United States District Court, S.D. New York
TRUSTEES OF THE NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS PENSION FUND, WELFARE FUND, ANNUITY FUND, APPRENTICESHIP, JOURNEYMAN RETRAINING, EDUCATIONAL AND INDUSTRY FUND, CHARITY FUND, et al., Petitioners,
DEDICATED INDUSTRIES LLC, Respondent.
OPINION AND ORDER
RONNIE ABRAMS, District Judge.
Trustees of the New York City District Council Of Carpenters Pension Fund, Welfare Fund, Annuity Fund, and Apprenticeship, Journeyman Retraining, Educational and Industry Fund (the "ERISA Funds"); Trustees of the New York City Carpenters Relief and Charity Fund (the "Charity Fund, " and, together with the ERISA Funds, the "Funds"); The New York City and Vicinity Carpenters Labor-Management Corporation (the "LMC"); and the New York City District Council Carpenters (the "Union", and collectively with the Funds and the LMC, "Petitioners") commenced this action on September 19, 2014,  petitioning the Court pursuant to section 502(g) of the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. § 1132(g), section 301 of the Labor Management Relations Act of 1947 ("LMRA"), as amended, 29 U.S.C. § 185, and section 9 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 9, to confirm and enforce an arbitration award (the "Award") entered against Dedicated Industries LLC ("Respondent"). Respondent has neither responded to Petitioners' confirmation action nor otherwise sought relief. For the reasons that follow, the petition to confirm is granted, as is Petitioners' related request for attorney's fees and costs.
Respondent has entered into two, separate agreements with the Union. First, pursuant to an Interim Compliance Agreement (the "ICA"), Powers Decl. (Dkt. 15) ¶ 3, Ex. A, Respondent agreed to be bound by the Union's July 1, 2011 to June 30, 2015 collective bargaining agreement (the "CBA") with the Building Contractors Association, Inc., id. ¶ 3, Ex. B. Second, on April 13, 2012, Respondent entered into an Independent Building Construction Agreement (the "IBCA") with the Union. Id. ¶ 4, Ex. C.
Among other things, the CBA and IBCA require Respondent to make certain contributions to the Funds, id. ¶ 5, Ex. B at Art. XVI, Ex. C at Art. XV, and to furnish its books and records to the Funds upon request for the purposes of auditing such contributions, id. ¶ 6, Ex. B at Art. XVI ¶ 1, Ex. C at Art. XV § 1.
In the event of a dispute regarding Respondent's required contributions, both the CBA and IBCA provide for arbitration as follows:
Should any dispute or disagreement arise between the parties hereto, or between the Union and any Employer-member signatory hereto, concerning any claim arising from payments to the Fund of principal and/or interest which is allegedly due, either party may seek arbitration of the dispute before the impartial arbitrator designated hereunder.... The arbitrator shall have full and complete authority to decide any and all issues raised by the submission and to fashion an appropriate remedy including, but not limited to, monetary damages. The arbitrator's award in this regard shall be final and binding upon the parties hereto and the individual Employer, if any, and shall be wholly enforceable in any court of competent jurisdiction. The cost of the arbitration, including the fees to be paid to the arbitrator shall be included in the award and shall be borne by the losing party.
Id. ¶ 9, Ex. B at Art. XVI § 7, Ex. C at Art. XV § 7. The CBA and IBCA also each designate several impartial arbitrators, including Roger E. Maher. Id.
Petitioners conducted an audit of Respondent's books and records for the period from April 5, 2012 to January 25, 2013, which revealed that Respondent had failed to contribute the principal amount of $46, 703.44 in violation of the CBA and ICBA. Id. ¶ 7. The present dispute arose when Respondent failed to remit this principal amount to the Funds. Id. ¶ 18.
Pursuant to the arbitration clause, the dispute was eventually submitted to arbitration before Arbitrator Roger Maher. Id. ¶ 9, Ex. D. The arbitrator provided notice of a hearing on March 17, 2014, and the hearing was held on June 2, 2014. Id. Ex. E. Respondent did not appear. Id. Ex. F at 1-2. On June 17, 2014, the arbitrator issued his decision. Id. Ex. F.
Arbitrator Maher found that Respondent had "legally sufficient notice of [the] proceeding and the claims against [it], " and found it to be in default. Id. Ex. F at 1-2. He also concluded Respondent was bound by the CBA, which became effective on "July 1, 2006, " and that Petitioners had "duly demanded payment" upon discovery of the delinquencies revealed by the audit. Id. Ex. F at 2. He further found Respondent delinquent in its remittance of monies to the Funds, and ordered Respondent to "pay delinquency assessment and interest on its delinquency, plus an Attorney's Fee to the Petitioners" and the costs of the arbitration itself. Id. Ex. F at 2-3. Relying on the uncontroverted evidence provided by the Funds, the arbitrator concluded that Respondent was liable to the Funds in the aggregate amount of $66, 893.61, with interest to accrue at the rate of 5.25%. Id. Ex. F at 2-3,
When Respondent failed to comply with the terms of the arbitral award, Petitioners brought this action to confirm on July 19, 2014. Dkt. 1. On November 26, 2014, the Clerk of Court issued a certificate of default. Dkt. 8. On December 16, 2014, Petitioners sought an order to show cause why default judgment should not be granted against Respondent. Dkt. 10. At the same time, Petitioners filed an affidavit averring that Respondent was served with the Petition but had not appeared or otherwise responded. Isaac Decl. (Dkt. 11) ¶ 15-18, Ex. G-H. In that affidavit, Petitioners also sought $1, 056.98 in attorney fees and costs related to this confirmation action. Id. ¶ 20-27, Ex. I.
At a hearing on January 16, 2015, the Court informed the parties that, pursuant to D. H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95 (2d Cir. 2006), it would adjudicate this action as a petition for confirmation and directed Petitioners to submit additional supporting materials. Petitioners filed a formal motion to confirm arbitration, including additional supporting materials on January 30, 2015. Dkts. 13-16. To date, Respondent ...