The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO et al v. Guytec Steel Inc.
| The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO, Central Pension Fund of the International Union of Operating Engineers and International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO |
| Guytec Steel Inc. |
| 1:2023cv04246 |
| June 8, 2023 |
| US District Court for the Eastern District of New York |
| James R Cho |
| Diane Gujarati |
| Labor: E.R.I.S.A. |
| 28 U.S.C. § 1001 E.R.I.S.A. |
| None |
Docket Report
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ORDER denying, without prejudice, #12 Motion for Default Judgment. On July 18, 2023, plaintiffs filed a motion for default judgment before the Honorable Diane Gujarati pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure, which Judge Gujarati referred to the undersigned magistrate judge. However, plaintiffs failed to comply with Local Civil Rule 55.2, which warrants denial of the motion.Local Civil Rule 55.2(b) requires that plaintiffs append to the application for default judgment: "the Clerk's certificate of default" and "a proposed form of default judgment." Local Civil Rule 55.2(b). Here, plaintiffs failed to file with their application the Clerk's Certificate of Default or a proposed Default Judgment.Local Civil Rule 55.2 is strictly construed and failure to comply with the rule is alone a basis to deny the motion for default judgment. See, e.g., Liberty Mut. Fire Ins. Co. v. CitiMortgage, Inc., No. 20-CV-5839, 2022 WL 5424790, at *3 (E.D.N.Y. July 21, 2022), report and recommendation adopted, 2022 WL 4483396 (E.D.N.Y. Sept. 27, 2022); Yoon v. Toothsavers Dental Laboratory, Inc., No. 19-CV-2283, 2020 WL 13580466, at *7-*8 (E.D.N.Y. June 22, 2020). Accordingly, in light of these deficiencies, plaintiffs' motion for default judgment is denied without prejudice, with leave to refile in a manner that complies with all applicable rules by August 25, 2023. Plaintiffs are directed to serve a copy of this Order on defendant and file proof of service with the Court by August 9, 2023. The Court notes that the affidavit of service relied on by plaintiffs states that defendant was served with the summons and complaint by leaving copies with Rafael Batista, who the process server knew to be authorized to accept service on behalf of defendant. See Dkt. 8. However, the process server's affidavit does not describe the basis for his knowledge that Mr. Batista is authorized to accept service. See Dominguez v. Hernandez, No. 21-CV-7051, 2023 WL 2575224, at *13 (E.D.N.Y. Feb. 22, 2023), report and recommendation adopted, 2023 WL 2574876 (E.D.N.Y. Mar. 20, 2023); J&J Sports Prods., Inc. v. RK Soto Entrp. Inc., No. 17-CV-2636, 2020 WL 7684894, at *7 (E.D.N.Y. Feb. 7, 2020). Accordingly, any renewed motion for default judgment shall include a supplement to the process server's affidavit, setting forth the basis for the process server's belief that Mr. Batista was authorized to accept service. Ordered by Magistrate Judge James R. Cho on 8/4/2023. (JP)
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| Filing 18 CERTIFICATE OF SERVICE by Central Pension Fund of the International Union of Operating Engineers, International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO re #15 Affidavit in Support, #12 Notice of MOTION for Default Judgment Guytec Steel Inc., #16 Affidavit in Support, #17 Memorandum in Support, #13 Affidavit in Support,, #14 Affidavit in Support, (Steinberg, James) |
| Filing 17 MEMORANDUM in Support re #12 Notice of MOTION for Default Judgment Guytec Steel Inc. filed by Central Pension Fund of the International Union of Operating Engineers, International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO. (Steinberg, James) |
| Filing 16 AFFIDAVIT in Support re #12 Notice of MOTION for Default Judgment Guytec Steel Inc. by Central Pension Fund of the International Union of Operating Engineers, International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO. (Attachments: #1 Exhibit A) (Steinberg, James) |
| Filing 15 AFFIDAVIT in Support re #12 Notice of MOTION for Default Judgment Guytec Steel Inc. by Central Pension Fund of the International Union of Operating Engineers, International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO. (Steinberg, James) |
| Filing 14 AFFIDAVIT in Support re #12 Notice of MOTION for Default Judgment Guytec Steel Inc. by Central Pension Fund of the International Union of Operating Engineers, International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO. (Steinberg, James) |
| Filing 13 AFFIDAVIT in Support re #12 Notice of MOTION for Default Judgment Guytec Steel Inc. filed by Central Pension Fund of the International Union of Operating Engineers, International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C-1, #4 Exhibit C-2, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F, #8 Exhibit G, #9 Exhibit H, #10 Exhibit I) (Steinberg, James) |
