Opinion
03-CV-3640 (NG) (KAM).
April 14, 2006
REPORT RECOMMENDATION
By order entered on January 5, 2005, United States District Judge Nina Gershon referred this matter, pursuant to 28 U.S.C. § 636(b), to the assigned magistrate judge for an inquest on damages after ordering, upon the motion of plaintiff, that default be entered against defendants for violations of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1132 and 1145, and the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. §§ 185 et seq. (Doc. No. 7, Order dated December 30, 2004.) This matter was subsequently reassigned to the undersigned on April 11, 2005.
Plaintiff's default judgment motion seeks to recover from defendants:
(a) $269,222.52 in unpaid fringe benefit contributions;
(b) $171,242.42 in interest on these unpaid contributions;
(c) $171,242.42 in liquidated damages;
(d) $22,282.14 in interest on late contributions paid prior to the commencement of this action;
(e) $9,575.25 in liquidated damages on late contributions paid prior to the commencement of this action;
(f) $11,711.54 in interest on late contributions paid after the commencement of this action;
(g) $11,711.54 in liquidated damages on late contributions paid after the commencement of this action;
(h) $10,455.84 in unpaid dues;
(i) $6,482.48 in interest on unpaid dues
(j) $1,496.60 in interest on late dues paid prior to the commencement of this action;
(k) $882.70 in interest on late dues paid after the commencement of this action;
(l) $7,692.50 in attorneys' fees;
(m) $2,587.50 in audit fees; and
(n) $528.80 in costs, for a total award of $697,114.25.
(See generally, Doc. No. 4, Affirmation of William E. Nagel, Esq. ("Nagel Aff."); Doc. No. 4, Statement of Damages.)
Plaintiff also seeks an order requiring defendants to submit all outstanding remittance reports, contributions and dues, and enjoining defendants from failing to timely submit remittance reports, contributions and dues in the future. Moreover, plaintiff seeks an order requiring defendants to make their books and records available for inspection and audit.
Because defendants have not submitted any opposition to plaintiffs' motion, despite receiving notice and an opportunity to do so (see Doc. No. 5, Affidavit of Service), for the reasons set forth below, it is respectfully recommended that plaintiff's request for damages and injunctive relief be granted except as indicated below.
I. BACKGROUND
Plaintiff, as the Trustee of the Pointers, Cleaners Caulkers Welfare, Pension and Annuity Funds (the "Funds"), and President of the Bricklayers and Allied Craftworkers Local Union No. 1, New York, AFL-CIO ("Local 1"), brought this action to recover unpaid fringe benefit contributions pursuant to §§ 502 and 515 of ERISA, as amended, 29 U.S.C. §§ 1132 and 1145. (Doc. No. 1, Complaint ("Compl.") ¶¶ 4-5.) The Funds are multi-employer employee benefit plans within the meaning of ERISA. (Id. at ¶ 4.)According to the Complaint, defendant L M Larjo Co. Inc. ("L M 1") executed the collective bargaining agreement (the "CBA") between Local 1 and the Building Restoration Contractors Association (the "BCRA"), for the period of July 1, 1994 through June 30, 1997. (Id. ¶ 22.) On August 20, 1997, defendant Jeffrey Schwartz, on behalf of L M 1, executed a Memorandum of Agreement, incorporating by reference, extending and modifying the CBA, for the period of July 1, 1997 through June 30, 2000. (Id. ¶ 23.) Subsequently, by letter dated July 2, 1999, defendant Schwartz, on behalf of himself and a business entity named Elite Restoration, Inc. ("Elite"), agreed to submit monthly payments to plaintiff until the monies that L M 1 owed to plaintiff were paid. (See Nagel Aff. ¶ 13 and Ex. H thereto, Letter from Jeffrey M. Schwartz, President of Elite Restoration, Inc., to Santo Lanzafame.)
Defendant L M Larjo Co. Inc. (without a comma) ("L M 1") and defendant L M Larjo Co., Inc. (with a comma) ("L M 2") are both business entities registered separately with the New York Secretary of State. (Compl. at ¶¶ 7-8, 10-11.) It is undisputed that they acted as a single employer, are alter egos, and are therefore jointly and severally liable for the debts of one another. (See Compl. ¶¶ 24-25; Nagel Aff. ¶¶ 14-21.)
