Trustees of the United Union of Roofers, Waterproofers and Allied Workers Local 154 Welfare, Pension, Annuity, and Apprenticeship and Training Funds v. US Allegro, Inc.

Report and Recommendation Upon Referral of a Motion for a

Default Judgment/Inquest to Magistrate Judge Brown

Case Name and Docket Number: 18-cv-3130 (ADS) (GRB)

Trustees of the United Union of Roofers, Waterproofers and Allied

Workers Local 154 Welfare, Pension, Annuity, and Apprenticeship

and Training Funds v. US Allegro, Inc.

Before the undersigned, on referral from the Honorable Arthur D. Spatt, is plaintiff’s motion for default

judgment in this ERISA action. Docket Entry No. (“DE”) 10; DE 15 (referral order). Having reviewed all of the

moving papers, | hereby find as follows:

Service of Process and Default

X The record reflects that proper service was made on defendant. [DE 7]

X According to the record, no answer, motion or other appearance was filed on behalf of defendant.

X The Clerk has properly entered notation of default pursuant to Fed. R. Civ. P. 55(a} [DE 9]

Liabilit

Defendant’s default constitutes “an admission of all well-pleaded allegations against the defaulting

party.” Vt. Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241, 244 (2d Cir. 2004). Nevertheless, the court

is “required to determine whether the [plaintiff]'s allegations establish [defendant]'s liability as a matter of

law.” Finkel v. Romanowicz, 577 F.3d 79, 85 (2d Cir. 2009).

The admitted allegations are as follows. Defendant entered into a collective bargaining agreement

(“CBA”) with plaintiff Union. DE 13 at 4 6; DE 13-1 at 45. Pursuant to the terms of the CBA, defendant was

obligated to pay contributions to plaintiff Fund for work performed by individuals employed by defendant. DE

13 at 9. Defendant failed to timely remit contributions for November 2017 through April 2018. /d. at 4] 12.

Furthermore, plaintiff hired an accounting firm to conduct an audit, which indicated an additional deficiency

not paid by defendant. DE 12 at 914 3-5.

Based upon examination of the complaint and motion papers, | find that plaintiff has demonstrated that

the uncontroverted allegations, without more, establish the defendant's liability on the following cause(s) of

action:

First Cause of Action — Failure to Make ERISA Contributions

Damages

“To establish damages upon a default, the movant need only prove that the ‘compensation sought

relate[s] to the damages that naturally flow from the injuries pleaded.’” OneWest Bank, N.A. v. Bianchini, No.

CV 14-3234 (DRH)} (GRB), 2016 WL 1039491, at *2 (E.D.N.Y. Feb. 22, 2016), report and recommendation

adopted, 2016 WL 1045533 (E.D.N.Y. Mar. 15, 2016) (citing Greyhound Exhibitgrp., Inc. v. E.L. U.L. Realty Corp.,

973 F.2d 155, 158 (2d Cir. 1992}). Based upon review of affidavits and other documentary evidence, see

Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp, 109 F.3d 105, 111 (2d Cir. 1997) (court may rely

upon affidavits and documents in calculating damages upon default}, | find that plaintiff has established

damages in the following amount(s):

X Principal Damages [DE 13 at 4 13; DE 13-3] $_ 32,000.33

X Pre-Judgment Interest on Damages at 10%! [DE 13 at 4 14] $5,560.97

X Liquidated Damages on Principal Damages [DE 13 at 4] 15] S_$8,030.652

X Audit Deficiency [DE 12 at 4 5] S_ 1,034.28

X PreJudgment Interest on Audit Deficiency at 10%? [DE 12 at q] 7] $_167.13

X Liquidated Damages on Audit Deficiency [DE 12 at 7 8] $_ 103.43

X Attorneys’ Fees (see Appendix A) S_1,610.00

X Costs (see Appendix A) $_495.37

Total S_49,002.16

1 Plaintiff is entitled to interest at the rate of 10% pursuant to the CBA. DE 13-1, Art XV, § 5(a).

The liquidated damages are calculated using 10% of the original deficiency at issue, not the current balance

deficiency. Iron Workers Dist. Council of Western N.Y. and Vicinity Welfare & Pension Funds v. Hudson Steel Fab. &

Erectors, Inc., 68 F.3d 1502 1507-08 (2d Cir. 1995). Thus, plaintiff is entitled to 10% liquidated damages on the full

deficiency amount of $80,306.45. See DE 13 at 415.

