United States District Court, N.D. New York
DECISION AND ORDER
Lawreftee E. Kahn, U.S. District Judge
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.
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.
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).
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.
Summary Judgment Motion requested attorneys' fees in the
amount of $49, 037.20. Dkt. No. 65-5 (“First Clark
Affidavit”) at 193. 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.”).
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.
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.
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 ...