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Bricklayers Insurance and Welfare Fund, Bricklayers Pension Fund v. Primo Brick

May 14, 2013

BRICKLAYERS INSURANCE AND WELFARE FUND, BRICKLAYERS PENSION FUND, BRICKLAYERS SUPPLEMENTAL ANNUITY FUND, BRICKLAYERS AND TROWEL TRADES INTERNATIONAL
PENSION FUND, NEW YORK CITY AND LONG ISLAND JOINT APPRENTICESHIP AND TRAINING FUND, INTERNATIONAL MASONRY INSTITUTE AND JEREMIAH SULLIVAN, JR., IN HIS FIDUCIARY CAPACITY AS ADMINISTRATOR, BRICKLAYERS LOCAL 1, INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFT WORKERS, AND BRICKLAYERS LABOR MANAGEMENT RELATIONS COMMITTEE, PLAINTIFFS,
v.
PRIMO BRICK, INC. AND G CONSTRUCTION ENTERPRISES, INC., DEFENDANTS.



The opinion of the court was delivered by: Block, Senior District Judge:

MEMORANDUM AND ORDER

Plaintiffs Bricklayers Insurance and Welfare Fund, Bricklayers Pension Fund, Bricklayers Supplemental Annuity Fund, Bricklayers and Trowel Trades International Pension Fund, New York City and Long Island Joint Apprenticeship and Training Fund, and the International Masonry Institute (collectively, the "Funds"); Jeremiah Sullivan Jr.; Bricklayers Local 1, International Union of Bricklayers and Allied Craft Works ("Local 1"); and Bricklayers Labor Management Relations Committee ("LMRC") filed this action against defendants Primo Brick, Inc. and G Construction Enterprises, Inc. seeking to recover unpaid contributions, unremitted dues checkoffs, interest, liquidated damages, costs, and injunctive relief, pursuant to Sections 502 and 515 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1132 and 1145, and Section 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185.*fn1

On April 3, 2013, Magistrate Judge Bloom issued a Report and Recommendation ("R&R") recommending that the Court award default judgment against defendant Primo Brick in the total amount of $65,162.02, consisting of $41,390.50 in unpaid contributions due to the Funds; $9,851.53 in interest on the unpaid contributions; $3,525.10 for outstanding Local 1 dues and LMRC contributions; $753.13 in interest on outstanding Local 1 dues and LMRC contributions; $9,291.76 in liquidated damages; and $350 in costs. See R&R at 8-12.*fn2

Magistrate Judge Bloom further recommended denying plaintiffs' request for injunctive relief because an audit had already been conducted. See id. at 12-14.

I

The R&R clearly stated that the parties' failure to object within 14 days of receipt of the R&R would preclude appellate review. See id. at 15. Defendant has not filed any objections, but plaintiffs have timely objected to the R&R's recommendation to deny injunctive relief. The Court reviews this objection de novo. See 28 U.S.C. § 636(b)(1).

Plaintiffs requested an injunction directing defendant to "submit to an audit of its payroll records, remit any outstanding contributions discovered as a result of that audit and pay any late charges, interest and liquidated damages in connection therewith." Pls.' Mem. of Law at 13. Magistrate Judge Bloom recommended denying this request because "defendant has already submitted to an audit for the period covering May 1, 2010 through March 31, 2011 and the unpaid contributions, interest, and damages set forth above cover this time period." R&R at 13. As a corollary, she recommended denying plaintiffs' demand for defendant to pay any outstanding dues, late charges, interest, and liquidated damages found as a result of the requested audit. See id. at 13-14. Magistrate Judge Bloom further found that:

(a) "monetary damages provide adequate remedies in the event that defendants commit similar violations in the future," and (b) "there is no evidence that the violations are continuing or that monetary damages are insufficient to deter future conduct." Id. at 14 (internal quotation marks omitted).

Plaintiffs acknowledge that "the denial of injunctive relief is not unfounded" as to the period from April 1, 2011 through September 30, 2011, since a second audit was conducted for this period and "did not reveal any additional delinquency owed by Primo."

Pls.' Ob. at 6. They clarify that their request is for an audit for the period beginning with the end of the most recent audit (i.e., October 1, 2011) and continuing through the present. See id.*fn3

Plaintiffs' complaint alleges breach of the collective bargaining agreement ("CBA"), ERISA violations, and LMRA violations. All of these causes of action are based on the CBA, which covered the period of May 10, 2010 through June 30, 2011. See Second Am. Compl. ¶¶ 7-15. In determining that plaintiff's factual allegations establish defendant's liability, Magistrate Judge Bloom stated:

Plaintiffs allege that defendant failed to make contributions to the Funds, as required by the terms of the CBA. Therefore, defendant's failure to make the required contributions to the Funds constitutes a violation of ERISA....

[P]laintiffs allege that defendant failed to remit dues to Local 1 and make required contributions to LMRC. These failures constitute a breach of the CBA, and thus, defendant is liable under Section 301 of the LMRA.

R&R at 6 (citations omitted). Defendant's liability, and correspondingly plaintiff's requested relief, are tied to the ...


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