The opinion of the court was delivered by: JOAN AZRACK, Chief Magistrate Judge
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.
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
D. Attorney's Fees and Costs
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.
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. ...