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Onondaga County Laborers' Health and Welfare, Pension, Annuity and Training Funds v. Maxim Construction Service Corp.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


June 15, 2006

ONONDAGA COUNTY LABORERS' HEALTH AND WELFARE, PENSION, ANNUITY AND TRAINING FUNDS, BY JANET M. MORRO, AS FUND ADMINISTRATOR; AND CONSTRUCTION AND GENERAL LABORERS' LOCAL UNION NO. 633, BY GABRIEL ROSETTI, AS BUSINESS MANAGER, PLAINTIFFS,
v.
MAXIM CONSTRUCTION SERVICE CORP.; BARBARA SLATE, INDIVIDUALLY AND AS AN OFFICER OF MAXIM CONSTRUCTION SERVICE CORP.; AND JAMES MALVASI, INDIVIDUALLY AND AS AN OFFICER OF MAXIM CONSTRUCTION SERVICE CORP., DEFENDANTS.

The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION*fn1

On December 22, 2005, Plaintiffs commenced this action against Defendant Maxim Construction Service Corporation ("Defendant Corporation"), Defendant Barbara Slate, President of Defendant Corporation, and Defendant James Malvasi pursuant to the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 et. seq., the Labor-Management Relations Act, 29 U.S.C. § 185(a), and the terms and conditions of a collective bargaining agreement and Agreements and Declarations of Trust. Specifically, Plaintiffs sought to collect "delinquent fringe benefit contributions, deductions, interest, liquidated damages, costs and disbursements, and attorneys' fees due and owing to multi-employer benefit plans and a labor organization." See Plaintiffs' Memorandum of Law at 1.

Defendants failed to answer or respond to the complaint, and Plaintiffs requested that the Clerk of the Court enter default against them pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, see Dkt. No. 6, which the Clerk of the Court did on February 1, 2006, see Dkt. No. 7. Currently before the Court is Plaintiffs' motion, pursuant to Rule 55(b) of the Federal Rules of Civil Procedure, for entry of a default judgment in the amount of $17,232.43 in interest, liquidated damages and attorney's fees and costs.

II. DISCUSSION

A. Standard of Review

When a court enters a default judgment, it must "accept[] as true all of the factual allegations of the complaint, except those relating to damages." Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) (citations omitted). With respect to damages, the court must "conduct an inquiry in order to ascertain the amount of damages with reasonable certainty." Credit Lyonnais Secs. (U.S.A.), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citing Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)). Determining the amount of damages is a two-fold task. See id. First, the court must determine "the proper rule for calculating damages on [the] claim[;]" then, the court must assess the "plaintiff's evidence supporting the damages to be determined under [the] rule." Id. In calculating damages, the court "need not agree that the alleged facts constitute a valid cause of action . . . ." Au Bon Pain, 653 F.2d at 65 (citation omitted).

B. Damages

1. ERISA Funds

Section 1145 of Title 29 of the United States Code provides that [e]very employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with the law, make such contributions in accordance with the terms and conditions of such plan or agreement.

29 U.S.C. § 1145

When a violation of § 1145 occurs, § 1132(g)(2) provides that, [i]n any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan --

(A) the unpaid contributions,

(B) interest on the unpaid contributions,

(C) 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 (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A),

(D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and

(E) such other legal or equitable relief as the court deems appropriate.

For the purposes of this paragraph, 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)

The CBA states that "[t]he parties to this Collective Bargaining Agreement . . . agree that the signing of this Agreement shall constitute an obligation to be bound by the terms and conditions, rules and regulations of said Agreements and Declarations of Trust . . . ." See Affidavit of Jennifer A. Clark, dated March 31, 2006 ("Clark Aff."), at Exhibit "D." Defendant Slate signed the above CBA as President of Defendant Corporation. See id. at Exhibit "D" at 38. Furthermore, both ERISA and Plaintiffs' Collections Policy allow for the recovery of interest and penalties for both unpaid and late contributions. See Eng'rs Joint Welfare, Pension, Supplemental Unemployment Benefit & Training Funds v. Modi Eng'g & Land Surveying P.C., No. 96-CV-1921, 1998 WL 358511, *2 (N.D.N.Y. June 30, 1998); Clark Aff. at Exhibit "F" at § 2(b). Accordingly, the Court finds that Defendants are bound by the CBA and Agreements and Declarations of Trust, as well as the Onondaga County Laborers' Funds' Collections Policy; and, therefore, the Court will apply the provisions of ERISA, the CBA, the Agreements and Declarations of Trust, and the Collections Policy to determine the amount of damages to which Plaintiffs are entitled.

