The opinion of the court was delivered by: Seybert, District Judge:
Pending before the Court is Magistrate Judge Arlene R. Lindsay's second Report and Recommendation (the "Second R&R") in this action, recommending that Plaintiffs' request for damages be denied. For the following reasons, Plaintiffs' objections to Judge Lindsay's Second R&R are SUSTAINED IN PART and OVERRULED IN PART, Judge Lindsay's Second R&R is ADOPTED IN PART, and Plaintiffs' request for an award of damages is DENIED.
The Court assumes familiarity with the underlying facts of this case which are described in detail in Judge Lindsay's Second R&R. The Court will only discuss the relevant procedural history.
Plaintiffs commenced this action on March 25, 2009 against M.N.T. Development Corp. ("MNT") and Andrew Antonacci ("Antonacci") alleging violations of Section 515 of the Employee Retirement Income Security Act ("ERISA"), codified as 29 U.S.C. § 1145. (Docket Entry 1.) After multiple extensions of time (and one Notice of Impending Dismissal for lack of prosecution) (Docket Entries 2, 4, 7-8), Plaintiffs served the Summons and Complaint on MNT and Antonacci in November 2009 and January 2011 respectively (Docket Entries 5, 9). Neither MNT nor Antonacci answered or otherwise responded to the Complaint.
Eight months later, on August 29, 2011, Plaintiffs moved simultaneously for an entry of default and a default judgment. (Docket Entry 10.) On August 31, 2011, the Clerk of the Court noted the default (Docket Entry 11), and on September 22, 2011, the Court referred Plaintiffs' motion for a default judgment to Judge Lindsay for an R&R (Docket Entry 12). On December 13, 2011, Judge Lindsay issued an R&R (the "First R&R") (Docket Entry 17), recommending that Plaintiffs' motion for a default judgment against MNT be granted and that Plaintiffs' claims against Antonacci be dismissed. Flanagan v. M.N.T. Dev. Corp., No. 09-CV-1250, 2011 WL 6955892, at *2-3 (E.D.N.Y. Dec. 13, 2011). Judge Lindsay also recommended that Plaintiffs' request for an award of damages be denied with leave to renew because Plaintiffs had failed to provide the Court with a signed copy of the operative collective bargaining agreement or with notarized affidavits. Id. at *3.
No party objected to Judge Lindsay's First R&R, and this Court adopted it in its entirety on January 26, 2012 (Docket Entry 18), dismissing all claims against Antonacci. Flanagan v. M.N.T. Dev. Corp., No 09-CV-1250, 2012 WL 28299, at *1 (E.D.N.Y. Jan. 5, 2012). The Court granted Plaintiffs until January 31, 2012 to renew their request for damages against MNT "by filing a signed copy of the collective bargaining agreement and proper affidavits as outlined in Judge Lindsay's [First] R&R." Id. Plaintiffs were warned that the Court would not accept any late submissions, as the case had already suffered from inordinate delay. Id.
On January 31, 2012, Plaintiffs renewed their motion for damages against MNT by filing an affidavit (the "Original Menechino Affidavit") signed under penalty of perjury attaching a signed copy of the collective bargaining agreement and various other exhibits. (Docket Entry 19.) However, three of the attached exhibits were filed in error--i.e., Plaintiffs mistakenly submitted paystubs and other payroll information for an entirely different lawsuit. (Original Menechino Aff. Exs. AB, F.) The Court referred Plaintiffs' renewed motion to Judge Lindsay for an R&R on February 1, 2012. (Docket Entry 21.)
On February 3, 2012, notwithstanding this Court's warning that submissions filed after January 31, 2011 would not be accepted, Judge Lindsay issued an order directing and encouraging Plaintiffs to file supplemental papers in support of their damages claim. (Docket Entry 22.) On February 10, 2012, Plaintiffs submitted a supplemental affidavit (the "Amended Menechino Affidavit") attaching the proper Exhibits A and B (Docket Entry 23) and a Memorandum in Support (Docket Entry 24).
On August 7, 2012, Judge Lindsay issued her Second R&R recommending that the Court deny Plaintiffs' renewed request for damages against MNT because: (1) "[d]espite the court's warning that no late submissions would be accepted," Plaintiffs submitted the Amended Menechino Affidavit in an attempt to cure the fatal defects in the Original Menechino Affidavit after this Court's January 31, 2011 deadline "without permission from the court" (Second R&R at 3), or (2) in the alternative, even if the Court considered the untimely Amended Menechino Affidavit, Plaintiffs' ...