Ferrara v. CMR Contracting LLC

848 F. Supp. 2d 304, 2012 WL 987497, 2012 U.S. Dist. LEXIS 29895
CourtDistrict Court, E.D. New York
DecidedMarch 6, 2012
DocketNo. 10-CV-5905 (ADS)(ETB)
StatusPublished
Cited by11 cases

This text of 848 F. Supp. 2d 304 (Ferrara v. CMR Contracting LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferrara v. CMR Contracting LLC, 848 F. Supp. 2d 304, 2012 WL 987497, 2012 U.S. Dist. LEXIS 29895 (E.D.N.Y. 2012).

Opinion

ORDER

SPATT, District Judge.

On December 17, 2010, the plaintiffs commenced this action against the defendants, CMR Contracting LLC (“CMR Contracting”), and LTU Industries Inc. a/k/a LTU Industry Inc., (“LTU Industries” and collectively “the defendants”) [307]*307pursuant to Section 502 of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1132, seeking to collect unpaid employee benefit contributions due under collective bargaining agreements entered into by the parties, as well as interest, liquidated damages, audit fees, and attorney’s fees and costs. On April 11, 2011, the Court entered a default judgment against the defendants and referred the matter to United States Magistrate Judge E. Thomas Boyle for an inquest as to damages, appropriate injunctive relief, attorney’s fees and costs.

On January 20, 2012, Judge Boyle issued a Report and Recommendation, recommending that the Court award the plaintiffs damages with respect to CMR Contracting LLC as follows: (1) $172,569.92 in unpaid employee benefit contributions; (2) $115,987.36 in interest, with additional interest to be calculated at a rate of $85.10 per day through the date of judgment; (3) $115,987.36 in liquidated damages, with additional liquidated damages to be calculated at a rate of $85.10 per day through the date of judgment; (4) audit fees in the amount of $700.00; (5) $9,618.00 in attorney’s fees; and (6) $2,115.68 in costs, for a total monetary award of $416,978.32, plus additional interest and liquidated damages.

Judge Boyle further recommended that the Court award the plaintiffs damages with respect to LTU Industries as follows: (1) $11,272.04 in unpaid employee benefit contributions; (2) $5,192.60 in interest, with additional interest to be calculated at a rate of $5.56 per day through the date of judgment; (3) $5,192.60 in liquidated damages, with additional liquidated damages to be calculated at a rate of $5.56 per day through the date of judgment; (4) audit fees in the amount of $3,109.88; (5) $8,482.00 in attorney’s fees; and (6) $2,115.68 in costs, for a total monetary award of $35,364.80, plus additional interest and liquidated damages. To date, there have been no objections filed to Judge Boyle’s 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 Boyle’s Report and finds it to be persuasive and without any legal or factual errors.

There being no objection to Judge Boyle’s Report, it is hereby

ORDERED, that Judge Boyle’s Report and Recommendation is adopted in its entirety. The Court awards the plaintiffs damages with respect to CMR Contracting LLC as follows: (1) $172,569.92 in unpaid employee benefit contributions; (2) $115,987.36 in interest, with additional interest to be calculated at a rate of $85.10 per day from January 20, 2012 through the date of judgment; (3) $115,987.36 in liquidated damages, with additional liquidated damages to be calculated at a rate of $85.10 per day from January 20, 2012 through the date of judgment; (4) audit fees in the amount of $700.00; (5) $9,618.00 in attorney’s fees; and (6) $2,115.68 in costs, for a total monetary award of $416,978.32, plus additional interest and liquidated damages. The Court also awards the plaintiffs damages with respect to LTU Industries as follows: (1) $11,272.04 in unpaid employee benefit contributions; (2) $5,192.60 in interest, with additional interest to be calculated at a rate of $5.56 per day from January 20, [308]*3082012 through the date of judgment; (3) $5,192.60 in liquidated damages, with additional liquidated damages to be calculated at a rate of $5.56 per day from January 20, 2012 through the date of judgment; (4) audit fees in the amount of $3,109.88; (5) $8,482.00 in attorney’s fees; and (6) $2,115.68 in costs, for a total monetary award of $35,364.80, plus additional interest and liquidated damages, and it is further

ORDERED, that the Clerk of the Court is directed to enter judgment in favor of the plaintiffs as set forth above, and it is further

ORDERED, that the Clerk of the Court is directed to close this ease.

SO ORDERED.

REPORT AND RECOMMENDATION

E. THOMAS BOYLE, United States Magistrate Judge.

The plaintiffs, the Trustees of five employee benefit funds (the “Funds”), bring this action against defendants, CMR Contracting, LLC (“CMR”) and LTU Industries, Inc. (“LTU”), pursuant to Section 502 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. § 1132. Plaintiffs seek to recover unpaid employee benefit contributions owed to the Funds pursuant to the terms of the collective bargaining agreements entered into by the parties, as well as interest, liquidated damages, audit fees, and attorney’s fees and costs. Plaintiffs’ filed a motion for a default judgment on March 16, 2011 and the matter was referred to the undersigned for a report and recommendation with respect to whether the motion should be granted, as well as any accompanying damages.

For the following reasons, I recommend that plaintiffs’ motion for a default judgment be granted and that plaintiffs be awarded damages in the amount of $416,978.32 from CMR and $35,364.80 from LTU.

Facts

The defendant corporations are managed by a single president and operate out of the same office locations in Catskill and Maspeth, New York. (Compl. ¶ 7-12.) The President, Louis Gabriel, executed collective bargaining agreements (“CBAs”) with the Local 282 Union on behalf of both CMR and LTU. (Compl. ¶ 12.) Defendant CMR was a party to the New York City Heavy Construction & Excavating Contract for the period July 1, 2002 through June 30, 2006, and to the Metropolitan Trucker’s Association & Independent Trucker’s Contract for the period July 1, 2006 through June 30, 2009. (Tr. 7-9; Compl. ¶ 10.) LTU was a party to the New York City Heavy Construction & Excavating Contract for the period July 1, 2006 through June 30, 2009, and is still a party to the contract for the period July 1, 2009 through June 30, 2013. (Tr. 11; Compl. ¶ 11.)

Signing a CBA binds a party to both the CBA and the Trust Agreement. (Tr. 12; Compl. ¶ 14.) The CBAs require members to make contributions to the Funds on behalf of their employees at specified rates for each hour of covered employment. (Tr. 13; Compl. ¶ 13.) The Trust Agreement serves as a mechanism for ensuring that parties comply with their contribution obligations. Pursuant to the Trust Agreement, employers must submit remittance reports with their fund contributions. (Compl. ¶ 15; Supp. Cody Deck Ex. A, Art.

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848 F. Supp. 2d 304, 2012 WL 987497, 2012 U.S. Dist. LEXIS 29895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferrara-v-cmr-contracting-llc-nyed-2012.