Opinion
Civil Action 21 Civ. 9465 (VSB) (SLC)
06-09-2022
TRUSTEES OF THE NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS PENSION FUND, WELFARE FUND, ANNUITY FUND, AND APPRENTICESHIP, JOURNEYMAN RETRAINING, EDUCATIONAL and INDUSTRY FUND, et al., Petitioners, v. JAMES S. MITCHELL & SONS, INC., Respondent.
HONORABLE VERNON S. BRODERICK, United States District Judge.
REPORT AND RECOMMENDATION
SARAH L. CAVE, United States Magistrate Judge.
I. INTRODUCTION
Before the Court is Petitioners' application to confirm a September 14, 2021 arbitration award entered in their favor (the “Award”) against Respondent James S. Mitchell & Sons, Inc. (“Respondent”), pursuant to Section 301 of the Labor Management Relations Act of 1947 (“LMRA”), as amended, 29 U.S.C. § 185. (ECF No. 1 (the “Petition”)). In addition to seeking confirmation of the Award, Petitioners also seek post-judgment interest on the Award and attorneys' fees and costs. Respondent has neither opposed the Petition nor otherwise appeared in this action. For the reasons set forth below, the Court respectfully recommends the Petition be GRANTED.
Petitioners include: (1) Trustees of the New York City District Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, and Apprenticeship, Journeyman Retraining, Educational and Industry Fund (“ERISA Funds”); (2) Trustees of the New York City Carpenters Relief and Charity Fund (“Charity Fund”); (3) the Carpenter Contractor Alliance of Metropolitan New York (“CCA Metro”; together with the ERISA Funds and the Charity Fund, the “Funds”); and (4) the New York City District Council of Carpenters (the “Union”).
II. BACKGROUND
A. Factual Background
The ERISA Funds are employer and employee trustees of multi-employer labormanagement trust funds organized and operated in accordance with ERISA. (ECF No. 1 ¶ 4). The Charity Fund is a charitable organization established under section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3). (Id. ¶ 5). The CCA Metro is a not-for-profit corporation organized under the laws of New York. (Id. ¶ 6). The Union is a labor organization that represents employees in an industry affecting commerce within the meaning of section 501 of the LMRA, 29 U.S.C. § 142, and is the certified bargaining representative for certain employees of the Respondent. (Id. ¶ 7). At all relevant times, Respondent was an employer within the meaning of section 3(5) of ERISA, 29 U.S.C. § 1002(5), and was an employer in an industry affecting commerce within the meaning of section 501 of the LMRA, 29 U.S.C. § 142. (Id. ¶ 8).
On May 24, 1999, Respondent executed a short form agreement (the “International Agreement”) with the United Brotherhood of Carpenters and Joiners of America (“UBCJA”). (ECF Nos. 1 ¶ 9; 1-1 at 4). Pursuant to the International Agreement, Respondent agreed to:
[r]ecognize the jurisdictional claims of the UBCJA and to comply with the contractual wages, fringe benefits, hours and other working conditions established between the UBCJA affiliates and the employers or recognized employer agencies in the localities in which the Company does any work within the jurisdiction of the UBCJA.(ECF No. 1-1 at 2). The International Agreement further provides, inter alia, that it shall continue in effect for the duration of the applicable collective bargaining agreements, “unless written notice to terminate is given by either party to the other . . . not more than ninety (90), and not less than sixty (60), days prior to its expiration date or the ex[]piration [sic] date of any subsequent renewal period.” (ECF Nos. 1 ¶ 11; 1-1 at 4). Petitioners assert that neither Respondent nor the UBJCA provided notice to terminate the International Agreement and that Respondent, thus, remains bound by the International Agreement. (ECF No. 1 ¶ 12).
Pursuant to the International Agreement, Respondent has been bound to the Independent Building Construction Agreement (the “CBA”), covering the period from July 1, 2017, through June 30, 2024. (ECF Nos. 1-1 at 2; 1-2 at 1). The CBA states, inter alia, “[i]t shall be a violation of this Agreement for any signatory Employer to fail to furnish proper records when requested, for the purpose of completing an audit.” (ECF No. 1-2 at 41). The CBA also provides that “[e]ach Employer shall be bound by all of the terms and conditions of the Agreements and Declarations of Trust governing each of the Funds for which contributions are required under this Agreement, and by all By-Laws, rules, procedures and policies adopted to regulate each of said Funds, including but not limited to, the Funds' Revised Statement of Policy for Collection of Employer Contributions [the ‘Collection Policy'; together with the CBA, the ‘Agreements'].” (ECF Nos. 1 ¶ 14; 1-2 at 44).
