Opinion

The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO v. Midwest Rem Enterprises, Inc.

Court
District Court, E.D. New York
Filed
Jul 6, 2021
Cited by
0 cases
Authority
More cited than 26.6%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------X

THE ANNUITY, WELFARE AND

APPRENTICESHIP SKILL IMPROVEMENT &

SAFETY FUNDS OF THE INTERNATIONAL

UNION OF OPERATING ENGINEERS LOCAL

15, 15A, 15C & 15D, AFL-CIO, BY

THEIR TRUSTEES JAMES T. CALLAHAN,

THOMAS A. CALLAHAN, MICHAEL SALGO

and WILLIAM TYSON, CENTRAL PENSION

FUND OF THE INTERNATIONAL UNION OF ORDER FOR ENTRY

OPERATING ENGINEERS, BY ITS CHIEF _OF JUDGMENT____

EXECUTIVE OFFICER MICHAEL A. 20-cv-05896 (KAM)

CRABTREE, INTERNATIONAL UNION OF

OPERATING ENGINEERS NATIONAL

TRAINING FUND, BY ITS CHIEF

EXECUTIVE OFFICER JEFFREY VINCENT,

and INTERNATIONAL UNION OF

OPERATING ENGINEERS LOCAL 15, 15A,

15C & 15D, AFL-CIO BY ITS PRESIDENT

& BUSINESS MANAGER THOMAS A.

CALLAHAN,

Plaintiffs,

-against-

MIDWEST REM ENTERPRISES, INC.,

Defendant.

-----------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

Plaintiffs, The Annuity, Welfare and Apprenticeship

Skill Improvement & Safety Funds of The International Union of

Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO (“Local 15

Trust Funds”), by their trustees James T. Callahan, Thomas A.

Callahan, Michael Salgo and William Tyson, Central Pension Fund

of The International Union of Operating Engineers (“CPF”), by

its Chief Executive Officer Michael A. Crabtree, International

Union of Operating Engineers National Training Fund (“NTF”), by

its Chief Executive Officer Jeffrey Vincent, and International

Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO

(“Local 15”), by its President and Business Manager Thomas A.

Callahan, commenced this action against Midwest REM Enterprises,

Inc. (“Midwest REM” or “defendant”) pursuant to Sections 502 and

515 of the Employee Retirement Income Security Act of 1974

("ERISA"), 29 U.S.C. §§ 1132 and 1145, and Section 301 of the

Labor Management Relations Act of 1947 (the “Taft-Hartley Act”),

29 U.S.C. § 185. Plaintiffs seek to compel an audit of

defendant’s payroll records and to recover certain unpaid

contributions due to the Local 15 Trust Funds, CPF, and NTF

(collectively, the “Funds”). (See generally ECF No. 1,

Complaint filed 12/4/20 (“Compl.”).) In addition, plaintiffs

seek interest on those unpaid contributions, liquidated damages,

reasonable attorney's fees, auditor’s fees, and costs. (Id. ¶

45.)

Plaintiffs properly served defendant with a Summons

and the Complaint on January 25, 2021, and proof of service was

filed on February 3, 2021. (ECF No. 5, Executed Summons.) Upon

failure of defendant to appear, answer, or respond to the

Complaint after receiving proper service of process, plaintiffs

now move for (1) entry of default judgment; (2) issuance of an

order compelling cooperation with plaintiffs’ audit request; and

(3) opportunity to seek additional relief. (See ECF No. 11,

Plaintiffs’ Memorandum of Law in support of Plaintiffs’ Motion

for Default Judgment (“Pls.’ Mem.”).) Plaintiffs also seek

attorney’s fees in the amount of $2,887.50 and litigation costs

in the amount of $517. (Id.) Defendant has failed to answer

plaintiffs’ Complaint and has not submitted any opposition to

plaintiffs’ motion for entry of default judgment, despite having

received notice and an opportunity to do so. (See ECF No. 5,

Summons Returned Executed; ECF No. 12, Cert. of Serv. of Pls.’

