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Stephen Flanagan, As A Trustee of the General Building Laborers' Local 66 Pension Fund v. Stone Commercial Spraying Company

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


September 24, 2012

STEPHEN FLANAGAN, AS A TRUSTEE OF THE GENERAL BUILDING LABORERS' LOCAL 66 PENSION FUND;
STEPHEN FLANAGAN, AS A TRUSTEE OF THE GENERAL BUILDING LABORERS' LOCAL 66 WELFARE FUND; STEPHEN FLANAGAN, AS A TRUSTEE OF THE GENERAL BUILDING LABORERS' LOCAL 66 VACATION FUND;
STEPHEN FLANAGAN, AS TRUSTEE OF THE GENERAL BUILDING LABORERS' LOCAL 66 ANNUITY FUND;
STEPHEN FLANAGAN; AS TRUSTEE OF THE GENERAL BUILDING LABORERS' LOCAL 66 LABORERS' EMPLOYER COOPERATIVE AND EDUCATIONAL TRUST FUND;
STEPHEN FLANAGAN, AS A TRUSTEE OF THE GENERAL BUILDING LABORERS' LOCAL 66 GREATER NY LABORERS' EMPLOYER COOPERATIVE AND EDUCATIONAL TRUST FUND;
STEPHEN FLANAGAN, AS A TRUSTEE OF THE GENERAL BUILDING LABORERS' LOCAL 66 TRAINING PROGRAM;
STEPHEN FLANAGAN, AS A TRUSTEE OF THE GENERAL BUILDING LABORERS' LOCAL 66 NEW YORK STATE HEALTH AND SAFETY FUND;
STEPHEN FLANAGAN, AS BUSINESS MANAGER OF GENERAL BUILDING LABORERS' LOCAL UNION NO. 66 OF THE
LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, PLAINTIFF,
v.
STONE COMMERCIAL SPRAYING COMPANY, INC., AND THOMAS WESTHALL, DEFENDANTS.

The opinion of the court was delivered by: Spatt, District Judge.

ORDER

On September 23, 2005, the plaintiff commenced this action against the defendants seeking to collect delinquent and unpaid fringe benefit contributions and to conduct an audit of the defendants' books and records pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132, and the Taft-Hartley Act, 29 U.S.C. 185. On February 2, 2008, the Court entered a default judgment against the defendants, Stone Commercial Spraying Company, Inc. and Thomas Westhall, and referred the matter to United States Magistrate Judge A. Kathleen Tomlinson for an inquest as to damages, including reasonable attorneys' fees and costs.

On July 20, 2012, Judge Tomlinson issued a Report and Recommendation (the "Report") recommending that plaintiff be awarded no damages at this time and that the plaintiff's request for an audit be denied. In addition, Judge Tomlinson further recommended that the Court grant the plaintiff leave to renew the motion if the plaintiff can provide sufficient support for the relief sought in accordance with the guidance set forth in the Report. To date, there have been no objections filed to the Report. In reviewing a report and recommendation, a 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). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (citing Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)). The Court has reviewed Judge Tomlinson's Report and finds it be persuasive and without any legal or factual errors.

There being no objection to Judge Tomlinson's Report, it is hereby ORDERED, that Judge Tomlinson's Report and Recommendation is adopted in its entirety. The Court awards the plaintiff no damages at this time and denies the plaintiff's request to conduct an audit of the defendants' books and records, and it is further

ORDERED, that the Court grants the plaintiff leave to renew the motion for damages in accordance with the guidance set forth in the Report within 30 days of the date of this order.

SO ORDERED.

ARTHUR D. SPATT United States District Judge

20120924

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