Petitioner ERISA Funds established a joint Collection Policy, pursuant to which, inter alia, the Funds engaged Outside Accounting Firms to conduct periodic audits of “the books and records of all of the employers bound by or signatory to a collective bargaining agreement with the District Council or any other agreements under which they are obligated to contribute to the Funds.” (ECF No. 1-4 at 4).
Petitioners requested an audit to determine whether Respondent had remitted appropriate contributions to the Funds. (ECF Nos. 1 ¶ 22; 1-6 at 2). Respondent failed to provide its books and records for the audit. (ECF No. 1 ¶ 23). Pursuant to the CBA's arbitration clause, Petitioners initiated arbitration proceedings (the “Arbitration”) before arbitrator Roger E. Maher (the “Arbitrator”). (ECF Nos. 1 ¶ 24; 1-2 at 36, 48).
On September 9, 2021, the Arbitrator held hearings and invited the parties to present evidence regarding the audit. (ECF No. 1-5 at 1). Despite receiving notice of the Arbitration, Respondent did not participate. (ECF Nos. 1-5 at 1; 1-6 at 1-2).
On September 14, 2021, after considering the “substantial and credible evidence of the case as a whole[,]” the Arbitrator ordered Respondent to (1) “produce any and all books and records specifically cash disbursement section of the cash book, general ledger, job location records, daily location records, daily time records and all certified payrolls for the audit period 07/01/2018 to Date,” and (2) “pay forthwith to the Funds a sum total of [$]2,900.00 which represents the Funds costs incurred in this matter.” (ECF Nos. 1 ¶¶ 25-26; 1-6 at 2). To date, Respondent has not complied with the Award. (ECF No. 1 ¶ 27).
B. Procedural Background
On November 16, 2021, Petitioners filed the Petition seeking an order confirming the Award pursuant to Section 301 of the LMRA. (ECF No. 1 ¶ 1). On November 19, 2021, Petitioners served the Petition on Respondent. (ECF No. 7). On January 20, 2022, the Honorable Vernon S. Broderick referred the Petition to the undersigned for a Report and Recommendation. (ECF No. 9). On January 21, 2022, the Court, nunc pro tunc, extended Respondent's deadline to respond to the Petition. (ECF No. 10). The Court cautioned Respondent that, “failure to appear or respond may result in the Court treating the Petition as an unopposed motion for summary judgment.” (Id.) Despite this warning, Respondent did not oppose the Petition or otherwise appear. (ECF No. 11 at 1).
III. LEGAL STANDARDS
A. Confirmation of an Arbitration Award
“Section 301 of the [LMRA] provides federal courts with jurisdiction over petitions brought to confirm labor arbitration awards.” Drywall Tapers & Pointers of Greater New York Loc. Union 1974, IUPAT, AFL-CIO v. Top Rock Interiors, Inc., No. 18 Civ. 7557 (VSB), 2019 WL 4784750, at *2 (S.D.N.Y. Sept. 30, 2019) (quoting Loc. 802, Assoc. Musicians of Greater N.Y. v. Parker Meridien Hotel, 145 F.3d 85, 88 (2d Cir. 1998)). Federal common law governs suits under LMRA § 301(a). Beth Israel Med. Ctr. v. 1199/S.E.I.U. United Healthcare Workers E., 530 F.Supp.2d 610, 614 (S.D.N.Y. 2008); see also Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Carolina Trim LLC, No. 17 Civ. 6485 (VSB), 2020 WL 915815, at *5 (S.D.N.Y. Feb. 26, 2020) (“Although the [Federal Arbitration Act [the “FAA”]] does not govern [a LMRA] petition, ‘federal courts have often looked to the [FAA] for guidance in labor arbitration cases.'” (quoting 1199/SEIU United Healthcare Workers E. v. S. Bronx Mental Health Council Inc., No. 13 Civ. 2608 (JGK), 2014 WL 840965, at *6 (S.D.N.Y. Mar. 4, 2014)).
