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United States District Court, S.D. New York

September 29, 2005.

V.V.W. REBAR CORP., Defendant.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge




  Plaintiff, Local 46 Metallic Lathers Union and Reinforcing Ironworkers of New York City and Vicinity ("Local 46") brought this action against V.V.W. Rebar Corporation ("VVW") pursuant to section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, to compel compliance with the parties' collective bargaining agreement ("Agreement") and the decision of an arbitration panel convened, pursuant to dispute resolution provisions in the Agreement, to hear and determine disputes arising out of the Agreement.

  Upon VVW's failure to file an answer or otherwise respond to the Complaint, Local 46 requested that a default judgment be entered against VVW and that the plaintiff have judgment against the defendant in the amount of $273,328.12, together with interest, attorney's fees and costs. Thereafter, your Honor referred the matter to the undersigned to conduct an inquest and to report and recommend the amount of damages, if any to be awarded against VVW. The Court directed Local 46 to serve and file proposed findings of fact and conclusions of law, and an inquest memorandum setting forth its proof of damages, costs of this action, and its attorney's fees. The Court also directed VVW to serve and file any opposing memoranda, affidavits and exhibits, as well as any alternative findings of fact and conclusions of law it deemed appropriate. VVW did not file any papers in opposition to Local 46's submissions.

  Local 46's submissions aver that it is entitled to $273,328.12, together with interest, attorney's fees in the amount of $2,400.00, and costs in the amount of $225.00. For the reasons that follow, I recommend that Local 46 be awarded $273,328.12, post-judgment interest, and costs in the amount of $225.00.


  When a defendant defaults in an action, by failing to plead or otherwise defend against a complaint, the defendant is deemed to have admitted every well-pleaded allegation of the complaint except those relating to damages. See Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). In addition, the plaintiff is entitled to all reasonable inferences from the evidence presented. See Au Bon Pain Corp. v. Artect, Inc., et al., 653 F.2d 61, 65 (2d Cir. 1981). Based upon the submissions made by the plaintiff, the complaint filed in the instant action, and the Court's review of the entire court file in this action, the following findings of fact are made:

  Local 46 is a labor organization within the meaning of section 2(5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 152(5). See Complaint, ¶ 4. VVW is a corporation and an employer within the meaning of the NRLA, 29 U.S.C. § 152(2). Id., ¶ 5. Local 46 represents certain employees of VVW for collective bargaining purposes. Id., ¶ 4. Local 46 and VVW executed and placed into effect a collective bargaining agreement covering the period July 1, 2002, through June 30, 2005. The Agreement governed wages, hours, and working conditions of the VVW employees. See Affidavit of Richard Markowitz In Support Default Judgment ("Markowitz Aff."), Exhibit A. The Agreement contains provisions for resolving all disputes between the parties arising out of the employment and collective bargaining relationship. Id. Pursuant to Article X of the Agreement, a Trade Board of the Cement League is charged with hearing all complaints involving the general enforcement of the Agreement between the Local 46 and VVW. Id.

  On June 19, 2003, the Local 46's Business Manager/Financial Secretary, Robert A. Ledwith ("Ledwith"), notified the Cement League of Local 46's desire to convene a Trade Board hearing based on allegations of multiple violations of the Agreement that were occurring at VVW's Track 9A job site, which is located at JFK Airport. See Plaintiff's Memorandum of Law in Support of Inquest ("Pl.'s Mem."), at 4. As a result of Local 46's allegations, a Trade Board hearing was held on June 30, 2003. Id.

  During the Trade Board hearing, Ledwith presented the following evidence: (a) Local 46's letter notifying VVW of eight contract violations; (b) a list of architects, engineers and various contractors working at the job site; (c) documentation of the hourly and daily wages of Local 46's members, during the relevant time period; (d) VVW's weekly contributions to Local 46; (e) a list of persons employed at the job site who were not Local 46 members; and (f) various drawings of the pertinent construction project. See Complaint, Exhibit A, Minutes of Trade Board Meeting. Based on the drawings, two contractors estimated that the amount of steel used at the job site would require that work be performed between 646 and 693 "man-days." Id. As a result of VVW's contract violations, Local 46 estimated that its members suffered a minimum of $273,328.12 in lost wages and fringe benefits, based on an estimated 646 man-days of work. However, VVW reported only three man-days of work to Local 46. Id. At the conclusion of the hearing, the Trade Board found by a unanimous vote, that VVW owed Local 46 $273,328.12. Id. Under the terms of the Agreement, the decision of the Trade Board was final and binding on the parties. See Pl.'s Mem. at 5. VVW did not attend the Trade Board hearing or seek to vacate or otherwise challenge judicially the decision of the Trade Board. See id. VVW has failed to comply with the Trade Board decision. See id. Local 46 filed this action to compel compliance with the Agreement and the decision of the Trade Board.


  Review of Arbitration Awards

  The Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., permits federal courts to confirm arbitration awards. In pertinent part FAA provides the following:

If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected. . . . If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. Notice of the application shall be served upon the adverse party, and thereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding.
9 U.S.C. § 9.