Article XXXIII of the CBA states that (a) the person signing on behalf of the employer agrees to be personally bound by and to assume all obligations of the employer under the CBA and (b) the person signing on behalf of the empoyer has represented that he has the authority to bind the employer, the employer's principals, the employer's members and himself to the terms of the CBA. (See Compl. ¶ 28.)
Under the CBA and its successor agreement, as signatory employers, defendants were required to submit monthly payroll remittance reports setting forth the hours that each of its employees worked and the amount of the monetary contributions due pursuant to the rate schedules set forth in the CBA, and to remit such contributions to the trustee(s) of the Funds in accordance with the CBA. (Compl. ¶¶ 47-49; CBA, Art. XV §§ 4-7.) According to Article XV § 7 of the CBA, defendants were required to turn over all books and records requested by the Funds' auditors pursuant to a period review and audit designed to ensure that all contributions owned pursuant to the CBA are paid in full and to pay the costs of the audit if the employer is found to be delinquent. (See also Compl. ¶ 49.) If an employer fails to pay contributions when due, the employer is liable for the unpaid contributions and dues, interest on the unpaid contributions and dues, liquidated damages on the unpaid contributions, attorneys' fees and costs. (CBA, Art. XV § 7(f).)
According to plaintiff's submissions in support of his request for default judgment, defendants have failed to make contributions to the Funds in the amount of $269,222.52. (Nagel Aff. ¶¶ 48-50.) Plaintiff demanded that defendants remit the unpaid contributions to the Funds, and defendants failed to do so. (Compl. ¶¶ 56-61.)
Plaintiff's counsel's affidavit at paragraphs 48-50 states that defendants owe $63,517.44 in unpaid contributions for the period of January 1996 through December 1997 and $205,705.08 for the period of June 1998 through December 1998 (excluding September 1998) ($63,517.44 + $205,705.08 = $269,222.52).
As a result of defendants' failure to remit the amounts due to the Funds, the above-captioned action was commenced in an effort to recover unpaid fringe benefit contributions and dues, interest on the unpaid contributions and dues, liquidated damages, attorneys' fees and costs. Defendants were served with the Summons and Complaint, but have failed to file an answer, to respond to plaintiff's Complaint or to otherwise appear and defend this action. (Nagel Aff. ¶¶ 5-7; see also Doc. No. 6, Clerk's Notation of Default.) Having received no opposition from defendants, this Court has reviewed only the plaintiff's submissions.
II. DISCUSSION
A. Basis for and Proof of Damages
Defendants' default amounts to an admission of liability. See Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 854 (2d Cir. 1995) (citation omitted). Thus, while all of the well-pleaded allegations in plaintiff's Complaint pertaining to liability are deemed true, before the entry of a final default judgment, plaintiff must still prove damages. The amount of damages may be ascertained through an evidentiary hearing at which the defendants have an opportunity to contest the claimed damages.See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992).
The Second Circuit, however, has held that "it was not necessary for the District Court to hold a[n evidentiary] hearing, as long as it ensured that there was a basis for the damages specified in a default judgment." Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989). Accordingly, because plaintiff has filed a detailed affidavit of his counsel, William Nagel, with accompanying documentary evidence pertaining to the damages incurred and legal services provided, and because defendants have failed to appear or otherwise defend this action or oppose plaintiff's motion, the Court is able to make an informed recommendation regarding plaintiff's claimed damages and fees without an evidentiary hearing.
B. Available Relief Under ERISA
Plaintiff alleges that defendants' failure to pay the required contributions is in violation of section 515 of ERISA, 29 U.S.C. § 1145, and thereby gives rise to an action pursuant to section 502(a)(3), 29 U.S.C. § 1132(a), to "enforce any provisions of this subchapter or the terms of the plan." 29 U.S.C. § 1132(a)(3). Section 515 of ERISA, 29 U.S.C. § 1145 provides that:
Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of the collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement.
In turn, section 502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2) requires that:
In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan —
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of —
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A),
(D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court deems appropriate.
Defendants are liable for damages awardable pursuant to 29 U.S.C. § 1132(g)(2) because they violated the terms of their agreement under the CBA by failing to submit required payroll remittance reports and pay required contributions and dues to plaintiff.
