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Goodwin v. Hawker Dayton Corporation, 19 Civ. 4284 (LGS) (GWG). (2019)

Court: District Court, S.D. New York Number: infdco20191212c60 Visitors: 6
Filed: Nov. 22, 2019
Latest Update: Nov. 22, 2019
Summary: REPORT AND RECOMMENDATION GABRIEL W. GORENSTEIN , Magistrate Judge . Plaintiff, Kaine Goodwin, a Trustee of IUE-CWA Pension Fund ("Fund"), brings this action alleging unpaid withdrawal liability payments under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. 1001 et seq., the Fund's Agreement and Declaration of Trust ("Trust Agreement"), and Ohio Revised Code 1701.88 against defendants Hawker Dayton Corporation ("Hawker"), and William Darrow II, jointly and severally.
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REPORT AND RECOMMENDATION

Plaintiff, Kaine Goodwin, a Trustee of IUE-CWA Pension Fund ("Fund"), brings this action alleging unpaid withdrawal liability payments under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 et seq., the Fund's Agreement and Declaration of Trust ("Trust Agreement"), and Ohio Revised Code § 1701.88 against defendants Hawker Dayton Corporation ("Hawker"), and William Darrow II, jointly and severally. Defendants have defaulted and Goodwin now seeks a default judgment under Federal Rule of Civil Procedure 55(b)(2) for withdrawal liability, interest, liquidated damages, and attorneys' fees plus costs.1 For the reasons that follow, Goodwin's application for default judgment should be granted.

I. BACKGROUND

On May 10, 2019, Goodwin filed a complaint alleging that defendants failed to make withdrawal liability payments in violation of ERISA and the Trust Agreement. See Complaint, filed May 10, 2019 (Docket #1) ("Compl.") ¶¶ 1, 39. Defendants were served with a summons and the complaint on May 20, 2019. See Summons Returned Executed, filed May 28, 2019 (Docket ##9-10). Defendants failed to respond and the Clerk issued a certificate of default. See Clerk's Certificate of Default, filed June 24, 2019 (Docket #18).

Shortly thereafter, Goodwin filed the instant application for a default judgment (Docket ##22-23) under Federal Rule of Civil Procedure 55(b)(2) seeking damages in the amount of $247,399, plus interest, liquidated damages, and attorneys' fees. Mackson Aff. ¶ 60. Defendants never filed a response.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

In light of defendants' default, Goodwin's properly pleaded allegations in the complaint, except those related to damages, are accepted as true. See, e.g., City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) ("It is an `ancient common law axiom' that a defendant who defaults thereby admits all `well-pleaded' factual allegations contained in the complaint.") (quoting Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004)); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) ("In light of [defendant's] default, a court is required to accept all . . . factual allegations as true and draw all reasonable inferences in [plaintiff's] favor.").

As for damages, Goodwin bears the burden of establishing his entitlement to the amount sought. Trs. of Local 813 Ins. Tr. Fund v. Rogan Bros. Sanitation Inc., 2018 WL 1587058, at *5 (S.D.N.Y. Mar. 28, 2018). In the case of a default where the defendant has never appeared, "a court may base its determination of damages solely on the plaintiff's submissions." Id. (citing Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). While a court must "take the necessary steps to establish damages with reasonable certainty," Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997), a court need not hold a hearing "as long as it ensure[s] that there [is] a basis for the damages specified in the default judgment," Fustok, 873 F.2d at 40. In this case, the Court finds that a hearing is unnecessary inasmuch as Goodwin's submissions have not been contested and they provide all the information required to determine Goodwin's damages.

