DocketNumber: No. 12-CV-2154 (MKB)
Citation Numbers: 970 F. Supp. 2d 108
Judges: Brodie, Pollak
Filed Date: 8/27/2013
Status: Precedential
Modified Date: 11/26/2022
ORDER
The Report and Recommendation of Magistrate Judge Cheryl L. Poliak dated August 9, 2013, to which no objections have been filed, is adopted in its entirety. The Court grants Plaintiffs motion for a default judgment and directs the Clerk of the Court to enter judgment in the amount of $14,914.34, consisting of: (1) $4,378.63 in unpaid Required Contributions, (2) $7,035.29 in interest, (3) $870.23 in liquidated damages, and (4) $2,630.19 in attorney’s fees and costs. Plaintiff is also awarded any additional interest that accrues after the date of the Report and Recommendation until the entry of judgment, together with post-judgment interest. See 28 U.S.C. § 1961.
SO ORDERED.
REPORT AND RECOMMENDATION
On May 2, 2012, plaintiff Dr. Gerald Finkel (“plaintiff’), in his capacity as Chairman of the Joint Industry Board of the Electrical Industry (the “Joint Board”), commenced this action against defendant Universal Electric Corp. (“defendant” or “Universal Electric”), pursuant to Sections 404, 409, 502, and 515 of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1104, 1109, 1132, and 1145 (“ERISA”), and pursuant to the Labor Management Relations Act, 29 U.S.C. § 185 (“LMRA”), alleging that defendant failed to make required contributions to various employee benefit funds as required by two collective bargaining agreements, which were in effect from May 10, 2007 through May 13, 2010 (“2007 CBA”) and from May 12, 2010 through May 8, 2013 (“2010 CBA”) (collectively, “the CBAs”). (Compl.
Despite proper service on May 4, 2012, defendant failed to answer or otherwise respond to the Complaint. On August 31, 2012, plaintiff requested a Certificate of Default. On that same day, the Clerk of the Court entered a notation of default against defendant, and on September 28, 2012, plaintiff filed a Motion for Default Judgment. (Mot. for Default J.
BACKGROUND
Plaintiff is the Chairman of the Joint Board, which is a fiduciary and administrator of various employee benefit plans within the meaning of Sections 3(16)(A)(i) and 3(21)(A) of ERISA, 29 U.S.C. §§ 1002(16)(A)(i), 1002(21)(A). (Compl. ¶¶ 4, 5). These benefit plans were established pursuant to the CBAs between Local Union No. 3 of the International Brotherhood of Electrical Workers, AFL-CIO (the “Union”), and various employer associations and independent or unaffiliated employers in the electrical, elevator, sign, television, burglar alarm, and related industries. (Id. 14). The Joint Board has its principal place of business at 158-11 Harry Van Arsdale Jr., Ave., Flushing, N.Y. 11365. (Id.)
Defendant Universal Electric is a New York corporation engaged in the electrical contracting business, with its principal facility located at 99 Lafayette Ave., North White Plains, N.Y. {Id. ¶ 10). According to the Complaint, Universal Electric is an employer within the meaning of Section 3(5) of ERISA, 29 U.S.C. § 1002(5), and Section 301(a) of the LMRA, 29 U.S.C. § 185(a). {Id.) Universal Electric is a member of the Association of Electrical Contractors, Inc. (“AEC”), which bargains on its behalf. {Id. ¶ 11). Defendant agreed to be bound by the terms of the 2007 and 2010 CBAs between the New York Electrical Contractors Association, Inc., the AEC, and the Union. (Id. ¶¶ 10, 12-14).
Pursuant to the CBAs, Universal Electric is obligated to remit contributions to the Joint Board for the following employee benefit funds, each of which is an employee benefit plan within the meaning of Section 3(3) of ERISA, 29 U.S.C. § 1002(3): the Pension, Hospitalization and Benefit Plan (“PHB”); the Dental Benefit Fund (“DEN”); the Educational and Cultural Trust Fund (“E & C”); the Annuity Plan (“ANN”); the Vacation-Holiday Unemployment Plan (“VHUI”); the Health Reimbursement Account Plan (“HRAP”); and the National Employees Benefit Fund (“NEBF”). Together, these funds are called the “ERISA Funds.” {Id. ¶ 6; Sessa Decl.