1. Unpaid Contributions and Dues
Under § 1132(g)(2)(A), a plaintiff is entitled to an award representing the amount of unpaid contributions. In support of his request for unpaid contributions, plaintiff has submitted employer audit reports for defendants for the period of January 1996 through December 1997 and June 1998 through December 1998 (excluding September 1998), indicating that unpaid contributions total $269,222.52. (Nagel Aff. ¶¶ 48-50.)
In addition, under the terms of the CBA, defendants were obligated to pay dues. (CBA, Art. XIII, § 12, XIV § 1, XV § 6.) Plaintiff's submissions demonstrate that unpaid dues total $10,455.84 for the period of January 1996 through December 1997, and June 1998 through December 1998, excluding September 1998 (See Nagel Aff. ¶¶ 53-55.) Based on this evidence, the Court finds that there is sufficient support for plaintiff's request and respectfully recommends that plaintiff be awarded $269,222.52 in unpaid contributions and $10,455.84 in unpaid dues.
2. Interest on Unpaid Contributions and Dues
In addition to the principal amount, ERISA mandates that interest on the known unpaid contributions be awarded "by using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of Title 26." See 29 U.S.C. § 1132(g)(2)(B). Here, plaintiffs have applied an interest rate of 10% per year to the principal amount of unpaid contributions, as prescribed by Article XV § 7(f) of the CBA. (See Nagel Aff. ¶ 51.) The record sufficiently demonstrates that $171,242.42 in interest is owed on the principal amount of unpaid contributions of $269,222.52. (See id.)
Plaintiff is also entitled to interest at a rate of 10% per year on late contributions paid prior to and after the commencement of this action. Specifically, plaintiff has demonstrated that Elite submitted late contributions for January 1999 through March 2000 in the amount of $191,504.92 prior to July 23, 2003, the date on which this action was filed. (See id. ¶ 57 and Ex. S thereto, Audit Report from Jan. 1999 through June 2000).) The record demonstrates that interest on late contributions paid prior to the commencement of this action totals $22,282.14, (see Nagel Aff. ¶ 59; Audit Report from Jan. 1999 through June 2000.) The record further establishes that Elite submitted late contributions after July 23, 2003 for the period April 2000 through June 2000, in the amount of $31,222.70 (Nagel Aff. ¶ 60), and that interest on these late contributions paid following the commencement of this action totals $11,711.54. (See id. ¶ 63; Audit Report from Jan. 1999 through June 2000.)
Plaintiff has applied a rate of 9% per year to the principal amount of unpaid dues, pursuant to N.Y. C.P.L.R. § 5004. (Id. ¶ 55.) The interest owed was calculated by converting to a daily rate and charged from the date the payment was due to the date anticipated for the filing of plaintiff's instant motion for default judgment, November 1, 2004. The record sufficiently demonstrates, and it is therefore respectfully recommended that plaintiff be awarded $6,482.48 in interest on the principal amount of unpaid dues of $10,455.84. (see id. ¶¶ 53-56 and Ex. R thereto, Audit Report from Jan. 1996 through Dec. 1997).)
Although plaintiff does not explain why he has applied the 9% interest rate provided by New York law to the principal amount of unpaid dues, it appears that he has done so because the 10% interest rate provided for under the CBA applies only to "unpaid contributions." (See CBA XV § 7(f).) The Court notes that a 9% pre-judgment interest rate is indeed prescribed by N.Y. C.P.L.R. § 5004, and appears to have been appropriately applied to the principal amount of unpaid dues. See Mason Tenders Dist. Welfare Fund v. Santa Fe Const., Inc., No. 03 Civ. 5882, 2005 WL 486700, at *2 (S.D.N.Y. Mar. 2, 2005) (interest on the unpaid union dues calculated at the rate of 9% per year under New York law.)