Mot. for Def. Judgment.)

For the reasons set forth below, the court grants

plaintiffs’ motion for entry of default judgment against Midwest

REM in part, grants plaintiffs’ request for audit in part,

defers consideration of plaintiffs’ application for damages, and

grants plaintiffs’ motion for attorney’s fees and costs.1

BACKGROUND

I. Facts

The following undisputed facts are taken from

plaintiffs’ complaint, the Chase affidavit, the Steinberg

affidavit, and the documentary evidence attached thereto. The

1 As will be discussed in Discussion Part I., infra, plaintiffs seek a

liability determination and request an audit for the period July 1, 2016

through October 31, 2020. This court finds Defendant liable for unpaid

contributions and grants an audit for the period November 24, 2017 through

October 31, 2020.

Funds constitute multiemployer/employee benefit plans in

accordance with Section 302 of the Taft-Hartley Act. (See Compl.

¶¶ 8, 12, 15.) The Funds provide certain benefits to eligible

employees by collecting monetary contributions from employers

who enter into collective bargaining agreements with Local 15

(the “Union”). (See ECF No. 9, Aff. of Catherine Chase in Supp.

of Mot. for Default Judgment (“Chase Aff.”) ¶ 4; Compl. ¶ 24.)

The Union entered into one such collective bargaining agreement

(the “CBA”) with Midwest REM, a construction corporation.2 (See

Compl. ¶¶ 23-25; Chase Aff. ¶ 3.)

The CBA obligates Midwest REM to remit contributions

through the purchase of stamps. (See Compl. ¶¶ 24-25; ECF No.

10, Aff. of James M. Steinberg, Esq. in Supp. of Mot. for

Default Judgment (“Steinberg Aff.”) ¶ 7.) The stamps enable the

Funds administrator to determine if payments received accurately

reflect amounts owed on behalf of individual employees. (Chase

Aff. ¶ 2.)

Pursuant to the CBA, Midwest REM acknowledged and

agreed to be bound by certain collective bargaining agreements

between the Union and various associations based on the type of

work performed. (Chase Aff. ¶ 3; Steinberg Aff. ¶ 6.) The

2 The principal place of business of Midwest REM appears to be 2601 West Le

Moyne Street, Melrose Park, Illinois. (Compl. ¶ 19.) There is contradictory

information in plaintiffs’ complaint as to defendant’s place of incorporation

and business relationship to New York. (Id. ¶¶ 19-21.)

parties also agreed to be bound by the agreements and

declarations of trusts, amendments, and regulations thereto as

referenced in the applicable association collective bargaining

agreements. (Compl. ¶ 30; Steinberg Aff. Ex. B ¶ 4.) For

Midwest REM, the applicable association collective bargaining

agreements are between the Union and the General Contractors

Association of New York (“GCA”), which reference the agreements

of the Funds. (Chase Aff. ¶¶ 3-4; Steinberg Aff. ¶ 8.) The

Funds’ agreements establish that plaintiffs, as trustees or

representatives of the Funds, may examine the pertinent books

and records as needed for the proper administration of the

Funds. (Compl. ¶¶ 30-33.)

In their Complaint, plaintiffs allege that Midwest REM

violated ERISA, the agreements of the Funds, and the CBA by

refusing to produce requested documents or schedule an audit.

(Id. ¶ 35.) Plaintiffs further maintain that Midwest REM failed

to remit the required Fund contributions for the period of July

1, 2016, through October 31, 2020. (Id. ¶¶ 37, 42.)

II. Procedural History

Plaintiffs filed this action on December 4, 2020. (See

Compl.) On January 25, 2021, a process server served a copy of

the summons and complaint on Midwest REM through Nancy

Dougherty, an employee in the Office of the New York Secretary

of State and a person authorized to accept service. (Steinberg

Aff. ¶ 5; Ex. A.) On February 3, 2021, plaintiffs filed proof

of said service. (ECF No. 5.) At plaintiffs’ request, the

Clerk of the Court entered default against defendant on February

22, 2021. (ECF No. 6, Pls.’ Request for Cert. of Def.; ECF No.

