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Trustees of Empire State Carpenters Annuity v. Penco United, LLC

United States District Court, E.D. New York

April 14, 2015

TRUSTEES OF EMPIRE STATE CARPENTERS ANNUITY, APPRENTICESHIP, LABOR-MANAGEMENT COOPERATION, PENSION and WELFARE FUNDS, Plaintiffs,
v.
PENCO UNITED, LLC, Defendant.

OPINION AND ORDER

SANDRA J. FEUERSTEIN, District Judge.

Pending before the Court is plaintiffs' unopposed motion for attorney's fees and costs pursuant to Section 502 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(g)(2), and Rule 54(d) of the Federal Rules of Civil Procedure. For the reasons set forth below, plaintiffs' motion is granted to the extent set forth herein.

I. Attorney's Fees

Plaintiffs seek to recover six thousand six hundred dollars ($6, 600.00) in attorney's fees based upon, inter alia: (a) an hourly rate of (i) two hundred fifty dollars ($250.00) for the onetenth (.1) of an hour of work performed by Charles R. Virginia, Esq., a member of Virginia and Ambinder, LLP ("V&A"), on this case prior to March 1, 2014, and (ii) three hundred dollars ($300.00) for the two-tenths (.2) of an hour of work performed by Mr. Virginia thereafter; (b) an hourly rate of (i) two hundred dollars ($200.00) for the ten and four-tenths (10.4) hours of work performed by two (2) associates of V&A, Elina Burke, Esq., and Richard Epstein, Esq., on this case prior to March 1, 2014, and (ii) two hundred twenty-five dollars ($225.00) for the seventeen and six-tenths (17.6) hours of work performed by Ms. Burke, Mr. Epstein and two (2) other associates of V&A, Jonathan Roffe, Esq., and Jesse Barton, Esq., on this case after March 1, 2014; and (c) an hourly rate of (i) ninety dollars ($90.00) for the two and a half (2.5) hours of services performed by V&A's legal assistants on this case prior to March 1, 2014, and (ii) of one hundred dollars ($100.00) for the two and a half (2.5) hours of services performed by V&A's legal assistants on this case thereafter.

Under the "American Rule" "historically applied" by courts in the United States, Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 186 (2d Cir. 2008), "parties are ordinarily required to bear their own attorney's fees * * * absent explicit statutory authority." Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep't of Health and Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), superceded on other grounds by Open Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524. As relevant here, Section 502(g)(2) of ERISA provides, in relevant part, 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- * * * (D) reasonable attorney's fees and costs of the action, to be paid by the defendant, * * *." 29 U.S.C. § 1132(g)(2). "[A]n award of attorney fees and costs is * * * mandatory under subsection (2), of section 1132(g)." New York State Teamsters Conference Pension & Ret. Fund v. Boening Bros., Inc., 92 F.3d 127, 135 (2d Cir. 1996); see also Richardson v. Laws Constr. Corp., 557 F.Appx. 57, 59 (2d Cir. Feb. 13, 2014) (summary order) ("When trustees prevail in an ERISA action for unpaid contributions, 29 U.S.C. § 1132(g)(2)(D) mandates an award of reasonable attorney's fees and costs of the action, to be paid by the defendant[.]" (quotations and citation omitted)).

"In calculating attorney's fees, the district court must first determine the lodestar-the product of a reasonable hourly rate and the reasonable number of hours required by the case-[which] creates a presumptively reasonable fee.'" Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014) (brackets in original) (quoting Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011)); see also Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ("The most useful starting point for determining the amount of a reasonable [attorney's] fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate."); McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 97 (2d Cir. 2006) ("In calculating attorney's fee awards, district courts use the lodestar method-hours reasonably expended multiplied by a reasonable hourly rate.") The burden is on the fee applicant to submit evidence to support the number of hours expended and the rates claimed. Hensley, 461 U.S. at 437, 103 S.Ct. 1933.

