INTERNATIONAL PAINTERS AND ALLIED TRADES INDUSTRY PENSION FUND, et al. Plaintiffs,
REDSTONE PAINTING COMPANY, L.L.C. Defendant.
REPORT AND RECOMMENDATION
TIMOTHY J. SULLIVAN, Magistrate Judge.
This Report and Recommendation addresses the Complaint in Confession of Judgment that Plaintiff International Painters and Allied Trades Industry Pension Fund filed against Defendant Redstone Painting Company, L.L.C.. ECF No. 1. For the reasons stated below, I recommend that the Clerk of the Court enter the confessed judgment.
Local Rule 108.1 ("Judgment by Confession") provides:
A complaint requesting the entry of judgment by confession shall be filed by the plaintiff accompanied by the written instrument authorizing the confession of judgment and entitling the plaintiff to a claim for liquidated damages and supported by an affidavit made by the plaintiff or someone on that party's behalf stating the specific circumstances of the defendant's execution of said instrument and including, where known, the age and education of the defendant, and further including the amount due thereunder, and the post office address (including street address if needed to effect mail delivery) of the defendant.
Loc. R. 108.1.a.
Upon review of the documents required to be submitted by Local Rule 108.1,
the Court may direct the entry of judgment upon a finding that the aforesaid documents prima facie establish (1) a voluntary, knowing, and intelligent waiver by the defendant of the right to notice and a prejudgment hearing on the merits of the claim of the plaintiff for liquidated damages and (2) a meritorious claim of the plaintiff for liquidated damages against the defendant.
Loc. R. 108.1.b.
Here, Plaintiff attached to its Complaint a Settlement Agreement dated March 27, 2012 (ECF. No. 1-4), a Promissory Note ("Note") (ECF No. 1-5), and a Warrant of Attorney to Confess Judgment (ECF No. 1-6). These documents constitute the "written instrument[s] authoriz[ing] the confessed judgment and entitl[ing] Plaintiff to a claim for liquidated damages." See Loc. R. 108.1.a. Plaintiff also attached the Affidavit of Judith Sznyter, Plaintiff's counsel (ECF No. 1-7, ¶¶ 1 & 2), which describes the nature of the instrument and its execution (ECF No. 1-7, ¶¶ 3-5 & 7-9), provides the defendant's address (ECF No. 1-7, ¶ 6), and states that, as of May 16, 2013, the amount due under the Agreement and Note is $82, 425.11. Id. I find Plaintiff has complied with the requirements of Local Rule 108.1.a.
Plaintiff's Complaint outlines that Defendant failed to pay "fringe benefits contributions and wage deductions to [Plaintiff] for hours worked or wages earned by covered workers, " as required by a labor contract. ECF Nos. 1, ¶¶ 10-11 & 1-1. On March 28, 2012, Plaintiff and Defendant executed a Settlement Agreement (ECF No. 1-4), a Promissory Note (ECF No. 1-5) and a Warrant of Attorney to Confess Judgment (ECF No.1-6). These documents establish that Defendant has voluntarily, knowingly, and intelligently waived "the right to notice and a prejudgment hearing on the merits of the claim of the plaintiff for liquidated damages." Loc. R. 108.1.b. The Settlement Agreement provides, in part, that
[i]f [Defendant] does not cure the breach [of the Settlement Agreement] within the allotted grace period, [Plaintiff] will have the right to immediately execute on the Promissory Note and Judgment.
ECF No. 1-4 at 3, ¶ 9.
The Promissory Note and the Warrant of Attorney to Confess Judgment each contain the following language, in bold print:
WARNING: By signing this paper you give up your right to notice and court trial. If you do not pay on time, a court judgment may be taken against you without your prior knowledge and the powers of a court can be used to collect ...