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Finkel v. David Liepper Sons, Inc.

United States District Court, E.D. New York
Feb 11, 2009
CV 07-1366 (DRH) (WDW) (E.D.N.Y. Feb. 11, 2009)

Opinion

CV 07-1366 (DRH) (WDW).

February 11, 2009


REPORT AND RECOMMENDATION


By order dated October 28, 2008, Judge Hurley temporarily granted in part and denied in part the plaintiffs' motion for a default judgment and referred the determination of damages to the undersigned for a report and recommendation. The undersigned recommends that the plaintiffs be awarded the amounts set forth in the plaintiffs' Proposed Default Judgment DE[14] for the audit period ending September 24, 2003, and that the defendants be ordered to submit to an audit for the period September 25, 2003 through October 31, 2005. If the defendants fail to submit to such audit, they should be ordered to pay the estimated amounts for that period set out in the Proposed Default Judgment at page 2. The plaintiffs should also be awarded attorney's fees in the amount of $10,997.50 and costs in the amount of $1000.50. The defendants, David Liepper Sons, Inc. and DAG Floors, Inc., should be found to be jointly and severally liable for the judgment.

BACKGROUND

The plaintiffs initiated this action pursuant to ERISA 502(g)(2) [ 29 U.S.C. § 1132(g)(2)] on April 2, 2007. An amended complaint was filed on February 5, 2008. The defendants did not answer. On September 30, the plaintiffs filed a motion for a default judgment. DE[10]. On October 1, 2008, the Clerk of the Court entered a certificate of default, and on October 28, as noted supra, Judge Hurley temporarily granted in part and denied in part the plaintiffs' motion for a default judgment and referred the determination of damages to the undersigned for a report and recommendation. The defendants have not appeared and have not entered opposition to the motion.

In this action, the plaintiff Trustees seek, as money damages, delinquent contributions, interest, liquidated damages, costs and attorneys' fees, and an order directing the defendants to submit to an audit for the period September 25, 2003 through October 31, 2005 or to pay the estimated amounts for that period.

DISCUSSION

A default constitutes an admission of all well-pleaded factual allegations in the complaint, except those relating to damages. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.), cert. denied, 506 U.S. 1080 (1993). A default also "effectively constitutes an admission that the damages were proximately caused by the defaulting party's conduct: that is, the acts pleaded in a complaint violated the laws upon which a claim is based and caused injuries as alleged." Cablevision Sys. New York City Corp. v. Abramov, 980 F. Supp. 107, 111 (E.D.N.Y. 1997). The movant need only prove that the "compensation sought relate[s] to the damages that naturally flow from the injuries pleaded." Greyhound, 973 F.2d at 159. An evidentiary hearing is not required so long as there is a basis for the damages awarded. Transatlantic Marine Claims Agency v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (citations omitted). Detailed affidavits and other documentary evidence provide this basis. Action S.A. v. Marc Rich Co., 951 F.2d 504, 508 (2d Cir. 1991). Here, the plaintiffs have submitted such evidence.

Delinquent Contributions and Audit Fees

The defendants were parties to and bound by collective bargaining agreements with Local 282. Pursuant to those CBAs, they agreed to be bound by a Trust Agreement, pursuant to which they were obligated to pay contributions to the Funds on behalf of employees covered by the agreements. Maye Decl., DE[11] at ¶ 3, Ex. A. Both ERISA and the relevant Trust Agreement provide for the payment of delinquent fees, plus interest, liquidated damages, costs and attorneys' fees, and the Trust Agreement provides for payment of audit fees. The defendants submitted to an audit for the period August 29, 2002 to September 24, 2003, which showed that they owed $3707.23 in contributions and $625.25 in audit fees. Id. The defendants failed to pay full benefit contributions for the months of June and July 2004 and October 2005, resulting in a discrepancy of $523.16. Id. at ¶ 15. They were notified of the delinquent contributions and the interest owing on them. The defendants were late with their contributions for the months of September and October 2004 and May and August 2005, and were notified of the interest that they owed on those late payments. Id. at ¶ 16. They also cancelled an audit, resulting in audit fees of $220 and were notified of their liability for that cost. Id. at ¶ 13. In the Maye Declaration (DE[11]) and Proposed Default Judgment (DE[14]) at pages 1-2, the plaintiffs set forth the exact amounts found owing on the delinquent and late contributions, along with the interest due on those amounts and the audit fees, and they are entitled to those amounts.

Interest

Estimated Damages and Interest

29 U.S.C. § 1132See, e.g., LaBarbera v. Ferreira Bros. Contracting Co., LaBarbera v. Italco Contracting, Inc., See LaBarbera v. Morrison, See Finkel v. Closter Dock Steel Corp., Inc., and see LaBarbera v. A.F.C. Enterprises, Inc. 402 F. Supp. 2d 474 Id. Id.

Withdrawal Liability

Liquidated Damages

29 U.S.C. § 138329 U.S.C. § 1381Id. Id. Id. 29 U.S.C. §§ 11321451

Attorneys' Fees

ERISA and the Trust Agreement also provide for the payment of reasonable attorneys' fees and costs, and the plaintiffs seek $10,997.50 in fees and $1000.50 in costs. See Rasalingam Decl., 29 U.S.C. § 1132(g)(2), and the Trust Agreement. While the hourly rates sought are somewhat high, the court finds the fees to be reasonable and recommends that the plaintiffs be awarded the fees sought. The plaintiffs are also entitled to costs in the amount of $1000.50, as set forth in the Rasalingam Declaration and Ex. F thereto.

Joint and Several Liability

The plaintiffs argue that the two defendants should be found jointly and severally liable for the amounts owed, and the undersigned agrees.

OBJECTIONS

A copy of this Report and Recommendation is being sent to counsel for the plaintiffs by electronic filing on the date below. Plaintiff's counsel is directed to serve a copy of this Report on the defendants and to electronically file proof of service with the court. Any objections to this Report and Recommendation must be filed with the Clerk of the Court with a courtesy copy to the undersigned within 10 days. Failure to file objections within this period waives the right to appeal the District Court's Order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).


Summaries of

Finkel v. David Liepper Sons, Inc.

United States District Court, E.D. New York
Feb 11, 2009
CV 07-1366 (DRH) (WDW) (E.D.N.Y. Feb. 11, 2009)
Case details for

Finkel v. David Liepper Sons, Inc.

Case Details

Full title:FRANK H. FINKEL, JOSEPH A. FERRARA, SR., LYNN MOUREY, THOMAS N. PIALI…

Court:United States District Court, E.D. New York

Date published: Feb 11, 2009

Citations

CV 07-1366 (DRH) (WDW) (E.D.N.Y. Feb. 11, 2009)