“The Second Circuit has ‘repeatedly recognized the strong deference appropriately due arbitral awards and the arbitral process.'” Trustees of the N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Land Cruising Prop. Inc., No. 21 Civ. 7877 (KPF), 2022 WL 1125623, at *2 (S.D.N.Y. Apr. 15, 2022) (quoting Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC, 497 F.3d 133, 138 (2d Cir. 2007)). The court's function in reviewing an arbitration award under the LMRA is thus “severely limited.” Dolan v. Barile Mech., Inc., 933 F.Supp.2d 634, 638 (S.D.N.Y. 2013); see Natl Football League Mgmt. Council v. Nat'l Football League Players Ass'n, 820 F.3d 527, 532 (2d Cir. 2016) (“[A] federal court's review of labor arbitration awards is narrowly circumscribed and highly deferential-indeed, among the most deferential in the law.”). The Court may not “reexamine the merits of an arbitration award, even though the parties to the agreement may argue that the award arises out of a misinterpretation of the contract or a factual error.” Int'l Bhd. of Elec. Workers, Loc. 97 v. Niagara Mohawk Power Corp., 143 F.3d 704, 714 (2d Cir. 1998); see United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 596 (1960) (“The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.”).
“Confirmation of a labor arbitration award under LMRA § 301 is a summary proceeding that merely makes what is already a final arbitration award a judgment of the Court.” Drywall Tapers, 2019 WL 4784750, at *3; see also D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006) (“Normally, confirmation of an arbitration award is a summary proceeding that merely makes what is already a final arbitration award a judgment of the court, and the court must grant the award unless the award is vacated, modified, or corrected.” (internal citations and quotation marks omitted)). “It is only when the arbitrator strays from interpretation and application of the agreement and effectively dispenses his own brand of industrial justice that his decision may be unenforceable.” Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509 (2001) (internal quotation marks and alterations omitted). A reviewing court need only find “a barely colorable justification for the outcome reached” by the arbitrator to confirm an award. D.H. Blair, 462 F.3d at 110 (quoting Landy Michaels Realty Corp. v. Local 32B-32J, Serv. Emp. Int'l Union, 954 F.2d 794, 797 (2d Cir. 1992)). Thus, barring a remedy that directly contradicts the express language of the collective bargaining agreement, see New York City & Vicinity Dist. Council of United Bhd. of Carpenters & Joiners of Am. v. Ass'n of Wall-Ceiling & Carpentry Indus. of N.Y., Inc., 826 F.3d 611, 618 (2d Cir. 2016), fraud, or violation of public policy, “a reviewing court must confirm an arbitration award so long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority.” Drywall Tapers, 2019 WL 4784750, at *3 (quoting Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund v. A to E Inc., No. 16 Civ. 4455 (CM), 2018 WL 1737133, at *4 (S.D.N.Y. Mar. 20, 2018).
B. Summary Judgment Standard
Where a petition to confirm an arbitration award is unopposed, the Second Circuit has instructed district courts to treat the petition “‘as akin to a motion for summary judgment based on the movant's submissions' and the court ‘may not grant the motion without first examining the moving party's submission to determine' that it satisfactorily demonstrates the absence of material issues of fact.” Neshgold LP v. N.Y. Hotel & Motel Trades Counsel, AFL-CIO, No. 13 Civ. 2399 (KPF), 2013 WL 5298332, at *7 (S.D.N.Y. Sept. 19, 2013) (quoting D.H. Blair, 462 F.3d at 107); see Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. All. Workroom Corp., No. 13 Civ. 5096 (KPF), 2013 WL 6498165, at *4 (S.D.N.Y. Dec. 11, 2013). In D.H. Blair, the Second Circuit explained that Federal Rule of Civil Procedure 55, which governs motions for default judgment, “does not operate well in the context of a motion to confirm or vacate an arbitration award[,]” because such a motion “is generally accompanied by a record, such as an agreement to arbitrate and the arbitration award decision itself . . . .” 462 F.3d at 107-09.
Consistent with the Second Circuit's direction and the precedent of other courts in this District, the Court analyzes the Petition as an unopposed motion for summary judgment. See Trustees of the N.Y.C. Carpenters Relief & Charity Fund v. Acme Steel Shelving Corp., No. 12 Civ. 5572, 2013 WL 12109394, at *1 (S.D.N.Y. June 5, 2012) (following D.H. Blair, and construing default judgment motion seeking to confirm arbitration award as summary judgment motion); see also Local 355 United Serv. Workers Union v. LA Mech. Corp., No. 15 Civ. 4474 (MKB) (VMS), 2016 WL 4367220, at *3 (E.D.N.Y. July 14, 2016) (collecting cases treating unopposed motions to confirm arbitration awards as motions for summary judgment); see also Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Clear It Out Contracting LLC, No. 19 Civ. 1188 (VSB), 2019 WL 2171233, at *2 (S.D.N.Y. May 20, 2019).
