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Tri-Messine Construction Corp. v. Pavers and Road Builders District Council Pension Fund

United States District Court, E.D. New York

June 28, 2018




         Before the Court is Defendants' Motion for Attorneys' Fees pursuant to Federal Rule of Civil Procedure 54(d) and 29 U.S.C. § 1451(e). For the reasons stated herein, it is ordered that Defendants be awarded $20, 505.25 in attorneys' fees.


         The Court assumes the parties' familiarity with the facts in this case and thus recites them only to the extent relevant to the Court's analysis.

         On January 27, 2017, Plaintiff filed the instant action to vacate an arbitration award. (Dkt. 1.) The sole basis for Plaintiff's complaint was that this Court's decision in Hoeffner v. D'Amato, No. 09-CV-3160 (PKC)(CLP), 2016 WL 8711082 (E.D.N.Y. Sept. 30, 2016), was incorrectly decided. (Id. at ¶¶ 12-24.) No. action was taken between the filing of the complaint and December 12, 2017, when Judge Bianco requested a status report from Plaintiff. (12/12/17 Entry.) On December 27, 2017, Plaintiff filed a status report stating that “[s]ervice of the Summons and Complaint upon Defendant[s] was effected on December 27, 2017”-exactly eleven months after the complaint was filed. (Dkt. 6.) The summons was returned executed the following day. (Dkt. 7.)

         On January 17, 2018, Defendants filed a letter requesting, pursuant to Eastern District Business Rule 50.3.1(d), that this case be marked “related” to two other cases before this Court: Hoeffner and Palumbo, et al. v. Fasulo, et al., No. 09-CV-797 (PKC). (Dkt. 12.) Defendants filed a second letter making the same request on January 19, 2018. (Dkt. 14.) In its letters, Defendants stated that Plaintiff agreed that the instant action was related to Hoeffner. (Dkt. 12, at 1; Dkt. 14, at 2.) On January 22, 2018, it was decided that the cases should be marked related, and that this action should be transferred from Judge Bianco to this Court. (1/22/18 Entry; 1/23/18 Entry.)

         On February 20, 2018, Defendants filed a letter requesting a pre-motion conference to dismiss this case pursuant to Federal Rules of Civil Procedure 4(m), 12(b)(5), and 12(b)(6). (Dkt. 19.) Defendants argued that the complaint should be dismissed for failure to timely serve the summons and complaint or, in the alternative, because this case was “identical to the legal issue” rejected by this Court in Hoeffner. (Id.) Plaintiff responded on February 26, 2018 by conceding that the summons and complaint was served after the ninety-day deadline under Fed.R.Civ.P. 4(m), but arguing that the Court should exercise its discretion to extend the service deadline. (Dkt. 21.) Plaintiff, however, did not oppose the motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (Id. at 2.) On March 1, 2018, the Court advised the parties that it would construe Defendants' letter as a motion to dismiss and Plaintiff's responsive letter as opposition. (3/1/18 Entry.) Defendants filed a supplemental letter in support of their motion to dismiss on April 2, 2018. (Dkt. 24.) The Court held oral argument on April 24, 2018, at which Plaintiff's complaint was dismissed pursuant to Fed.R.Civ.P. 4(m) and 12(b)(6). (Oral Argument Transcript (“Tr.”), Dkt. 28-4, 18:21-19:2.) The instant motion followed. (Dkt. 27.)


         A. Miles Test

         The Court uses the five-factor Miles test to determine whether an award of fees is justified in this case. These factors are:

(1) the degree of the offending party's culpability or bad faith, (2) the ability of the offending party to satisfy an award of attorney's fees, (3) whether an award of fees would deter other persons from acting similarly under like circumstances, (4) the relative merits of the parties' positions, and (5) whether the action sought to confer a common benefit on a group of pension plan participants.

Anita Found., Inc. v. ILGWU Nat. Ret. Fund, 902 F.2d 185, 188 (2d Cir. 1990) (quoting Miles v. New York State Teamsters Conference, Pension and Retirement Fund Employee Pension Benefit Plan, 698 F.2d 593, 602 n.9 (2d Cir.), cert. denied, 464 U.S. 829 (1983)). This test “provides sufficient latitude to review a fee request by allowing courts to consider which party is requesting fees, assess the relative culpability of the parties and address the potential deleterious effect of a fee award.” Id. The Second Circuit has held that judges should “use their experience with the case, as well as their experience with the practice of law, to assess the reasonableness of the hours spent and rates charged in a given case.” Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992).

         Plaintiff concedes the second factor (Pl.'s Br., Dkt. 33, at 10), and the Court finds that the fifth factor is not relevant to the Court's analysis. The remaining three factors clearly weigh in Defendants' favor. To be clear, the Court is not penalizing Plaintiff for asking that the Court exercise its discretion under Fed.R.Civ.P. 4(m) to extend the service deadline, that is its prerogative. See Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir. 2007). However, the arguments, both written and oral, made in support of the motion “just scream[ed] . . . that there [was] no good reason” for Plaintiff's failure to serve the complaint, “other than some very penny-wise, pound foolish thinking”. (Tr. 16:3-6.) Throughout the course of the litigation, Plaintiff's excuses for not serving Defendants ranged from the foolish to the absurd, including, inter alia, that: (1) Judge Bianco, sub silentio, granted an extension by asking for a status report (Tr. 4:6-15, 5:21-6:11); (2) Plaintiff abstained from effecting service to avoid “costly litigation that may not be necessary” (Dkt. 25, at 1); and (3) “Defendants or their counsel would have been aware of an action initiated against them through docket monitoring services” even though they had not been served (id. at 3). In light of the circumstances of this case, the Court finds that the Defendants are entitled to reasonable attorneys' fees. (See Tr. 16:11-18 (THE COURT: “[The Court does not] see any reason to excuse . . . the clear delinquency here and . . . a willful failure to comply with the rule knowing . . . the clock was ticking, what the rule was, and deciding that [Plaintiff] was just waiting to see what might happen on its own spontaneously and putting the burden on the court to move the case along. That's not a responsible attitude and [the Court] can't condone that.”).)

         B. ...

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