a. Interest

(1) Onondaga County Laborers' Funds

Under the Onondaga County Laborers' Funds' Collections Policy, the interest rate on unpaid or late contributions is one and one-half percent per month. See Clark Aff. at Exhibit "F" at § 2. Plaintiffs calculate that Defendants owe $798.11 in interest on untimely paid contributions to the Onondaga County Laborers' Funds for the period from August 2005 through December 2005. See Clark Aff. at Exhibit "H." In addition, Plaintiffs calculate that Defendants owe the Onondaga County Laborers' Funds $12.39*fn2 in interest on delinquent contributions for November 2004, $234.58 in interest on delinquent contributions for December 2004 through March 2005, and $105.65 in interest on delinquent contributions for April 2005 through May 2005.*fn3 See Clark Aff. at Exhibit "J." Accordingly, the Court awards Plaintiff Onondaga County Laborers' Funds $1,150.73 in interest against Defendants.

(2) LECET & the Health and Safety Fund

Under the Amendments and Declarations of Trust for LECET and the Health and Safety Fund, the interest rate on unpaid or late contributions is one and one-half percent per month. See Clark Aff. at Exhibit "E" at "Part 5" at 24; Complaint at ¶ 22. Plaintiffs calculate that Defendants owe $12.30 in interest for delinquent contributions to LECET and the Health and Safety Fund for the period from August 2005 through December 2005. See Clark Aff. at Exhibit "H." They calculate that for November 2004 Defendants owe $2.81 in unpaid interest on the delinquent contributions to LECET and the Health and Safety Fund; that for the period from December 2004 through March 2005 Defendants owe $4.52 in interest on the delinquent contributions; and that for April 2005 through May 2005, Defendants owe $1.87 in interest on delinquent contributions. See Clark Aff. at Exhibit "J." Accordingly, the Court awards Plaintiffs LECET and the Health and Safety Fund $21.50 in interest against Defendants.

b. Liquidated Damages

(1) Onondaga County Laborers' Funds

Under the Onondaga County Laborers' Funds' Collections Policy, when contributions are unpaid or delinquent, the employer is liable for liquidated damages in the amount of ten percent of the contributions owing. See Clark Aff. at Exhibit "F." Plaintiffs calculate that for the period from August 2005 through December 2005 Defendants owe $2,422.39 in liquidated damages for the untimely paid contributions. See Clark Aff. at Exhibit "H." Additionally, Plaintiffs calculate that Defendants owe $9,701.19 in liquidated damages on the unpaid contributions for the following time periods: November 2004 ($1,219.74), December 2004 through March 2005 ($646.30), April 2005 through May 2005 ($487.24), and March 2004 through October 2004 ($7,347.91). See Clark Aff. at Exhibit "J." Accordingly, the Court awards Plaintiff Onondaga County Laborers' Funds $12,123.58 in liquidated damages on untimely paid contributions against Defendants.

(2) LECET & the Health and Safety Fund

Plaintiffs are entitled to liquidated damages on the untimely paid contributions to LECET and the Health and Safety Fund in the amount of interest again. See Complaint at ¶ 22. Plaintiffs calculate that for the period from August 2005 through December 2005 Defendants owe $12.30 in liquidated damages on the untimely paid contributions. See Clark Aff. at Exhibit "H." Plaintiffs also calculate that for November 2004 Defendants owe $4.93 in liquidated damages; that for the period from December 2004 through March 2005 Defendants owe $4.52 in liquidated damages; that for the period from April 2005 through May 2005 Defendants owe $1.87 in liquidated damages; and that for the period from March 2004 through October 2004 Defendants owe $32.17 in liquidated damages. See Clark Aff. at Exhibit "J." Accordingly, the Court awards Plaintiffs LECET and the Health & Safety Fund $55.79 in liquidated damages against Defendants.

