Trustees of the Plumbers Local Union No. 1 Welfare Fund, Additional Security Benefit Fund, Vacation & Holiday Fund, Trade Education Fund, 401(K) Savings Plan et al v. Temperini Mechanical, Inc. et al, No. 1:2012cv05646 - Document 34 (E.D.N.Y. 2014)
Court Description: ORDER granting 29 Motion for Attorney Fees. Ordered by Judge I. Leo Glasser on 9/19/2014.(Russell, Alexandra)
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Trustees of the Plumbers Local Union No. 1 Welfare... Plan et al v. Temperini Mechanical, Inc. et al Doc. 34 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x TRUSTEES OF THE PLUMBERS LOCAL UNION NO. 1 WELFARE FUND, ADDITIONAL SECURITY BENEFIT FUND, VACATION AND HOLIDAY FUND, TRADE EDUCATION FUND, AND 40 1(K) SAVINGS PLAN, ET AL., MEMORANDUM AND ORDER Plaintiffs, 12 Civ. 0 5646 (ILG) (SMG) - against TEMPERINI MECHANICAL, INC., ET AL., Defendants. ------------------------------------------------------x GLASSER, Senior United States District J udge: Before the Court is a m otion for attorneys’ fees and costs by The Trustees of the Plum bers Local Union No. 1 Welfare Fund, Additional Security Benefit Fund, Vacation and Holiday Fund, Trade Education Fund, and 40 1(k) Savings Plan (“Local Trustees”), Trustees of the Plum bers and Pipefitters National Pension Fund, and Trustees of the International Training Fund (“National Trustees,” and together with the Local Trustees, “Plaintiffs” or “Trustees”) after the Trustees obtained a judgm ent against Tem perini Mechanical, Inc. (“TMI”) and TMI’s owner, J oseph Tem perini (“Tem perini”) (collectively, “Defendants”) for violations of the Em ployee Retirem ent Incom e Security Act, as am ended, 29 U.S.C. § 10 0 1 et seq. (“ERISA”). For the following reasons, the m otion is GRANTED, with a lower attorneys’ fees award than the Trustees request. BACKGROU N D The facts relevant to this m otion are as follows. TMI, a plum bing contractor operating in New York City, em ploys several m em bers of Local Union No. 1 of the United Association of J ourneym en and Apprentices of the Plum bing and Pipefitting 1 Dockets.Justia.com Industry (the “Union”). Tem perini is TMI’s President, CEO, and m ajority owner. The Trustees are em ployer and em ployee trustees of m ultiem ployer benefit funds adm inistered at the local and national levels (the “Funds”). TMI and the Union are parties to a Collective Bargaining Agreem ent (“CBA”), which Tem perini signed as TMI’s President on Novem ber 29, 20 0 6. Dkt. No. 18-2. The CBA states that TMI m ust m ake m onthly contributions to the Funds, and in the event TMI fails to contribute on tim e, it is liable for the delinquent contributions plus interest, liquidated dam ages, and “all costs including, but not lim ited to, reasonable audit and accounting expenses, witness costs and attorney’s fees, disbursem ents and court costs . . . .” Dkt. No. 18-1 at 19 (em phasis added). From October 20 0 5 through March 20 11 and March through Septem ber 20 12, TMI failed to rem it the required contributions to the Funds. The Trustees com m enced this action on Novem ber 16, 20 12. Dkt. No. 1. In their com plaint, they alleged that by failing to pay contributions owed under the CBA, Defendants violated ERISA and the Labor Managem ent Relations Act, 29 U.S.C. § 141 et seq. See id. On J anuary 27, 20 14, the Trustees m oved for sum m ary judgm ent. Dkt. No. 16. On J une 13, 20 14, the Court granted their m otion and found that TMI and Tem perini were jointly and severally liable under ERISA for the delinquent contributions, and that the Local and National Trustees were entitled to judgm ent in the am ount of $ 229,839.96 and $ 34,0 22.76, respectively. Dkt. No. 28.1 On J uly 7, 20 14, the Trustees m oved this Court to award $ 20 ,375.22 in attorneys’ fees and $ 110 .50 in costs, pursuant to Rule 54(d) of the Federal Rules of Civil Procedure. Dkt. No. 29. Defendants filed their opposition on J uly 21, 20 14. Dkt. No. 1 The Clerk of Court entered judgm ent in favor of the Trustees on J uly 24, 20 14. Dkt. No. 33. 