Plaintiff is also entitled to interest at a rate of 9% per year on late dues paid prior to and after the commencement of this action. Specifically, plaintiff has demonstrated that prior to the commencement of this action, Elite submitted late dues for January 1999 through March 2000 in the amount of $13,454.54. (See Nagel Aff. ¶ 65.) The record sufficiently demonstrates that interest on late dues paid prior to the commencement of this action totals $1,496.60. (Id. ¶¶ 65-68.) Additionally, because Elite submitted contributions for April 2000 through June 2000 in the amount of $2,615.09, after the commencement of this action, the plaintiff is entitled to $882.70 interest on this amount. (See id. ¶¶ 69-72.)
Accordingly, it is respectfully recommended that plaintiff be awarded:
(a) $171,242.42 in interest on unpaid contributions;
(b) $22,282.14 in interest on late contributions paid prior to the commencement of this action;
(c) $11,711.54 in interest on late contributions paid after the commencement of this action;
(d) $1,496.50 in interest on late dues paid prior to the commencement of this action; and
(e) $882.70 in interest on late dues paid after the commencement of this action.
3. Liquidated Damages
Plaintiff seeks $171,242.42 in liquidated damages, which represents an amount equal to the interest on the unpaid contributions. (Id. ¶ 52.) As noted above, section 1132(g)(2)(C) provides two means by which to calculate an award of liquidated damages. The Court must award an amount equal to the "greater of — (i) interest on the unpaid contributions, or (ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent . . . of [the court's damages award for unpaid contributions]."
The CBA states that "[w]here collection of payment [of unpaid contributions] is made pursuant to a judgment against the Employer," the Trustees shall be entitled to, among other things, liquidated damages provided for pursuant to ERISA. (CBA, Art. XV, § 7(f).) Here, interest on the unpaid contributions in the amount of $171,242.42 is greater than the 20% liquidated damages on these contributions allowable under ERISA, or $53,844.50. (See Nagel Aff. ¶ 52.) Accordingly, it is respectfully recommended that plaintiff be awarded $171,242.42 in liquidated damages on the unpaid contributions.
Twenty percent of $269,222.52, the amount of unpaid contributions, equals $53,844.50.
Plaintiff is also entitled to liquidated damages on late contributions paid prior to the commencement of this action on July 23, 2003. As mentioned above, prior to the filing of the instant action, Elite submitted late contributions for January 1999 through March 2000 in the amount of $191,504.92. (Id. ¶ 57.) Pursuant to Article XV § 7(f), late contributions paid prior to the commencement of a lawsuit are subject to 5% liquidated damages. Thus, the liquidated damages provided for under the CBA amount to $9,575.25. (Id. ¶¶ 58-59.) Accordingly, it is respectfully recommended that plaintiff be awarded $9,575.25 in liquidated damages on late contributions paid prior to the commencement of this action.
Plaintiff is also entitled to liquidated damages on late contributions paid after the commencement of this action. As mentioned above, Elite paid late contributions for April 2000 through June 2000 in the amount of $31,222.70 after July 23, 2003. (Id. ¶ 60.) Pursuant to Article XV § 7(f), late contributions paid after the service of a summons and complaint are subject to 20% liquidated damages. Thus, the liquidated damages provided for under the CBA amount to $6,244.54. (Id. ¶¶ 61-63.) As mentioned above, however, section 1132(g)(2)(C) requires the Court to award the greater of the amount provided for under the CBA or the amount equal to the interest on the unpaid contributions. Accordingly, it is respectfully recommended that plaintiff be awarded $11,711.54 in liquidated damages, which equals the amount of interest owed on late contributions paid after the filing of this action.
The CBA provides in pertinent part as follows:
In the event the Employer does not make timely payment of contributions to Fringe Benefit Funds required herein, it is agreed that the Employer shall be liable for the following liquidated damages: . . . 5% of the amount owing. . . . [I]f an audit is required of the Employer's books and records and a deficiency in contributions is determined, which is not paid within seven . . . days after reasonable notice, the Employer agrees to pay as additional liquidated damages . . . 5% of the amount owing. If . . . the Employer's account is referred to legal counsel for collection, the Employer agrees to pay as additional liquidated damages . . . 5% of the amount owing as attorney's fees. If litigation is instituted by the service of a summons and complaint, . . . the employer agrees to pay as additional liquidation damages five hundred dollars . . . to each of Fringe Benefit Funds, . . . 5% of the amount owing, whichever amount shall be greater. The Employer acknowledges and understands that the above damages are cumulative and are required to protect the fiscal integrity of Fringe Benefit Funds.
