THE ANNUITY, WELFARE AND APPRENTICESHIP SKILL IMPROVEMENT & SAFETY FUNDS of the INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 15, 15A, 15C, AND 15D, AFL-CIO, by its TRUSTEES JAMES T. CALLAHAN, FRANCIS P. DIMENNA, ROBERT SHAW and JOHN BRUNETTI, Plaintiffs,
J & A CONCRETE CORP., Defendant.
OPINION AND ORDER
RONALD L. ELLIS, Magistrate Judge.
The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C, and 15D, AFL-CIO, by its Trustees James T. Callahan, Francis P. Dimenna, Robert Shaw, and John Brunetti (collectively, "Plaintiffs"), initiated this action against J & A Concrete Corporation ("J & A"), pursuant to the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq. ("ERISA"), and the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185 et seq. ("LMRA"), to compel J & A to pay fringe benefit contributions owed for the period of July 1, 2007, through June 30, 2009. Pending before the Court is Plaintiffs' Motion for Summary Judgment and request for damages in the amount of $57, 266.54. For the reasons that follow, Plaintiffs' motion is GRANTED IN PART and DENIED IN PART.
Plaintiffs commenced this action on March 27, 2012. (Complaint ("Compl.") at 1.) Plaintiffs assert that J & A failed to pay fringe benefit contributions owed to employee fringe benefit trust funds and breached the terms and conditions of the Parties' January 10, 1991 collective bargaining agreement ("CBA"). (Compl. at ¶¶ 1, 16.) J & A filed its Answer to the Complaint on April 23, 2012. (Answer ("Ans.") at 3.) On October 12, 2012, Plaintiffs filed for summary judgment asserting that there was no genuine issue as to any material fact and that Plaintiffs are entitled to judgment as a matter of law. (Plaintiffs' Notice of Motion for Summary Judgment ("Pl. Mot. for Sum. Judg.") at 1.)
J & A became a signatory to the CBA with the International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO ("Local 15") on January 10, 1991. (Compl. at ¶ 16; see also Affidavit of James M. Steinberg in Support of Motion for Summary Judgment ("Steinberg Aff.") at 2, ¶ 5.) Under the agreement, J & A agreed to remit fringe benefit contributions to each of the Plaintiffs Local 15 Trust Funds for work performed by its employees falling under the jurisdiction of Local 15. (Steinberg Aff. at 2, ¶ 5; see also Plaintiffs' Exhibit C, ("Ex. C") at ¶ 4.) By entering into the CBA, J & A also became a signatory to the Trust Agreements establishing each of the Local 15 Trust Funds and became bound by the terms and conditions of the Trust Agreements. (Steinberg Aff. at 2, ¶ 5; see also Plaintiffs' Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 in Support of Motion for Summary Judgment. ("Pls. 56.1 Stat.") at 2, ¶ 4.)
With J & A's consent, along with the authority granted to Plaintiffs' Local 15 Trust Funds pursuant to the CBA and the Trust Agreements to perform an audit, Plaintiffs' representative conducted an audit and reviewed J & A's payroll records on June 14, 2010. (Pls. 56.1 Stat. at 2, ¶ 5; Steinberg Aff. at 3, ¶ 6; Affidavit of Julia Willdelaforcade in Opposition to Motion for Summary Judgment ("Willdelaforcade Aff.") at 2, ¶ 6.) This audit resulted in the original November 16, 2010 report. ( Id. ) The November 16 report indicated that J & A owed $36, 697 in stamps to Local 15D employees. ( Id. at 2-3, ¶ 9.) Plaintiffs issued a revised report on March 10, 2011, which reduced the claimed deficiency to $35, 416. ( Id. at 3, ¶ 10.) Plaintiffs issued a further revised report on November 16, 2011, which increased the amount due and owing to $43, 331. ( Id. at 3, ¶ 11.) The increase was caused by the inclusion of stamps due and owing to Local 15A employees as well as a newly reported "pension deficiency." ( Id. ) Finally, Plaintiffs issued their last revised report with their motion for summary judgment on October 12, 2012. ( Id. at 3, ¶ 12.) The final report indicated a deficiency of $35, 592 owed to 15A and 15D employees, including the pension deficiency. ( Id. ) Plaintiffs assert that the final revisions were made after Plaintiffs had an opportunity to review documents exchanged during discovery. (Steinberg Aff. at 3, ¶ 6; see also Affidavit of Vincent Quattalaro in Support of Plaintiffs' Motion for Summary Judgment ("Quattalaro Aff") at 2, ¶ 3.)