7, Clerk’s Entry of Def.) On February 23, 2021, plaintiffs

moved for entry of default judgment against defendant. (See ECF

No. 8, Plaintiffs' Notice of Mot. for Default Judgment (“Pls.’

Notice”); ECF No. 11, Pls.’ Mem.; ECF No. 12, Cert. of Serv. of

Pls.’ Notice of Mot. for Def. Judgment.) In support of their

default judgment motion, plaintiffs submitted the affidavit of

Funds administrator Catherine Chase and the attorney affidavit

of James M. Steinberg, Esq., along with a copy of the CBA, the

two GCA agreements, copies of the Funds’ respective Agreements

and Declarations of Trust (the “Trust Agreements”), and

materials in support of attorney fees and litigation costs. (See

generally Chase Aff.; Steinberg Aff.) Defendant has not

submitted any opposition to plaintiffs’ motion for entry of

default judgment, despite being served.

DISCUSSION

“Rule 55 of the Federal Rules of Civil Procedure

provides a two-step process for obtaining a default judgment.”

Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011).

First, a plaintiff must obtain an entry of default. Id. “When a

party against whom affirmative relief is sought has failed to

plead or otherwise defend, a plaintiff may bring that fact to

the court's attention,” id. at 505, and the Clerk of Court must

thereafter enter a default, Fed. R. Civ. P. 55(a). Second, once

default is entered, a plaintiff must “apply to the court for a

default judgment.” Id. 55(b)(2). Whether to grant a default

judgment is “left to the sound discretion of [the] district

court because it is in the best position to assess the

individual circumstances of a given case and to evaluate the

credibility and good faith of the parties.” Enron Oil Corp. v.

Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). The court must be

mindful that a defendant's default functions as an admission of

all well-pleaded factual allegations in the complaint and must

draw all reasonable inferences in the plaintiff's favor. Finkel

v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (citing Au Bon

Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).

Yet, the court must ensure that “[the plaintiff's] allegations

establish [the defendant's] liability as a matter of law.” Id.

(citing Au Bon Pain, 653 F.2d at 65).

Moreover, although the court accepts well-pleaded

factual allegations as true in determining liability, this does

not apply to allegations related to damages, Au Bon Pain, 653

F.2d at 65, which the plaintiff must prove to the court with

“reasonable certainty,” Credit Lyonnais Secs. (USA), Inc. v.

Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). Although “a

party's default is deemed to constitute a concession of all well

pleaded allegations of liability, it is not considered an

admission of damages.” Greyhound Exhibitgroup, Inc. v. E.L.U.L.

Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). “Damages, which

are neither susceptible of mathematical computation nor

liquidated as of the default, usually must be established by the

plaintiff in an evidentiary proceeding in which the defendant

has the opportunity to contest the amount.” Greyhound, 973 F.2d

at 158. Rule 55 states that “[t]he court may conduct hearings

or make referrals ... when, to enter or effectuate a judgment,

it needs to: (A) conduct an accounting; (B) determine the amount

of damages; (C) establish the truth of any allegation by

evidence; or (D) investigate any other matter.” Fed. R. Civ. P.

55(b)(2).

The Second Circuit has held that allegations in the

complaint and the affidavit of plaintiff's counsel “asserting an

amount of damages sustained by plaintiff ... [were] insufficient

evidence upon which to enter the amount of the judgment.”

Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151,

154-55 (2d Cir. 1999). “‘Even when a default judgment is

warranted based on a party's failure to defend, the allegations

in the complaint with respect to the amount of the damages are

not deemed true. The district court must instead conduct an

inquiry in order to ascertain the amount of damages with

reasonable certainty.’” Gragg v. Int'l Mgmt. Grp. (UK), No.

5:03-cv-904 (NPM)(DEP), 2009 WL 1140490, at 2 (N.D.N.Y. Apr. 24,

2009) (quoting Credit Lyonnais, 183 F.3d at 154-55). A hearing

is not necessary where the record contains a detailed affidavit

and documentary support that enables the court to evaluate and

determine the amount of a damages award. See Tamarin v. Adam

Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993); United States v.