(CBA, Art. XV § 7(f)) (emphasis added).
4. Attorneys' Fees
Section 1132(g) mandates an award of reasonable attorney's fees in ERISA actions brought by fiduciaries to enforce the terms of a collectively bargained agreement. Plaintiff's motion requests $7,692.50 in attorneys' fees. (Nagel Aff. ¶ 77.)
In the Second Circuit, a party seeking an attorney's fees award must support such a request with contemporaneous time records that show, "for each attorney, the date, the hours expended, and the nature of the work done." See New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). "The burden is on counsel to keep and present records from which the court may determine the nature of the work done, the need for it, and the amount of time reasonably required; where adequate contemporaneous records have not been kept, the court should not award the full amount requested." F.H. Krear Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265 (2d Cir. 1987) (applying New York State law and noting that the Second Circuit rule is similar to that of New York). The amount of attorney's fees to be awarded is determined by a lodestar analysis, multiplying a reasonable hourly rate by the number of hours reasonably expended. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Mason Tenders Dist. Council v. Envirowaste and Transcontractors, Inc., No. 90 Civ. 4040, 1999 WL 370667, at *2 (S.D.N.Y. June 7, 1999).
a. Contemporaneous Time Records
In support of the application for attorneys' fees, plaintiff has submitted the time records of his counsel, the law firm of Holm O'Hara LLP, setting forth a detailed, brief description of the services performed by each attorney or paralegal and the amount of time expended performing each service for the period of October 25, 2004 through November 5, 2004. (See Nagel Aff., Ex. V, Time Records.) The Court has reviewed these time records and finds that the level of detail sufficiently establishes, by attorney or paralegal, the nature and date of, and hours spent on, the services claimed for reimbursement from October 25, 2004 through November 5, 2004.
Plaintiff has also filed a one-page list, titled "Client Leger Report," purporting to be billing summaries for the period of April 30, 2003 through April 30, 2004, which is completely devoid of any description of the "nature of the work done," as required in this circuit. See Carey, 711 F.2d at 1154. While the Court notes that a party seeking attorneys' fees need not "describe in great detail how billable time was spent[,]" but instead may simply "identify the general subject matter of time expenditures[,]" Aiello v. Town of Brookhaven, No. 94-CV-2622, 2005 WL 1397202, at *9 (E.D.N.Y. June 13, 2005) (citation omitted), here, plaintiff's counsel has not described in any detail how billable time was allegedly spent from April 30, 2003 to April 30, 2004. Moreover, as evidenced by their detailed billing entries for the period of October 25, 2004 through November 5, 2004, it appears that plaintiff's counsel are aware of their obligation to supply the Court with brief descriptions of the nature of the work performed for the period of April 30, 2003 through April 30, 2004. Accordingly, it is respectfully recommended that the requested fee award for April 30, 2003 through April 30, 2004, $3,822, be reduced by 50% to $1,911. See Peer Int'l Corp. v. Luna Records, Inc., No. 92 Civ. 9295, 1995 WL 350916, at *2 (S.D.N.Y. June 9, 1995) ("it is appropriate that a discount be given for those entries for which no general description of work done is supplied, or for which no substantive purpose can be inferred from the surrounding entries."); Ragin v. Harry Macklowe Real Estate Co., 870 F. Supp. 510, 520 (S.D.N.Y. 1994) (reduction for vague billing entries); see also Boyce v. Cable Assocs., No. 86 Civ. 8957, 1990 WL 300887, at *3 (S.D.N.Y. Apr. 17, 1990) ("the Court will disallow an award for those entries which fail adequately to describe the nature of the work for which a fee is sought") (citing Lyons v. Cunningham, 583 F. Supp. 1147, 1154 (S.D.N.Y. 1983)); see also Evans v. State of Conn., 967 F.Supp. 673, 691 (D. Conn. 1997) (finding some hours non-compensable due to a failure to identify the billing attorney in the time sheets).