“Summary judgment is appropriate when ‘the parties' submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” Vasquez v. Victor's Cafe 52nd St., Inc., No. 18 Civ. 10844 (VSB), 2019 WL 4688698, at *1 (S.D.N.Y. Sept. 26, 2019) (quoting Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002)); see Fed. R. Civ. P. 56(a). When evaluating an unopposed confirmation of an arbitration award, “the court cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion.” Dishner v. Zachs, No. 16 Civ. 04191 (LGS), 2016 WL 7338418, at *2 (S.D.N.Y. Dec. 19, 2016) (quoting Trustees of the UNITE HERE Nat'l Health Fund v. JY Apparels, Inc., 535 F.Supp.2d 426, 428-29 (S.D.N.Y. 2008)).
C. Attorney's Fees
Generally, “attorney's fees cannot be recovered in a federal action in the absence of statutory authority, and neither Section 301 of the LMRA nor the [FAA] provides for attorney's fees in actions to confirm an arbitration award.” Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund v. Dejil Sys., Inc., No. 12 Civ. 005 (JMF), 2012 WL 3744802, at *4 (S.D.N.Y. Aug. 29, 2012); see Int'l Chem. Workers Union (AFL-CIO), Loc. No. 227 v. BASF Wyandotte Corp., 774 F.2d 43, 47 (2d Cir. 1985) (“Under the prevailing American rule, in a federal action, attorney's fees cannot be recovered by the successful party in the absence of statutory authority for the award.”). Although neither the FAA nor Section 301 of the LMRA provide for the award of attorneys' fees, two independent bases exist to support such an award. See Land Cruising Prop. Inc., 2022 WL 1125623, at *5. First, “a contractual provision for the payment of such fees provides a basis to award them.” New York City Dist. Council of Carpenters v. JFD Sales Consulting Servs. Corp., No. 17 Civ. 3733 (LGS), 2017 WL 4736742, at *2 (S.D.N.Y. Oct. 19, 2017) (collecting cases). Second, “a court may, in the exercise of its inherent equitable powers, award attorney's fees when opposing counsel acts in bad faith or when a party opposing confirmation of an arbitration award refuses to abide by an arbitrator's decision without justification.” Abondolo v. Jerry WWHS Co., 829 F.Supp.2d 120, 130 (E.D.N.Y. 2011) (internal quotation marks and alterations omitted); see Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, Apprenticeship, Journeyman, Retraining, Educ. & Indus. Fund v. Mountaintop Cabinet Mfr. Corp., No. 11 Civ. 8075 (JMF), 2012 WL 3756279, at *4 (S.D.N.Y. Aug. 29, 2012) (“[T]he guiding principle has been stated as follows: when a challenger refuses to abide by an arbitrator's decision without justification, attorney's fees and costs may properly be awarded.” (quoting Int'l Chem. Workers Union, 774 F.2d at 47)); see Trustees of Empire State Carpenters Annuity v. Fourmen Constr., Inc., No. 15 Civ. 3252 (JFB) (ARL), 2016 WL 146245, at *3 (E.D.N.Y. Jan. 13, 2016) (collecting cases). Failure to pay an arbitration award immediately, by itself, does not necessarily constitute bad faith. See In re Arb. Between Westchester Fire Ins. Co. v. Massamont Ins. Agency, Inc., 420 F.Supp.2d 223, 227 (S.D.N.Y. 2005).