2 32. In their m otion, the Trustees argue that as prevailing plaintiffs, they are entitled to reasonable attorneys’ fees and costs under ERISA and the CBA. They subm itted as an attachm ent to the m otion the declaration of Richard Epstein, an associate at the law firm of Virginia and Am binder, LLP (“V&A”), counsel to the Trustees. They also provided tim esheet records, which apportion the fees and costs between the local and national Funds, and list the date, hours expended, and descriptions of the work perform ed by each V&A attorney and legal assistant. See Epstein Decl., Ex. A. The Epstein Declaration states that V&A’s total billings in this m atter am ount to $ 20 ,375.22 2 for 88.69 hours of work. ¶ 7. The tim esheets show that V&A charged an hourly rate of $ 20 0 -250 for attorneys and $ 90 -20 0 for legal assistants.3 See id., Ex. A. D ISCU SSION I. En title m e n t to a Fe e Aw ard a. CBA Attorneys’ fees are recoverable where the parties have so agreed in a valid contract. See, e.g., U.S. Fidelity and Guar. Co. v. Braspetro Oil Servs. Co., 369 F.3d 34, 74 (2d Cir. 20 0 4). In New York, a contractual fee arrangem ent is enforceable where the language is “unm istakably clear” and unam biguously applies to the dispute at issue. Coastal Power Int’l Ltd. v. Transcon. Capital Corp., 182 F.3d 163, 165 (2d Cir. 1999); Olym pus Im aging Am erica Inc. v. Reifschneider S.A., No. 10 -CV-4516, 20 11 WL 2490 596, at *1 n.1-2 (E.D.N.Y. J une 22, 20 11) (pursuant to contract, defendant was 2 The Court has identified num erous m athem atical errors in the calculation of fees listed on the tim esheets. After correcting these m ultiplication errors, the Court finds that the total fee request should actually be $ 20 ,377.50 . 3 The Epstein Declaration states that V&A’s billing rate is $ 225 per hour for attorneys and $ 90 per hour for legal assistants. ¶¶ 3-5. However, the timesheets show that Epstein’s work was billed at a rate of either $ 20 0 or $ 250 per hour. See id., Ex. A. Several entries show legal assistant work billed at $ 115 or $ 20 0 per hour. See id. The Trustees do not acknowledge or explain the variances in billing rates. 3 required to pay attorneys’ fees and court costs incurred in plaintiff’s collection of delinquent paym ents). The CBA m akes it unm istakably clear that the Trustees can recover “. . . all costs including, but not lim ited to, reasonable . . . attorney’s fees, disbursem ents and court costs” incurred in pursuing their action for delinquent contributions. See CBA at 19 (em phasis added). b. ERISA Section 50 2 of ERISA sim ilarly provides that the court shall award reasonable fees and costs where plaintiffs in an action to recover delinquent contributions obtain a favorable judgm ent. See 29 U.S.C. § 1132(g)(2). An award of reasonable attorneys’ fees and costs is therefore warranted here, where the Trustees sought to recover delinquent contributions from Defendants and prevailed. See Trs. of United Team ster Fund v. Ronnie’s Truck Serv., Inc., No. CV-0 7-4456, 20 0 8 WL 2686993, at *2 (E.D.N.Y. J uly 8, 20 0 8). II. Re as o n able n e s s o f th e Fe e s an d Co s ts a. Atto rn e ys ’ Fe e s In determ ining a fee award, courts in the Second Circuit apply the “presum ptively reasonable fee” standard, which asks “what a reasonable, paying client would be willing to pay,” assum ing the client “wishes to spend the m inim um necessary to litigate the case effectively.” Sim m ons v. N.Y. City Transit Auth., 575 F.3d 170 , 174 (2d Cir. 20 0 9) (quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 493 F.3d 110 , 112 (2d Cir. 20 0 9)). Generally, the reasonable hourly rate is the prevailing rate charged in the district in which the court sits, by lawyers of com parable skill, experience, and reputation. See id. at 175-77; Hargroves v. City of New York, No. 0 3-CV-1668, 20 14 WL 1270 585, at *11 (E.D.N.Y. J an. 6, 20 14). The Court will not com pensate attorneys 4 for excessive, duplicative, or unnecessary work. See LaBarbera v. Ovan Const. Inc., No. CV-0 6-2867, 20 11 WL 5822629, at *5 (E.D.N.Y. Sept. 20 , 20 11). Finally, a m otion for attorneys’ fees m ust include “contem poraneous tim e records indicating, for each attorney, the date, the hours expended, and the nature of the work done,” N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983), which m ust be “sufficiently detailed” to allow a court to determ ine whether the requested fees are reasonable. Serin v. Northern Leasing Sys., Inc., No. 7:0 6-CV-1625, 20 11 WL 1467560 , at *6 (S.D.N.Y. Apr. 19, 20 11). Defendants’ contention that the requested fees and costs are “speculative” because the Trustees did not subm it “an affidavit of an accountant, or of any individual or com pany that did an audit to invoice that any m oney was owed”4 is without m erit. The Trustees subm itted a declaration and detailed tim esheets describing the date, hours expended, and nature of work perform ed by each V&A attorney and legal assistant. This subm ission is sufficiently detailed for the Court to determ ine the reasonableness of the fees. See Carey, 711 F.2d at 1154. i. Rate V&A charged an hourly rate of $ 20 0 -250 for attorneys and $ 90 -20 0 for legal assistants. See Epstein