Even if the Court had recommended a full award of attorneys' fees for the period April 30, 2003 to April 30, 2004, the total amount requested by plaintiff, $7,692.50, is not supported by plaintiff's counsel's time records. Instead, it appears that attorneys' fees would have totaled $5,912.50 ($3,822, from April 30 2003 through April 30, 2004, plus, $871 from October 25, 2004 through October 30, 2004, $1,219.50 from November 3, 2004 through November 5, 2004, equals $5,912.50).
b. Hourly Rate
The Court next examines whether plaintiff's counsel seek a reasonable hourly rate. Plaintiff requests that partners be compensated at a rate of $185 per hour, associates be compensated at a rate of $130 per hour, and paralegals be compensated at a rate of $65 per hour. (See Time Records.) These rates appear to be reasonable. See Martas v. Zaro's Bake Shop, Inc., No. 98 Civ. 5895, 2002 WL 1267999, at *6 (E.D.N.Y. Mar. 29, 2002) (awarding $250 per hour for partners; $200 per hour for associates); Morin v. Nu-Way Plastering, Inc., No. 03 Civ. 405, 2005 WL 3470371, at *2 (E.D.N.Y. Dec. 19, 2005) (awarding $75 per hour for paralegals) (citation omitted).
c. Reasonableness of Hours Expended
The Court next turns to the question of whether the hours expended by plaintiff's counsel were reasonable. After a review of those records for which counsel have provided sufficiently detailed billing summaries, the period from October 25, 2004 through November 5, 2004, the Court finds that the time expended by plaintiff's counsel was reasonable. In view the deficiencies in plaintiff's counsel's time records for the period April 30, 2003 through April 30, 2004, the Court is unable to determine whether the time expended during this period was reasonable. Accordingly, it is respectfully recommended that plaintiff be awarded attorneys' fees in the total amount of $4,001.50 ($1,911 from April 30, 2003 through April 30, 2004, from $871 from October 25, 2004 through October 30, 2004 and $1,219.50 from November 3, 2004 through November 5, 2004).
5. Audit Fees
Although 29 U.S.C. § 1132(g)(2) does not expressly provide for an award of audit fees, the CBA provides for recovery of fees and costs. (CBA, Art. XV § 7(f).) In addition, courts have used section 1132(g)(2)(E), which provides for "such other legal or equitable relief as the court deems appropriate," as a basis for awarding audit fees. See, e.g., Morin v. Nu-Way Plastering, Inc., No. 03-CV-405, 2005 WL 3470371, at *4 (E.D.N.Y. Dec. 19, 2005);Maguire v. America Piles, Inc., No. 01 Civ. 9483, 2002 WL 31626972, at *1 (S.D.N.Y. Nov 21, 2002); see also Envirowaste, 1999 WL 370667, at *2 (citing language of collective bargaining agreement as basis for an award of audit fees). Accordingly, it is respectfully recommended that plaintiff be awarded audit fees of $2,587.50. (Nagel Aff. ¶¶ 73-76.)
6. Costs
Section 1132(g)(2)(D) provides that a court shall award "costs of the action[.]" Costs include filing and subpoena fees, costs of transcripts, printing, making copies, and disbursements for witnesses. See 28 U.S.C. § 1920. Additionally, "[c]ourts in the Second Circuit will also generally award as costs 'those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged fee paying clients.'" King, 325 F. Supp. 2d at 171 (quoting DeVito v. Hempstead China Shop, Inc., 831 F. Supp. 1037, 1044 (E.D.N.Y. 1993)); see also LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998). Here, it appears that plaintiff was in fact charged for all of the costs that he now seeks to recoup. (See Nagel Aff. ¶¶ 77-79.) Accordingly, because these costs appear to be reasonable and are properly claimed, it is respectfully recommended that plaintiff be awarded costs of $528.80.
7. Injunctive Relief
Plaintiff seeks an order requiring defendants to (i) submit all outstanding remittance reports, contributions and dues, and enjoining defendants from failing to timely submit remittance reports, contributions and dues in the future, and (ii) "produce its books and records for audit within 15 days" from the date of the entry of this Court's order on plaintiff's motion for default judgment. (Nagel Aff. ¶¶ 80-86.) For the reasons set forth below, it is respectfully recommended that plaintiff's request be granted to the extent that it seeks production of all outstanding remittance reports, books and records, and denied in all other respects.
