to collect delinquent benefit contributions and various other sums allegedly owed to the Joint Board under a collective bargaining agreement pursuant to Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. The defendants were properly served with copies of the summons and complaint, but did not appear or otherwise defend the action, and plaintiff moved for a default judgment. The court entered default judgment on June 27, 2006 in favor of plaintiff and referred the matter to the assigned magistrate judge to hold an inquest on damages.

On September 13, 2007, U.S. Magistrate Judge Viktor V. Pohorelsky issued a report and recommendation ("R&R") recommending that judgment be entered against the employer on the following claims:

(1) unpaid contributions to employment benefit plans administered by the plaintiff for weeks 39-50 of 2005 (weeks ending between September 28, 2005 to December 14, 2005), in the amount of $130,691.17 (the unpaid "ERISA Contributions");

(2) prejudgment interest on the unpaid ERISA Contributions;

(3) liquidated damages on the ERISA Contributions in the amount of $26,138.23

(4) Attorney's fees totaling $7,211.91 and costs in the amount of $834.79. (R&R 12-13). The plaintiff filed timely objections challenging the Magistrate Judge's denial of the following claims:

(A) unpaid contributions to a deferred salary plan administered by the plaintiff and managed by Putnam Investments, a third-party investment manager, for weeks 39-50 of 2005, in the amount of $30,310.20 (the "unpaid 401(k) Contributions").

(B) Lost interest income on certain 401(k) contributions that were paid late between September 8, 2004 to September 21, 2005, in the amount of $902 (the "interest on the late-paid 401(k) Contributions").

The Magistrate Judge had denied both of these claims due to inadequate and unauthenticated supporting documentation. Plaintiff filed timely objections along with an additional declaration. (See Declaration of Kevin Duffy in Support of Plaintiff's Objection to the Report and Recommendation, Sept. 27, 2007 ("Duffy Decl."), Dkt. No. 18). For the reasons set forth below, the court adopts Magistrate Judge Pohorelsky's recommendations in full and overrules plaintiff's objections thereto.

STANDARD OF REVIEW

When objections to an R&R are made, a district judge must make a de novo determination with respect to those parts of the R&R to which any party objects. The district court may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b);28 U.S.C. § 636(b); See also United States v. Raddatz, 447 U.S. 667, 673-76 (1980).

Under Federal Rule of Civil Procedure 72(b), a district court may consider additional evidence in making its de novo determination as to portions of a magistrate judge's report and recommendation to which specific written objections have been made. See also Hynes v. Suillace, 143 F.3d 653, 656 (2d Cir. 1998)(noting that while "[c]onsiderations of efficiency and fairness militate in favor of a full evidentiary submission for the Magistrate Judge's consideration, a district court nonetheless retains discretion to review supplementation of the record). But cf. Housing Works, Inc. v. Turner, 362 F.Supp.2d 434 (S.D.N.Y. ...


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