United States District Court, S.D. New York
Trustees of the New York City District Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, and Apprenticeship, Journeyman Retraining, Educational and Industry Fund, et al, Petitioners,
Regal USA Construction Inc., Respondent.
MEMORANDUM OPINION & ORDER
J. NATHAN, DISTRICT JUDGE.
19, 2017, Petitioners filed the instant petition to confirm
an arbitration award, including supporting papers and a
memorandum of law in support of confirmation. Dkt. Nos. 1, 4.
The papers were served both by first class mail and by
personal service. Dkt. Nos. 9-11. After Respondent failed to
respond, or even appear, the Court sua sponte
extended the deadline for opposition to August 4, 2017,
see Dkt. No. 12, and the extension order was also
served upon Respondent by first class mail. Dkt. No. 13.
Respondent has neither appeared nor responded. Given this,
the Court will now consider the motion to confirm the
arbitration award. The motion is GRANTED.
Standard of Review
confirmation of an arbitration award is 'a summary
proceeding that merely makes what is already a final
arbitration award a judgment of the court." D.H.
Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 110
(2d Cir. 2006) (quoting Florasynth, Inc. v.
Pickholz, 750 F.2d 171, 176 (2d Cir. 1984)). The court
'"must grant' the award 'unless the award is
vacated, modified, or corrected.'" Id.
(quoting 9 U.S.C. § 9). The Second Circuit has
recognized that "an extremely deferential standard of
review" is appropriate in the context of arbitral awards
"[t]o encourage and support the use of arbitration by
consenting parties." Porzig v. Dresdner, Kleinwort,
Benson, North Am. LLC, 497 F.3d 133, 138-39 (2d Cir.
2007). Accordingly, "[o]nly a 'barely colorable
justification for the outcome reached' by the
arbitrator is necessary to confirm the award."
D.H. Blair, 462 F.3d at 110 (quoting Landy
Michaels Realty Corp. v. Local 32B-32J, Serv. Emps. Int'l
Union, 954 F.2d 794, 797 (2d Cir. 1992)). The award
should be confirmed "if a ground for the
arbitrator's decision can be inferred from the facts of
the case." Id. at 110 (quoting Barbier v.
Shearson Lehman Hutton, Inc., 948 F.2d 117, 121 (2d Cir.
1991)) (internal quotation marks omitted). "Even if a
court is convinced the arbitrator's decision is
incorrect, the decision should not be vacated so long as the
arbitrator did not exceed the scope of his authority."
Abram Landau Real Estate v. Bevona, 123 F.3d 69, 75
(2d Cir. 1997).
confirmation of the award is unopposed, '"the
petition and the accompanying record' become 'amotion
for summary judgment.'" Trustees of the UNITED
HERE Nat'l Health Fund v. JY Apparels, Inc., 535
F.Supp.2d 426, 428 (S.D.N.Y. 2008) (quoting D.H.
Blair at 110). Thus, the Court must still
"examin[e] the moving party's submission to
determine if it has met its burden of demonstrating that no
material issue of fact remains for trial." D.H.
Blair at 110 (quoting Vt. Teddy Bear Co., Inc. v.
1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004))
(internal quotation marks omitted). If the evidence is
insufficient to meet this burden, summary judgment must be
denied even without opposing evidentiary matter. See
The Court Grants Petitioners' Motion to Confirm the
have presented undisputed evidence demonstrating that
arbitration was appropriate in this case. At all relevant
times, Respondent was a member of the Cement League, an
association of concrete contractors, all of whom were bound
to a collective bargaining agreement ("CBA") with
the Petitioners. See Dkt. No. 1 ¶¶ 9-10,
Exs. A & B. Pursuant to this CBA, Respondent was required
to remit contributions to the Petitioners' ERISA and
Charity Funds and to open its books and records for an audit
to ensure it was making the required benefit contributions.
Id. ¶¶ 12-16, Ex. B, Art. XVI, Ex. C. An
audit of Respondent's books and records revealed the
failure to pay the required amounts, and the dispute over
these payments was submitted to arbitration as required by
the CBA. Id. ¶¶ 17-18.
arbitrator held a hearing on September 22, 2016, and there
was no appearance made on behalf of Respondent. Id.
Ex. E at 1-2 (arbitrator's decision). There is no
indication of any service or notice defect, nor is there any
suggestion that Respondent objected to the arbitration
proceedings. Id. Ex. D (notice of hearing), Ex. E at
1-2. Based on the undisputed "substantial and
credible" evidence Petitioners submitted, the arbitrator
rendered a total award of $33, 712.37 to Petitioners on
October 4, 2016. See Id. ¶¶ 19-20 &
Ex. E at 2-3. The arbitrator also found that interest of 5.5%
will accrue on the aggregate amount of the award from the
date of issuance. See Id. ¶ 21 & Ex. E at
3. As of June 19, 2017, the date of Petitioners' filing,
Respondent had not paid any portion of the award.
Id. ¶ 22. The award has not been vacated or
modified and no application for relief by Respondent is
pending. Id. ¶ 23.
reviewed Petitioners' submissions with requisite
deference to the arbitrator, the Court finds more than the
required "barely colorable justification" for the
arbitrator's award. D.H. Blair, 462 F.3d at 110
(quoting Landy Michaels Realty Corp., 954 F.2d at
797)). The grounds for the arbitrator's decision can be
inferred from the record, and are justifiable in light of
what has been submitted. Accordingly, the award is confirmed
in its entirety.
"[t]he award of post-judgment interest is mandatory on
awards in civil cases as of the date judgment is
entered." Lewis v. Whelan, 99 F.3d 542, 545 (2d
Cir. 1996) (citing 28 U.S.C. § 1961(a)). Accordingly,
Petitioners are also awarded post-judgment interest in
accordance with statutory provisions.
Attorney's Fees and Costs
also move for attorney's fees and costs. "[C]ourts
have routinely awarded attorneys fees in cases where a party
merely refuses to abide by an arbitrator's award without
challenging or seeking to vacate it through a motion to the
court." Abondolo v. H. & M.S. Meat Corp.,
No. 07-CV-3870(RJS), 2008 WL 2047612, at *4 (S.D.N.Y. May 12,
2008) (collecting cases); see also First Nat'l
Supermarkets, Inc. v. Retail, Wholesale & Chain Store
Food Emps. Union Local 338, 118 F.3d 892, 898 (2d Cir.
1997). Moreover, the CBA provides that Petitioners are
entitled to reasonable attorney's fees and costs.
See Dkt. No. 1 ¶¶ 24-25 & Ex. C Sees.
IV-V (collection policy). The Court will therefore award
Petitioners' reasonable attorney's fees and costs.
the Court has discretion to determine a reasonable fee, it
must abide by procedural requirements for establishing the
amount. See Millea v. Metro-North R.R. Co., 658 F.3d
154, 166 (2d Cir. 2011). The lodestar amount - the product of
multiplying a reasonable hourly rate and a reasonable number
of hours required by the case - "creates a presumptively
reasonable fee." Id. (internal quotation marks
and citations omitted). To support their requested award,
Petitioners' attorneys must submit "contemporaneous
time records that specify, for each attorney, the date, the
hours expended, and the nature of the work done."
Trustees of the NY.C. Dist. Council of Carpenters Pension