The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HUMBERTO RESTREPO,
24-CV-4425 (ARR) (RML)
Petitioner,
NOT FOR ELECTRONIC
-against- OR PRINT PUBLICATION
NATIONAL MAINTENANCE, INC., OPINION & ORDER
Respondent.
ROSS, United States District Judge:
Petitioner, Humberto Restrepo, as chairman of the Joint Industry Board of the Electrical
Industry (the “JIB”), moves for confirmation of an arbitration award against Respondent, National
Maintenance Inc., an employer. Pet. Confirm Arbitration Award (“Pet.”), ECF No. 1. He also seeks
pre-judgment interest, post-judgment interest, and reimbursement for attorneys’ fees and costs
associated with bringing this petition. Pet. 9. For the reasons set forth below, I confirm the
arbitration award, award petitioner pre-judgment and post-judgment interest, and reimburse him
for most of the fees and costs associated with bringing this petition.
BACKGROUND1
The JIB is the administrator of various “employee benefit multi-employer plans established
and maintained pursuant to a collective bargaining agreement [(“CBA”)] between Local Union
1 Respondent has not submitted an opposition to petitioner’s motion, and an unopposed motion to
confirm an arbitration award is treated as an unopposed motion for summary judgment. See D.H.
Blair & Co. v. Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006). In an unopposed motion for summary
judgment, “[t]he facts in the movant’s statement of material facts will be accepted as true so long
as they are supported by the record.” Stark v. Cnty. of Clinton, No. 22-CV-422, 2023 WL 5380430,
at *1 (N.D.N.Y. Aug. 22, 2023). The petitioner did not submit a statement of material facts, so I
rely on the petition, which describes the relevant facts in this case. The facts in the petition are
supported by the record.
No. 3 of the International Brotherhood of Electrical workers, AFL-CIO, and . . . independent or
unaffiliated employers in the electrical and other related industries.” Pet. ¶ 4. Respondent is a
member of the Electrical Sign Industry Association, which assented to the aforementioned
collective bargaining agreement, and as such, respondent is bound by its terms. Pet. ¶¶ 9, 11–13;
see also id., Ex. A, at 15 (the “CBA”), ECF No. 1-1. The CBA imposes numerous obligations on
respondent. Under the terms of the CBA, respondent must make contributions to all relevant
employee benefit plans for all work within the Union’s trade and geographical jurisdiction and
submit weekly payroll reports for each employee on whose behalf respondent makes required
contributions. Pet. ¶ 14; CBA Arts. X–XVIII. Additionally, pursuant to Section 502(g)(2) of the
Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(g)(2)(c)(ii), and the
Policy for the Collection of Delinquent Contributions (“Collection Policy”), to which respondent
is also bound, employers that make late contributions or fail to make contributions may have to
pay interest on those missed or delayed payments, liquidated damages, and legal fees and costs.
Pet. ¶¶ 16–17.
Under the CBA and the JIB’s Arbitration Procedures, if a dispute exists between the JIB
and an employer over an employer’s obligation to contribute to employment funds, the JIB may
refer the dispute to arbitration. Id. ¶¶ 21–22; id., Ex. C, Art. IV (“Arbitration Procedures”), ECF
No. 1-3. Pursuant to the Arbitration Procedures, if the arbitrator finds for the JIB, the employer
shall be liable for attorneys’ fees and costs. Arbitration Procedures, Art. X.B. Any award an
arbitrator issues pursuant to the Arbitration Procedures is “final and binding.” Id., Art. IX.B.
A dispute arose between the JIB and respondent when respondent “failed to remit JIB
and/or DSP reports and contributions owed for the payroll weeks ending February 7, 2024, through
the then present date.” Pet. ¶ 25. Pursuant to the Arbitration Procedures, the JIB initiated the
arbitration before the designated arbitrator and provided notice to respondent. Id. ¶ 26; Arbitration
Procedures, Art. IV. Respondent did not file any papers before the arbitrator in opposition to the
JIB’s claims. Pet. ¶ 29; id., Ex. F., at 4 (“Arbitration Award”), ECF No. 1-6. The arbitrator found
that the JIB proved by a preponderance of the evidence that Respondent “was required to remit the
contributions noted, and that [r]espondent failed to remit the contributions.” Pet. ¶ 32; Arbitration
Award 4–5. The arbitrator ordered respondent to pay $32,450.64 in total. Pet. ¶ 33; Arbitration
Award 5. Respondent has yet to pay any portion of this award. Pet. ¶ 34. The JIB filed the instant
petition requesting that I confirm the arbitration award. Respondent has not appeared or responded
to the JIB’s motion to confirm its arbitration award.