| Filing 12 Notice of MOTION for Default Judgment Guytec Steel Inc. by Central Pension Fund of the International Union of Operating Engineers, International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO. (Attachments: #1 Statement of Damages) (Steinberg, James) |
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ORDER REFERRING MOTION -- Plaintiffs' #12 MOTION for Default Judgment is respectfully referred to Magistrate Judge James R. Cho for a report and recommendation. Ordered by Judge Diane Gujarati on 7/18/2023. (KA)
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| Filing 11 Clerk's ENTRY OF DEFAULT It appearing from the docket maintained in this action that defendant Guytec Steel Inc. has failed to appear or otherwise defend this action, the default of defendant Guytec Steel Inc. is hereby noted pursuant to Rule 55a of the Federal Rules of Civil Procedure. (JP) |
| Filing 10 Request for Certificate of Default by Central Pension Fund of the International Union of Operating Engineers, International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO (Attachments: #1 Declaration in Support of Request for Certificate of Default, #2 Certificate of Default) (Steinberg, James) |
| Filing 9 NOTICE Designating Case To Arbitration. This case has been designated to participate in the non-binding Court Annexed Arbitration Program pursuant to Local Civil Rule 83.7: https://img.nyed.uscourts.gov/files/local_rules/localrules.pdf The Rule requires the Clerk of Court to designate and process for compulsory arbitration "all civil cases (excluding social security cases, tax matters, prisoners' civil rights cases, and any action based on an alleged violation of a right secured by the Constitution of the United States or if jurisdiction is based in whole or in part on Title 28 U.S.C. sec. 1343) wherein money damages only are being sought in an amount not in excess of $150,000.00 exclusive of interest and costs." Damages are presumed not to be in excess of the arbitration limit unless a certification is filed in accordance with Local Civil Rule 83.7. An Arbitration Hearing will be scheduled after an Answer is filed. (RC) |
| CASE REFERRED to Arbitration. (RC) |
| Filing 8 SUMMONS Returned Executed by The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO, International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, Central Pension Fund of the International Union of Operating Engineers. Guytec Steel Inc. served on 6/16/2023, answer due 7/7/2023. (Steinberg, James) |
| Filing 7 Summons Issued as to Guytec Steel Inc.. (IH) |
| Filing 6 Proposed Summons. Re #1 Complaint,, by Central Pension Fund of the International Union of Operating Engineers, International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO (Steinberg, James) |
| Your proposed summons was not issued for one of the following reasons: The full case caption must appear on the summons., Please correct and resubmit using Proposed Summons/Civil Cover Sheet. (IH) |
| Filing 5 Proposed Summons. Re #2 Proposed Summons/Civil Cover Sheet, by Central Pension Fund of the International Union of Operating Engineers, International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO (Steinberg, James) |
| Filing 4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (KD) |
| Filing 3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (KD) |
| Case Assigned to Judge Diane Gujarati and Magistrate Judge James R. Cho. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (KD) |
| Your proposed summons was not issued for one of the following reasons:The full case caption must appear on the summons. No name and address on the To Section and the Plaintiffs attorney name and addresses section., Please correct and resubmit using Proposed Summons/Civil Cover Sheet. (KD) |
| Filing 2 Proposed Summons.Civil Cover Sheet.. Re #1 Complaint,, by Central Pension Fund of the International Union of Operating Engineers, International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO (Attachments: #1 Civil Cover Sheet, #2 Appendix) (Steinberg, James) |
| Filing 1 COMPLAINT against Guytec Steel Inc. filing fee $ 402, receipt number ANYEDC-16777702 Was the Disclosure Statement on Civil Cover Sheet completed -yes,, filed by The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO, International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, Central Pension Fund of the International Union of Operating Engineers. (Steinberg, James) |
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| Plaintiff: The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO | |
| Represented By: | James Michael Steinberg |
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| Plaintiff: Central Pension Fund of the International Union of Operating Engineers | |
| Represented By: | James Michael Steinberg |
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| Plaintiff: International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO | |
| Represented By: | James Michael Steinberg |
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| Defendant: Guytec Steel Inc. | |
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