United States District Court, E.D. New York
THE ANNUITY, WELFARE AND APPRENTICESHIP SKILL IMPROVEMENT & SAFETY FUNDS OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 15, 15A, 15C & 15D, AFL-CIO, CENTRAL PENSION FUND OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS, and INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 15, 15A, 15C & 15D, AFL-CIO, Plaintiffs,
BAR-MAC CONSTRUCTION, INC., Defendant.
MEMORANDUM & ORDER
N. VITALIANO United States District Judge
April 6, 2016, plaintiffs the Annuity, Welfare and
Apprenticeship Skill Improvement & Safety Funds of the
International Union of Operating Engineers, Local 15, 15 A,
15C & 15D, AFL-CIO, Central Pension Fund of the
International Union of Operating Engineers, and International
Union of Operating Engineers Local 15, 15 A, 15C & 15D,
AFL-CIO ("Local 15") (collectively, "Operating
Engineers"), brought this action against defendant
Bar-Mac Construction, Inc. ("Bar-Mac"), pursuant to
the Employee Retirement Income Security Act of 1974
("ERISA"), 29 U.S.C. § 1001, et seq.
and § 301 of the Labor Management Relations Act of 1947
("LMRA"), 29 U.S.C. § 185, et seq.
to the heart of it, Local 15 and Bar-Mac are parties to a
collective bargaining agreement ("CBA") that
requires Bar-Mac, an employer, to make certain payments to
trust funds maintained by the Operating Engineers.
See Dkt. No. 1 ("Compl.") at 4. The
Operating Engineers seek, inter alia, an order
compelling an audit of Bar-Mac and, in the event a deficiency
is revealed, for appropriate monetary relief. Plaintiffs
report that, to date, Bar-Mac has refused to produce books
and records so that an audit may be conducted in accordance
with the CBA. Id. at 6. Bar-Mac has not appeared or
otherwise responded to the complaint in this action.
14, 2016, the Operating Engineers moved for default judgment
as authorized by Federal Rule of Civil Procedure 55(b)
against Bar-Mac, seeking an order (i) compelling Bar-Mac to
cooperate with an audit covering the period from September
11, 2014 through March 31, 2016; (ii) permitting them, once
the audit is completed, to collect any outstanding
contributions, and (iii) providing attorney's fees and
costs. Dkt. No. 8. That motion was respectfully referred to
Magistrate Judge Peggy Kuo on June 20, 2016, for an
assessment of liability, an inquest as to damages, and a
Report and Recommendation ("R&R") as to her
findings. Magistrate Judge Kuo's R&R issued on March
13, 2017, which recommended that the motion be granted in its
entirety. Dkt. No. 15. The R&R gave appropriate notice
that any objection had to be filed within 14 days of
service. To date, much less in a timely fashion, no
party has filed an objection. The Court now adopts the
R&R as the opinion of the Court.
reviewing a report and recommendation of a magistrate judge,
a district 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). Further,
a district judge is required to "determine de
novo any part of the magistrate judge's disposition
that has been properly objected to." Fed.R.Civ.P.
72(b)(3); see also 28 U.S.C. § 636(b)(1);
Arista Records, LLC v. Doe 3, 604 F.3d 110, 115-16
(2d Cir. 2010). But, where no timely objection has been made,
which is the case here, a "district court need only
satisfy itself that there is no clear error on the face of
the record" to accept a magistrate judge's Report
and Recommendation, Gesualdi v. Mack Excavation &
Trailer Serv., Inc., No. 09-CV-2502 (KAM) (JO), 2010 WL
985294, at *1 (E.D.N.Y. Mar. 15, 2010) (citation and internal
quotations omitted), and "may adopt those portions of
the [r]eport... which are not facially erroneous[J"
Price v. City of New York, 797 F.Supp.2d 219, 223
(E.D.N.Y.2011) (citation omitted).
no objection has been filed by any party, and the time to do
so has passed, and after careful review of the record, the
Court finds the R&R to be correct, well-reasoned, and
free of any clear error. The Court, therefore, adopts the
R&R as the opinion of the Court.
the Clerk of Court is directed to enter default judgment,
pursuant to Federal Rule of Civil Procedure 55(b) in favor of
the Operating Engineers, and directs defendant Bar-Mac to
produce books and records and otherwise cooperate in an audit
for the time period from September 11, 2014 through March 31,
2016. As recommended by Magistrate Judge Kuo, plaintiffs are
granted leave to seek an amended judgment if the audit
reveals deficient contributions. See R&R at 11.
Additionally, attorney's fees and costs in ths amount of
$3, 165 are awarded to plaintiffs. Id.
Clerk of Court is further directed to close this case for
Plaintiffs mailed a copy of the R&R
to defendant via certified mail on March 13, 2017.
See Dkt. No. 16; Fed.R.Civ.P. 5(b)(2)(C) (service