LEGAL STANDARD
Typically, “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. v.
Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006) (quotation omitted). A court “‘must grant’ the award
‘unless [it] is vacated, modified, or corrected.’” Id. (quoting 9 U.S.C. § 9). The award an arbitrator
issues is entitled to “significant deference,” Nat’l Football League Players Ass’n v. Nat’l Football
League Mgmt. Council, 523 F.App’x 756, 760 (2d Cir. 2013), and should be confirmed as long as
the arbitrator “acted within the scope of his authority, and . . . the award draws its essence from
the agreement,” Local 119, Drug Hosp. & Health Care Emps. Union v. Brooks Drug Co., 956 F2.d
22, 25 (2d Cir. 1992). The arbitrator’s rationale for an award does not need to be explained, and a
district judge should confirm the award if “a ground for the arbitrator’s decision can be inferred
from the facts of the case.” D.H. Blair & Co., 462 F.3d at 110. “Only a barely colorable
justification for the outcome reached by the arbitrators is necessary to confirm the award.” Id.
(quotation omitted).
When the opposing party does not answer a motion to confirm an arbitration award, a
district court judge should treat the petition “as an unopposed motion for summary judgment.” Id.
“If the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law” summary judgment should be granted. Fed. R. Civ. Proc.
56(a). This standard applies to motions for summary judgment that are unopposed. Vt. Teddy Bear
Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). The evidence the movant submits
in support of the summary judgment motion must still meet their burden of production, and if it
does not, then summary judgment must be denied. Id.
DISCUSSION
As to the arbitration award, there are no genuine issues of material fact and petitioner is
entitled to confirmation of the award. Arbitration was appropriate in this case and the arbitrator
acted within the scope of his authority. Pursuant to the terms of the CBA and the Arbitration
Procedures, the JIB has the authority to submit disputes over missing or late payments owed to
employment funds to an arbitrator for resolution. Pet. ¶¶ 21–22; Arbitration Procedures, Art. IV.
As a result, once the JIB submitted this dispute to the arbitrator, respondent was subject to the
arbitration. Although respondent did not appear for arbitration, petitioner provided respondent with
notice of the arbitration. Pet. ¶ 26; id., Ex. D, ECF No. 1-4; Arbitration Award 2.
There is also no evidence to suggest that the arbitrator’s award was improper; the award
“[drew] its essence,” Brooks Drug Co., 956 F.2d at 25, from the CBA and the arbitrator provided
more than “a barely colorable justification for the outcome reached,” D.H. Blair & Co., 462 F.3d
at 110. The CBA requires respondent to make contributions to employee benefit plans, CBA, Arts.
X–XVII, and petitioner submitted evidence to the arbitrator documenting respondent’s delinquent
and missing payments, Arbitration Award 4. Based on his review of the CBA, the Collection
Policy, Arbitration Procedures, and all the record evidence petitioner submitted, the arbitrator
determined that respondent failed to meet its requirement to remit contributions to the JIB and
awarded petitioner $32,450.64. Id. 4–5.2 This meets the “barely colorable justification” standard.
See N.Y.C. Dist. Council of Carpenters v. Nguyen Custom Woodworking LLC, No. 18-CV-3970,
2018 WL 5919520, at *1–2 (S.D.N.Y. Nov. 13, 2018) (determining that because the CBA required
respondent to pay fringe benefits and wages to its employee, and because evidence supported that
the employer violated this requirement, the arbitrator’s conclusion that the petitioner was “entitled
to wage and benefit funds stemming from [the respondent’s] violation has a reasonable basis that
can be inferred from the facts”). Further, respondent has failed to oppose this motion and has not
provided evidence to suggest that the amount of the award is baseless. I accordingly confirm the
arbitration award of $32,450.64.
Petitioner also seeks pre-judgment and post-judgment interest on the arbitration award. Pet.
9. I grant both requests. Regarding post-judgment interest, pursuant to 28 U.S.C. § 1961(a),
“[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court . . .
calculated from the date of the entry of the judgment.” Id. “Awards of post-judgment interest under
§ 1961 are mandatory and apply to actions to confirm arbitration awards.” Trs. for the Mason
Tenders Dist. Welfare Fund v. Euston St. Servs., Inc., No. 15-CV-6628, 2016 WL 67730, at *2
(S.D.N.Y. Jan. 5, 2016) (citations omitted). Accordingly, I grant petitioner’s request for post-
2 The arbitrator’s award is itemized as follows: $23,260 in required contributions; $2,288.64 in
interest; $4,652 in liquidated damages; and $2,250 in legal fees and costs. Arbitration Award 5. It
is not clear to me how these interest amounts were calculated, however “even where it is unclear
what formula or percentage the arbitrator used in reaching an amount, if the court can infer that
the arbitrator had some basis—documentary, testimonial, or otherwise—on which to determine
the amount of interest, that amount should be awarded.” Trs. of Empire State Carpenters Funds v.
