Finkel v. Firequench, Inc.

• Court: District Court, E.D. New York
• Decided: September 20, 2024
• Docket: 1:23-cv-04868
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------x

DR. GERALD R. FINKEL, as Chairman of the Joint Industry Board of the Electrical Industry, MEMORANDUM & ORDER 23-CV-4868(EK)(JAM) Petitioner,

-against-

FIREQUENCH, INC.,

Respondent.

------------------------------------x ERIC KOMITEE, United States District Judge: The Court has received Magistrate Judge Marutollo’s Report and Recommendation (R&R) dated January 29, 2024. ECF No. 13. Judge Marutollo recommends that I confirm the arbitration award rendered pursuant to the terms of a collective bargaining agreement between the Petitioner, Dr. Finkel, and the Respondent, Firequench, Inc., (the “Award”) and grant Finkel’s motion in part. Judge Marutollo further recommends that I order Firequench to pay Finkel the total remaining award amount of $40,506.07, consisting of: (1) reported but unpaid contributions in the amount of $11,603.44; (2) interest in the amount of $3,701.65; (3) additional shortages and underpayments in the amount of $3,051.30; (4) liquidated damages in the amount of $16,399.68; (5) legal fees and costs in the amount of $4,350.00; and (6) the arbitrator’s fee in the amount of $1,400.00. Finally, Judge Marutollo recommends that Finkel be awarded post- judgment interest in accordance with 28 U.S.C. § 1961 and that Firequench be ordered to pay Finkel $742.00 for the attorney’s

fees and costs it incurred in connection with this proceeding. Respondent Firequench has not filed any objections to this R&R, and the time to do so has expired. Finkel filed a timely objection only to the portion of Judge Martuollo’s R&R that recommends awarding $402 in costs, rather than the $477 requested. ECF No. 15. Finkel argues that the additional $75 service cost should be awarded because, although he did not submit documentation of this cost in his initial motion, he has since obtained, and attached as exhibits, a service invoice and a history bill demonstrating payment of a $90 service fee. ECF Nos. 15-1, 15-2. (Finkel’s objection only requests $75, however, as this was the amount estimated and requested in the

initial motion.) 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)(C). The district court reviews de novo those portions of an R&R to which a party has specifically objected. Id.; Fed. R. Civ. P. 72(b)(3); see also Kruger v. Virgin Atl. Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (“A proper objection is one that identifies the specific portions of the R&R that the objector asserts are erroneous and provides a basis for this assertion.”), aff’d, 578 F. App’x 51 (2d Cir. 2014). In resolving objections, a “district judge may . . . receive further evidence.” Fed. R.

Civ. P. 72(b)(3). As Judge Marutollo noted, a party is entitled to an award of costs when the applicant has “adequately document[ed] and itemize[ed] the costs.” Incredible Foods Grp., LLC v. Unifoods, S.A. De C.V., No. 14-CV-5207 (KAM)(JO), 2016 WL 4179943, at *3 (E.D.N.Y. Aug. 5, 2016). An invoice documenting a service fee provides sufficient evidence of such cost. See Loc. 363, United Elec. Workers of Am., Int'l Union of Journeymen & Allied Trades v. Laser Lite Elec., Inc., No. 17-CV-0267, 2017 WL 9939041, at *6 (E.D.N.Y. Nov. 9, 2017). Because the Petitioner has now adduced evidence supporting the request for an additional $75 in costs associated with this case, I find

that this cost should appropriately be included in the award amount. I review the remaining, unobjected to portions of the R&R for clear error, see Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 addition; accord State Farm Mut. Auto. Ins. Co. v. Grafman, 968 F. Supp. 2d 480, 481 (E.D.N.Y. 2013), and find none. Therefore, I order that the award of costs incurred in pursuing this action be increased by $75 and otherwise adopt the R&R in full. Petitioner’s motion is granted in part, and the Award is confirmed.

SO ORDERED.

/s/ Eric Komitee ERIC KOMITEE United States District Judge

Dated: September 20, 2024 Brooklyn, New York