Tobee, 10-cv-731 (JS), 2010 WL 1853767, at 1 (E.D.N.Y. May 4,

2010).

Here, the Clerk of the Court entered a default against

defendant on February 22, 2021, and plaintiffs thereafter filed

the instant motion for entry of default judgment. To date,

defendant has not appeared in this action and has failed to

answer the Complaint or oppose plaintiffs’ default motion.

Consequently, plaintiffs have completed the necessary steps to

obtain a default judgment as to liability. See Bricklayers Ins.

& Welfare Fund v. David & Allen Contracting, Inc., No. 05-cv-

4778 (SJ)(VVP), 2007 WL 3046359, at 2 (E.D.N.Y. Oct. 16, 2007)

(“In civil actions, when a party fails to appear after given

notice, the court normally has justification for entering

default.”) (citing Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir.

1984)).

I. Audit

Plaintiffs seek an order requiring defendant to submit

to an audit of its books and records for the period from July 1,

2016 through October 31, 2021, in order to ascertain the amount,

if any, of unpaid contributions due to the Funds. Plaintiffs

submitted supporting documents for their audit request including

a copy of the CBA (Steinberg Aff., Ex. B.), copies of the GCA

agreement from July 1, 2014 through June 30, 2018 (Steinberg

Aff., Ex. C-1.), its extension from July 1, 2018 through June

30, 2022 (Steinberg Aff., Ex. C-2.3), and copies of the Trust

Agreements for the Apprenticeship, Skill Improvement and Safety

Fund (Steinberg Aff., Ex. D.), the Welfare Fund (Steinberg Aff.,

Ex. E.), the Annuity Fund (Steinberg Aff., Ex. F.), CPF

(Steinberg Aff., Ex. G.), and NTF (Steinberg Aff., Ex. H.). The

CBA submitted by plaintiffs became effective November 24, 2017.

(Steinberg Aff., Ex. B at 1.) Plaintiffs failed to include a

3 Unlike the copy of the initial GCA agreement, the attached copy of the

GCA agreement between July 1, 2018 and June 30, 2022 is unsigned. (Steinberg

Aff., Ex. C-1 at 84; Ex. C-2 at 84.) Even if the relevant unions and GCA did

not sign this agreement, however, the Second Circuit has held that an

obligation to make plan contributions under ERISA is not dependent on a CBA

signature. See Brown v. C. Volante Corp., 194 F.3d 351, 355 (2d Cir.1999)

(holding that an unsigned subsequent CBA after an initial signed CBA

satisfied the written agreement prong of LMRA Section 302(c)(5)(B)). As

Midwest REM did sign the CBA immediately at issue, incorporating other

agreements, there is sufficient evidence to find an intention by Midwest REM

to be bound. (Steinberg Aff., Ex. B at 2.) See Labarbera v. ASTC Labs.

Inc., 752 F.Supp.2d 263, 271 (E.D.N.Y.2010) (“A writing other than a CBA may

suffice if ‘the employer has expressed an unequivocal intention to be bound

in collective bargaining by group rather than individual action’” (quoting

Wenzel v. Jeff Parking Corp., No. 94-cv-0831 (AJP), 1995 WL 258055, at *3

(S.D.N.Y. May 3, 1995))).

copy of the CBA or CBAs effective between the relevant parties

for any date prior to November 24, 2017.

Section 502(g)(2) of ERISA authorizes the court to

award the Funds “legal or equitable relief as the court deems

appropriate.” Having reviewed plaintiffs' current submission,

the court finds that the CBA was effective from November 24,

2017, through October 31, 2020. In the absence of a copy of the

relevant CBA for the period prior to November 24, 2017, the

court cannot verify whether defendant was bound by a CBA with

the Union for the period from July 1, 2016 through November 24,

2017. Therefore, plaintiffs shall be permitted to conduct an

audit of defendant's books and records only for the period from

November 24, 2017 through October 31, 2020.4 If a CBA containing

an audit provision was in effect between July 1, 2016 through

November 24, 2017, plaintiffs are directed to submit appropriate

supplemental documentation within fourteen (14) days of the date

of this Order.