To determine an appropriate attorneys' fee award, “the Court must assess the reasonableness of the attorney's hourly rate and the number of hours she billed at that rate.” Land Cruising Prop. Inc., 2022 WL 1125623, at *5. A reasonable hourly rate is “the rate a paying client would be willing to pay.” Trustees of Ne. Carpenters Health, Pension, Annuity, Apprenticeship, & Lab. Mgmt. Cooperation Funds v. Patt Constr., Inc., No. 17 Civ. 1544 (JFB) (GRB), 2017 WL 4990552, at *5 (E.D.N.Y. Nov. 1, 2017); see Trustees of Empire State Carpenters Annuity, Apprenticeship, Lab. Mgmt. Cooperation, Pension & Welfare Funds v. Sanders Constr., Inc., No. 13 Civ. 5102 (JFB) (ARL), 2015 WL 1608039, at *3 (E.D.N.Y. Apr. 10, 2015). “Applications for fee awards should generally be documented by contemporaneously created time records that specify, for each attorney, the date, the hours expended, and the nature of the work done.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998). “A court should decrease the number of hours included in the fee calculation if the claimed time is ‘excessive, redundant, or otherwise unnecessary.'” Garcia-Severino v. TDL Restoration, Inc., No. 18 Civ. 11401 (CS), 2020 WL 7239678, at *2 (S.D.N.Y. Dec. 9, 2020) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
In addition to attorneys' fees, the prevailing party may recover reasonable costs incurred in seeking to confirm an arbitration award. Land Cruising Prop. Inc., 2022 WL 1125623, at *5. Courts will generally award “those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged fee-paying clients.” Trustees of Empire State Carpenters Annuity, Apprenticeship, Lab. Mgmt. Cooperation, Pension & Welfare Funds v. FMC Const. LLC, No. 13 Civ. 923 (DRH) (AKT), 2014 WL 1236195, at *12 (E.D.N.Y. Mar. 25, 2014). “The fee applicant bears the burden of adequately documenting and itemizing the costs requested.” Sanders Constr., Inc., 2015 WL 1608039, at *5.
IV. DISCUSSION
A. Confirmation of the Arbitration Award
Given the deferential LMRA standard, the Court finds that the Petitioners have adequately demonstrated that they are entitled to confirmation of the Award. First, Petitioners have provided uncontroverted materials demonstrating the absence of material issues of fact. Petitioners have established that Respondent was bound by the Agreements, which obligated Respondent to make certain contributions to the Funds as well as permit audits meant to ensure that Respondent was remitting the required contributions. (ECF No. 1 ¶¶ 9-21). Petitioners have also established that Respondent failed to make its books and records available for an audit, despite numerous requests. (ECF Nos. 1 ¶¶ 22-23; 1-6 at 2). Because Respondent has not appeared or contested any of the material facts on which Petitioners bases their Petition, nor does the record disclose any dispute concerning those facts, no material facts are in dispute. See Doud v. Gold, No. 19 Civ. 6561 (KPF), 2019 WL 5209615, at *3 (S.D.N.Y. Oct. 16, 2019).
Second, the Court finds that the Award itself demonstrates the Arbitrator's sound reasoning. The Award reflects that the Arbitrator assessed the merits of the available evidence and determined that Respondent “failed to comply with the [CBA] as it relates to allowing an audit of its books and records[.]” (ECF No. 1-6 at 2). These findings meet or “surpass the degree of reasoning courts require to confirm an arbitration award.” Doud, 2019 WL 5209615, at *3; see D.H. Blair, 462 F.3d at 110 (“The arbitrator's rationale for an award need not be explained, and the award should be confirmed ‘if a ground for the arbitrator's decision can be inferred from the facts of the case.'”) (quoting Barbier v. Shearson Lehman Hutton Inc., 948 F.2d 117, 121 (2d Cir. 1991). Thus, the Court concludes that the arbitration award provides more than a “barely colorable justification for the outcome reached.” Landy Michaels, 954 F.2d at 797; see Dejil Sys., Inc., 2012 WL 3744802, at *3 (confirming an arbitration award pursuant to Section 301 of the LMRA because it provided a “colorable justification for the outcome reached”).
Third and finally, there are no grounds to set aside the Award. See A to E Inc., 2018 WL 1737133, at *4 (explaining that “a reviewing court must confirm an arbitration award ‘so long as the arbitrator is ‘even arguably construing or applying the contract and acting within the scope of his authority.'” (quoting Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Port Parties, Ltd., No. 16 Civ. 4719 (KPF), 2017 WL 3267743, at *10 (S.D.N.Y. July 31, 2017)). There is no indication that the Award was procured through fraud or dishonesty, or that the Arbitrator was acting in disregard of the Agreements or outside the scope of his broad authority. See Trustees for Mason Tenders Dist. Council Welfare Fund, Pension Fund, Annuity Fund, & Training Program Fund v. IBEX Constr., LLC, No. 18 Civ. 2797 (VSB), 2019 WL 2281276, at *3 (S.D.N.Y. May 29, 2019). Here, it is undisputed that the express language of the CBA dictates that Petitioners were entitled to arbitrate Respondent's refusal to submit to an audit, and that the parties had the opportunity to participate fully in the arbitration proceeding, the Arbitrator issued the Award, and Respondent has not challenged it. (ECF Nos. 1 ¶¶ 18-19, 22-25, 28; 1-5 at 1; 1-6 at 1-3). The record does not reflect that the Award has been vacated or modified on any grounds, nor has Respondent made any effort to do so, and the Court sees “no basis to do so sua sponte.” Doud, 2019 WL 5209615, at *3. (ECF No. 1 ¶ 28).