Based on the final revised report, dated October 12, 2012, Plaintiffs indicate that J & A owes $41, 866.00 in fringe benefit contributions and interest to Local 15 Trust Funds for the audited period of July 1, 2007, to June 30, 2009. (Pls. 56.1 Stat. at 2. ¶ 5; see also Statement of Damages ("Stat. of Dam.") at 1; Steinberg Aff. at 3, ¶ 6; Steinberg Aff., Agreed Upon Procedure Report, Ex. F, at 3; Keenan Aff. at 2; Quattalaro Aff. at 2.) The total amount owed consists of $35, 764.00 in fringe benefit contributions for the audit period and $6, 102.00 in interest owed on these contributions at the rate of 4.25% per annum through the date that the final report was issued. (Stat. of Dam. at 1; see also Steinberg Aff. at 3, ¶ 6.)
In addition to the fringe benefit contributions and interest payment, Plaintiffs claim that additional interest, attorney's fees, audit fees, statutory damages and costs are due to Plaintiffs' Local 15 Trust Funds under the Parties' CBA and underlying Trust Agreements. (Pls. 56.1 Stat. at 2-3, ¶ 7; see also Stat. of Dam. at 1.) Specifically, Plaintiffs request $83.27 in additional interest on the principal sum for the period running from October 11, 2012, to October 12, 2012, pursuant to ERISA, 29 U.S.C. § 1132(g)(2)(B), and Section I and Section II, Subsection 3 of the "Collection and Audit Procedures." (Stat. of Dam. at 1; see also Steinberg Aff. at 5, ¶ 8(c).) Plaintiffs also request $6, 185.27 in statutory damages in accordance with ERISA, 29 U.S.C. § 1132(g)(2)(C), (Sta. of Dam. at 1; see also Steinberg Aff. at 5, ¶ 8(d).), $5, 425 in attorney's fees in accordance with ERISA, 29 U.S.C. § 1132(g)(2)(D), (Stat. of Darn. at 1; see also Steinberg Aff. at 5, ¶ 8(e).), $3, 262 in auditor's fees in accordance with ERISA, 29 U.S.C. § 1132(g)(2)(D), (Stat. of Dam. at 1; see also Steinberg Aff. at 5, ¶ 8(f).), and $445 in costs and disbursements for this litigation in accordance with ERISA, 29 U.S.C. § 1132(g)(2)(D), (Stat. of Dam. at 1; see also Steinberg Aff. at 5, ¶ 8(g).)
J & A acknowledges that it is a party to the CBA, that the CBA contains certain terms and conditions regarding fringe benefit contributions, and that it is also bound to all agreements and declarations of trusts, amendments, and regulations referenced in the CBA. (Defendant's Rule 56.1 Statement in Opposition to Plaintiffs' Motion for Summary Judgment ("Def. 56.1 Stat.") at 1, ¶¶ 1-4.) J & A argues, however, that Plaintiffs' calculations are unreliable. ( Id. at 2, ¶ 6.) J & A claims that the processes and assumptions used by Plaintiffs' auditors are questionable, and that there are real factual issues as to the sums claimed and owing. (Willdelaforcade Aff. at 6, ¶ 23.) For instance, J & A asserts that at least two employees that Plaintiffs claim are owed benefits actively deny such outstanding contributions. (Def. 56.1 Sta. at 2, ¶ 5.) J & A also contests Plaintiffs' claim that discovery resulted in modifications based on new numbers, primarily because all of the documents provided during discovery were available to Plaintiffs at the time of the initial audit. (Willdelaforcade Aff. at 3, ¶ 13).
A. Plaintiffs' Motion for Summary Judgment
1. Legal Standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a motion for "summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998). The movant bears the burden of establishing the absence of any issues of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Celolex Corp. v. Cutrett, 477 U.S. 317, 322 (1986). In evaluating a motion under Rule 56, the court reviews the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, " to determine whether or not "there is no genuine issue as to any material fact...." Celotex, 477 U.S. at 322 (quoting FED. R. CIV. P. 56(c)) (internal quotations omitted), The court also reviews "the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir.1998). However, a nonmoving party cannot rely on "conclusory allegations, speculation or conjecture" and "may not rest on the pleadings[, ] but must further set forth specific facts in the affidavits, depositions, answers to interrogatories, or admissions showing a genuine issue exists for trial." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir.1996) ( citing ...