4 Defendant shall be required to produce corporate payroll records; cash

disbursement records; Tax Forms 941s; quarterly payroll tax forms (also known

as NYS-45 Tax Forms); Tax Forms W-2s; payroll reports (as provided to the

union or fund office); and canceled checks. See Annuity, Pension, Welfare &

Training Funds of Int'l Union of Operating Engineers Loc. 14-14B, AFL-CIO v.

Marbro Realty Co. Inc., No. 11-cv-5722 (FB)(RER), 2012 WL 3536499 (E.D.N.Y.

July 16, 2012), report and recommendation adopted sub nom. The Annuity,

Pension, Welfare & Training Funds of Int'l Union of Operating Engineers Loc.

14-14B, AFL-CIO ex rel. Christian v. Marbro Realty Co. Inc., No. 11-cv-5722

(FB)(RER), 2012 WL 3542317 (E.D.N.Y. Aug. 14, 2012) (recommending audit of

similar documentation).

II. Liability

Defendant’s default in this case “does not necessarily

conclusively establish ... defendant’s liability.” Trs. of the

Plumbers Local Union No. 1 Welfare Fund v. Philip Gen. Constr.,

No. 05-cv-1665 (NG)(RLM), 2007 WL 3124612, at *3 (E.D.N.Y. Oct.

23, 2007). As such, this court “must still determine whether

... plaintiff[s] [have] stated a cause of action” under ERISA

and the Taft-Hartley Act in their Complaint. Bd. of Trs. of the

UFCW Local 174 Pension Fund v. Jerry WWHS Co., No. 08-cv-2325

(ARR)(JO), 2009 WL 982424, at *3 (E.D.N.Y. Apr. 10, 2009)

(citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d

Cir. 1981); Philip Gen. Constr., 2007 WL 3124612, at *3

(“Nevertheless, ‘[e]ven after default it remains for the court

to consider whether the unchallenged facts constitute a

legitimate cause of action, since a party in default does not

admit mere conclusions of law.’” (alteration in original)

(quoting In re Wildlife Ctr., Inc., 102 B.R. 321, 325 (Bankr.

E.D.N.Y. 1989))).

The Taft-Hartley Act “vests the [c]ourt with

jurisdiction over civil actions for violations of contracts

between an employer and a labor organization that affect

commerce.” Trustees of Loc. 7 Tile Indus. Welfare Fund v. City

Tile, Inc., No. 10-cv-322 (SJ)(ALC), 2011 WL 917600, at *1

(E.D.N.Y. Feb. 18, 2011), report and recommendation adopted 2011

WL 864331 (E.D.N.Y. Mar. 10, 2011) (citing 29 U.S.C. § 185).

Likewise, “ERISA vests the court with jurisdiction over civil

actions brought by fiduciaries of employee benefit plans to

enforce provisions of such plans.” Id. (citing 29 U.S.C. §§

1002(21), 1002(37); 1132(d)(1)). Under ERISA, contributions due

to an employee benefit fund must be made according to the terms

of the CBA. See 29 U.S.C. § 1145; City Tile, Inc., 2011 WL

917600, at 1.

Here, the Complaint alleges that Midwest REM, an

employer affecting commerce, and the Union are parties to a CBA

obligating Midwest REM to remit certain contributions to the

Funds. (Compl. ¶¶ 24-25.) The Complaint further alleges that

Midwest REM failed to make such contributions as required under

the CBA. (Id. ¶¶ 42-43.) Finally, the Complaint alleges that

plaintiffs are fiduciaries of the Funds and are authorized to

file suit to recover delinquent contributions from defendant.