A. Liability of Defendants

1. Hawker Liability

Goodwin is a trustee of the Fund, an "employee pension benefit plan" under 29 U.S.C. § 1002(2)(A), a "multiemployer plan" under 29 U.S.C. § 1002(37)(A), and a "defined benefit plan" under 29 U.S.C. § 1002(35). Compl. ¶¶ 1, 4. The Fund is composed of equal numbers of labor and management representatives and was established and has been maintained pursuant to 29 U.S.C. § 186(c)(5). Id. ¶ 5. Hawker was an Ohio corporation in the business of manufacturing. Id. ¶¶ 8-10. On January 4, 2007, the Ohio Tax Commissioner certified that Hawker failed to pay taxes or file necessary franchise tax reports and the Office of the Secretary of State cancelled Hawker's Articles of Incorporation/Certificate of Authority. Id. ¶¶ 12-13. Darrow was the President of Hawker. Id. ¶ 14.

Presumably unaware of Hawker's corporate status, Local 84775, IUE-CWA (the "Union"),2 entered into a collective bargaining agreement with Hawker for a term beginning June 30, 2017, and ending June 30, 2020 ("CBA"). Compl. ¶ 17; see also CBA and Pension Plan Participation Agreement, annexed as Exhibit A to Wooton Aff. Under this CBA, Hawker agreed to contribute to the Fund and to be bound by the Trust Agreement. Compl. ¶¶ 18-19; see also Trust Agreement, annexed as Exhibit B to Wooton Aff. ("Signed Trust Agreement"). The parties also had apparently entered into similar agreements for a number of previous years. Compl. ¶ 16.

On December 17, 2017, Hawker stopped all operations covered by the CBA and thus completely "withdrew" from the Fund within the meaning of 29 U.S.C. §§ 1381(a) and 1383(a)(2). Compl. ¶ 24.

The withdrawal of a business from a multiemployer pension plan is governed by ERISA. Upon the withdrawal of an employer who contributes to a plan, the employer must pay to the plan its "allocable amount of unfunded vested benefits," or what is known as "withdrawal liability." 29 U.S.C. §§ 1381(a), (b)(1). An employer withdraws from a plan when it "permanently ceases all covered operations under the plan." Id. at § 1383(a)(2).

The statutory scheme for determining an employer's liability for unfunded vested benefits has been succinctly summarized in Amalgamated Lithographers of America v. Unz & Co. Inc., 670 F.Supp.2d 214 (S.D.N.Y. 2009):

When an employer withdraws from a plan . . ., the plan sponsor must determine the amount of liability and notify the employer of the amount. 29 U.S.C. § 1382. The employer must be notified "as soon as practicable" after withdrawal, and the notice must include the amount of the liability, a schedule for liability payments, and a demand for payment in accordance with the schedule. 29 U.S.C. § 1399(b)(1). Once the employer receives notice, it must begin payment in accordance with the schedule within 60 days, "notwithstanding any request for review or appeal of determinations of the amount of such liability or of the schedule." 29 U.S.C. § 1399(c)(2) . . . . Any dispute concerning the plan's assessment of liability must be settled through arbitration. 29 U.S.C. § 1401(a)(1) . . . . If no arbitration proceeding is initiated within [the time frames provided by statute], then the amount demanded by the plan becomes final and must be paid in accordance with the schedule provided by the plan. 29 U.S.C. § 1401(b)(1). Failure to demand arbitration within the statutory time frame bars the employer from contesting liability for the amount demanded. 29 U.S.C. § 1401(a)(1), (b)(1); ILGWU National Retirement Fund v. Levy Bros. Frocks, Inc., 846 F.2d 879, 885-87 (2d Cir. 1988). If the employer defaults in making payments pursuant to the schedule, the plan may require immediate payment of the entire unpaid amount of the employer's withdrawal liability, plus accrued interest on the total outstanding liability from the date of the first scheduled payment that was not timely made. 29 U.S.C. § 1399(c)(5).

Id. at 221-22.

