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Case 2:12-cv-06312-DRH-ETB Document 26 Filed 07/10/13 Page 1 of 3 PageID #: 345

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
TRUSTEES OF EMPIRE STATE CARPENTERS
ANNUITY, APPRENTICESHIP, LABOR-
MANAGEMENT COOPERATION, PENSION,
and WELFARE FUNDS,

-against-

Plaintiffs,

DUNCAN & SON CARPENTRY, INC.,

----------------------------------------------------------X

Defendant.

HURLEY, Senior District Judge:

ORDER
12 CV 6312 (DRH) (ETB)



Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Management

Cooperation, Pension, and Welfare Funds (“plaintiffs”) commenced this action against Duncan

& Son Carpentry, Inc. (“defendant” or “Duncan & Son”) under Section 502(a)(3) of the

Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1132,

Section 301 of the Labor Management Relations Act of 1947 (“LMRA”), as amended, 29 U.S.C.

§ 185, and Section 9 of the Federal Arbitration Act, 9 U.S.C. § 9 to confirm and enforce an

Arbitrator’s Award rendered pursuant to a collective bargaining agreement. After Duncan &

Son’s default was noted by the Clerk of Court pursuant to Federal Rule of Civil Procedure

(“Rule”) 55(a), plaintiffs moved for entry of a default judgment under Rule 55(b). On February

22, 2013, this motion was referred to United States Magistrate Judge E. Thomas Boyle to issue a

Report and Recommendation as to whether plaintiffs have demonstrated that the allegations in

the Complaint establish the defendant’s liability such that the motion for default judgment should

be granted, and if so, to determine the appropriate amount of damages, costs, and/or fees, if any,

to be awarded.

Case 2:12-cv-06312-DRH-ETB Document 26 Filed 07/10/13 Page 2 of 3 PageID #: 346

On June 12, 2013, Judge Boyle issued a Report and Recommendation which

recommended that a default judgment be entered against Duncan & Sons and that the following

damages be awarded: (1) $6,721.24 in partial enforcement of the arbitrator’s monetary award;

(2) $219.02 in post-arbitration interest; (3) $250.00 in arbitration fees; (4) $4,494.00 in attorney’s

fees beyond those awarded by the arbitrator; and (5) $390.92 in costs. Judge Boyle also

recommended that defendants be ordered to make any and all books and records available to

plaintiffs and their authorized representatives to conduct an audit for the period of January 1,

2009 through October 22, 2012. More than fourteen days have elapsed since service of the

Report and Recommendation and no party has filed an objection.

Pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72, this Court has

reviewed the June 12, 2013 Report and Recommendation for clear error, and finding none, now

concurs in both its reasoning and its result. Therefore, the Court adopts the Report and

Recommendation of Judge Boyle as if set forth herein. Accordingly, the Court hereby directs

that default judgment be entered in favor of plaintiffs and against defendant for the following

damages:

(1) $6,721.24 in partial enforcement of the arbitrator’s monetary award;

(2) $219.02 in post-arbitration interest;

(3) $250.00 in arbitration fees;

(4) $4,494.00 in attorney’s fees; and

(5) $390.92 in costs.

In addition, plaintiffs are awarded injunctive relief requiring defendant to make any and all books

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Case 2:12-cv-06312-DRH-ETB Document 26 Filed 07/10/13 Page 3 of 3 PageID #: 347

and records available to plaintiffs and their authorized representatives to conduct an audit for the

period of January 1, 2009 through October 22, 2012.

Upon entry of judgment, the Clerk of the Court is directed to close this case.

Dated: Central Islip, New York

July 10, 2013

SO ORDERED.

/s/
Denis R. Hurley
Unites States District Judge

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