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Engineers Joint Welfare Fund v. Western New York Contractors

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


March 12, 2010

ENGINEERS JOINT WELFARE FUND, BY DANIEL P. HARRIGAN, AS ADM'R; ENGINEERS JOINT PENSION FUND, BY DANIEL P. HARRIGAN, AS ADM'R; ENGINEERS JOINT SUPPLEMENTAL UNEMPLOYMENT BENEFIT FUND, BY DANIEL P. HARRIGAN, AS ADM'R; ENGINEERS JOINT TRAINING FUND, BY DANIEL P. HARRIGAN, AS ADM'R; OPERATING ENGINEERS LOCAL 17 TRAINING FUND, BY JAMES SMOLINSKI, AS ADM'R; CENTRAL PENSION FUND OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS, BY MICHAEL R. FANNING, AS CHIEF EXEC. OFFICER; INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 17, BY ALAN PERO, AS INT'L REPRESENTATIVE; INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 545, BY THERON HOGLE, AS BUS. MANAGER; AND INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 832, BY THOMAS E. CHARLES, AS BUS. MANAGER, PLAINTIFFS,
v.
WESTERN NEW YORK CONTRACTORS, INC.; AND ROBERT A. VALERINO, INDIVIDUALLY AND AS AN OFFICER OF WESTERN NEW YORK CONTRACTORS, INC., DEFENDANTS.

The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

The above matter comes to this Court following a Report-Recommendation by Magistrate Judge David E. Peebles, filed on January 4, 2010, recommending that (1) Defendant Robert Valerino's Answer be stricken in this action, (2) the Clerk of the Court be permitted to enter a default against this Defendant, and (3) Plaintiffs be permitted to file a motion for default judgment against this Defendant. (Dkt. No. 20.) Objections to the Report-Recommendation have not been filed and the time in which to do so has expired. For the reasons set forth below, Magistrate Judge Peebles's Report-Recommendation is accepted and adopted in its entirety.

I. STANDARD OF REVIEW

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn1

When only general objections are made to a magistrate judge's report-recommendation (or the objecting party merely repeats the allegations of his pleading), the Court reviews for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).*fn2 Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducting the appropriate 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)(C).

II. DISCUSSION

After carefully reviewing all of the papers herein, including Magistrate Judge Peebles's thorough Report-Recommendation, the Court can find no error in the Report-Recommendation, clear or otherwise. As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein. (Dkt. No. 20.)

ACCORDINGLY, it is

ORDERED that Magistrate Judge Peebles's Report-Recommendation (Dkt. No. 20) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Defendant Robert Valerino's Answer (Dkt. No. 7) is STRICKEN FROM THE RECORD.The Clerk is directed to enter default against Defendant Robert Valerino, and Plaintiffs are permitted to file a motion for default judgment against him.


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