In conformity with the applicable statutes, when Hawker withdrew from the Fund, the Fund assessed $247,339 in withdrawal liability against Hawker based on 29 U.S.C. § 1391, and Article X, Section 10.3 of the Fund Pension Plan. Compl. ¶ 25. To meet this liability, the Fund determined that Hawker was required to pay $2,051.83 in 80 quarterly installments, with the first payment due March 1, 2018. Id. ¶ 26. The Fund informed Hawker of this in a letter dated January 2, 2018. Id. ¶¶ 25-26; see also Jan. 2, 2018 Letter, annexed as Exhibit D to Wooton Aff. The Fund notified Hawker of its default by additional letters on March 6 and April 4, 2018. Compl. ¶ 29; see also March 6 and April 4, 2018 Letters, annexed as Exhibit E to Wooton Aff. On June 25, 2018, the Fund reiterated in a letter that Hawker was liable for the full amount and that a lawsuit would be filed if no payment was made. Compl. ¶ 30; see also June 25, 2018 Letter, annexed as Exhibit F to Wooton Aff. Hawker has not paid any part of the withdrawal liability, however; nor has it requested a review of the withdrawal liability or initiated arbitration. Compl. ¶ 35.

Because Hawker failed to make any of the required payments and failed to challenge its liability through arbitration, it may not contest the liability assessment calculated by the Fund. See 29 U.S.C. § 1401(b)(1); Bowers v. Transportacion Maritima Mexicana S.A., 901 F.2d 258, 263 (2d Cir. 1990); ILGWU Nat'l Ret. Fund, 846 F.2d at 886-87. Moreover, Hawker's default on its payment obligations allows the Fund to "require immediate payment of the outstanding amount of [the] employer's withdrawal liability." 29 U.S.C. § 1399(c)(5); see also Trs. of Local 813, 2018 WL 1587058, at *6.

In an action "to compel an employer to pay withdrawal liability, any failure of the employer to make any withdrawal liability payment within the time prescribed shall be treated in the same manner as a delinquent contribution" as defined in 29 U.S.C. § 1145. See 29 U.S.C. § 1451(b). 29 U.S.C. § 1145 states that every employer "obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a 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." The Trust Agreement states:

Non-payment by an Employer of any contributions when due shall not relieve any other Employer of its obligation to make payments. In addition to any other remedies to which the parties may be entitled, an Employer in default for ten working days shall be subject to payment of the largest aggregate amount permitted under ERISA of liquidated damages, interest and other costs and expenses, incurred by the Fund and arising out of the collection of such Employer's delinquent contributions, withdrawal liability payments or other payments. The interest rate to be applied for the collection of delinquent contributions, withdrawal liability payments and other payments shall be the rate of one percent (1%) per month, unless otherwise established by law.

Signed Trust Agreement at *46.3

Additionally, 29 U.S.C. §1132(g)(2) mandates that: In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce [29 U.S.C. §] 1145 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 [unpaid contributions], (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. For purposes of this paragraph, interest on unpaid contributions shall be determined by using the rate provided under the plan . . . .

29 U.S.C. §1132(g)(2).

2. Darrow's Liability

Goodwin seeks to hold Darrow jointly and severally liable for Hawker's withdrawal liability because he conducted "business on behalf of or in the name of [Hawker] after its dissolution." Mackson Aff. ¶ 21 (citing Compl. ¶¶ 20-23; Wooton Aff. ¶¶ 7-11). This was in violation of Ohio Revenue Code § 1701.88 which provides:

when the articles of a corporation have been canceled, or when the period of existence of the corporation specified in its articles has expired, the corporation shall cease to carry on business and shall do only such acts as are required to wind up its affairs, or to obtain reinstatement of the articles in accordance with section 1701.07, 1701.921, 1785.06, or 5733.22 of the Revised Code, or are permitted upon reinstatement by division (C) of section 1701.922 of the Revised Code . . . .