2. Deductions: Dues, I.A.P. and P.A.C. Monies

a. Interest

Plaintiffs state in their complaint that they are entitled to interest at a rate of nine percent per annum on untimely paid dues deductions and I.A.P. and P.A.C. monies. See Complaint at ¶ 22. Plaintiffs calculate that for the period from August 2005 through December 2005 Defendants owe $60.38 in interest; that for November 2004 Defendants owe $9.85 in interest; that for the period from December 2004 through March 2005 Defendants owe $17.37 in interest; and that for the period from April 2005 through May 2005 Defendants owe $8.21 in interest. See Clark Aff. at Exhibits "H" & "J." Accordingly, the Court awards Plaintiffs $95.81 in interest owing on Defendants' untimely paid deductions.

b. Liquidated Damages

Plaintiffs state in their complaint that they are entitled to liquidated damages equal to ten percent of the untimely/unpaid deductions. See Complaint at ¶ 22. Plaintiffs calculate that for the period from August 2005 through December 2005 Defendants owe $367.51 in liquidated damages; that for November 2004 Defendants owe $178.19 in liquidated damages; that for the period from December 2004-March 2005 Defendants owe $96.76 in liquidated damages; that for the period from April 2005 through May 2005Defendants owe $76.76 in liquidated damages; and that for the period from March 2004 through October 2004 Defendants owe $1,075.50 in liquidated damages. See Clark Aff. at Exhibits "H" & "J." Accordingly, the Court awards Plaintiffs $1,794.72 in liquidated damages for Defendants' untimely/unpaid deductions.

C. Costs of Collection

Section 1132(g)(2)(D)provides that a court shall award reasonable attorney's fees and costs of the action. See 29 U.S.C. § 1132(g)(2)(D). The Funds' Collections Policy provides that [i]f the Funds' Counsel performs legal services, which may include the commencement of legal proceedings against the Employer, to recover the amounts owed to the Funds pursuant to this section, the Employer shall reimburse the Funds for all attorneys' fees and paralegal fees, court costs, disbursements, and expenses incurred by the Funds in attempting to collect and in collecting the Funds' monies.

See Clark Aff. at Exhibit "F"at § 2(d)

1. Attorney's Fees and Costs

Courts calculate attorney's fees "by multiplying the number of billable hours that the prevailing party's attorneys spend on the case by 'the hourly rate normally charged for similar work by attorneys of like skill in the area.'" N.Y.S. Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1140 (2d Cir. 1983) (quotation omitted). "The reasonable hourly rate must be 'in line with those prevailing in the community . . . .'" N.Y.S. Teamsters Conference Pension & Ret. Fund v. United Parcel Serv., Inc., No. 5:98CV1902, 2004 WL 437474, *2 (N.D.N.Y. Feb. 27, 2004) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). Courts have interpreted the term "community" to mean "the district where the court sits." Id. (citing Luciano, 109 F.3d at 115).

In addition, parties must state, with specificity, "'the date, the hours expended, and the nature of the work done'" for each attorney. Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994) (quoting [N.Y.S. Ass'n for Retarded Children, Inc.], 711 F.2d at 1148). "'[C]ontemporaneous time records are a prerequisite[;]'" however, attorneys are "'not required to record in great detail how each minute of [their] time was expended,'" but hours that are "'excessive, redundant, or otherwise unnecessary' must be excluded from the calculation. . . ." United Parcel Serv., Inc., 2004 WL 437474, at *3 (internal quotations omitted).

Finally, an award of attorney's fees also includes reasonable out-of-pocket expenses normally charged to fee paying clients. See id. at *6 (quoting Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)) (other citation omitted). Courts in this District have previously held that "costs associated with lodging, meals, transportation, photocopying, postage, long distance telephone charges, and facsimiles" are reasonable out-of-pocket expenses and thus recoverable. See id. (citing O'Grady v. Mohawk Finishing Prods., Inc., No. 96-CV-1945, 1999 WL 30988, *7-*9 (N.D.N.Y. Jan. 15, 1999)). In addition, computerized legal research costs are recoverable. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 369 F.3d 91, 99 (2d Cir. 2004) (citations omitted).

a. Reasonable Hourly Rate

Relying upon this Court's discussions in United Parcel Serv., Inc., 2004 WL 437474, at *2, Plumbers, Pipefitters & Apprentices Local Union No. 112 Pension, Health & Educ. & Apprenticeship Plans v. Mauro's Plumbing, Heating & Fire Suppression Inc., 84 F. Supp. 2d 344, 356-57 (N.D.N.Y. 2000),*fn4 and Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany,No. 03-CV-502, 2005 WL 670307, *6 (N.D.N.Y. Mar. 22, 2005),*fn5 Plaintiffs seek $206 per hour for the legal services Ms. Clark performed in 2005 and $216 per hour for the legal services she performed in 2006. See Clark Aff. at Exhibit "K." They also seek $113 per hour for paralegal services performed in 2005 and $118 per hour for paralegal services performed in 2006. See Plaintiffs' Memorandum of Law at 10. They assert that these hourly rates are reasonable given the experience and reputation of the Funds' attorneys, the time and labor required, the amount of delinquency involved and the results obtained. See Plaintiffs' Memorandum of Law at 11.

