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Engineers Joint Welfare Fund, By Daniel P.Harrigan, As Administrator v. Western New York Contractors

January 19, 2011

ENGINEERS JOINT WELFARE FUND, BY DANIEL P.HARRIGAN, AS ADMINISTRATOR;
ENGINEERS JOINT PENSION FUND, BY DANIEL P. HARRIGAN, AS ADMINISTRATOR;
ENGINEERS JOINT SUPPLEMENTAL UNEMPLOYMENT FUND, BY DANIEL P. HARRIGAN, AS ADMINISTRATOR;
ENGINEERS JOINT TRAINING FUND, BY DANIEL P. HARRIGAN, AS ADMINISTRATOR;
OPERATING ENGINEERS LOCAL 17 TRAINING FUND, BY JAMES SMOLINSKI, AS ADMINISTRATOR;
CENTRAL PENSION FUND OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS AND
PARTICIPATING EMPLOYERS, BY MICHAEL R. FANNING, AS CHIEF EXECUTIVE OFFICER; INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 17, BY ALAN PERO, AS INTERNATIONAL REPRESENTATIVE;
INTERNATIONAL UNION OF OPERATING ENGINEERS; LOCAL UNION NO. 545, BY THERON HOGLE, AS BUSINESS MANAGER; AND INTERNATIONAL UNION OPERATING ENGINEERS, LOCAL UNION NO. 832, BY THOMAS E. CHARLES, AS BUSINESS MANAGER, PLAINTIFFS,
v.
WESTERN NEW YORK CONTRACTORS, INC.; AND
ROBERT A. VALERINO, INDIVIDUALLY AND AS AN OFFICER OF WESTERN NEW YORK CONTRACTORS, INC., DEFENDANTS,



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court in the above-captioned action are (1) Plaintiffs' motion for partial reconsideration of this Court's Decision and Order of July 2, 2010 ("July Order"), and (2) their renewed motion for attorney's fees and costs.*fn1 For the reasons set forth below, Plaintiffs' motion for reconsideration is denied; and their renewed motion for attorney's fees and costs in granted in part and denied in part.

I. MOTION FOR PARTIAL RECONSIDERATION

Motions for reconsideration proceed in the Northern District of New York under Local Rule 7.1(g). As an initial matter, the Court notes that the July Order was entered on July 2, 2010, and Plaintiffs filed their motion for reconsideration on July 27, 2010. Plaintiffs' motion is therefore denied as untimely. See N.D.N.Y. L.R. 7.1(g) ("Unless Fed. R. Civ. P. 60 otherwise governs, a party may file and serve a motion for reconsideration or reargument no later than FOURTEEN DAYS after the entry of the challenged judgment, order, or decree.").

In any event, even if the Court were to consider the merits of Plaintiffs' motion for reconsideration, the Court would deny that motion as without cause. "[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). A district court may, however, properly reconsider its previous ruling if (1) there is an intervening change in the controlling law, (2) new evidence not previously available comes to light, or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice. Stewart Park & Res. Coalition, Inc. v. Slater, 374 F. Supp.2d 243, 253 (N.D.N.Y. 2005) (Treece, M.J.).

Here, Plaintiffs have failed to establish the existence of any of the above factors. Instead, in Plaintiffs' memorandum of law,*fn2 they merely attempt to relitigate certain points that this Court previously decided in the July Order.*fn3 For each of these two alternative reasons, Plaintiffs' motion for reconsideration is denied.

II. RENEWED MOTION FOR ATTORNEY'S FEES AND COSTS

A. Number of Hours Reasonably Expended on this Action

In the July Order, the Court refused to award Plaintiffs' attorney's fees because "some [billing] entries appear[ed] to include some tasks that are related to this action and other tasks that are not[, and] [i]n light of th[is] problem[] . . . , the Court [wa]s unable to determine the number of hours that Plaintiffs' attorney and the paralegals expended on this matter." Eng'r Joint Welfare Fund, 2010 WL 2682224, at *4. As noted above, Plaintiffs' have since submitted documentation in an effort to address this issue.

Upon review of Plaintiffs' counsel's billing statements, the Court finds, as it previously found in its July Order, that certain time entries recorded by both counsel and counsel's paralegals are for hours spent on matters unrelated to this ERISA action. By way of example, the Court points to the following entries:

Date Employee Hours Amount Description 12/29/2008 JAC 0.40 94.00 Drafted letter to Monroe County

Water Authority providing breakdown of monies due on defendants' Spencerport and Irondequoit Water Main Projects; Drafted letter to Attorney Agostinelli advising of monies due on defendants' Walmart job and requesting payment and advising of audit status 3/18/2009 LLD 0.25 33.50 Drafted Release and Partial Assignment on the Walmart project 4/02/2009 AAR 0.75 100.50 Drafted Penn Yan bond foreclosure Summons and Complaint, Index Number Application and Certificate of Service; Prepared project chart 4/06/2009 JAC 0.20 49.40 Communicated with Attorney Lankford regarding settlement of action and terms of settlement This action centers on Defendants' violation of multiple provisions of ERISA through their failure to, inter alia, (1) make contributions to certain multi-employer plans, (2) pay monies to the Union deducted from each employee's wages, (3) pay liquidated damages and interest due as a result of their failure to make timely contributions and deductions, and (4) remit contributions and deductions with regard to hours worked on labor projects by covered employees. (See generally, Dkt. No. 1.) The action was commenced on April 8, 2009. (Dkt. No. 1.) Therefore, with regard to expenses incurred prior to commencement of the action, Plaintiffs would ordinarily only be entitled to recover pre-investigation expenses related to this action (i.e., expenses associated with determining the debt owed, the person or persons responsible for the obligation, and that person or persons' whereabouts). See, e.g., Lake v. Schoharie County Com'r of Soc. Serv., 01-CV-1284, 2006 WL 1891141, at *8 (N.D.N.Y. May 16, 2006) (Peebles, M.J.).

However, the trust agreement executed between Plaintiffs and Defendants provides, among other things, that Plaintiffs "impose and receive from [Defendants] all costs, audit expenses and attorneys fees incurred by the Trustees in enforcing the provisions [in the agreement], whether by litigation or otherwise." (Dkt. No. 23, Attach. 7, at 9.) One of the provisions in the agreement provides that Defendants have an obligation to make certain contributions and deductions. (Id. at 8-9.) A separate provision provides that the Trustees may take whatever steps they determine to be in the best interest of the fund for the purpose of collecting such payments. (Id. at 9.) Based on these provisions in the trust agreement, the Court concludes that Plaintiffs are entitled to recover the fees associated with the above-described debt collection actions (and other similar actions taken by Plaintiffs' attorney prior to commencing this action), despite the fact that such actions are arguably unrelated to this ERISA action.

Having said that, certain of Plaintiffs' counsel's billing entries are vague, and/or clustered in a manner that renders it impossible for the Court to determine how much time was spent on what activity. For example, Plaintiffs' counsel billed Plaintiffs for 4.5 hours of paralegal time spent doing the following: (1) drafting a notice of a motion for default judgment; (2) drafting a proposed order granting default judgment; and (3) preparing three ...


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