Ohio Rev. Code Ann. § 1701.88 (West 2012). Following Hawker's January 4, 2007, dissolution, Darrow continued to conduct business on behalf of Hawker and caused Hawker to incur new contractual obligations. See Compl. ¶ 20. This included entering into the CBA on June 20, 2017, and causing Hawker to contribute to the Fund until December 18, 2017. Id. ¶¶ 20, 22-23. Entering into a new contract, such as the CBA, "is not an act of winding up corporate affairs." Shaw v. Jenkins, 159 F.Supp.2d 995, 1001 (S.D. Ohio 2001). Under Ohio law, the officers of a corporation "who carry on new business do so as individuals . . . and are personally responsible for such obligations as they incur." Id. (citing Chatman v. Day, Ohio App. 3d 281, 282 (1982)); accord, Bd. of Trs. of Ohio Laborers' Fringe Ben. Programs v. Savcon, Inc., 2012 WL 668800, at *3 (S.D. Ohio Feb. 29, 2012) ("officers or principals who carry out new business that is not for the purpose of winding up the corporation can be held personally liable for the new obligations they incur.") (collecting cases); Bds. of Trs. of the Ohio Laborers' Fringe Ben. Programs v. Jenkins, 2008 WL 2002660, at *1 (S.D. Ohio May 6) (Collective bargaining agreement exceeded O.R.C. § 1701.88 and company officers were personally liable for defaults) aff'd 283 F. App'x 315 (6th Cir. 2008). Thus, Darrow, as President, is liable for Hawker's obligations.

B. Damages

Although Goodwin has not submitted supporting documentation for the assessed withdrawal liability, he had no obligation to do so because, by statute — 29 U.S.C. § 1401(b)(1) — defendants' failure to seek arbitration contesting the liability assessment means that the assessed amount became automatically "due and owing." See also Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. D & A Bus Co., Inc., 270 F.Supp.3d 593, 613 (E.D.N.Y. 2017) ("where, as here, the damages sought consist, in part, of delinquent withdrawal liability payments and where the employer has otherwise failed to timely request arbitration, courts have the discretion to `adopt the sum proffered by the plan, even in the absence of documentation as to how the figure was calculated.'") (alterations omitted) (quoting Labarbera v. United Crane & Rigging Servs., Inc., 2011 WL 1303146, at *5 (E.D.N.Y. Mar. 2, 2011) (citing cases)); accord Trs. of Local 813, 2018 WL 1587058, at *5-6. Thus, Goodwin should be awarded $247,339, which is the full withdrawal liability. See Compl. ¶ 25.

We next address Goodwin's request for interest on the withdrawal liability and liquidated damages as well as reasonable attorneys' fees and costs.

1. Interest and liquidated damages

Employers who make contributions to a multiemployer plan must "make such contributions in accordance with the terms and conditions of such plan." 29 U.S.C. § 1145. Under 29 U.S.C. § 1399(c)(5), trustees may obtain, following an employer's default, "accrued interest on the total outstanding liability from the due date of the first payment which was not timely made," which in this case was March 1, 2018, Compl. ¶¶ 26-28. 29 U.S.C. § 1132(g)(2) provides that following a successful action by a plan's trustees to recover unpaid contributions due under a plan, "the court shall award the plan . . . (B) interest on the unpaid contributions, [and] (C) an amount equal to the greater of — (i) interest on the unpaid contributions, or (ii) liquidated damages provided for under the plan."

The Trust Agreement provides that the "interest rate to be applied for the collection of delinquent contributions, withdrawal liability payments and other payments shall be the rate of one percent (1%) per month." Signed Trust Agreement at *46. The Fund Pension Plan further provides that Hawker will pay the

greater of i) accrued interest at the rate set by the Trustees with respect to the collection of delinquent contributions on the total outstanding liability from the due date of the first payment which was not timely made or ii) liquidated damages in an amount not to exceed twenty percent (20%) of the outstanding liability.

IUE-CWA Pension Plan, annexed as Exhibit C to Wooton Aff. at *132. The same options are provided under 29 U.S.C. § 1132(g)(2)(C). Here, interest exceeds 20% of the outstanding liability. Mackson Aff. ¶¶ 37-39. Thus, double interest — that is, 2% per month — should be awarded rather than liquidated damages.