Accordingly, the undisputed evidence demonstrates that “no material issue of fact remains,” and Petitioners have therefore met their burden to establish that the Award should be confirmed. D.H. Blair, 462 F.3d at 110 (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004)); see New York City Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Vista Eng'g Corp., No. 19 Civ. 5280 (VSB), 2021 WL 4077943, at *3 (S.D.N.Y. Sept. 7, 2021).
B. Attorneys' Fees and Costs
Petitioners request attorneys' fees and costs under the CBA. (ECF No. 1 ¶ 30). The CBA states that:
In the event that formal proceedings are instituted before a court of competent jurisdiction by the trustees of a Benefit Fund or Funds to collect delinquent contributions to such Fund(s), and if such court renders a judgment in favor of such Fund(s), the Employer shall pay to such Fund(s), in accordance with the judgment of the court, and in lieu and any other liquidated damages, costs, attorney's fees and/or interest, the following:
....
(4) reasonable attorney's fees and costs of the action[.](ECF No. 1-2 at 46). Here, Petitioners seek $1,620 in attorneys' fees and $77 in costs. (ECF No. 1 ¶¶ 37-38). Because Respondent (i) agreed to a CBA that provided for the recovery of reasonable attorneys' fees and costs, (ii) has not participated in the Arbitration or opposed the Petition, and (iii) continues to refuse to comply with the Award without justification, the Court recommends that Petitioners be awarded their reasonable attorneys' fees and costs. See Abondolo, 829 F.Supp.2d at 130.
In support of their request for attorneys' fees and costs, Petitioners submitted an invoice, listing the completed tasks, attorneys' hourly rates, and billed hours, as well as their costs. (ECF No. 1-7 at 1-2). Petitioners were represented by the law firm of Virginia & Ambinder, LLP (“V&A”). (ECF No. 1 at 8). One V&A partner, Nicole Marimon, recorded 0.7 hours at a rate of $350 per hour, and one V&A associate, Maura Moosnick, recorded 5.0 hours at a rate of $275 per hour. (ECF Nos. 1 ¶¶ 33-34; 1-7 at 1-2).
The Court concludes that Ms. Marimon's requested rate of $350 per hour is above the rate ordinarily awarded for similar services in other cases. (ECF No. 1 ¶ 33). As the Honorable Katherine Polk Failla observed in Land Cruising Properties Inc., Ms. Marimon “has generally been awarded fees at rates spanning from $275 to $325 per hour by courts in this Circuit[.]” 2022 WL 1125623, at *6 (collecting cases). Accordingly, the Court recommends “that Ms. Marimon's continued practice and additional experience in this field of legal practice warrant a rate of $325 per hour in this case.” Id.
The Court also concludes that Ms. Moosnick's requested rate of $275 per hour is higher than appropriate. Ms. Moosnick is a 2021 graduate of Fordham University School of Law and has experience as a former legal assistant at V&A. (ECF No. 1 ¶ 34). Although courts have awarded Ms. Moosnick an hourly rate of $275, the Court finds that a rate of $200 per hour is more reasonable for an associate with less than two years of experience. See Dejil Sys., Inc., 2012 WL 3744802, at *5 (collecting cases); Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining Educ. & Indus. Fund v. Furniture Bus. Sols., LLC, No. 20 Civ. 02867 (GHW), 2020 WL 6525466, at *5 (S.D.N.Y. Nov. 5, 2020) (collecting cases).
See Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Reliable Build, Inc., No. 21 Civ. 9332 (VM), 2022 WL 214389, at *2 (S.D.N.Y. Jan. 25, 2022) (awarding Ms. Moosnick fees at a rate of $275 per hour); see Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Kaja Custom Builders LLC, No. 22 Civ. 171 (VM), 2022 WL 987667, at *2 (S.D.N.Y. Mar. 31, 2022) (same).