A. Reasonable Hourly Rate

"[A] presumptively reasonable [attorney's] fee "boils down to what a reasonable, paying client would be willing to pay, ' given that such a party wishes to spend the minimum necessary to litigate the case effectively.'" Simmons v. New York City Transit Authority, 575 F.3d 170, 174 (2d Cir. 2009) (quoting Arbor Hill, 522 F.3d at 184); accord Bergerson v. New York State Office of Mental Health, Cent. N.Y. Psychiatric Ctr., 652 F.3d 277, 289-90 (2d Cir. 2011). Under the "forum rule" applicable in this Circuit, "courts should generally use the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee." Simmons, 575 F.3d at 174 (quotations and citations omitted); accord Bergerson, 652 F.3d at 290; see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) ("[T]he lodestar looks to the prevailing market rates in the relevant community." (quotations and citation omitted)). Thus, in determining a reasonable hourly rate, the court should consider the prevailing rates of lawyers with comparable skill, experience and reputation in the district in which the action was commenced and litigated. See Reiter v. MTA New York City Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006); McDonald, 450 F.3d at 96. Rates should be "current rather than historic hourly rates." Reiter, 457 F.3d at 232 (quoting Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998)).

Recent prevailing hourly rates for attorneys practicing in the Eastern District of New York are: (a) between three hundred to four hundred fifty dollars ($300.00-$450.00) for partners in large law firms and attorneys with extensive litigation experience or significant experience in the particular area of law at issue, see, e.g. Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt. Cooperation, Pension & Welfare Funds v. Sanders Constr., Inc., No. 13-cv-5102, 2015 WL 1608039, at * 4 (E.D.N.Y. Apr. 10, 2015) ("Courts have awarded rates of $200 to $400 per hour for partners in this district"); Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt. Cooperation, Pension & Welfare Funds v. CMI Casework & Millwork, Inc., No. 14-cv-2891, 2015 WL 1198652, at * 13 (E.D.N.Y. Mar. 14, 2015) ("Prevailing rates for experienced attorneys in the Eastern District of New York range from approximately $300 to $400 per hour"); Sass v. MTA Bus Co., 6 F.Supp. 3d 238, 261 (E.D.N.Y. 2014) (finding that "[r]ecent opinions issued by courts within the Eastern District of New York have found reasonable hourly rates to be approximately $300-$450 for partners * * *" [quotations and citation omitted]); Hugee v. Kimso Apts., LLC, 852 F.Supp.2d 281, 300 (E.D.N.Y. 2012) ("The highest rates in this district are reserved for expert trial attorneys with extensive experience before the federal bar, who specialize in the [area of law at issue] and are recognized by their peers as leaders and experts in their fields"); (b) between two hundred to three hundred twenty-five dollars ($200.00-$325.00) for senior associates or attorneys with more limited experience, see, e.g. Sanders Constr., 2015 WL 1608039, at * 4 (finding that an hourly rate of between two hundred dollars ($200.00) and three hundred dollars ($300.00) for senior associates was reasonable); Trustees of Local 813 Pension Trust Fund v. Highbuilt Contracting Corp., No. 14-cv-2099, 2015 WL 1529677, at * 8 (E.D.N.Y. Mar. 31, 2015) (finding an hourly rate of three hundred dollars ($300.00) to be reasonable for a sixth-year associate); Cohen v. Narragansett Bay Ins. Co., No. 14-cv-3623, 2014 WL 6673846, at * 3 n. 4 (E.D.N.Y. Nov. 24, 2014) (finding that hourly rates of two hundred dollars ($200.00) and two hundred fifty dollars ($250.00) were reasonable for attorneys who received their law degrees approximately three (3) years ago and seven (7) years ago, respectively); Sass, 6 F.Supp. 3d at 261 (finding that "[r]ecent opinions issued by courts within the Eastern District of New York have found reasonable hourly rates to be approximately * * * $200-$325 for senior associates * * *"); and (c) between one hundred to two hundred dollars ($100.00-$200.00) for junior associates or attorneys with little or no experience. See, e.g. Sanders Constr., 2015 WL 1608039, at * 4 (finding that an hourly rate of one hundred dollars ($100.00) to two hundred dollars ($200.00) is reasonable for junior associates); Highbuilt Contracting, 2015 WL 1529677, at * 8 (finding that an hourly rate of one hundred seventy-five dollars ($175.00) was reasonable for a second year associate); Sass, 6 F.Supp. 3d at 261 (finding that "[r]ecent opinions issued by courts within the Eastern District of New York have found reasonable hourly rates to be approximately * * * $100-$200 for junior associates[, ]" and that one hundred seventy-five dollars [$175.00] was a reasonable hourly rate for junior associates). "Of course, in light of the numerous factors that courts in this circuit consider to determine a reasonable hourly rate, the range of "reasonable" attorney fee rates in this district varies depending on the type of case, the nature of the litigation, the size of the firm, and the expertise of its attorneys.'" Sanders Constr., 2015 WL 1608039, at * 4 (quoting Siracuse v. Program for Dev. of Human Potential, No. 07-cv-2205, 2012 WL 1624291, at * 30 (E.D.N.Y. Apr. 30, 2012)); see also K.L. v. Warwick Valley Cent. Sch. Dist., 584 F.Appx. 17, 19 (2d Cir. Nov. 25, 2014) (summary order) (holding that in determining a reasonable hourly rate, district courts should consider, inter alia, the nature and difficulty of the case and "the level of skill required to perform the legal services properly" (quotations and citation omitted)); Brown v. Green 317 Madison, LLC, No. 11 CV 4466, 2014 WL 1237448, at * 8 (E.D.N.Y. Feb. 4, 2014), report and recommendation adopted by 2014 WL 1237127 (E.D.N.Y. Mar. 25, 2014) ("[B]illing rates in this district vary widely depending on the nature and difficulty of the case and the experience of the attorneys involved.") Moreover, "the size and caliber of a firm may also be considered when determining a reasonable hourly rate * * *." Bobrow Palumbo Sales, Inc. v. Broan-Nutone LLC, 549 F.Supp.2d 274, 280 (E.D.N.Y. 2008); see also Suggs v. Crosslands Transp., Inc., No. 13-cv-6731, 2015 WL 1443221, at * 11 (E.D.N.Y. Mar. 27, 2015) ("The small size of [the] law firm is also a factor in determining a reasonable hourly rate."); Hugee, 852 F.Supp.2d at 299 ("The size of the firm may be considered [in determining a reasonable hourly rate], as large firms tend to charge higher hourly rates than small firms.")

