Opinion
00 CV. 7552 (HB)
December 26, 2002
OPINION ORDER
Luvin Construction Corp. ("Luvin") has objected to Magistrate Judge Pitman's report and recommendation determining the amounts of attorney's fees and service charges due to plaintiffs. Because Luvin's objections constitute a request for reconsideration and not objections to elements decided in the report and recommendation, this Court shall not make a de novo determination of the report, but review only for clear error. Because I do not find that the report and recommendation is clearly erroneous, it is adopted in its entirety and the clerk of the court is directed to enter judgment in favor of plaintiffs in the amounts providedinfra, Part III.
I. BACKGROUND
On May 14, 2001, this Court issued an opinion and order granting summary judgment in favor of Casa Redimix Concrete Corp. ("Casa Redimix") and Casa Building Materials Inc. ("Casa Building") (collectively, "plaintiffs") on their claim for payment of construction materials pursuant to the Miller Act, 40 U.S.C. § 270 et seq. ("Miller Act") against Luvin Construction Corp. ("Luvin") and International Fidelity Company ("International Fidelity") (collectively, "defendants"). U.S. ex rel. Casa Redimix Concrete Corp. v. Luvin Const. Corp., 2001 WL 506227 at, *4-5 (S.D.N.Y. May 14, 2001). With respect to attorney's fees, I found that Casa Redimix was entitled to recover its attorney's fees because of its contract with S.R.N. Construction Corp., a subcontractor on the project. Id. at *4. I subsequently referred the matter of assessment of attorney's fees and service charges due under plaintiffs' contracts to Magistrate Judge Pitman. In his report and recommendation, Magistrate Judge Pitman applied a "lodestar analysis" and found that Casa Redimix should be awarded attorney's fees in the amount of $13,790.40 and service charges in the amount of $2,705.58, and that Casa Building be awarded service charges in the amount of $1,117.98. Luvin objected to the report and recommendation with respect to its liability to plaintiffs for attorney's fees and service charges. Plaintiffs have not objected to Magistrate Judge Pittman' s determination of the amounts of the attorney's fees and service charges.
II. DISCUSSION 1. Standard Under Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1)(C)
When evaluating the magistrate judge's report and recommendation, the district court may adopt those portions of the report to which no objections have been made and which are not facially erroneous. Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). Once timely objections are received, the court may accept, reject, or modify, in whole or in part, the magistrate judge's findings and recommendations.See Fed.R.Civ.P. 72(b). However, the court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C).
Fed.R.Civ.P. 72(b) reads, in pertinent part, that
[w]ithin 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. A party may respond to another party's objections within 10 days after being served with a copy thereof. The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions. Id.
Because I find that Luvin's objections to the magistrate's report and recommendation are, in fact, a barely camouflaged attempt to make a motion for reconsideration of my original decision, I will not make a de novo review of the report and recommendation but rather review it for clear error. "When a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Barratt v. Joie, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002) (citations omitted). In addition, objections that are "merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition will not suffice to invoke de novo review of the magistrate's recommendations." Vega v. Artuz, 2002 WL 31174466 (S.D.N.Y. Sept. 30, 2002) (emphasis in original).
2. Luvin's Oblections to the Report and Recommendation
I requested the report and recommendation from Magistrate Judge Pittman in order to calculate the amounts of attorney's fees and service charges to which plaintiffs are entitled. However, Luvin has objected not with respect to the amounts of the service charges but rather with respect to its own liability. In my prior opinion and order, I held that defendant Luvin was liable for attorney's fees and service charges. See Casa Redimix, 2001 WL 506227, at *4.5 In other words, it appears that Luvin's objections to Magistrate Judge Pittman's report and recommendation is, in fact, a motion for reconsideration of that aspect of my opinion finding defendants liable for attorney's fees.
Local Civil Rule 6.3 provides, in pertinent part, that
[a] notice of motion for reconsideration or reargument shall be served within ten (10) days after the docketing of the court's determination of the original motion. There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked.
Luvin did not serve a notice of motion or a memorandum of law within ten days after the Court's determination of the original motion. Instead, the defendant sent a short letter stating its objections that was received by the Court one year after the original decision and order was issued.
Because defendant's objections to Magistrate Judge Pittman's report and recommendation constitute a motion for reconsideration, and because this motion is untimely, I find that plaintiffs are entitled to attorney's fees in the amount determined by Magistrate Judge Pittman in the report and recommendation, namely, that Casa Redimix be awarded attorney's fees in the amount of $13,790.40 and service charges in the amount of $2,705.58, and that Casa Building be awarded service charges in the amount of $1,117.98.
III. CONCLUSION
For the foregoing reasons, Magistrate Judge Pitman's report and recommendation is adopted in its entirety.
I therefore accept and adopt Magistrate Judge Pitman's report and recommendation and direct the clerk of the court to enter a final judgment in favor of Casa Redimix in the sum of $31,141.72 plus interest. This sum consists of (1) attorney's fees in the amount of $13,790.58; (2) $14,645.74 on the unpaid building materials invoices for which I already found defendants liable in my prior opinion and order; and (3) service charges in the amount of $2,705.58. In addition, the clerk is also directed to enter a final judgment in favor of Casa Building Materials, Inc. in the sum of $8,618.26 plus interest. This sum consists of (1) service charges in the amount of $1,117.98; and (2) $7,500.28 on the unpaid building materials invoices for which I already found defendants liable. Interest on the invoices should be awarded to both plaintiffs from the date of my opinion and order, May 11, 2001, to the date of final judgment.