In light of defendants' failure to pay, Goodwin is entitled to interest on the $247,339 liability starting as of March 1, 2018, which was the date of the first required withdrawal payment. Compl. ¶ 27; Mackson Aff. ¶ 35. Interest accrues at a rate of $162.63 per day ((($247,339*2%)*12)/365).

In sum, Goodwin should be awarded interest in the amount of $162.63 per day from March 1, 2018, until the date of judgment.

2. Attorneys' Fees and Costs

Goodwin seeks attorneys' fees in the amount of $23,153, and costs in the amount of $521. Mackson Aff. ¶ 41. Under 29 U.S.C. § 1132(g)(2)(D), when "a judgment in favor of the plan is awarded, the court shall award the plan . . . reasonable attorney's fees and costs of the action, to be paid by the defendant."

As the Second Circuit noted in Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany, 522 F.3d 182 (2d Cir. 2008), "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. at 186 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

(a) Reasonable Hourly Rates

The rate to be set for Goodwin's attorneys should be "what a reasonable, paying client would be willing to pay." Arbor Hill, 522 F.3d at 184. Any such rate must be "in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006) (alteration in original) (internal quotation marks omitted) (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). In addition, as was noted in Arbor Hill, a court must "step[] into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively." 522 F.3d at 184 (emphasis added). In other words, we are not called upon to determine whether the attorneys on this case properly command the rates they seek. Rather, we are called upon to determine the "cheapest hourly rate an effective attorney would have charged." O.R. v. N.Y.C. Dep't of Educ., 340 F.Supp.3d 357, 364 (S.D.N.Y. 2018) (emphasis in original).

Because the fee applicant bears the burden of establishing the reasonableness of the hourly rates requested, the applicant must "produce satisfactory evidence . . . that the requested rates are in line with those prevailing in the community." Blum, 465 U.S. at 895 n. 11; accord Ortiz v. City of N.Y., 2016 WL 4532983, at *3 (S.D.N.Y. July 15, 2016). The Court may also "rely on its own familiarity with prevailing rates in the District." Noble v. Crazetees.com, 2015 WL 5697780, at *9 (S.D.N.Y. Sept. 28, 2015) (citing A.R. ex rel. R.V. v. N.Y.C. Dep't of Educ., 407 F.3d 65, 82 (2d Cir. 2005), and Miele v. N.Y. State Teamsters Conference Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir. 1987)).

Here, four partners, two associates, a law clerk, and a paralegal worked on this case. See Mackson Aff. ¶ 43. For reasons stated in the next section, we have eliminated the hours expended by two partners, Michael Adler and Zachary Leeds, and an associate, Christina Gallo. The fees presented by Goodwin are the "rates usually paid by the Fund for the Firm's work" and the firm of Cohen Weiss and Simon works "almost exclusively in the representation of labor unions and employee benefit plans." Id. ¶ 17. Tzvi Mackson, a partner, graduated from Benjamin N. Cardozo School of Law in 2007 and has over 10 years experience in employee benefits and labor law. Id. ¶ 48. Lisa Gomez, also a partner, graduated from Fordham University Law School and has over 20 years experience with employee benefit plans. Id. ¶ 49. They both seek an hourly rate of $450. Id. ¶ 44; see also Cohen Weiss and Simon Invoices ("Invoices"), annexed as Exhibit 9 to Mackson Aff. at *40, 42, 45-47. The record does not reflect the size of the firm, other than a citation stating the usual award for "experienced attorneys in small firms," see Mackson Aff. ¶ 46 (citation omitted), but the firm's website reflects a small number of attorneys, see Cohen Weiss and Simon, https://www.cwsny.com/attorneys.