As mentioned above, pursuant to 29 U.S.C. § 1132(g)(2)(E), a court shall award a fund which prevails in an action brought under § 1145 "such other legal or equitable relief as the court deems appropriate." 29 U.S.C. § 1132(g)(2)(E). Accordingly, plaintiff may seek injunctive relief in the form of an order requiring defendants to furnish outstanding remittance reports, books and records, and permit plaintiff to conduct an audit of defendants' books and records. See, e.g., Beck v. Levering, 947 F.2d 639, 641 (2d Cir. 1991) (stating that injunctive relief is available under ERISA); I.B.E. W. Local No. 910 Welfare, Annuity, Pension Funds v. Dexelectrics, Inc., 98 F. Supp. 2d 265, 276 (N.D.N.Y. 2000) (directing employer to, inter alia, furnish plaintiff with required remittance reports); Board of Trustees of United Union Roofers v. Dibella Roofing Inc., No. 05-CV-2494, 2005 WL 3244045 (E.D.N.Y. Oct. 26, 2005).
Plaintiff is entitled to an injunction requiring defendants to comply with the terms of the CBA by submitting outstanding remittance reports and producing their books and records for audit. The CBA expressly requires defendants to submit to plaintiff monthly remittance reports (CBA, Art. XV § 4), authorizes plaintiff to conduct an examination of defendants' personnel and payroll books and records relevant to the administration of the various Funds and requires defendants to produce such books and records for inspection and audit. (CBA Art. XV §§ 4, 7.) In light of defendants' past failures to remit fringe benefit contributions when due, as detailed above and in the plaintiff's submissions in support of the instant motion, and the express authorization contained in the CBA requiring defendants to produce pertinent remittance reports, books and records, the Court finds that plaintiff has met his burden in seeking injunctive relief and, thus, is entitled to outstanding remittance reports and the production of defendants' books and records for audit within 15 days of the entry of a final judgment in this case.
Plaintiff, however, has not made an adequate showing that he will likely suffer any imminent, irreparable harm, absent an injunction against defendants enjoining them from failing to remit contributions and dues in the future. The Court is satisfied that monetary damages provide adequate remedies in the event that defendants commit similar violations in the future. See, e.g., Main Events/Monitor Productions v. Batista, No. 96-CV-5089, 1998 WL 760330, at *1 (E.D.N.Y. Aug. 26, 1998) (injunctive relief denied when plaintiff failed to show that its remedy at law was inadequate and that it will suffer irreparable harm). Accordingly, because there is no evidence that the violations are continuing or that monetary damages are insufficient to deter future conduct, it is respectfully recommended that plaintiff's request for a permanent injunction enjoining defendants from failing to remit contributions and dues in the future, be denied.
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that plaintiff be awarded damages as follows:
(a) $269,222.52 in unpaid fringe benefit contributions;
(b) $171,242.42 in interest on these unpaid contributions;
(c) $171,242.42 in liquidated damages;
(d) $22,282.14 in interest on late contributions paid prior to the commencement of this action;
(e) $9,575.25 in liquidated damages on late contributions paid prior to the commencement of this action;
(f) $11,711.54 in interest on late contributions paid after the commencement of this action;
(g) $11,711.54 in liquidated damages on late contributions paid after the commencement of this action;
(h) $10,455.84 in unpaid dues;
(i) $6,482.48 in interest on unpaid dues;
(j) $1,496.60 in interest on late dues paid prior to the commencement of this action;
(k) $882.70 in interest on late dues paid after the commencement of this action;
(l) $4,001.50 in attorneys' fees;
(m) $2,587.50 in audit fees; and
(n) $528.80 in costs, for a total monetary award of $693,423.25.
It is also recommended that plaintiff's request for injunctive relief be granted as set forth above, and except to the extent that plaintiff seeks an order enjoining defendants from failing to remit contributions and dues in the future. Plaintiff shall serve, by hand or overnight delivery, a copy of this Report and Recommendation on defendants no later than April 18, 2006, and file an affidavit demonstrating service of the same.
Any objections to this Report and Recommendation must be filed with Judge Gershon within ten days of the date of its entry. Failure to object within ten days of the date of entry will preclude appellate review by the district court. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989). Any requests for extensions of time to file objections should be made to Judge Gershon.