Town & Country Wood Flooring, LLC, No. 13-CV-40 (JS), 2013 WL 4807110, at *7 (E.D.N.Y.
Sept. 9, 2013) (quotation omitted). I defer to the arbitrator’s calculations because they were
supported by documentary evidence that petitioner submitted. Arbitration Award 4–5.
judgment interest at the statutory rate, 28 U.S.C. § 1961(a). As to petitioner’s request for pre-
judgment interest, “courts in this circuit have recognized a presumption in favor of prejudgment
interest.” Finkel v. Allstate Electric Corp., No. 19-CV-6260, 2020 WL 3867136, *9 (E.D.N.Y.
July 8, 2020) (quotation omitted) (collecting cases). Courts have also found that awards of pre-
judgment interest are appropriate where “the agreement between the parties states that an
arbitration decision is final and binding.” Id. (quoting Herrenknecht Corp. v. Best Rd. Boring, No.
06-CV-5106, 2007 WL 1149122, at *3 (S.D.N.Y. Apr. 16, 2007). Here, the Arbitration Procedures
provide that an arbitration award is “final and binding.” Arbitration Procedures, Art. IX.B. As a
result, an award of pre-judgment interest is appropriate. Although petitioner fails to specify a rate
of pre-judgment interest, the “‘common practice’ of courts in this circuit ‘is to grant interest at a
rate of nine percent, the rate of pre-judgment interest under New York State law.’” Id. (quoting
Herrenknecht Corp., 2007 WL 1149122, at *3); see also N.Y. C.P.L.R. §§ 5001–5004. I therefore
grant petitioner’s request for prejudgment interest at a rate of nine percent per annum, calculated
from the date of the arbitration award—June 10, 2024—through the date of judgment in this action.
Arbitration Award 6.
Finally, petitioner requests reimbursement in the amount of $2,757.60 in attorneys’ fees
and costs arising out of this petition. Pet. 9. Although section 502(g) of ERISA, 29 U.S.C.
§ 1132(g)(2)(D), provides that a court “shall” award attorneys’ fees and costs to a plan that is
successful in an action to recover delinquent contributions, this “does not necessarily mean that a
successful party is also entitled to its costs and attorney’s fees in bringing a petition to confirm an
arbitration award.” Abondolo v. Jerry WWHS Co., 829 F.Supp.2d 120, 130 (E.D.N.Y. 2011).
Courts in this circuit have held, however, “that a petitioner in an action to confirm an arbitration
award is entitled to attorneys’ fees and costs when the respondent refuses to abide by an arbitrator’s
decision without justification.” Allstate Electric Corp., 2020 WL 3867136, at *8 (quotation
omitted).
I do not need to decide whether respondent refused to abide by the arbitrator’s award
without justification because petitioner’s Collection Policy and Arbitration Procedures require
employers to pay legal fees and costs in cases such as this. See Pet., Ex. B, at 4–5, ECF No. 1-2;
Arbitration Procedures, Art. X; see also Trs. of the Ne. Carpenters Health, Pension, Annuity,
Apprenticeship, & Labor Mgmt. Coop. Funds v. CEI Contractors, Inc., No. 18-CV-3467 (JFB),
2019 WL 117603, at *4 (E.D.N.Y. Jan. 7, 2019) (determining that “the Court need not decide
whether respondent refused to abide by the arbitrator’s award without justification because the
Collection Policy obligates employers who fail to make timely contributions to the Funds to pay
attorney’s fees and costs . . . [and] [t]his agreement is a sufficient basis upon which to award
attorney’s fees and costs”). I will therefore award petitioner reasonable attorneys’ fees and costs.
Although I have discretion to determine a reasonable fee, I must “abide by the procedural
requirements for calculating those fees articulated by [the Second Circuit] and the Supreme Court.”
Millea v. Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2011). Both Courts “have held that the
lodestar—the product of a reasonable hourly rate and the reasonable number of hours required by
the case—creates a presumptively reasonable fee.” Id. (quotation omitted). Reasonable hourly
rates are the rates “‘prevailing in the community for similar services of lawyers of reasonably
comparable skill, experience, and reputation,’ . . . [and] the district in which the court sits [is the
relevant community.]” Cruz v. Loc. Union No. 3 of the IBEW, 34 F.3d 1148, 1159 (2d Cir. 1994)
(quoting Blum v. Stenson, 465 U.S. 866, 896 n.11 (1984)). To support its assessment of attorneys’
fees and costs, petitioner must submit “contemporaneous time records that specify, for each
attorney, the date, the hours expended, and the nature of the work done.” Nguyen Custom
Woodworking, 2018 WL 5919520, at *3.