While we have no reason to doubt that these attorneys command the requested rate in the marketplace, Arbor Hill requires us to consider whether there are "other effective attorneys who might have charged less." Durso v. Modern Food Ctr., Inc., 2018 WL 3019112, at *5 (S.D.N.Y. June 18, 2018). We note that this was not a complex case and that there is copious case law in this district in which partners with commensurate experience have been awarded much lower rates in similar litigation. See, e.g., Verdier v. Thalle Constr. Co., Inc., 2017 WL 8029054, at *3 (S.D.N.Y. Aug. 3, 2017) (finding a $300 hourly rate reasonable for partners with "significant legal experience" in ERISA litigation) adopted by 2018 WL 113615 (S.D.N.Y. March 1, 2018) aff'd 771 F. App'x 20 (2d Cir. 2019); Trs. of N.Y.C. Dist. Council of Carpenters Pension Fund v. Dependable Office Installation LLC, 2017 WL 934713, at *8 (S.D.N.Y. Mar. 9) ($300 hourly rate for a partner in an ERISA case) adopted by 2017 WL 1157118 (S.D.N.Y. March 27, 2017); Sheet Metal Workers' Nat'l Pension Fund v. Maximum Metal Mfrs., Inc., 2015 WL 4935116, at *10 (S.D.N.Y. Aug. 18, 2015) ($300 hourly rate for a partner with 42 years' experience); Watkins v. Smith, 2015 WL 476867, at *3 (S.D.N.Y. Feb. 5, 2015) ("In the Southern District of New York, fee rates for experienced attorneys in small firms generally range from $250 to $450 in civil cases."). While we recognize that some courts have awarded higher amounts, see Mackson Aff. ¶ 56, we believe Arbor Hill's mandate to award the lowest rate an effective attorney would charge requires us to find an hourly rate of $325 to be appropriate for the partners on this case. See Durso, 2018 WL 3019112, at *5 (awarding $325 per hour to a partner with 15 years experience in ERISA matters). Such a rate would not necessarily apply in a contested case — that is, in a case where the defendants had not defaulted.

Kelly Malloy is an associate who graduated from Brooklyn Law School in 2018 and has less than a year of experience in fund contribution enforcement. Mackson Aff. ¶ 53. She seeks an hourly rate of $300. Id. ¶ 44; see also Invoices at *44-47. This rate is higher than the usual award for associates in this district for cases of this kind. See Trs. of N.Y.C. Dist. Council of Carpenters Pension Fund v. B&L Moving & Installation, Inc., 2017 WL 4277175, at *7 (S.D.N.Y. Sept. 26, 2017) (finding a $225 hourly rate reasonable for an associate with three years' experience) adopted by 2018 WL 705316 (S.D.N.Y. Feb. 8, 2018); Dependable Office Installation, 2017 WL 934713, at *8 (same); Maximum Metal Mfrs., Inc., 2015 WL 4935116, at *10 ("[C]ourts in this District have found rates of $125-$300 per hour reasonable for associates, depending on, inter alia, their experience."). Given her experience and the level of complexity of this case, an hourly rate of $225 is appropriate for Malloy.

Sharon Aguirre was a law clerk for four months and worked on various employee benefit fund matters. Mackson Aff. ¶ 54. George Kramer is a paralegal who has worked for the firm since 2002. Id. ¶ 55. They both seek a rate of $110 per hour. Id. ¶ 44; see also Invoices at *40, 42, 44-47. While there are cases awarding higher rates, there is ample case law awarding paralegals $75 per hour in this district. See, e.g., O.R., 340 F. Supp. 3d at 368; Lujuan v. JPG LLC, 2018 WL 3353060, at *2 (S.D.N.Y. June 6, 2018) ("courts in this Circuit have generally found $75 to be reasonable" for a paralegal (citation omitted)); Sanchez v. Jyp Foods Inc., 2018 WL 4502008, at *15 (S.D.N.Y. Sept. 20, 2018) (awarding $75 to paralegal); Escobar v. Fresno Gourmet Deli Corp., 2016 WL 7048714, at *4 (S.D.N.Y. Dec. 2, 2016) (same). In light of the fact that no special expertise has been attributed to the law clerk or paralegal and that this was a simple case arising in the context of a default judgment, the Court finds the $75 rate to be appropriate.

