United States District Court, E.D. New York
TRUSTEES OF THE UNITED UNION OF ROOFERS, WATERPROOFERS AND ALLIED WORKERS LOCAL 154 WELFARE, PENSION, ANNUITY, AND APPRENTICESHIP AND TRAINING FUNDS, Plaintiff,
DME CONSTRUCTION ASSOCIATES, and ACSTAR INSURANCE COMPANY, Defendants.
Plaintiff: Charles R. Virginia, Esq., Nicole Marimon, Esq.,
Adam Arthur Biggs, Esq.
Defendants: Michael Marc Rabinowitz, Esq.
MEMORANDUM & ORDER
pending before the Court is Magistrate Judge A. Kathleen
Tomlinson's Report and Recommendation dated February 27,
2017, (the “R&R, ” Docket Entry 34),
recommending that the Court deny Plaintiffs Trustees of the
United Union of Roofers, Waterproofers and Allied Workers
Local 154 Welfare, Pension, Annuity, and Apprenticeship and
Training Funds' (“Plaintiffs” or the
“Funds”) motion to approve consent judgment. For
the following reasons, the Court ADOPTS Judge Tomlinson's
R&R in its entirety.
16, 2015, Plaintiffs commenced this action against defendants
DME Construction Associates (“DME”) and Acstar
Insurance Company (collectively, “Defendants”),
asserting claims pursuant to the Employee Retirement Income
Security Act of 1974 and the Labor Management Relations Act
of 1947 with respect to DME's failure to remit employer
contributions to the Funds in connection with a collective
bargaining agreement. (Compl. ¶¶ 1, 7-11.) On
February 8, 2016, the parties filed a Stipulation of
Dismissal without prejudice. (Stip., Docket Entry 28.) On
February 10, 2016, the Court “So Ordered” the
parties' Stipulation of Dismissal and directed the Clerk
of the Court to mark this case closed. (Order, Docket Entry
March 1, 2016, Plaintiffs filed a motion requesting that the
Court approve a consent judgment and enter judgment against
DME. (Pls.' Mot., Docket Entry 30.) Plaintiffs allege
that they entered into a Stipulation of Settlement with DME
in which DME agreed to remit a total of $131, 573.00 (the
“Settlement Agreement”). (Pls.' Aff., Docket
Entry 31, ¶ 6.) On February 9, 2016, Plaintiffs entered
into a consent judgment with DME for the total amount of
$143, 599.67 (the “Proposed Consent Judgment”).
(Pls.' Aff. ¶ 8.) Plaintiffs allege that DME failed
to remit installments due pursuant to the Settlement
Agreement. (Pls.' Aff. ¶¶ 11-13.) Plaintiffs
request that the Court enter the Proposed Consent Judgment
and award damages totaling $87, 795.20. (Pls.' Aff.
October 13, 2016, the Court referred Plaintiffs' motion
to Judge Tomlinson for a report and recommendation on whether
the pending motion should be granted. (Referral Order, Docket
February 27, 2017, Judge Tomlinson issued her R&R
recommending that Plaintiffs' motion be denied. (See
generally R&R.) Judge Tomlinson determined that
although Plaintiffs style their motion as a request for
approval of the Proposed Consent Judgment, they are
effectively seeking enforcement of “the terms of the
Stipulation of Settlement as incorporated into the proposed
Consent Judgment.” (R&R at 7-8.) Judge Tomlinson
noted that the District Court did not “So Order”
the Settlement Agreement or Proposed Consent Judgment prior
to the dismissal of this action, and the Stipulation of
Dismissal does not contain any language indicating that the
parties intended for the Court to retain jurisdiction to
enforce the Settlement Agreement after the case was closed.
(R&R at 8-9.) As a result, Judge Tomlinson sua
sponte addressed the issue of subject matter
jurisdiction and concluded that the Court lacked subject
matter jurisdiction to determine Plaintiffs' motion.
(R&R at 11-19.)
reviewing an R&R, a district court “may accept,
reject, or modify, in whole or in part, the findings and
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b) (1)(C). If no timely objections have
been made, the “court need only satisfy itself that
there is no clear error on the face of the record.”
Urena v. New York, 160 F.Supp.2d 606, 609-10
(S.D.N.Y. 2001) (internal quotation marks and citation
were due within fourteen (14) days of service of the R&R.
The time for filing objections has expired, and no party has
objected. Accordingly, all objections are hereby deemed to
have been waived. Upon careful review and consideration, the
Court finds Judge Tomlinson's R&R to be
comprehensive, well-reasoned, and free of clear error, and it
ADOPTS the R&R in its entirety.
foregoing reasons, the Court ADOPTS Judge Tomlinson's
R&R (Docket Entry 34) in its entirety. Plaintiffs'