Decl., Ex. A. The Trustees request attorneys’ fees for work perform ed by two V&A associates, Richard Epstein and Michael Isaac,5 who regularly 4 Paragraphs 5– 9 of Defendants’ Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Costs are copied from their Opposition to Plaintiffs’ Motion for Sum mary J udgm ent. See Dkt. Nos. 32 & 26. The Court reviewed and rejected these argum ents in its Mem orandum and Order granting sum m ary judgm ent in favor of the Trustees, and it will not reconsider them here. 5 The tim esheets contain one entry for work perform ed by an em ployee with the initials “LB,” who is not identified in the Epstein Declaration. On J anuary 4, 20 13, LB billed .39 hours at a $ 20 0 hourly rate for legal assistant work related to the declaration of default filed by the Trustees that sam e day. See Epstein Decl., Ex. A at 5; Dkt. No. 6. Assum ing LB is a legal assistant based on the nature of the work perform ed, the court will award fees at an hourly rate of $ 90 for the .39 hours that LB billed. 5 represent m ultiem ployer em ployee benefit plans in ERISA litigation. Epstein Decl. ¶¶ 34. V&A’s hourly rate for the two attorneys is reasonable, considering past awards in this district and the attorneys’ skill and experience with ERISA litigation. See, e.g., Penberg v. HealthBridge Mgm t., No. 0 8 Civ. 1534, 20 11 WL 110 0 10 3, at *6-7 (E.D.N.Y. Mar. 22, 20 11) (“reasonable fees in this district vary from $ 20 0 to $ 375 per hour for partners and $ 10 0 to $ 295 per hour for associates”). However, the $ 115-20 0 hourly rate billed for som e legal assistant work is higher than average for this district, and the Trustees have not explained why certain tasks—such as redacting exhibits for filing– were billed at a prem ium . See Gesualdi v. Interstate Masonry Corp., No. 12-CV-0 383, 20 14 WL 131170 9, at *13 (E.D.N.Y. Mar. 28, 20 14) (reducing legal assistant rate to $ 90 per hour where plaintiffs requested rate of $ 110 per hour and did not justify higher rate). Therefore, the Court will award fees for legal assistant work at an hourly rate of $ 90 and reduce the requested award accordingly by $ 167.60 . ii. H o u rs Approxim ately 56 of the 88 hours billed in this case relate to the Trustees’ sum m ary judgm ent m otion and reply brief. See Epstein Decl., Ex. A. This is a m odest am ount to bill for the legal research and drafting required to prepare a successful m otion for sum m ary judgm ent. See LaBarbera, 20 11 WL 5822629, at *5 (awarding attorneys’ fees for 184 hours billed in ERISA case involving discovery, a sum m ary judgm ent m otion, and inquest on dam ages after default). The rem aining 32 hours relate to discovery m atters and the m otion for attorneys’ fees. See Epstein Decl., Ex. A. Although this am ount is reasonable for the tasks perform ed, the Trustees are not entitled under ERISA or the CBA to attorneys’ fees for the tim e spent seeking the fees them selves. See e.g., F.H. Krear & Co. v. Nineteen Nam ed Trs., 810 F.2d 1250 , 1266 (2d 6 Cir. 1987) (general contract providing for recovery of attorneys’ fees does not authorize award for tim e spent seeking the fees). Therefore, the Court m ust exclude the 4.2 hours spent on the m otion for attorneys’ fees and reduce the requested award by $ 890 . b. Co s ts Rule 54(d) provides that “Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). In a successful action under ERISA to recover delinquent contributions, courts award “[r]easonable and identifiable out-ofpocket disbursem ents ordinarily charged to clients.” Trs. of the Road Carriers Local 70 7 Welfare Fund v. Goldberg, No. 0 8-CV-0 884, 20 0 9 WL 3497493, at *10 (E.D.N.Y. Oct. 28, 20 0 9). The Trustees’ request of $ 110 in costs incurred for service of process is therefore “plainly reasonable.” See, e.g., Trs. of Local 813 Ins. Trust Fund v. Bradley Funeral Serv., Inc., No. 11-CV-2885, 20 12 WL 3871759, at *7 (E.D.N.Y. Aug. 10 , 20 12). CON CLU SION For the reasons set forth above, Plaintiffs’ m otion for attorneys’ fees and costs is GRANTED. The Local Trustees are entitled to attorneys’ fees in the am ount of $ 17,273.50 and costs in the am ount of $ 110 .50 , and the National Trustees are entitled to attorneys’ fees in the am ount of $ 2,0 46.40 . The Trustees are to appropriately apportion the award am ong the Funds. See Trs. of the Plum bers Local Union, No. 1 Welfare Funds v. M.B. Mech. Corp., No. 12 Civ. 4798, 20 13 WL 173391, at *2 n.1 (E.D.N.Y. J an. 15, 20 13). SO ORDERED. Dated: Brooklyn, New York Septem ber 19, 20 14 7 / s/ I. Leo Glasser Senior United States District J udge 8
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