HENRY PITMAN, Magistrate Judge.
TO THE HONORABLE JOHN G. KOELTL, United States District Judge,
Plaintiffs, employer and employee trustees of multiemployer labor-management trust funds, the trustees of a charitable organization and a labor organization that represents employees and a not-for-profit corporation commenced this action to enforce an arbitration award. The arbitration award was entered as a result of defendant's breach of a collective bargaining agreement that required defendant to make contributions to the funds and the charitable organization. Defendant defaulted in the arbitration proceeding, and the arbitrator awarded plaintiffs a total of $1,042,943.46, comprised of unpaid contributions, interest, liquidated damages, attorneys' fees, arbitrator's fees and other items.
After being duly served with the summons and complaint, defendant failed to answer or move with respect to the complaint, and on April 2, 2015, the Honorable John G. Koeltl, United States District Judge, determined that plaintiffs were entitled to a default judgment and referred the matter to me to conduct an inquest. Pursuant to that Order of reference, I issued an order on April 17, 2015 directing plaintiffs to make their inquest submissions by June 16, 2015 and directing defendant to submit any responsive materials by July 16, 2015. My April 17, 2015 scheduling Order further provided:
(Emphasis in original.) Although plaintiff made timely submissions in accordance with my Order, defendant has not made any submissions, nor has it contacted my chambers in any way. Accordingly, I make the following report and recommendation on the basis of plaintiffs' submissions alone.
An initial issue which is not addressed in plaintiffs' submissions is whether proceeding by way of inquest is appropriate. The Court of Appeals has stated that:
However, given defendant's default in both the arbitration proceeding and this proceeding, treating the inquest as an uncontested motion for summary judgment has little practical difference. Where a defendant defaults in both the arbitration and confirmation proceedings,
Viewing the facts "in the light most favorable" to defendant,
In addition, after applying the law to the facts, I respectfully recommend that (1) judgment be entered in favor of plaintiffs in the amount of $1,042,943.46 with interest at the rate of 5.25% from October 28, 2014 to the present; (2) plaintiffs be awarded attorneys' fees in the amount of $8,115.00 and (3) that plaintiffs be awarded costs in the amount of $125.46.
1. Plaintiffs Trustees of the New York City District Council of Carpenters Pension, Welfare Annuity, Apprenticeship, Journeyman retraining and Educational Industry Funds (the "ERISA Funds") are employer and employee trustees of multiemployer labor-management trust finds organized and operated in accordance with the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001
2. Plaintiffs Trustees of the New York City District Council of Carpenters Relief and Charity Fund ("Charity Fund") (the ERISA Funds and the Charity Fund collectively are referred to herein as the "Funds") are Trustees of a charitable organization established under section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3). The Charity Fund maintains its principal place of business at 395 Hudson Street, New York, New York 10014 (Powers Decl. ¶ 4).
3. Plaintiff the New York City District Council Carpenters (the "Union") is a labor organization that represents employees in an industry affecting commerce within the meaning of section 501 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 142, and is the certified bargaining representative for certain employees of the Defendant (Powers Decl. ¶ 5).
4. Plaintiff New York City and Vicinity Carpenters Labor-Management Corporation is a New York not-for-profit corporation (Powers Decl. ¶ 6).
5. Dependable Office Installation LLC ("Dependable") is a corporation organized under the laws of New Jersey. Dependable is an employer within the meaning of Section 3(5) and 515 of ERISA, 29 U.S.C. §§ 1002(5) and 1145, and is an employer in an industry affecting commerce within the meaning of Sections 301 and 501 of the LMRA, 29 U.S.C. §§ 185, 142. Dependable maintains its principal place of business at 55 Elm Hill Road, Clifton, New Jersey 07055 (Powers Decl. ¶ 7).
6. On March 15, 2011, Dependable executed an Independent Building Agreement (the "CBA") with the Union (Powers Decl. ¶ 8 & Ex. A thereto).
