N.Y.C. Dist. Council of Carpenters Pension Fund v. Forde, 11-CV-5474 (LAP) (GWG) (Lead Case)

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Loretta A. Preska, Senior United States District Judge
• Citation: 341 F.Supp.3d 334
• Parties: NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS PENSION FUND, et al., Plaintiffs, v. Michael FORDE, et al., Defendants.
• Docket Number: 11-CV-5474 (LAP) (GWG) (Lead Case)
• Decision Date: 26 September 2018

341 F.Supp.3d 334

NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS PENSION FUND, et al., Plaintiffs,
v.
Michael FORDE, et al., Defendants.

11-CV-5474 (LAP) (GWG) (Lead Case)

United States District Court, S.D. New York.

Signed September 26, 2018

Victoria Quesada, Quesada & Moore, LLP, Hamilton, NY, for Plaintiffs.

Marc Alan Tenenbaum, Virginia & Ambinder, LLP, New York, NY, for Defendants.

Order Adopting Report and Recommendation

Loretta A. Preska, Senior United States District Judge

341 F.Supp.3d 335

Before the Court are objections filed by Defendant Michael Forde on June 14, 2018, (ECF No. 269), and by Defendant John Greaney on June 15, 2018, (ECF No. 270), to Magistrate Judge Gabriel W. Gorenstein's Report and Recommendation dated June 1, 2018, (Report and Recommendation dated June 1, 2018 ("R & R") (ECF No. 268) ). For the reasons that follow, the Court adopts the findings of the R & R in full, subject to the single modification that the Funds are entitled to offset both Greaney and Forde's pension and annuity benefits. The Court also makes one minor modification to the R & R's factual summary as set out below.

I. Background

Pension and annuity funds (collectively, the "Funds") have brought this case under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 - 68, and the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 - 1461. The Funds seek damages against certain former trustees for losses caused by the trustees' corrupt conduct. (R & R 1.) Presently before the Court is the Funds' motion for summary judgment under Fed. R. Civ. P. 56 against former trustees and defendants Michael Forde and John Greaney. Forde and Greaney are two of three remaining defendants in this case who have not been dismissed or defaulted.

Defendant John Greaney and his wife, Imelda Greaney (collectively, the "Greaneys") have brought a separate suit against the Funds, see Greaney v. New York District Council of Carpenters Pension Fund, 16-cv-3551 (LAP), that was consolidated with the Funds' action pursuant to a Court order dated July 25, 2016. (See Order dated July 25, 2016, Greaney v. New York District Council of Carpenters Pension Fund, 16-CV-3551 (LAP) (ECF No. 10) ). The Greaneys claim that the Funds failed to pay John Greaney his pension or to disburse his annuity to him in a lump sum. The Greaneys also seek a determination that Imelda Greaney has a valid interest in Greaney's annuity and pension. (R & R 1-2.)

a. The Instant Motion

Both the Funds and Defendants have cross-moved for summary judgment on their claims and for damages. On July 18, 2017, the Court referred the motions to Magistrate Judge Gorenstein for a report and recommendation. In the R & R, Judge Gorenstein recommends granting the Funds' partial summary judgment on (1) Forde and Greaney's liability for violating RICO and ERISA; (2) compensatory damages under both RICO (before trebling) and ERISA as to Greaney in the amount of $4,973,259.92, and as to Forde in the amount of $4,973,259.92; (3) their ability to bring further claims for damages that are not limited by the restitution orders or the settlement agreement with On Par; (4) the issue of calculation of treble damages under RICO; (5) their ability to offset any damages against Greaney's pension and annuity payments. (R & R 56.) The R & R also recommends that both sides be denied summary judgment on the issue of whether Imelda Greaney is entitled to benefits from the Fund. (Id. )

341 F.Supp.3d 336

Forde and Greaney object to the R & R insofar as it recommends denial of their motions for summary judgment.

II. Legal Standard

"A district court reviewing a magistrate judge's report and recommendation ‘may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.’ " Ricciardi v. Colvin, No. 15-cv-2715 (ADS)(AYS), 2017 WL 4011243, at *1 (E.D.N.Y. Sept. 12, 2017) (quoting 28 U.S.C. § 636(b)(1)(C). "Parties may raise objections to the magistrate judge's report and recommendation, but they must be ‘specific,’ ‘written,’ and submitted ‘[w]ithin 14 days after being served with a copy of the recommended disposition.’ " Ricciardi, 2017 WL 4011243, at *1 (quoting Fed. R. Civ. P. 72(b)(2) ); accord 28 U.S.C. § 636(b)(1)(C). "[T]he court must then review de novo any part of the R & R that has been objected to." Smith v. Hulihan, No. 11 CV 2948 (HB), 2012 WL 4928904, at *1 (S.D.N.Y. Oct. 17, 2012) (citing 28 U.S.C. § 636(b)(1)(c) ; Fed. R. Civ. P. 72(b) (2)-(3) ). "As to those portions that neither party objects to, the court may review for clear error." Smith, 2012 WL 4928904, at *1 (citing Gomez v. Brown, 655 F.Supp.2d 332, 341 (S.D.N.Y. 2009) ). "When a party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the [R & R] strictly for clear error." Molefe v. KLM Royal Dutch...