Petitioner has submitted sufficient documentation to reflect the work that two attorneys
conducted related to this case—Marlena Smith, an associate attorney, and Adriana Grancio, a
partner. Pet. ¶¶ 39–40; see also id., Ex. G, ECF No. 1-7. The attorneys spent a combined total of
seven hours working on this case, which is reasonable. See e.g., Trs. of the N. Atl. States Carpenters
Funds v. Dame Contracting, Inc., No. 23-CV-5254 (NJC), 2024 WL 2293831, at *7 (E.D.N.Y.
May 21, 2024) (determining that 12.7 hours of work on an unopposed petition to confirm an
arbitration award was reasonable). Ms. Grancio billed her time at a rate of $410 per hour. Pet. ¶
40. “[I]n other cases involving unopposed petitions to confirm an arbitration award, courts
typically approve hourly rates of $300 to $400 for partners . . . .” Finkel v. J&H Electrical
Contracting, Inc., No. 22-CV-6298 (HG), 2023 WL 4763366, at *3 (E.D.N.Y. July 26, 2023). I
therefore decrease the rate of pay for Ms. Grancio to $400 per hour. Ms. Smith billed her time at
a rate of $310 per hour. Pet. ¶ 39. This is a higher-than-average rate for senior associate attorneys
working on ERISA matters in the Eastern District. See J&H Electrical Contracting, Inc., 2023 WL
476336, at * 3 (explaining that the average rate for associates in cases involving unopposed
petitions to confirm an arbitration award is between $225 and $250 per hour); but see Dame
Contracting, Inc., 2024 WL 2293831, at *7 (explaining that courts in this district “have recently
approved rates ranging from $200–$290 per hour for associate attorneys who have five or fewer
years of legal work experience”). Because Ms. Smith has been an attorney for approximately six
years, I will only reduce her rate to $300 per hour. Given the reduced rates, I award petitioner
$2,180 in attorney fees. See Ex. G (reflecting the hours that each attorney worked).3
3 Petitioner also indicates that legal assistants were paid $155 per hour for work performed in
connection with this action. Pet. ¶ 41 (citing Ex. G). I do not see the legal assistants’ work reflected
in petitioner’s records, and therefore, I decline to determine whether this is a reasonable rate. See
As for costs, “a court will generally award ‘those reasonable out-of-pocket expenses
incurred by attorneys and ordinarily charged to their clients.’” Pennacchio v. Powers, No. 05-CV-
985 (RRM), 2011 WL 2945825, at *2 (E.D.N.Y. July 21, 2011) (quoting LeBlanc-Sternberg v.
Fletcher, 143 F.3d 748, 763 (2d Cir. 1998)). Pursuant to Local Civil Rule 54.1(a), a party must
attach as exhibits “[b]ills for the costs claimed” and include as part of its request for reasonable
costs “an affidavit that the costs claimed are allowable by law, are correctly stated and were
necessarily incurred.” Id.; see also CEI Contractors, Inc., 2019 WL 117603, at *7. Here, petitioner
requests $507.60 in “court filing fees and service charges,” and cites Exhibit G for support. Pet.
¶ 44. Exhibit G, however, only documents the work that the attorneys provided on this case. Ex.
G. Nevertheless, I can see from the docket that petitioner paid a $405 filing fee. Docket Entry
dated June 21, 2024. Further, the executed summons reflects that petitioner paid a $40 service fee.
See Affidavit of Service, ECF No. 9. Those costs are recoverable. See CEI Contractors, Inc., 2019
WL 117603, at *7. Petitioner has not provided documentation that accounts for how the additional
$62.60 was spent. Accordingly, I award petitioner only $445 in reasonable costs. Petitioner is
granted an additional fifteen calendar days to submit documentation to account for the $62.60.
CONCLUSION
For the foregoing reasons, I grant petitioner’s motion to confirm the arbitration award. I
confirm the arbitration award in all respects and award judgment in favor of petitioner in the
amount of $32,450.64, plus pre-judgment interest at a rate of nine percent per annum. I also grant
petitioner’s request for post-judgment interest at the statutory rate, pursuant to 28 U.S.C. § 1961(a).
Finally, I award petitioner $2,180 in attorney fees and $445 in reasonable costs. Petitioner is
granted fifteen calendar days to submit documentation to account for the additional fees requested.
Ex. G.
SO ORDERED.
/s/
Allyne R. Ross
United States District Judge
Dated: July 31, 2024
Brooklyn, New York