Mr. Virginia

Mr. Virginia is a member of V&A and "has regularly represented employee benefit plans in ERISA litigation for over fifteen [15] years." (Declaration of Elina Burke in Support of Plaintiffs' Motion for Attorneys' Fees and Costs ["Burke Decl."], ¶ 4). Accordingly, the hourly rates he seeks of two hundred fifty dollars ($250.00) for the one-tenth (.1) of an hour of work he performed on this case prior to March 1, 2014, and three hundred dollars ($300.00) for the twotenths (.2) of an hour of work he performed on this case thereafter are reasonable.

2. Mr. Virginia's Associates

Ms. Burke is an associate at V&A who graduated law school in 2011; Mr. Epstein is a former associate of V&A who graduated law school in 2010; Mr. Roffe is an associate at V&A who graduated law school in 2014; and Mr. Barton is a former associate of V&A who graduated law school in 2012. (Burke Decl., ¶¶ 3, 5-7). Although those associates of V&A, particularly Mr. Roffe and Mr. Barton, are arguably akin to junior associates with little or no experience at the time that they worked on this case, see, e.g. CMI Casework, 2015 WL 1198652, at * 12, since, inter alia, the hourly rates sought by V&A's associates "are consistent with V&A's customary billing arrangement with Plaintiffs, as negotiated with Plaintiffs' Board of Trustees, " (id., ¶ 9), and defendant has not objected to the rates sought, or otherwise opposed the instant motion, the requested hourly rates of two hundred dollars ($200.00) for work performed by V&A's associates prior to March 1, 2013, and two hundred twenty-five dollars ($225.00) for work performed by them thereafter, are reasonable under the circumstances of this case. See, e.g. Sanders Constr., 2015 WL 1608039, at * 4 (finding that hourly rates of two hundred dollars ($200.00) to two hundred twenty-five dollars ($225.00) for V&A's associates were reasonable); Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt. Cooperation, Pension and Welfare Funds v. Gregory, No. 14-cv-2900, 2015 WL 1611307, at * 7 (E.D.N.Y. Apr. 10, 2015) (finding that the requested hourly rate of two hundred twenty-five dollars ($225.00) for Mr. Epstein was reasonable); Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt. Cooperation, Pension and Welfare Funds v. Rock-It Contracting Inc., No. 13-cv-4365, 2015 WL 1221500, at * 7 (E.D.N.Y. Mar. 9, 2015) (finding that the requested hourly rates of two hundred dollars ($200.00) to two hundred fifty dollars ($250.00) for V&A's associates were reasonable); In re Certain "Default" Motions Brought on Behalf of Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt. Cooperation, Pension and Welfare Funds, Nos. 13-cv-6364, 14-cv-325, 14-cv-2893, 2015 WL 968125, at *10-11 (E.D.N.Y. Feb. 27, 2015), report and recommendation ...


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