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Engineers Joint Welfare Fund v. C. Destro Development Co., Inc.

United States District Court, N.D. New York

January 30, 2017

C. DESTRO DEVELOPMENT CO., INC., et al., Defendants.


          Lawreftee E. Kahn, U.S. District Judge


         This action returns to the Court on Plaintiffs Engineers Joint Welfare Fund, Engineers Joint Pension Fund, Engineers Joint Supplemental Unemployment Benefit Fund, Engineers Joint Training Fund, Operating Engineers Local 17 Training Fund, Central Pension Fund of the International Union of Operating Engineers and Participating Employers, and International Union of Operating Engineers, Local Union No. 17's motion for reconsideration of the Court's March 31, 2016 Memorandum-Decision and Order. Dkt. Nos. 75 (“March Order”), 76 (“Motion”), 76-1 (“Memorandum”). Defendants C. Destro Development Co., Inc. (“Destro Development”) and Carmen Destro Jr. (“Destro”) do not oppose the Motion. For the following reasons, Plaintiffs' Motion is granted in part and denied in part.


         The Court assumes the parties' familiarity with the facts and history of this case and recites only those facts necessary to the resolution of the pending Motion. Plaintiffs commenced this action on April 22, 2010, to recover contributions, interest, liquidated damages, audit fees, and attorneys' fees and costs under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., and the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185. Dkt. No. 1 (“Complaint”). On April 30, 2015, Plaintiffs filed a motion for summary judgment, which Defendants did not oppose. Dkt. No. 65 (“Summary Judgment Motion”). The Court granted the Summary Judgment Motion in part and denied it in part, Mar.Order at 20-21, and Plaintiffs timely filed a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e), Mot.[1]


         A motion for reconsideration may be granted where there is “an intervening change of controlling law, [newly available] evidence, or the need to correct a clear error or prevent a manifest injustice.” Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (quoting Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)). “The standard for granting a motion for reconsideration ‘is strict and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'” Advanced Fiber Techs. Tr. v. J&L Fiber Servs., Inc., 751 F.Supp.2d 348, 382-83 (N.D.N.Y. 2010) (Kahn, J.) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). “[R]econsideration ‘should not be granted where the moving party seeks solely to relitigate an issue already decided.'” Id. at 383 (quoting Shrader, 70 F.3d at 257).


         Plaintiffs move for reconsideration on three grounds: (1) Plaintiffs should be awarded the full amount of attorneys' fees and costs requested in the Summary Judgment Motion, (2) the Court should have granted Plaintiffs' request for paralegals' fees at the rate of $134 to $160 per hour, and (3) the Court should award prejudgment interest against Destro. Mem. 2, 5, 7.

         A. Attorneys' Fees

         Plaintiffs' Summary Judgment Motion requested attorneys' fees in the amount of $49, 037.20. Dkt. No. 65-5 (“First Clark Affidavit”) at 193.[2] In the March Order, the Court found that Plaintiffs were entitled to attorneys' fees, but that Plaintiffs had failed to submit contemporaneous time records as required in this circuit. Mar.Order at 13; see also N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983) (“[A]ny attorney . . . who applies for court-ordered compensation in this Circuit for work done after the date of this opinion must document the application with contemporaneous time records.”). Therefore, the Court reduced the number of hours for which attorneys' fees were awarded by thirty percent. Mar.Order at 13; see also Monaghan v. SZS 33 Assocs., L.P., 154 F.R.D. 78, 84 (S.D.N.Y. 1994) (“[C]ourts in this Circuit intermittently have seen fit to adopt roughly a 30% fee reduction rule for an attorney's failure to keep contemporaneous time records of their services.”).

         In the Second Circuit, parties may be awarded attorneys' fees only where they submit contemporaneous time records, which “should specify, for each attorney, the date, the hours expended, and the nature of the work done.” Carey, 711 F.2d at 1148. Such records may be presented in the form of computer-generated printouts, but those printouts “must be accompanied by affidavits or other evidentiary material showing that the printouts are based upon or derived from contemporaneous records which are accurately reflected in the printouts or summaries.” Handschu v. Police Dept. of N.Y.C., 679 F.Supp. 2d, 488, 505 n.10 (S.D.N.Y. 2010). Plaintiffs' Summary Judgment Motion included a narrative of legal services specifying the date, attorney or paralegal, amount of time expended, and the nature of the work that was completed. First Clark Aff. at 152-93. There was not, however, any indication that the records were created contemporaneously. Plaintiffs provided an affidavit from Jennifer A. Clark, a partner at Blitman & King LLP, who asserted that the narrative of legal services was accurate, but she provided no information as to how and when it was created. First Clark Aff. ¶¶ 21-24. Therefore, reconsideration of the Court's prior decision on attorneys' fees is not warranted based on the need to correct clear error or prevent manifest injustice.

         Plaintiffs' motion for reconsideration of attorneys' fees also includes the submission of new evidence. In particular, Plaintiffs provide an additional affidavit from Clark, which describes the manner in which the records were created. Dkt. No. 76-1 (“Second Clark Affidavit”) ¶¶ 3-4. Clark states that the narrative of legal services represents a contemporaneous record and that each entry was made into a computer program as the work was completed. Id. ¶ 4. But this new evidence may not be considered by the Court in deciding the present Motion. Although courts may consider newly available evidence on reconsideration, there is no indication that the information contained in the Second Clark Affidavit is newly available. Indeed, Clark is simply providing information about Blitman & King LLP's record-keeping practices that was surely known to Clark at the time of her first affidavit.

         In order for evidence to be considered newly available, it must be “evidence that was ‘truly newly discovered or could not have been found by due diligence.'” Space Hunters, Inc. v. United States, 500 F. App'x 76, 81 (2d Cir. 2012) (quoting United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983)). “A motion to reconsider is not petitioner's opportunity to put forward evidence that he could have, but failed, to provide the Court when the Court initially considered the motion.” NEM Re Receivables, LLC v. Fortress Re, Inc., 187 F.Supp.3d 390, 396 (S.D.N.Y. 2016) (quoting Muyet v. United States, No. 03-CV-4247, 2009 WL 2568430, at *3 ...

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