In assessing the reasonableness of the hours expended, “courts uphold fee requests in ERISA cases when they determine that such fees are ‘reasonable.'” Trustees of New York City Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund v. Metroplex Serv. Grp., Inc., No. 18 Civ. 5889 (PAE), 2018 WL 4141034, at *6 (S.D.N.Y. Aug. 30, 2018) (quoting Finkel v. Jones Lang LaSalle Americas, Inc., No. 08 Civ. 2333 (RRM) (RML), 2009 WL 5172869, at *5 (E.D.N.Y. Dec. 30, 2009). “To determine the reasonable number of hours worked, the court should strike a balance ‘between principles of thoroughness and efficiency.'” Morozov v. ICOBOX Hub Inc., No. 18 Civ. 3421 (GBD) (SLC), 2020 WL 5665639, at *8 (S.D.N.Y. May 5, 2020) (quoting LCS Grp. LLC v. Shire LLC, 383 F.Supp.3d 274, 280 (S.D.N.Y. 2019)). The court must examine the amount of time spent on each task and decide “how much of that time was reasonably expended given the scope and complexity of the litigation.” Pichardo v. C.R. Bard, Inc., No. 09 Civ. 7653 (SHS), 2015 WL 13784565, at *4 (S.D.N.Y. Jan. 26, 2015) (internal citation omitted).
The time records submitted by Petitioners' counsel are sufficiently detailed and establish that, inter alia, counsel performed research, gathered evidence, and drafted the Petition and other court documents. (ECF No. 1-7 at 1-2). Petitioners' counsel's hours are not “excessive, redundant, or otherwise unnecessary.'” TDL Restoration, Inc., 2020 WL 7239678, at *2 (quoting Hensley, 461 U.S. at 434). Thus, the Court concludes that the number of hours expended is reasonable.
Accordingly, the Court respectfully recommends that Petitioners' request for attorneys' fees be granted at the reduced rate of $325 per hour for Ms. Marimon's work, and the reduced rate of $200 per hour for Ms. Moosnick's work, in the total amount of $1,227.50.
To calculate a reasonable fee award, “district courts employ ‘the lodestar method-hours reasonably expended multiplied by a reasonable hourly rate.'” Trustees of New York City Dist. Council of Carpenters Pension Fund v. 1st Choice Constr. LLC, No. 20 Civ. 07119 (LTS), 2021 WL 4482278, at *3 (S.D.N.Y. Sept. 30, 2021) (quoting Furniture Bus. Sols., LLC, 2020 WL 6525466, at *4). Applying this formula, the total amount of attorneys' fees is $1,227.50 ((0.7 * $325) + (5.0 * $200) = $1,227.50).
Finally, the Court finds Petitioners' request for $77 in service fees to be “reasonable out-of-pocket expenses incurred by the attorney[s] and which are normally charged fee-paying clients.” FMC Const. LLC, 2014 WL 1236195, at *12; see New York City & Vicinity Dist. Council of Carpenters v. Plaza Constr. Grp., Inc., No. 16 Civ. 1115 (GHW), 2016 WL 3951187, at *2 (S.D.N.Y. July 19, 2016) (“Recovery of such [service fees] is routinely permitted.”); see also Reliable Build, Inc., No. 21 Civ. 9332 (VM), 2022 WL 214389, at *2 (S.D.N.Y. Jan. 25, 2022).
C. Post-Judgment Interest
Petitioners have also requested that the Court award post-judgement interest at the statutory rate. (ECF No. 1 at 8). “‘The award of post-judgment interest is mandatory on awards in civil cases as of the date judgment is entered,' including orders that confirm arbitration awards.” IBEX Constr., 2019 WL 2281276, at *3 (quoting Lewis v. Whelan, 99 F.3d 542, 545 (2d Cir. 1996)) (collecting cases). Accordingly, the Court respectfully recommends that Petitioners be awarded post-judgment interest from the date of entry of the Court's judgement, at the rate provided in 28 U.S.C. § 1961.
V. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that: (i) the Petition be GRANTED; (ii) the Award be confirmed; (iii) Respondent be directed to submit to Petitioners their books and records from July 1, 2018 to the present for purposes of conducting an audit; and (iv) judgment in favor of Petitioners be entered in the amount of $4,204.50, consisting of the Award amount of $2,900, plus $1,227.50 in attorneys' fees and $77 in costs; and (iv) Petitioners be awarded post-judgment interest in accordance with 28 U.S.C. § 1961.
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NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Broderick.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).