7. The CBA required Dependable to make specified contributions to the Funds in connection with all work performed within the trade and geographical jurisdiction of the Union (Powers Decl. ¶ 9 and Ex. A thereto at Art XV, § 1). The contributions were based on the number of hours that workers spent performing work within the trade and geographical jurisdiction of the Union.
8. The CBA required Dependable to submit to audits of its books and records to verify that it made all required contributions to the Funds (Powers Decl. ¶¶ 9, 10 and Ex. A thereto at Art XV, § 1).
9. The CBA provided that "[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" (Powers Decl. Ex. A at Art XV, § 1).
10. The CBA provided that if the Funds commence proceedings before an arbitrator to collect delinquent contributions, and the arbitrator renders an award in favor of the Funds, the arbitrator shall be empowered to award such interest, liquidated damages and/or costs as may be applicable under the CBA and the Declaration of Trust establishing the Funds (Powers Decl. Ex. A at Art XV, § 6).
11. If the Funds are required to institute litigation to recover delinquent contributions, the CBA provides that the Funds are entitled to recover: (1) the unpaid contributions; (2) interest from the due dates of the unpaid contributions through the date of judgment, calculated at Citibank's prime rate plus 2%; (3) liquidated damages; (4) reasonable attorneys' fees and (5) such other legal or equitable relief as the Court deems appropriate (Declaration of Christopher Ozard, dated June 15, 2015 (D.I. 20) ("Ozard Decl.") Ex. B thereto at § V).
12. The CBA further bound Dependable to the terms and conditions of the Collection Policy promulgated by the Funds (Powers Decl. Ex. A at Art XV, § 3).
13. The Collection Policy provides that if Dependable refused to make its books and records available for audit, the Funds could determine the existence and amount of a delinquency through a prescribed method (Ozard Decl. ¶ 4 & Ex. B thereto at § V, ¶ 12).
14. The Collection Policy provides that the Funds may estimate a delinquency by comparing the average of the four highest consecutive weeks to each week within the requested audit period. If Dependable's actual contributions were less than the contributions that would have been due based on the average of the four highest consecutive weeks, the difference constituted a delinquency (Ozard Decl. Ex. B § IV, ¶ 12).
15. The Collection Policy further provides that "[a] determination [of estimated principal] under [the Collection Policy] shall constitute presumptive evidence of delinquency" (Ozard Decl. Ex. B § IV, ¶ 12).
16. The Funds' Collection Policy provides that the Funds are entitled to recover the costs associated with the audit in instances where a formal proceeding is necessary to collect delinquent contributions (Ozard Decl. Ex. B § IV, ¶¶ 9, 11).
17. The Funds requested that Dependable furnish its books and records to allow the Funds to conduct an audit for the period from September 29, 2011 through March 14, 2014 (Ozard Decl. ¶ 5).
18. Dependable refused to furnish its books and records to the Funds for the purpose of conducting an audit (Ozard Decl. ¶ 6; Powers Decl. ¶ 11).
19. As a result of Dependable's refusal to comply with the audit provisions of the CBA, the Funds were entitled to calculate delinquent calculations pursuant to the estimation method outlined in paragraph 14 above (Ozard Decl. ¶ 7).
20. Christopher Ozard, Audit Department Manager of the Funds, first calculated the average of the four highest consecutive weeks of remittances in the audit period. He then compared that average to each week in the audit period. He subsequently provided Dependable with a credit for the number of hours for which Dependable actually made contributions. Finally he multiplied the remaining number of hours by the applicable contribution rate to yield Dependable's estimated delinquency (Ozard Decl. ¶¶ 8-13 & Ex. C thereto).
21. Using the estimation method, Ozard calculated that Dependable owed the Funds $809,679.57 in unpaid contributions, $161,935.91 in liquidated damages and $1,791.12 in unpaid contributions to the Promotional Fund (Ozard Decl. ¶¶ 14-16 & Ex. C thereto).
22. To calculate the unpaid contributions for Journeyman Carpenters, Ozard first averaged the hours for the four highest consecutive weeks of remittances within the audit period. This calculation yielded an average of 148 hours (Ozard Decl. ¶ 7 & Ex. C at 3-6). Using this average of 148 hours per week for the audit period and deducting the number of hours for which Dependable actually made contributions yielded a total of 17,620 hours for which contributions were not made (Ozard Decl. Ex. C at 3-6). Ozard then multiplied 17,620 hours by the hourly contribution rate of $38.88 per hour applicable to Journeymen Carpenters (Powers Decl. Ex. A at 31) and obtained a product of $685,065.60 representing the contributions owed to the Funds for Journeymen Carpenters (Ozard Decl. Ex. C at 6).
23. Ozard used the same methodology to determine the unpaid contributions owed with respect to Apprentice Carpenters. Ozard first averaged the hours for the four highest consecutive weeks of remittances within the audit period. This calculation yielded an average of 38 hours (Ozard Decl. ¶ 7 & Ex. C at 3-6). Using this average of 38 hours per week for the audit period and deducting the number of hours for which Dependable actually made contributions yielded a total of 4,769 hours for which contributions were not made (Ozard Decl. Ex. C at 3-6). Ozard then multiplied 4,769 hours by the hourly contribution rate of $26.13 per hour applicable to Apprentice Carpenters (Powers Decl. Ex. A at 31) and obtained a product of $124,613.97, representing the contributions owed to the Funds for Apprentice Carpenters (Ozard Decl. Ex. C at 6).
24. The unpaid contributions for Journeymen and Apprentice Carpenters total $809,679.57.
25. Pursuant to the CBA, the Funds were also entitled to recover interest on the unpaid contributions at Citibank's prime rate plus 2% (Powers Decl. Ex. A Art. XV, § 6). The unpaid interest through October 9, 2014 totals $67,136.86 (Ozard. Decl. Ex. C at 2).
26. Pursuant to the CBA, the Funds are also entitled to liquidated damages which are defined as the greater of the amount of interest owed or 20% of the unpaid contributions (Powers Decl. Ex. A Art. XV, § 6). 20% of $809,679.57 is $161,935.91.
27. The CBA also required Dependable to make contributions to the Apprenticeship, Journeyman Retraining, Educational and Industry Promotional Fund at the rate of $0.08 per hour (see Powers Decl. Ex. A Art. XVIII). Multiplying the total hours worked by Journeymen and Apprentice Carpenters (22,389 hours) by $0.08 per hour yields a product of $1,791.12.
28. Pursuant to the terms of the CBA, the Funds submitted their dispute with Dependable to arbitration (Powers Decl. ¶ 12).
29. The Arbitrator, Roger Maher issued a Notice of Hearing dated August 20, 2014, scheduling an arbitration hearing for October 9, 2014. The hearing was held as scheduled (Powers Decl. ¶ 13 & ex. D thereto at 1).
30. Dependable did not appear at the arbitration nor did it request an adjournment or extension of time to appear (Powers Decl. Ex. D at 2).
31. After noting Dependable's default, the arbitrator awarded plaintiffs a total of $1,042,843.46, comprised of the following:
The arbitrator also awarded interest at the rate of 5.25% from October 28, 2014 forward (Powers Decl. Ex. D at 3).
32. Plaintiffs commenced this action on December 2, 2014 and served the summons and complaint on Dependable on December 6, 2014 (Declaration of Michael Isaac, Esq. dated June 16, 2015 (D.I. 21) ("Isaac Decl.") ¶¶ 2-3 & Exs. E & F thereto).
33. Dependable has never answered or moved with respect to the complaint and the Clerk of the Court issued a certificate of default on March 4, 2015 (Isaac Decl. Ex. G).
34. The following attorneys have worked on this matter on behalf of plaintiffs:
35. Plaintiffs have submitted contemporaneous time records which indicate that the foregoing attorneys worked on this matter for the number of hours indicated:
Plaintiffs also seek $525.46 in costs representing the filing fee, service fee, postage and courier services, PACER fees and the fees incurred for computer assisted legal research (Isaac Decl. ¶¶ 8, 16 & Ex. J thereto).
36. The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1367 and 29 U.S.C. § 185 and 1132.
37. Venue is proper in this District pursuant to 29 U.S.C. § 1132 because the Funds are administered in this District.
38. Section 515 of ERISA provides that:
29 U.S.C. § 1145.
39. In order to establish their claim under Section 515, plaintiffs must prove two elements: (1) that defendant entered into an agreement with the Union under which defendant was obligated to make contributions to the Funds and (2) that defendant failed to make such contributions.
40. The uncontroverted evidence establishes that Dependable executed a CBA with the Union on March 15, 2011 (Powers Decl. ¶ 8 & Ex. A thereto).
41. The uncontroverted evidence further establishes that the CBA required Dependable to make specified contributions to the Funds based on the number of hours workers spent performing work within the trade and geographical jurisdiction of the Union (Powers Decl. ¶ 9 and Ex. A thereto at Art XV, § 1).
42. The uncontroverted evidence further establishes that Dependable breached the CBA by refusing to furnish its books and records to the Funds for the purpose of conducting an audit (Ozard Decl. ¶ 6; Powers Decl. ¶ 11).
43. ERISA Section 502 provides that:
29 U.S.C. § 1132(g)(2);
44. Because the facts set forth in the preceding section demonstrate that plaintiffs are entitled to recover the amounts the arbitrator awarded under both the terms of the CBA and ERISA, I respectfully recommend that summary judgment be granted to plaintiffs affirming the arbitrator's award in the amount of $1,042,943.46 with interest at the rate of 5.25% from October 28, 2014 forward (Powers Decl. Ex. D at 3).
45. Pursuant to the CBA and ERISA, plaintiffs are also entitled to recover the reasonable attorneys' fees they incurred in bringing this action.
46. Whether an attorneys' fee award is reasonable is within the discretion of the court.
47. The party seeking fees bears the burden of establishing that the hourly rates and number of hours for which compensation is sought are reasonable.
48. In determining the amount of reasonable attorneys' fees, "[b]oth [the Second Circuit] and the Supreme Court have held that the lodestar — the product of a reasonable hourly rate and the reasonable number of hours required by the case — creates a `presumptively reasonable fee.'"
49. The hourly rates used in determining a fee award should be "what a reasonable, paying client would be willing to pay."
50. Plaintiffs seek a fee award based on hourly rates ranging from $225 per hour for associates to $300 per hour for the one partner who worked on this matter. "In the Southern District of New York, fee rates for experienced attorneys in small firms generally range from $250 to $450 in civil cases."
51. The Honorable Loretta A. Preska, United States District Judge, has summarized the factors to be considered in assessing the reasonableness of the hours claimed in a fee application:
52. Plaintiffs seek compensation for a total of 36 hours of attorney time, which includes drafting the summons and complaint, moving for a default judgment, attending one court conference and preparing the papers in support of the inquest. Based on my experience as an attorney and a magistrate judge, I conclude that the number of hours for which compensation is sought is commensurate with the work done on this case and that no adjustment is necessary.
53. Accordingly, I recommend that plaintiffs be awarded $8,115.00 in attorneys' fees.
54. Plaintiffs also seek $525.46 in costs, comprised of the filing fee for this action, postage and courier fees, the service fee and the fee for computerized legal research.
55. Fee awards "normally include those reasonable outof-pocket expenses incurred by the attorney and which are normally charged fee-paying clients."
56. I have reviewed the costs sought by plaintiffs and, with one exception, conclude that they are reasonable. The one exception is the $400 filing fee charged to commence the present action. As noted above, it appears that the arbitrator included the $400 filing fee for this action in his award. Accordingly, the costs awarded should be limited to $125.46.
Accordingly, for all the foregoing reasons, I respectfully recommend that (1) judgment be entered in favor of plaintiffs in the amount of $1,042,943.46 with interest at the rate of 5.25% from October 28, 2014 to the present; (2) plaintiffs be awarded attorneys' fees in the amount of $8,115.00 and (3) that plaintiffs be awarded costs in the amount of $125.46.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections.