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Oswego Laborers' Local 212 Pension and Annuity Funds v. Western New York Contractors

July 19, 2010

OSWEGO LABORERS' LOCAL 212 PENSION AND ANNUITY FUNDS, BY EARL N. HALL AND WILLIAM F. SHANNON, AS TRUSTEES; CENTRAL NEW YORK LABORERS' HEALTH AND WELFARE AND TRAINING FUNDS, BY JANET M. MORO, AS FUND ADMINISTRATOR; AND CONSTRUCTION AND GENERAL LABORERS' LOCAL UNION NO. 633, BY GABRIEL ROSETTI, AS BUSINESS 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: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Plaintiffs Oswego Laborers' Local 214 Pension and Annuity Funds, Central New York Laborers' Health and Welfare Pension, Annuity and Training Funds and Construction and General Laborers' Local Union No. 633 bring this action alleging that defendants Western New York Contractors, Inc. and Robert A. Valerino, violated the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., and the Labor-Management Relations Act of 1947, as amended, 29 U.S.C. § 185 (a) et seq., by failing to timely remit fringe benefit contributions and deductions.

On May 5, 2008, plaintiffs filed a complaint in this action. On June 30, 2008, defendants filed an answer to the complaint. On June 6, 2009, Western New York Contractors, Inc. filed for Chapter 11 Bankruptcy in the U.S. Bankruptcy Court for the Western District of New York which resulted in a stay of proceedings in this matter. (Dkt. No. 22). On July 22, 2009, plaintiffs filed a motion in Bankruptcy Court seeking an order modifying the bankruptcy stay so as to permit plaintiffs to obtain discovery from Western New York Contractors, Inc. and Robert A. Valerino necessary for the actions previously commenced in this court. The motion was unopposed. The Honorable John C. Ninfo issued an Order modifying the stay afforded by 11 U.S.C. § 362. The Order provided, in pertinent part:

ORDERED that the Funds and Unions be and hereby are authorized to obtain discovery from Western New York Contractors, Inc. and Robert A. Valerino, as President of Western New York Contractors, Inc., in connection with the actions now pending in the United States District Court for the Northern District of New York;

ORDERED, that the stay afforded by 11 U.S.C. § 362 to the Debtor is not applicable to Robert A. Valerino, individually, and the Funds and Unions may proceed with their District Court action (Civil Action No. 08-CV-484) against Robert A. Valerino, individually.

See Clark Aff., Ex. D (In Re: Western New York Contractors, 09-21530, Dkt. No. 71-1 (Aug. 12, 2009) (Order)).

On October 27, 2009, plaintiffs moved for an entry of sanctions against Valerino based upon defendant's continuing failure to comply with the Court's Orders and plaintiffs' requests for discovery. On October 28, 2009, United States Magistrate Judge Lowe issued an Order finding Valerino in contempt. (Dkt. No. 40). Judge Lowe further ordered Valerino's answer to be stricken from the record. Judge Lowe authorized plaintiffs to proceed with entry of judgment by default against Valerino and precluded Valerino from submitting any evidence in opposition to plaintiffs' motion for default judgment including evidence in opposition to plaintiffs' calculation of damages. Judge Lowe further directed the Clerk to enter judgment in accordance with Rule 54 in favor of plaintiffs against Valerino in the amount of $3,729.63 for attorneys' fees and costs from November 3, 2008 until July 16, 2009.*fn1

On December 8, 2009, plaintiffs moved (Dkt. No. 42) for default judgment against defendant Robert A. Valerino, individually, on the first, second, fourth, and fifth causes of action.*fn2 Fed. R. Civ. P. 54(b) and 55(b)(2). Plaintiffs seek damages in the amount of $70,710.92, which, when broken down, represents: $117.88 in fringe benefit contributions and deductions; $8,721.42 in interest; $39,103.25 in liquidated damages; $4,282.21 in audit fees and expenses; and $18,486.16 in attorneys' and paralegal fees and costs.

DISCUSSION

I. Jurisdiction

The Court has subject matter jurisdiction as this action arises under the ERISA, codified at 29 U.S.C. §§ 1001 et seq.

A.

II. Rule ...


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