3 Plaintiff is entitled to interest at the rate of 10% pursuant to the CBA. DE 13-1, Art XV, § 5(a).

DEFAULT JUDGMENT REPORT AND RECOMMENDATION | PAGE | 2

MAGISTRATE JUDGE BROWN

Appendix A to Report and Recommendation Upon Referral of a

}

Motion for a Default Judgment/Inquest: Attorneys’ Fees and

Costs

Whereas counsel fees and costs are provided pursuant to 29 U.S.C. § 1132(g)(2), the undersigned

recommends an award of attorneys’ fees and costs as follows. “Both [the Second Circuit] and the Supreme

Court have held that the lodestar—the product of a reasonable hourly rate and the reasonable number of

hours required by the case—creates a ‘presumptively reasonable fee.’” Millea v. Metro-N. R. Co., 658 F.3d

154, 166 (2d Cir. 2011). Upon review of the moving papers, the following represents reasonable attorneys’

fees and costs in this matter:

Fees

Provider Type | Presumptive | Rate Approved | Hours? Documented Approved Fees

Maximum Sought by Rate in

Rate* Plaintiff(s)

Paralegal $110 $100 $100 DE 11 at 44110 | $90

—11; DE 11-4

Associate $100-295’ $200 $200 7.68 DE 11 at 791 10 | $1,520

Attorney —11; DE 11-4

rrarner | +i, □□

ort | | 8610.00

Costs?

Item (specify each) Requested Cost Approved Cost

Filing Fee $400.00 $400.00

UPS Charge $25.37 $25.37

570.0 $70.00

Total Costs and Fees $495.37 $495.37

presumptive maximum rate is based upon current caselaw in the Eastern District of New York and the Second

Circuit.

5 In the default context, up to 20 hours has been found reasonable. Martone v. HST Roofing, Inc., 2007 WL 595054,

at *3 (E.D.N.Y. Feb. 22, 2007); La Barbera v. David Liepper & Sons, Inc., 2006 WL 2423420 at *5 (E.D.N.Y.2006).

Gesualdi v. Seacoast Petroleum Prods., inc., No. 14-CV-1938 (ADS) (SIL), 2015 WL 1469295, at *16 (E.D.N.Y. Mar.

30, 2015).

7

8 While counsel requests the Court award 12.0 hours of attorney work, a review of the underlying billing records

shows only 7.6 hours of work performed. See DE 11-4 at 3-4.

° Alland v. Consumers Credit Corp., 476 F.2d 951 (2d Cir. 1973) (“costs” generally include such expenses as filing

fees).

DEFAULT JUDGMENT REPORT AND RECOMMENDATION | PAGE | 3

MAGISTRATE JUDGE BROWN

Conclusion

Therefore, the undersigned respectfully recommends that the Court grant plaintiffs’ motion for default

judgment and award plaintiffs judgment in the amount of $49,002.16.

Objections

A copy of this Report and Recommendation is being provided to plaintiff’s counsel via ECF.

Furthermore, the Court directs plaintiff (1) to serve copies of this Report and Recommendation by overnight

mail to defendants at the last known addresses, and (2) to file proof of service on ECF within two days. Any

written objections to this Report and Recommendation must be filed with the Clerk of the Court within

fourteen (14) days of service of this report. 28 U.S.C. § 636(b)(1) (2012); Fed. R. Civ. P. 6(a), 72(b). Any

requests for an extension of time for filing objections must be directed to the district judge assigned to this

action prior to the expiration of the fourteen (14) day period for filing objections. Failure to file objections

within fourteen (14) days will preclude further review of this report and recommendation either by the

District Court or Court of Appeals. Thomas v. Arn, 474 U.S. 140, 145 (1985) (“[A] party shall file objections

with the district court or else waive right to appeal.”); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir.

2008) (“[Flailure to object timely to a magistrate’s report operates as a waiver of any further judicial review of

the magistrate’s decision.”).

/s/ Gary R. Brown August 30, 2019

GARY R. BROWN, United States Magistrate Judge Date

DEFAULT JUDGMENT REPORT AND RECOMMENDATION | PAGE | 4

MAGISTRATE JUDGE BROWN