United States District Court, S.D. New York
May 28, 2004.
FRED ALSTON, as a Trustee of THE LOCAL 272 LABOR-MANAGEMENT PENSION FUND; FRED ALSTON, as a Trustee of THE LOCAL 272 WELFARE FUND, Plaintiffs, -against- WALL STREET GARAGE PARKING CORP., Defendants
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
This is an action brought pursuant to Sections 502 and 515 of the
Employee Retirement Income Security Act of 1974 ("ERISA"), as amended,
29 U.S.C. § 1132 and 1145. The suit was commenced by Fred Alston as a
Trustee of both the Local 272 Labor-Management Pension Fund and the Local
272 Welfare Fund (collectively, the "Funds"). The plaintiff seeks damages
stemming from the failure of Wall Street Garage Parking Corp. ("Wall
Street") to pay contributions to the Funds as required under a collective
bargaining agreement between Wall Street and the Garage Employees Union
Local 272 ("Local 272").
Following entry of a default judgment, the case was referred to me for
an inquest on damages, and a hearing was held on April 23, 2004. Despite
being afforded notice of the hearing, Wall Street did not appear. The
following findings are therefore based on the evidence presented at the
hearing and on the information submitted by the plaintiff. Background
Wall Street is a corporation that conducted business in New York City
at all relevant times. (Complaint ("Compl."), ¶¶ 4-5). Wall Street entered
into a collective bargaining agreement (the "Labor Contract") with Local
272 which, among other things, obligated Wall Street to pay fringe
benefit contributions to the Funds based on work performed for Wall
Street by members of Local 272. (Compl., ¶ 6). Notwithstanding the Labor
Contract, Wall Street failed to pay fringe benefit contributions to the
Funds for the period June 1, 2001 through December 31, 2002. (Compl., ¶¶
8, 11, 13).
The plaintiff filed the instant action on July 22, 2003. When the
defendant failed to answer, the Honorable Robert L. Carter, U.S.D.J.,
entered a default judgment and referred the case to me for an inquest on
As this case arises under ERISA, the Court has jurisdiction pursuant to
29 U.S.C. § 1132(e)(1) and (f), as well as federal question jurisdiction
under 28 U.S.C. § 1331. In addition, Wall Street is subject to personal
jurisdiction in this Court since it was doing business in New York at all
relevant times. See New York Civil Practice Law and Rules ("CPLR") §
All of the plaintiff's factual allegations, except those relating to
damages, must be accepted as true where, as here, the defendant has defaulted. See Transatlantic Marine Claims Agency, Inc. v.
Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997); Cotton v. Slone,
4 F.3d 176, 181 (2d Cir. 1993); Time Warner Cable of New York City v.
Barnes, 13 F. Supp.2d 543, 547 (S.D.N.Y. 1998). In this case, the
allegations of the Complaint establish Wall Street's liability under
The Funds are employee benefit plans under ERISA, 29 U.S.C. § 1002(1),
(2), (3) and 1132(d)(1) (Compl., 1 2), while Wall Street was an employer
under the terms of that statute. 29 U.S.C. § 1002(5), 1145. (Compl., ¶
4). Accordingly, Wall Street's obligations to the Funds under the Labor
Contract are enforceable through ERISA. 29 U.S.C. § 1132(a)(3).
Wall Street was required by the Labor Contract to pay fringe benefit
contributions to the Funds. It failed to comply with this requirement for
the period June 1, 2001 through December 31, 2002. Consequently, Wall
Street is liable to the Funds under ERISA.
The Funds are entitled to recover unpaid contributions as damages under
the Labor Contract and ERISA. 29 U.S.C. § 1132(g)(2)(A). The plaintiff
has presented evidence that Wall Street owes an outstanding balance
$1,107.20 in unpaid contributions to the Welfare Fund and $1,093.36 in
unpaid contributions to the Pension Fund, for a total of $2,200.56.
(Audit Report of Joseph M. Stern, C.P.A., dated May 23, 2003 ("Audit
Report"), attached to Declaration of Jeffrey S. Dubin dated March 31,
2004 ("Dubin Decl.")). Pursuant to 29 U.S.C. § 1132 (g)(2)(B), the Funds are entitled to interest on this deficiency at the
rate prescribed by the Labor Contract, 18 percent per year. (Labor
Contract, Art. XXI, § 8 & Art. XXII, § 8). This comes to $205.86 for the
period through May 23, 2003 (Audit Report) and another $396.00 through May
23, 2004. In addition, the Funds are entitled to an additional award
equal to the amount of interest another $601.86 as statutory damages.
29 U.S.C. § 1132(g)(2)(C)(i).
In total, then, the plaintiff is entitled to an award of $3,404.28 for
unpaid contributions, interest, and statutory damages.
D. Attorneys' Fees and Costs
When a plaintiff prevails in an action under ERISA for unpaid
contributions, ERISA mandates an award of "reasonable attorney's fees and
costs of the action, to be paid by the defendant." 29 U.S.C. § 1132
(g)(2)(D). Here the plaintiff seeks $980.50 in attorneys' fees and
$225.00 in costs. (Proposed Findings of Fact, ¶ (C)). According to
counsel's time records, he spent 3.6 hours working on this case as of
March 31, 2004. (Dubin Decl., ¶ 8). Although he did not specifically
identify his billing rate, it appears to be approximately $275.00 per
hour based on the number of hours worked and the total fee requested. The
time expended was reasonable, and the rate requested is commensurate with
that enerally charged for similar work in this district. Therefore, the
request for fees should be granted in full.
The plaintiffs also seek $225.00 in costs. This request is reasonable, as $150.00 of this amount is attributable to the filing fee
and $75.00 to service of process. (Dubin Decl., ¶ 8). Accordingly,
$225.00 should be awarded in costs.
For the reasons set forth above, I recommend that judgment be entered
against Wall Street and in favor of the plaintiff in the amount of
$3,404.28 for unpaid contributions, interest, and statutory damages,
$980.50 for attorneys' fees, and $225.00 for costs, for a total of
$4,609.78. The plaintiff is entitled to postjudgment interest under
28 U.S.C. § 1961 on all sums awarded.
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of
the Federal Rules of Civil Procedure, the parties shall have ten (10)
days from this date to file written objections to this Report and
Recommendation. Such objections shall be filed with the Clerk of the
Court, with extra copies delivered to the chambers of the Honorable
Robert L. Carter, Room 2220 and to the chambers of the undersigned, Room
1960, 500 Pearl Street, New York, New York 10007. Failure to file timely
objections will preclude appellate review.
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