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TRUSTEES OF THE LOCAL 807 v. RIVER TRUCKING AND RIGGING

December 2, 2005.

TRUSTEES OF THE LOCAL 807 LABOR-MANAGEMENT HEALTH & PENSION FUNDS, Plaintiffs,
v.
RIVER TRUCKING AND RIGGING, INC. Defendant.



The opinion of the court was delivered by: JOAN AZRACK, Chief Magistrate Judge

ORDER

Plaintiffs, the trustees and fiduciaries (the "Trustees") of Local 807 Labor-Management Health and Pension Funds (the "Funds"), brought this action pursuant to sections 502 and 515 of the Employee Retirement Income and Security Act of 1974, as amended ("ERISA"), 29 U.S.C. §§ 1132(a)(3) and 1145, against defendant, River Trucking and Rigging, Inc. ("River Trucking"), to collect unpaid fringe benefit contributions to the Funds. Plaintiffs also sought interest, liquidated damages, as well as attorney's fees and costs pursuant to 29 U.S.C. § 1132(g)(2). Plaintiffs moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. By Order dated September 20, 2005, I granted plaintiffs' motion for summary judgment as to defendant's liability for unpaid contributions to the Funds in the amount of $15,048.80, plus interest, liquidated damages, attorney's fees, and costs. Plaintiffs were ordered to submit documentation, including all relevant provisions of the collective bargaining agreement and any trust agreements, to support its request for interest and liquidated damages, as well as an affidavit to support its request for attorney's fees and costs. Having reviewed plaintiffs' documentation, I hereby order that plaintiffs be awarded damages in the sum of $38,944.36, attorney's fees in the sum of $19,687.50, and costs in the sum of $1,387.50, for a total damages award of $60,019.36.

  I. DISCUSSION

  A. Unpaid Contributions

  The Funds hired Schultheis & Panettieri to conduct an audit of defendant's payroll records for the period November 1, 1999 through September 30, 2003. (Pls.' 56.1 Stmt. ¶ 6.) The audit was conducted on November 14, 2003 and it was determined that for the period January 1, 2000 through December 31, 2002 defendant failed to make all of the required contributions to the Funds on behalf of employees Ryan Farrell, Julio Cali, and Henry Womack. (River Trucking Payroll Audit, annexed to Pls.' Mot. for Summ. J. at F0008-F00013.) The audit revealed that for the period January 1, 2000 through December 31, 2002 defendant's unpaid contributions totaled $15,048.80. (Id. at F00010.) Accordingly, defendant owes the Funds $15,048.80 for unpaid contributions. B. Interest on Unpaid Contributions

  ERISA provides that "interest on unpaid contributions shall be determined by using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of Title 26." 29 U.S.C. § 1132(g)(2). On October 8, 1996, the Trustees adopted an interest rate of 18 percent per annum for unpaid contributions. (See Affirmation of Charles Pergue dated Oct. 19, 2005 ("Pergue Aff."), Ex. E.) Simple interest at 18 percent per annum divided by 365.25 days*fn1 yields a daily interest rate of 0.04928 percent. A daily interest rate of 0.04928 percent on the principal in arrears, $15,048.80, multiplied by the number of days in arrears through October 31, 2005, yields a total of $11,947.78. Accordingly, defendant owes the Funds $11,947.78 in interest on the unpaid contributions.

  C. Double Interest*fn2 or Liquidated Damages

  Section 1132(g)(2)(C) provides that the court shall award "an amount equal to the greater of — (i) interest on the unpaid contributions, or (ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent. . . ." 29 U.S.C. § 1132(g)(2)(C). Article IV, ¶ 5 of the amended Declaration of Trust provides, "Trustees may require delinquent Employers to pay interest, liquidated damages and other costs and expenses . . . arising out of the collection of such Employer's delinquency to the Fund." (Pergue Aff., Ex. D.) The trust agreement, however, does not specifically provide a rate at which liquidated damages are to be calculated. Plaintiffs are therefore entitled to an award of double interest pursuant to § 1132(g)(2)(C)(i). See DeVito v. Hempstead China Shop, 831 F.Supp. 1037, 1042 (E.D.N.Y. 1993) rev'd on other grounds, 38 F.3d 651 (2d Cir. 1994). Accordingly, defendant owes the Funds $11,947.78 in double interest on the unpaid contributions.

