“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.”
How later courts described this case
- “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.”
Written by the judges who cited it.
The 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