(b) Reasonable Number of Hours Expended

Plaintiffs must also establish that the number of hours for which they seek compensation are reasonable. Arbor Hill, 522 F.3d at 188. In evaluating whether claimed hours are reasonable, a court considers "not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures." Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). "Because attorney's fees are dependent on the unique facts of each case, the resolution of this issue is committed to the discretion of the district court." Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992). In exercising this discretion, the district court should look "to its own familiarity with the case and its experience with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties." Id. (internal quotation marks omitted) (quoting Di Filippo v. Morizio, 759 F.2d 231, 236 (2d Cir. 1985)). Additionally, it is well-established that "any attorney . . . who applies for court-ordered compensation in this Circuit . . . must document the application with contemporaneous time records . . . specify[ing], 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, 1148 (2d Cir. 1983).

In support of their application for attorneys' fees, plaintiff's attorneys submitted copies of their invoices showing the date on which services were performed, the hours expended, and a description of the work done, see Invoices, which they have indicated are based on contemporaneous time entries, Mackson Aff. ¶ 42. This satisfies the contemporaneous time records requirement. See, e.g., Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1160-61 (2d Cir. 1994); Hollander Glass Tex., Inc. v. Rosen-Paramount Glass Co., Inc., 291 F.Supp.3d 554, 562-63 (S.D.N.Y. 2018). When reviewing such records, a court's task is to make "a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended." Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994). "The critical inquiry is `whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.'" Angamarca v. Pita Grill 7 Inc., 2012 WL 3578781, at *12 (S.D.N.Y. Aug. 2, 2012) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). In addressing this question, courts should not, however, engage in "an ex post facto determination of whether attorney hours were necessary to the relief obtained." Grant, 973 F.2d at 99.

Additionally, if a court finds that claimed hours are "excessive, redundant, or otherwise unnecessary," it should exclude those hours from its calculation of the presumptively reasonable fee. Hensley, 461 U.S. at 434; accord Quaratino v. Tiffany & Co., 166 F.3d 422, 426 n.6 (2d Cir. 1999) (citations omitted); Farmer v. Hyde Your Eyes Optical, Inc., 2015 WL 2250592, at *15 (S.D.N.Y. May 13, 2015). However, as the Supreme Court noted in Hensley, "[t]here is no precise rule or formula for making these determinations." 461 U.S. at 436. Because "it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application," Carey, 711 F.2d at 1146, "the court has discretion simply to deduct a reasonable percentage of the number of hours claimed `as a practical means of trimming fat from a fee application,'" Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (quoting Carey, 711 F.2d at 1146). Thus, a district court is not required to "set forth item-by-item findings concerning what may be countless objections to individual billing items." Lunday, 42 F.3d at 134.

Here, attorneys expended a total of 57.7 hours on this case and the law clerk and paralegal collectively expended 16.3 hours for a total of 74 hours. Mackson Aff. ¶ 44. These hours reflect time spent "conducting research on the Defendants . . . preparing and drafting the complaint and arranging for service of process . . . working with the Fund to obtain information relevant to the case; calculating the amounts owed; and preparing and filing [the] motion for default judgment." Id. ¶ 45. This is well above the range of hours that have been sought by attorneys in withdrawal liability cases with similar postures. See, e.g., Trs. of Pavers and Rd. Builders Dist. Council Welfare, Pension, Annuity and Apprenticeship, Skill Improvement and Safety Funds v. Genrus Corp., 2019 WL 4604972, at *8 (E.D.N.Y. Sept. 6) (25.8 hours sought) adopted by 2019 WL 4602880 (E.D.N.Y. Sept. 23, 2019); UFCW Loc. 174 Pension Fund v. Int'l Glatt Kosher Meat Processing Corp., 2018 WL 3742731, at *8 (E.D.N.Y. May 15) (18.75 hours sought) adopted by 2018 WL 3435059 (E.D.N.Y. July 3, 2018); Durso, 2018 WL 3019112, at *6 (36 hours sought). Accordingly, we (1) deduct the hours of three attorneys (Adler, Leeds, and Gallo), who each billed less than 30 minutes for this case, see Mackson Aff. ¶ 44; and (2) reduce the remaining hours by 15%, for a total of 62.2 hours.