(Id. ¶¶ 5, 10, 14.) Taken together, plaintiffs’ allegations

suffice to establish defendant’s liability under the Taft-

Hartley Act and ERISA between November 24, 2017 and October 31,

2020. See Labarbera v. Frank J. Batchelder Transp. LLC, No 08-

cv-3387 (SJ)(JMA), 2009 WL 240521, at 3 (E.D.N.Y. Feb. 2, 2009)

(finding liability based on allegations that defendant was party

to collective bargaining agreement and failed to make timely

contributions to union employee benefit funds as required under

the agreement). Accordingly, the court grants plaintiffs’

motion for entry of default judgment as to liability, for unpaid

contributions between November 24, 2017 through October 31,

2020.5

III. Damages

A. Delinquent Contributions, Liquidated Damages, Interest, &

Audit Costs

“Although the allegations of a complaint pertaining to

liability are deemed admitted upon entry of a default judgment,

allegations relating to damages are not.” Labarbera, 2009 WL

240521 at *3 (citing Credit Lyonnais, 183 F.3d at 155). Rather,

the court “must conduct an inquiry to ascertain the amount of

damages with reasonable certainty.” Id. (citing Credit

Lyonnais, 183 F.3d at 155). In conducting a damages inquiry,

the court need not hold a hearing “‘as long as it [has] ensured

that there [is] a basis for the damages specified in the default

judgment.’” Transatlantic Marine Claims Agency, Inc. v. Ace

Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quoting Fustok

v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).

Thus, “[e]ven in the absence of a hearing, ... the district

court cannot simply rely on the plaintiff's statement of

damages.” House v. Kent Worldwide Mach. Works, Inc., 359 F.

5 As noted previously, the court finds that plaintiffs have established the

CBA was effective only for the period of November 24, 2017 through October

31, 2020, pending further documentation.

App’x 206, 207 (2d Cir. Jan. 4, 2010) (summary order) (citing

Transatlantic Marine Claims Agency, 109 F.3d at 111). “Proof of

damages must therefore be based on admissible, authenticated

evidence.” Bd. of Trs. of the United Union of Roofers v. Dana

Restoration, Inc., No. 09-cv-1076 (RRM)(ALC), 2010 WL 3925115,

at *2 (E.D.N.Y. Sept. 14, 2010) (citing House, 359 F. App’x at

206), adopted by 2010 WL 3909232 (E.D.N.Y. Sept. 29, 2010).

In support of their request for unpaid contributions,

liquated damages, and interest, plaintiffs submit the affidavit

of James M. Steinberg, Esq., counsel of record, and the

affidavit of Catherine Chase, administrator for the Funds. (See

generally Steinberg Aff.; Chase Aff.) Attached to Mr.

Steinberg’s affidavit are copies of the applicable Trust

Agreements and collective bargaining agreements, which set forth

Midwest REM’s contribution obligations to the Funds. (Steinberg

Aff. ¶¶ 6-8.) Although Mr. Steinberg avers that Midwest REM

failed to remit required contributions between July 1, 2016 and

October 31, 2020, the affidavits and appended documentary

evidence are insufficient to establish plaintiffs’ damages.

First, in their motion for default judgment,

plaintiffs fail to articulate the method by which the unpaid

contributions were calculated and do not submit any documents to

substantiate the amount of delinquent contributions alleged in

the complaint. Second, although Mr. Steinberg affirms that he

is “fully familiar with all the facts and circumstances of this

action,” (id. ¶ 1), he does not state that as counsel of record,

he has personal knowledge and that he reviewed any remittance

reports for the relevant delinquency periods, any notices or

correspondence sent to defendant regarding the alleged unpaid

contributions, or other records potentially relevant to the

amount of estimated unpaid contributions set forth in the

complaint. Nor does Ms. Chase state she has personal knowledge

and reviewed any reports, correspondence, or other records

relevant to the amount of estimated unpaid contributions. “The

absence of an affidavit by a person with actual knowledge of the

facts, supported by appropriate documentation, deprives the

court of the ability to make an independent assessment of the

damages to be awarded” at this time. Trs. of the Local 522

Pension Fund v. Tri-Boro & Rest. Supply Co., 12-cv-0163

(KAM)(LB), 2013 WL 685377, at 4 (February 24, 2013); see also

Laborers' Local Union No. 91 Welfare Fund v. Danco Const., No.