Along with contributions to the ERISA Funds, the Joint Board collects assessments on behalf of employees who authorize employers to deduct Union dues and loan repayments owed to the Union (“Union Amounts”). (Compl. ¶ 7). Under the CBAs, employers are also obligated to pay contributions to three non-ERISA plans: the Electrical Employers Self Insurance Safety Plan (“EESISP”), the Benefit and Wage Delinquency Fund (“BWDF”), and the COPE Fund (collectively, the “NonERISA Plans”). {Id.) The Union Amounts and the amounts owed to the Non-ERISA Plans are referred to as the “Non-ERISA Contributions.” {Id.) Taken together, all contributions to the ERISA Funds and all Non-ERISA Contributions are referred to as “JIB Contributions.” {Id.)
In addition to JIB Contributions, employers are required to remit contributions
In addition to the obligation to remit JIB Contributions, the CBAs require the Company to submit payroll reports (“Payroll Reports”) to the Joint Board that indicate the name, gross wages, and hours worked for each employee of Universal Electric on whose behalf JIB Contributions are made. (Id. ¶ 15). Employers must also submit payroll reports setting forth the amounts being deducted from employees’ wages (“DSP Reports”) to Mercer. (Id. ¶¶ 6,16).
For purposes of this Report and Recommendation, “Required Contributions” consist of DSP Contributions and JIB Contributions. (Id. ¶ 7).
ALLEGATIONS
Following the referral to this Court, the parties were Ordered to submit documents in connection with the Motion for Default by January 11, 2013. Upon reviewing plaintiffs papers submitted in support of his Motion for Default Judgment, the Court determined that the periods of weeks for which plaintiff sought damages in the Motion for Default Judgment conflicted with the periods of weeks set forth in plaintiffs Complaint. Since no explanation of the conflicting requests had been included by plaintiff in his supporting papers, the Court issued an Order on February 22, 2013 directing plaintiff to provide certain clarifying information. Having received nothing from plaintiff, the Court issued a follow-up Order on June 7, 2013, directing plaintiff to supply the requested information. On July 8, 2013, plaintiff provided the Court with a letter containing the clarifying information.
After considering plaintiffs Complaint, together with the papers filed in support of the Motion for Default Judgment and the July 8, 2013 letter, it appears that plaintiff now seeks the following in this action.
I. Required Contributions
A. JIB Contributions
In the Complaint, plaintiff alleges that defendant failed to pay JIB Contributions for the period of weeks ending March 14, 2012 through April 18, 2012. (Id. ¶ 22). However, the papers submitted in support of plaintiffs Motion for Default Judgment seek JIB Contributions for a different period of time: the period of weeks ending May 2, 2012 through May 23, 2012. (See PL’s Mem.
B. DSP Contributions
The Complaint alleges that defendant failed to remit DSP Contributions for the period of weeks ending January 18, 2012 through February 22, 2012, as well as for the period of weeks ending March 14, 2012 through April 18, 2012. (Compl. ¶23). However, here again, the papers submitted in support of plaintiffs Motion for Default Judgment seek DSP Contributions for different period of time than that listed in the Complaint; the papers filed in support of plaintiffs Motion for Default Judgment seek unpaid DSP Contributions for the weeks ending May 9, 2012 through May 23, 2012. (Pl.’s Mem. at 9). Plaintiff claims that the amount owed in DSP Contributions for this period of time is $808.25. (Id.) Again, plaintiff has not provided an explanation as to why he seeks contributions for this later time period not included in the Complaint. (See n. 5 supra).
In his July 8, 2013 letter, plaintiff clarifies that DSP Contributions for the weeks ending January 18, 2012 through February 22, 2012 and March 14, 2012 through April 20, 2013 have already been paid, although plaintiff does not provide the precise date(s) upon which those DSP Contributions were remitted. (See PL’s 7/8 Ltr. at 1). Accordingly, it appears that plaintiff now seeks DSP Contributions only for the weeks ending May 9, 2012 through May 23, 2012, allegedly totaling $808.25 in amounts owed. (See PL’s Mem. at 10).