Jennifer A. Clark is a partner at Blitman & King LLP and was admitted to the bar in 1982. See Clark Aff. at ¶ 30 & n.1. Her background and experience include practice before administrative agencies and state and federal courts in various actions, including numerous actions under ERISA to collect delinquent contributions owed to employee benefit plans. See id. In light of Ms. Clark's significant experience with ERISA actions and her years in practice, the Court finds that a reasonable rate for her legal services in 2005 is $206.00 per hour and that a reasonable rate for her services in 2006 is $210 per hour. Furthermore, with respect to Ms. DeMacy, the Court finds that $113 per hour and $118 per hour are unreasonable rates and awards Plaintiffs paralegal fees at the rate of $80 per hour, which is a reasonable hourly rate for similar paralegal work in this community.

b. Award of Fees and Costs

Plaintiffs request an award of attorney's fees in the amount of $1,473.70. To support their request, Plaintiffs provided the Court with an itemized statement of the legal services that Ms. Clark performed as well as the services that her paralegal performed. See Clark Aff. at Exhibit "K." This itemized statement contains the names of the individuals who performed the work, the amount of time that they spent performing the work, a brief description of the work that they performed, and the date on which they performed the work. See id. None of the work appears to be excessive, redundant or unnecessary. Accordingly, the Court awards Plaintiffs attorney's fees calculated as follows:

Attorney/Paralegal Hourly Rate Hours worked Total Jennifer A. Clark $206 1.60 $329.60 (2005)

Jennifer A. Clark $210 2.85 $598.50 (2006)

Linda L. DeMacy $80 4.0*fn6 $320.00 (Paralegal)

$1,248.10

In addition, Plaintiffs request an award of costs and disbursements in the amount of $516.60. These costs and disbursements include copying ($150.60), filing fees ($250.00), postage and delivery ($20.00), and service of process ($96.00). Since all of these costs are reasonable out-of-pocket expenses, the Court awards Plaintiffs costs in the amount they seek.

D. Post-Judgment Interest Under 28 U.S.C. § 1961(a)

Section 1961(a) of Title 28 of the United States Code provides that "[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court." 28 U.S.C. § 1961(a). Courts have awarded post-judgment interest on attorney's fees and costs when the judgment includes such an award. See Raff v. Maggio, 746 F. Supp. 1207, 1208 (E.D.N.Y. 1990) (citations omitted). Courts have also awarded post-judgment interest on awards of contributions and deductions, interest, and liquidated damages. See I.B.E.W. Local No. 910 Welfare, Annuity, & Pension Funds v. Dexelectrics, Inc., 98 F. Supp. 2d 265, 277 (N.D.N.Y. 2000); Alston v. Wall St. Garage Parking Corp., No. 03 Civ. 5418, 2004 WL 1194595, *2 (S.D.N.Y. May 28, 2004) (awarding post-judgment interest on all sums awarded, which included unpaid contributions, interest, statutory damages, attorney's fees and costs); Mason Tenders Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Training Program Fund v. Ciro Randazzo Builders, Inc., No. 03 Civ. 2677, 2004 WL 1152933, *4 (S.D.N.Y. May 24, 2004) (awarding post-judgment interest on all sums awarded, including unpaid contributions, interest, statutory damages, attorneys fees and costs). But see N.Y.S. Teamsters Conference Pension & Ret. Fund v. Empire Airgas, Inc., No. 95-CV-1313, 1996 WL 31172, *3 (N.D.N.Y. Jan. 22, 1996) (citations omitted) (holding that post-judgment interest "is available only upon the amount of unpaid contributions . . . . No postjudgment interest is allowed on the other components of plaintiff's damages"). Accordingly, consistent with the majority of courts that have addressed this issue, the Court awards Plaintiffs post-judgment interest on the entire judgment.

III. CONCLUSION

After carefully considering the file in this matter, Plaintiffs' submissions, and the applicable law, and for the reasons stated herein, the Court hereby

ORDERS that Plaintiffs' motion, pursuant to Rule 55(b) of the Federal Rules of Civil Procedure, for entry of a default judgment against Defendants is GRANTED in the amount of $17,006.83;*fn7 and the Court further

ORDERS that Plaintiffs are entitled to post-judgment interest calculated pursuant to 28 U.S.C. § 1961 on the entire amount of the judgment; and the Court further

ORDERS that the Clerk of the Court enter judgment in favor of Plaintiffs and close this case.

IT IS SO ORDERED


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