94-cv-0318E (M), 1996 WL 189510, at 1 (W.D.N.Y. Apr. 17, 1996)

(holding that conclusory statements regarding unpaid

contributions are insufficient proof of delinquent ERISA

contributions). Indeed, in their memorandum in support of their

motion for default judgment, plaintiffs submitted that

delinquent contributions, interest, liquidated damages, and

audit costs “cannot be awarded until such time as an audit is

conduced and a deficiency identified.” (Pls.’ Mem. at 8.)

Furthermore, no documentary evidence provided includes any

information concerning the amounts that are due, indicates the

number of covered employees employed by Midwest REM. Nor does

the documentation provide any hours worked, and all provisions

for liquidated damages other than attorney’s fees and litigation

costs are calculated as a percentage of delinquent contribution

amounts. (See Steinberg Aff., Ex. D. Amendment.; Ex. E

Amendment; Ex. F Amendment; Ex. G at 12-13; Ex. H Amendment at

2.) Accordingly, the court denies plaintiffs’ application for

damages without prejudice to renew upon submission of proper

documentation.

B. Attorney's Fees

Plaintiffs move for attorney's fees and costs,

pursuant to 29 U.S.C. § 1132(g)(2)(D). (Steinberg Aff. ¶¶ 10–17;

Pls.' Mem. at 8–11.) “The determination of a reasonable fee

award under Section 1332(g)(2)(D) of ERISA lies within the sound

discretion of the district judge.” Meehan v. Gristede's

Supermarkets, Inc., No. 95-cv-2104 (JG), 1997 WL 1097751, at 5

(E.D.N.Y. Sept. 25, 1997) (internal quotes and citation

omitted). See also Cruz v. Local Union No. 3 of Int'l Bhd. of

Elec. Workers, 34 F.3d 1148, 1159 (2d Cir.1994). In calculating

a “reasonable” fee award, the court must first establish “the

rate a paying client would be willing to pay.” Arbor Hill

Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522

F.3d 182, 190 (2d Cir.2008). Reasonable hourly rates are

determined by reference to fees in the community in which the

action is pending and to the skill and experience of the

attorneys who worked on the matter. Luciano v. Olsten Corp.,

109 F.3d 111, 115–16 (2d Cir.1997).

Plaintiffs seek $2,887.50 in attorney's fees,

consisting of 7.25 hours of work by plaintiffs' counsel.

(Steinberg Aff. ¶ 16.) Plaintiffs' counsel, James M. Steinberg,

Esq., a partner practicing since 1995 (Steinberg Aff. ¶ 13),

submitted a “reconstructed record of original time sheets made

contemporaneously with the services performed.”6 (Pls.’ Mem. at

8; see Steinberg Aff. Ex. J.) Courts have accepted such

documentation as sufficient evidence for an award of attorney’s

fees. See Annuity, Pension, Welfare & Training Funds of the

Int'l Union of Operating Eng'rs, Loc. 14-14B v. Superior Site

Work, Inc., No. 15-cv-543 (MKB), 2017 WL 639248, at 7 n.13

(E.D.N.Y. Feb. 16, 2017) (“[C]ourts recognize that ‘[a]ttorney

affidavits which set forth all charges with the required

specificity but which are reconstructions of the contemporaneous

[time] records ... suffice to permit recovery of attorneys’

6 Mr. Steinberg stated in his Affidavit in Support of Plaintiffs’ Motion

for a Default Judgment that this time sheet accurately reflects the

expenditure of his time in the case, though he misidentifies the relevant

exhibit. (Steinberg Aff. ¶ 15; see Steinberg Aff., Ex. J.)

fees[.]’” (quoting David v. Sullivan, 777 F. Supp. 212, 223

(E.D.N.Y. 1991))). Counsel seeks an hourly rate of $390 for

work performed in 2020 and $400 for work performed in 2021.