(c) Presumptively Reasonable Fees and Costs

The fees to be awarded are thus as follows:

Hourly Rate Hours Reasonably Expended Total Fees Lisa Gomez $325 1.4 hours $455.00 Tzvi Mackson $325 21.1 hours $6,857.50 Kelly Malloy $225 25.8 hours $5,805.00 Sharon Aguirre $75 7.7 hours $577.50 George Kramer $75 6.2 hours $465.00 Totals: 62.2 hours $14,160.00

Goodwin also seeks reimbursement of costs in the amount of $521. Mackson Aff. ¶ 57. As noted earlier, 29 U.S.C. § 1132(g)(2)(D) directs a court to award reasonable costs when "a judgment in favor of the plan is awarded." In this case, those fees include a filing fee, process server fees, photocopy fees, and research fees. See Mackson Aff. ¶ 57; see also Invoices at *47; Service Invoice, annexed as Exhibit 10 to Mackson Aff. Such costs are reasonable. See, e.g., U.S.A. Famous Original Ray's Licensing Corp. v. Famous Ray's Pizza Buffet Inc., 2013 WL 5363777, at *8 (S.D.N.Y. Sept. 26, 2013) (awarding costs for filing fees, copies, research, travel, and services of process).

Goodwin should be awarded $14,160 in attorneys' fees and $521 in costs, for a total of $14,681.

* * *

In sum, Goodwin should be awarded $247,339 in withdrawal liability, $14,681 in attorneys' fees and costs, and interest at a rate of $162.63 per day accruing from March 1, 2018, to the date judgment is entered.

IV. CONCLUSION

For the foregoing reasons, Goodwin's application for default judgement (Docket ##22-23) should be granted and he should be awarded a judgment against defendants Hawker Dayton Corp. and William Darrow II, jointly and severally, in the total amount of $262,020 plus interest at a rate of $162.63 per day from March 1, 2018, to the date judgment is entered. 22-23) should be granted and he should be awarded a judgment against defendants Hawker Dayton Corp. and William Darrow II, jointly and severally, in the total amount of $262,020 plus interest at a rate of $162.63 per day from March 1, 2018, to the date judgment is entered.

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court, with copies sent to the Hon. Loma G. Schofield at 40 Foley Square, New York, New York 10007. Any request for an extension of time to file objections or responses must be directed to Judge Schofield. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Fed. R. Civ. P. 6(a), (b), (d); Thomas v. Am., 474 U.S. 140 (1985); Wagner & Wagner. LLP v. Atkinson. Haskins, Nellis. Brittingham. Gladd & Carwile. P.C., 596 F.3d 84, 92 (2d Cir. 2010).

FootNotes


1. See Proposed Default Judgment, filed July 16, 2019 (Docket #22): Proposed Order to Show Cause Without Emergency Relief, filed July 16, 2019 (Docket #23); Affidavit of Tzvi N. Mackson in Support of Order to Show Cause Without Emergency Relief, filed July 16, 2019 (Docket #24) ("Mackson Aff."); Affidavit of Carey Wooton in Support of Proposed Order to Show Cause Without Emergency Relief, filed July 16, 2019 (Docket #25) ("Wooton Aff."); Order to Show Cause for Default Judgment, filed July 16, 2019 (Docket #27); Certificate of Service of Order to Show Cause for Default Judgment, filed July 22, 2019 (Docket #30); Default Judgment, filed Aug. 29, 2019 (Docket #31).
2. The complaint references Local "81225," see Compl. ¶ 16, but the submissions on this application state that the correct Local number is "84775." See Mackson Aff. ¶ 4 n.1; Wooton Aff. ¶ 9 n.1.
3. Page numbers identified by "*____" refer to the pagination provided by the Court's ECF system.
Source:  Leagle

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