II. Audit Report
On May 22, 2012, the Joint Board completed an audit of Universal Electric’s payroll records (the “Audit Report”) for the period of January 1, 2011 through December 31, 2011 (“the Audit Period”). (See id.). According to plaintiff, the Audit Report allegedly demonstrates that Universal Electric “failed to report all of the wages paid to workers who performed work covered under the 2010 CBA.” (Id.) Pursuant to this Audit Report, plaintiff seeks an additional $10,147.03. (Id.)
III. Interest on Required Contributions
A. JIB Contributions Paid Late, But Prior to the Filing of this Action
Plaintiffs Complaint alleges that although defendant paid JIB Contributions
Given these conflicting requests, the Court requested and plaintiff provided clarification in his July 8, 2013 letter as to what he was now seeking. (See PL’s 7/8 Ltr. at 1). Plaintiff explained that he does not, in fact, seek interest on late-paid contributions for the period of weeks ending February 2, 2011 through April 20, 2011 because the interest owed for that time period was awarded in a separate action, No. 11 CV 1428. (See id.). Rather, plaintiff now appears to be seeking interest only on late-paid JIB Contributions for the period of weeks ending April 27, 2011 through February 22, 2012, in the total amount of $4,323.10. (See Compl. ¶ 25; Sessa Deck, Ex. U).
B. Interest on JIB Contributions Paid Late, After the Filing of this Action
In plaintiffs papers filed in support of its Motion for Default Judgment, plaintiff claims that Universal Electric paid JIB Contributions for the period of weeks ending March 14, 2012 through March 28, 2012, but paid them late, following the filing of this action. (PL’s Mem. at 12-13). Thus, plaintiff asserts that the Funds are owed $75.21 in late-paid JIB Contributions. (Id.)
C. Interest on DSP Contributions Paid Late, Prior to the Filing of This Action
Similarly, plaintiffs Complaint asserts that Universal Electric remitted DSP Contributions after they were due and that as a result, plaintiff is owed interest on those late-paid DSP Contributions. (See Compl. ¶ 28).
Plaintiffs July 8, 2013 letter clarifies that the motion papers were in error and that plaintiff does not seek interest for the period of weeks ending March 5, 2008 through January 26, 2011 because they were actually awarded in an earlier case. (See PL’s 7/8 Ltr. at 1). Plaintiff explains that instead, he seeks interest on late-paid
D. Interest on Audit Deficiency
Plaintiff claims that defendant owes interest on the audit deficiency in the amount of $227.68 as of September 30, 2012,
E. Interest on Unpaid Required Contributions
Plaintiff claims that defendants must pay interest on still unpaid Required Contributions in the amount of $55.16 as of September 30, 2012, accumulating at an interest rate of $0.33 per diem from October 1, 2012 until the date that judgment is entered in this matter. (See id. at 11).
IV. Summary of Plaintiffs’ Requests
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V. Total Amount Sought
To summarize, in his Motion for Default Judgment, plaintiff seeks to recover: (1) $4,378.63 in unpaid Required Contributions; (2) $10,147.03 in deficiencies identified in the Audit Report; (3) $24,476.28 in interest, with certain interest accruing on a per diem basis; (4) $2,672.81 in liquidated damages; and (5) $3,362.56 in attorney’s fees and costs. (See Mot. for Default J„ Ex. C).
However, taking into account all available information provided by plaintiff in this matter, it appears that the amounts requested by plaintiff in his Motion for Default Judgment are incorrect. Instead, based on the July 8, 2013 letter, plaintiff actually appears to be seeking the following: (1) $4,378.63 in unpaid Required Contributions; (2) $10,147.03 in audit deficiencies identified in the Audit Report; (3) $7,159.68 in interest as of September 30, 2012 and with certain interest accruing on a per diem basis; (4) $2,672.81 in liquidated damages; and (5) $3,362.56 in attorney’s fees and costs.
DISCUSSION
I. Default Judgment
A. Legal Standard
Rule 55(a) of the Federal Rules of Civil Procedure provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed.R.Civ.P. 55(a). Rule 55 sets forth a two-step process for an entry of default judgment. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir.1993). First, the Clerk of Court enters the default pursuant to Rule 55(a) by notation of the party’s default on the Clerk’s record of the case. See id. Second, after the Clerk of Court enters a default against a party, if that party fails to appear or otherwise move to set aside the default pursuant to Rule 55(c), the court may enter a default judgment. See Fed.R.Civ.P. 55(b).
Providing guidance as to when a default judgment is appropriate, the Second Circuit has cautioned that since default judgment is an extreme remedy, it should only be entered as a last resort. See Meehan v. Snow, 652 F.2d 274, 277 (2d Cir.1981). While the Second Circuit has recognized the “push on a trial court to dispose of cases that, in disregard of the rules, are not processed expeditiously [and] ... delay and clog its calendar,” it has held that the district court must balance that interest with its responsibility to “[afford] litigants a reasonable chance to be heard.” Enron Oil Corp. v. Diakuhara, 10 F.3d at 95-96. Thus, in light of the “oft-stated preference for resolving disputes on the merits,” default judgments are “generally disfavored,” and doubts should be resolved in favor of the defaulting party. Id. Accordingly, plaintiff is not entitled to a default judgment as a matter of right simply because a party is in default. See Erwin DeMarino Trucking Co. v. Jackson, 838 F.Supp. 160, 162 (S.D.N.Y.1993) (noting that courts must “supervise default judgments with extreme care to avoid miscarriages of justice”).
The burden is on the plaintiff to establish its entitlement to recovery. LaBarbera v. Federal Metal & Glass Corp., 666 F.Supp.2d 341, 348 (E.D.N.Y.2009). When a default judgment is entered, the defendant is deemed to have admitted all well-pleaded allegations in the complaint pertaining to liability. See Greyhound Ex-hibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992), cert. denied, 506 U.S. 1080, 113 S.Ct. 1049, 122 L.Ed.2d 357 (1993). Indeed, for the purposes of an inquest, a court accepts as true all factual allegations in the complaint, except those claims relating to damages. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981).
B. Entry of Default Judgment
1. Liability for Damages Alleged in Complaint
In this case, plaintiff alleges in the Complaint that defendant violated ERISA Section 515, 29 U.S.C. § 1145, by failing to pay contributions to the ERISA Plans and by failing to submit weekly Payroll Reports. (Compl. ¶ 37).
In the Complaint, plaintiff seeks to recover an amount equivalent to unpaid contributions, together with interest and liquidated damages, as well as attorney’s fees and costs. (Id. ¶¶ B, C, D, E, F, G). Accordingly, based on the allegations in the Complaint, the Court finds that plaintiff has adequately alleged the elements necessary to state a claim under ERISA, as well as a breach of contract claim pursuant to the LMRA for failing to comply with the terms of the CBAs.
2. Default Determination
It is beyond dispute that defendant is in default. Despite proper service, defendant has not only failed to file an An
As such, given the numerous opportunities afforded to defendant, and its apparent lack of interest in participating in these proceedings, the Court finds no compelling reason to delay further. Accordingly, based on a review of the allegations in the Complaint, which are undisputed at this time, and the supporting documentation submitted in connection with this inquest, including the terms of the CBAs (see Sessa Deck, Exs. A (2007 CBA) and B (2010 CBA)), the Court respectfully recommends that plaintiffs Motion for Default Judgment be granted.