  D. Attorney's Fees and Costs

  1. Fees

  Section 1132(g) also provides for the granting of reasonable attorney's fees and costs in ERISA matters brought by fiduciaries to enforce the terms of the CBA. The Second Circuit has adopted the lodestar approach to calculating attorney fees. See Bourgal v. Lakewood Haulage, Inc., 827 F. Supp. 126, 129 (E.D.N.Y. 1993) (citing Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058-59 (2d Cir. 1989)). In computing the lodestar, the court multiplies the number of hours reasonably worked by what it deems to be a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Bourgal, 827 F. Supp. at 129. Awards for legal fees are calculated in accordance with "the prevailing market rates in the relevant community. . . ." Chambless, 885 F.2d at 1058 (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). Moreover, "the district court must ascertain whether `the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.'" Id. at 1058-59 (quoting Blum 465 U.S. at 896 n. 11). When the lodestar has been calculated, the court considers "subjective factors, such as the risk of the litigation, the complexity of the issues, and the skill of the attorneys" New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1140 (2d Cir. 1983) and should exclude hours that are "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434. Finally, a fee applicant has the burden of establishing its hourly rate and hours expended. See Blum, 465 U.S. at 896 n. 11.

  To support plaintiffs' request for attorney's fees, plaintiffs' counsel, Charles Pergue,*fn3 submitted contemporaneous time records that reflect 103.25 hours of work performed during the pendency of this action, amounting to $26,875.00. (See Supplemental Affirmation of Charles Pergue dated Oct. 20, 2005 ("Suppl. Pergue Aff."), Ex. A.) During the period July 18, 2003 through November 24, 2004, Mr. Pergue was a senior associate at Vladeck, Waldman, Elias & Engelhard, P.C., where he represented plaintiffs in this action. (See Pergue Aff. ¶ 3.) He was assisted by Jaimie Dvoretzky,*fn4 a junior associate at the firm, and paralegals. (Id. ¶ 4.) During his tenure at Vladeck, Waldman, Elias & Engelhard, P.C., Mr. Pergue and his associates expended a total of 37 hours on this case, consisting of 22 hours for work performed by attorneys, billed at an hourly rate of $250.00, and 15 hours for work performed by paralegals, billed at an hourly rate of $100.00. (See Suppl. Pergue Aff. ¶ 4.)

  In December 2004, Mr. Pergue became a member of Cary Kane LLP, where he continued to represent plaintiffs in this action. Mr. Pergue was assisted by Ms. Dvoretzky, who joined Cary Kane LLP as an associate. (See Pergue Aff. ¶ 4.) During the period December 14, 2004 through October 14, 2005, Mr. Pergue and Ms. Dvoretzky expended a total of 66.25 hours on this case, reflecting, inter alia, 7.0 hours researching and drafting the Motion for Summary Judgment, 42.25 hours researching and drafting the Reply to Defendant's Opposition to Plaintiffs' Motion for Summary Judgment, and 13.0 hours drafting attorney affidavits and compiling exhibits. (See Suppl. Pergue Aff., Ex. A.)

  Having reviewed the attorney affirmations and billing records, I find the hourly rates of $250.00 and $300.00 for work performed by Ms. Dvoretzky to be higher than the rates charged for comparable legal work performed by attorneys of similar experience in the Eastern District of New York. See generally Private Sanitation Union Local 813, Int'l Bhd. of Teamsters v. Gaeta-Serra Assocs., 02-CV-5526, 2005 WL 2436194, at *2 (E.D.N.Y. 2005) (firm billed $200.00 per hour for work performed by junior associates); King v. JCS Enter., Inc. 325 F. Supp. 2d. 162, 170 (2004) (firms billed $125.00-$175.00 for work performed by associates); Martas v. Zaros Bake Shop., Inc., 98-CV-5895, 2002 WL 1267999, at *6 (E.D.N.Y. 2002) (firm billed $200.00 per hour for work performed by associates). Ms. Dvoretzky is a junior associate with approximately four years of legal experience, yet her hourly billing rate is the same as Mr. Pergue, a partner with thirteen years of legal experience. This is unreasonable and not in accordance with the attorney billing practices in this district. I will therefore apply a rate of $200.00 per hour for legal services performed by Ms. ...


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