(Pls’ Mem. at 8.) The court finds these hourly rates reasonable

and in line with rates awarded in this area to counsel with

comparable experience. See Gesualdi v. D. Gangi Contracting

Corp., No. 18-cv-3773 (FB)(SJB), 2019 WL 1130729, at 8 (E.D.N.Y.

Feb. 11, 2019) (“[R]easonable hourly rates in this district for

ERISA matters have ranged from $300 to $450 for partners....”)

(quoting Finkel v. Captre Elec. Supply Co., No. 14-cv-3584

(RJO)(JO), 2015 WL 5316257 (E.D.N.Y. July 31, 2015)).

Having determined the hourly rates to be used during

the relevant time periods ($390 for 2020 and $400 for 2021), the

court now turns to the reasonableness of the hours billed in

this matter. Courts uphold fee requests in ERISA cases when

they determine that such fees are “reasonable.” See Trs. of the

United Teamster Fund v. Ronnie's Truck Serv., Inc., No. 07-cv-

4456 (CPS)(RML), 2008 WL 2686993, at 4 (E.D.N.Y. July 8, 2008)

(citing McDonald ex rel. Prendergast v. Pension Plan of the

NYSA–ILA Pension Trust Fund, 450 F.3d 91, 96 (2d Cir.2006)).

“The number of hours spent on litigation and the staffing

pattern utilized is unreasonable if it is excessive, redundant

or otherwise unnecessary.” Bourgal v. Atlas Transit Mix, No.

93-cv-0569 (CPS), 1996 WL 75290, at 7 (E.D.N.Y. Feb. 7, 1996).

Plaintiffs seek compensation for 7.25 hours of work performed by

Mr. Steinberg, which involved preparation of the complaint and

of the motion for default judgment. (Steinberg Aff. ¶ 16.) The

court finds that the time expended by counsel in connection with

this action is reasonable in light of other similar ERISA

default judgment cases. See e.g., Cement & Concrete Workers

Dist. Council Welfare Fund, 2009 WL 928331, at 8.

C. Costs

Plaintiffs also seek costs in the amount of $517,

consisting of $402 for the court’s filing fee and $115 for

service of process. (Pls.’ Mem. at 10.) In support of the

costs sought, plaintiffs provide an invoice for professional

services. (Steinberg Aff., Ex. I.) A court will generally

award “those reasonable out-of-pocket expenses incurred by the

attorney and which are normally charged fee paying clients.”

Reichman v. Bonsignore, Brignati & Mazzotta, P.C., 818 F.2d 278,

283 (2d Cir.1987) (internal quotation marks and citations

omitted). “A prevailing party may be reimbursed for

expenditures which add to the proceeding and are not part of the

attorney's ordinary overhead.” LaBarbera v. Cent. Design Sys.

Inc., No. 06-cv-2709 (ARR)(RML), 2006 WL 3422645, at 4 (E.D.N.Y.

Nov. 28, 2006) (internal quotations and citations omitted).

Accordingly, the court awards $517.00 to plaintiffs for the

reasonable costs incurred in the prosecution of this action.

CONCLUSION

For the foregoing reasons, the court: (1) grants in

part plaintiffs’ motion for a default judgment against defendant

as to liability and for an audit between November 24, 2017

through October 31, 2020; (2) denies plaintiffs’ application for

damages without prejudice, and for an audit prior to November

24, 2017; and (3) grants plaintiff’s request for $2,887.50 in

attorney’s fees and $517 in costs. Upon the submission of

proper documentation, including, but not limited to payroll

records of covered employees any other relevant collective

bargaining agreements, the court will conduct an inquest on

plaintiffs’ damages.

Plaintiffs are directed to serve a copy of this

Memorandum and Order on defendant and file a declaration of

service by July 9, 2021. By July 13, 2021, plaintiffs shall

advise the Court via ECF how they intend to proceed.

SO ORDERED.

Dated: July 6, 2021

Brooklyn, New York

_ //s//_________________

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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