  "The confirmation of an arbitration award is a summary proceeding that merely makes what is already a final arbitration award a judgment of the court." Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984) (citation omitted). Thus, "the showing required to avoid summary confirmation is high." Ottley v. Schwartzberg, 819 F.2d 373, 376 (2d. Cir. 1987) (citing National Bulk Carriers, Inc. v. Princess Mgmt. Co., 597 F.2d 819, 825 (2d Cir. 1979) ("only `clear evidence of impropriety' justifies denial of summary confirmation") (quoting Andros Compania Maritima S.A. v. Marc Rich & Co., A.G., 579 F.2d 691, 702 [2d Cir. 1978]).

  Under FAA an arbitration award may only be vacated in four circumstances. 9 U.S.C. § 10 explains that:

[T]he United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration — (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. § 10(a).

  Additionally, arbitration awards made in manifest disregard of law may not be confirmed by the courts. See Duferco Int'l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir. 2003).

  Local 46 and VVW agreed to settle "all disputes" arising under the Agreement through arbitration. See Markowitz Aff., Exhibit A. In compliance with the provisions of the Agreement, Local 46 presented its dispute, arising under the collective bargaining agreement, before the Trade Board. VVW did not attend the Trade Board hearing or challenge the Trade Board's decision. See Pl.'s Mem, at 5. Moreover, VVW has not appeared in this action and has not paid any portion of the award to Local 46. Id.

  No evidence is before the Court that supports vacating the arbitration panel's determination. Therefore, the decision of the Trade Board should be confirmed and Local 46 should be permitted to recover damages in the amount of $273,328.12.


  Once a federal court confirms an arbitration award, the judgment has the same effect as any judgment rendered by the court and is "`governed by statutory post-judgment interest rates.'" Carte Blanche (Singapore) Pte., Ltd. v. Carte Blanche Int'l, Ltd., 888 F.2d 260, 269 (2d Cir. 1989) (quoting Parsons & Whittemore Ala. Mach. and Servs. Corp. v. Yeargin Constr. Co., 744 F.2d 1482 (11th Cir. 1984). Under 28 U.S.C. § 1961, "interest shall be allowed on any money judgment in a civil case recovered in a district court." 28 U.S.C. § 1961(a). Interest is calculated from the date of the entry of judgment, at a rate equal to the weekly average one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week proceeding the date of the judgment. See id. Therefore, VVW is entitled to post-judgment interest at the rate prescribed by statute.

  Attorney's Fees

  Generally, attorney's fees are not recoverable in an action to confirm an arbitration award. However, a court, in the exercise of its inherent equitable powers, may award attorney's fees when a party to an arbitration has, without justification, refused to abide by an arbitrator's decision. See International Chemical Workers Union (AFL-CIO), Local No. 227 v. BASF Wyandotte Corp., 774 F.2d 43, 47 (2d Cir. 1985). Since, VVW has failed to comply with the decision of the Trade Board, without justification, and has failed to appear in this action, without justification, Local 46 may recover its reasonable attorney's fees and costs.

  In determining appropriate attorneys' fees, a court may apply a "lodestar" method, through which the court multiplies "the `number of hours reasonably expended on the litigation' by `a reasonable hourly rate.'" Mtr. of Arbitration Between P.M.I. Trading Ltd. v. Farstad Oil, Inc., 160 F. Supp. 2d 613, 614-15 (S.D.N.Y. 2001) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 [1983]). "The court must consider the normal hourly rate for an attorney in the same community with the same experience and training, as well as the number of hours which reasonably should be required to prosecute the claim. Id. at 615. Moreover, a party seeking an award of attorney's fees must support the request with contemporaneous time records that show, "for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). Attorney fee applications that do not contain such supporting data "should normally be disallowed." Id. at 1154.

  In prosecuting this action against VVW, Local 46 engaged the services of the law firm of Markowitz & Richman. Richard H. Markowitz, Esq. ("Markowitz"), a partner with the law firm submitted an affidavit setting forth: (a) a summary of the number of hours he devoted to this action and the nature of the work he performed; and (b) the billing rate at which he performed legal services for Local 46. See Markowitz Aff., Exhibit B. The affidavit indicates that Markowitz spent twelve hours, at an hourly rate of $200.00, reviewing the case file; preparing the complaint; communicating with his client; and preparing the default judgment documents. However, Markowitz failed to submit to the Court his contemporaneous time records that detail the date, hours expended, and the specific nature of the work performed on each date. The Court finds that Markowitz's affidavit also fails to provide the Court with any information about his professional experience, so that the Court might assess whether it supports the rate of compensation Markowitz commanded. Since Local 46 did not provide the requisite supporting data that would permit its attorney fee application to be evaluated thoroughly, it should be disallowed. See New York State Ass'n for Retarded Children, 711 F.2d at 1154. Markowitz's affidavit indicates that Local 46 incurred $225.00 in costs for court filing fees and for serving process. The Court finds that it is reasonable and appropriate for Local 46 to recover its costs.


  For the reasons set forth above, the Court recommends an award to Local 46 of: (a) $273,328.12 plus post-judgment interest, in an amount to be calculated by the Clerk of Court in accordance with 28 U.S.C. § 1961; and (b) costs in the amount of $225.00.

  Plaintiff shall serve defendant with a copy of this Report and Recommendation and submit proof of service to the court.


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Robert L. Carter, United States District Judge, 500 Pearl St., Room 2220, New York, New York 10007, and to the chambers of the undersigned, 40 Centre St., Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Carter. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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