Opinion
00 Civ. 3778(DLC)
July 11, 2001
For Plaintiff, Marc Dreier Dreier Baritz LLP, New York, NY.
For Defendant John Van Der Tuin Balber Pickard Battistoni, New York, NY.
MEMORANDUM OPINION AND ORDER
Plaintiff Fred Alston, as a Trustee of both The Local 272 Labor-Management Pension Fund and The Local 272 Welfare Fund (collectively, the "Funds"), brought this action on May 18, 2000, pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"). The plaintiff sought to, among other things, audit the books and records of defendant Wall Street Parking Corporation to determine the amount of contributions defendant owed the Funds. On September 9, 2000, the plaintiff moved by order to show cause for entry of a default judgment against the defendant for its failure to answer. The Court entered a default judgment against the defendant on September 15, 2000, and ordered the defendant to furnish to plaintiff all books and records of defendant's business that would enable plaintiff to determine the amount of contributions owed to the Funds on behalf of participants employed by the defendant.
On February 9, 2001, the plaintiff moved for an Order pursuant to Rule 45(e), Fed.R.Civ.P., and Rule 83.9 of the Local Civil Rules, to hold the defendant in contempt for failing to obey a subpoena, returnable on February 7, 2001. On February 14, 2001, the Court referred this issue, as well as all issues related to the enforcement of the default judgment, to Magistrate Judge Fox. On March 27, 2001, Magistrate Judge Fox held a hearing regarding plaintiff's motion to hold defendant in contempt of court. The defendant did not appear at this hearing. On May 11, 2001, Magistrate Judge Fox issued his Report and Recommendation ("Report") to this Court recommending that the defendant be found in civil contempt and that appropriate sanctions be imposed. No objections to the Report have been received.
In reviewing the Report, I "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). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (noting that a court may accept a report if it is "not facially erroneous").
Having reviewed the Report, I find no facial errors in it. Plaintiff's motion for an order of civil contempt is granted. Accordingly, it is hereby
ORDERED that, beginning seven days after it is served with this Order, the defendant Wall Street Parking Corporation shall pay a fine of $100 per day for every business day that it fails to furnish to plaintiff all books and records of defendant's business that are in its possession and that would enable plaintiff to determine the amount of contributions owed to the Funds on behalf of participants employed by the defendant.
IT IS FURTHER ORDERED that plaintiff is entitled to recover its reasonable attorneys fees and costs incurred in connection with this motion, provided it submits proof within two weeks of the date of this Order. Defendant shall have seven days thereafter to object to the award or the amount of the award of attorneys fees and costs.
SO ORDERED: