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