II. Damages
A. Legal Standard
It is well-settled that the burden is on the plaintiff to establish its entitlement to recovery. La Barbera v. Federal Metal & Glass Corp., 666 F.Supp.2d at 348. When a default judgment is entered, the defendant is deemed to have admitted all well-pleaded allegations in the complaint pertaining to liability. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d at 158; Montcalm Publ’g Corp. v. Ryan, 807 F.Supp. 975, 977 (S.D.N.Y.1992) (citing United States v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir.1989)); Deshmukh v. Cook, 630 F.Supp. 956, 959-60 (S.D.N.Y.1986); 6 Moore’s Federal Practice ¶ 55.03[2] at 55-16 (2d ed. 1988). However, plaintiff must still prove damages in an evidentiary proceeding at which the defendant has the opportunity to contest the claimed damages. See Greyhound Exhibitgroup. Inc. v. E.L.U.L. Realty Corp., 973 F.2d at 158. “ ‘While a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation.’ ” Levesque v. Kelly Commc’ns, Inc., No. 91 CV 7045, 1993 WL 22113, at *4 (S.D.N.Y. Jan. 25, 1993) (quoting Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.1974)).
When a court enters a default judgment and the amount of damages sought does not consist of a sum certain, Rule 55(b) of the Federal Rules of Civil Procedure provides that: “The Court may conduct hearings or make referrals — preserving any federal statutory right to a jury trial — when, to enter or effectuate judgment, it needs to ... determine the amount of damages.” Fed.R.Civ.P. 55(b)(2)(B). While “the court must ensure that there is a basis for the damages specified in a default judgment, it may, but
In an ERISA action brought by a fiduciary for or on behalf of a plan to enforce rights under Section 1145, the statute specifies the damages to be awarded when judgment is entered in favor of 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% (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under sub-paragraph (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.
29 U.S.C. § 1132(g)(2); see also Iron Workers Dist. Council of W.N.Y. & Vicinity Welfare & Pension Funds v. Hudson Steel Fabricators & Erectors, Inc., 68 F.3d 1502, 1505-07 (2d Cir.1995).
B. Damages Sought
Pursuant to the Complaint, the Motion for Default Judgment, and the subsequent clarification provided by plaintiff in his July 8, 2013 letter, it appears that plaintiff seeks the following in this action: (1) $4,378.63 in unpaid Required Contributions — this includes unpaid JIB Contributions for the period of weeks ending May 2, 2012 through May 23, 2012 and unpaid DSP Contributions for the period of weeks ending May 9, 2012 through May 23, 2012; (2) $10,147.03 in audit deficiencies identified in the Audit Report — encompassing the time period of January 1, 2011 through December 31, 2011, pursuant to the 2010 CBA; (3) $7,159.68 in interest as of September 30, 2012, with certain interest accruing on a per diem basis;
In deciding whether plaintiff may be awarded such damages, the Court must determine whether plaintiff has provided sufficient notice to defendant. See Cement & Concrete Workers Dist. Council Welfare Fund v. Baroco Contracting Corp., No. 08 CV 1671, 2009 WL 928331, at *3 (E.D.N.Y. Apr. 2, 2009) (discussing the importance of providing sufficient notice to defendants in allowing recovery in an ERISA default judgment action) (citing cases). However, when plaintiff clearly seeks such damages in its complaint, sufficient notice has been provided. See, e.g., id.; Finkel v. Triple A Grp., Inc., 708 F.Supp.2d 277, 282-83 (E.D.N.Y.2010).
In this case, the Complaint expressly requests that defendant be ordered to provide: “Required Contributions determined by the Court to be due and owing” (Compl. ¶ B); “interest on the amount of Required Contributions found to be due and owing” that has accrued “through the date that judgment is entered ...” (id.
Under these circumstances, the Court finds that the Complaint provided defendant with sufficient notice that plaintiff would seek unpaid Required Contributions accruing after the action was filed, interest that accrued both before and subsequent to the filing of the Complaint for the various amounts due to plaintiff, and liquidated damages. See Finkel v. Triple A Grp., Inc., 708 F.Supp.2d at 282-83 (holding defendants liable for damages in an ERISA action that accrued after the filing of the complaint, where the complaint sought amounts due for unpaid contributions “as of the date judgment is entered,” but not holding defendants liable for damages due for interest and liquidated damages on late-paid contributions because such damages were not mentioned in the complaint) (internal quotations omitted).
C. Calculation of Damages
In this case, where plaintiff has filed reasonably detailed materials — including a supplementary letter — pertaining to the damages incurred, and defendant has failed to make an appearance, or otherwise respond and present evidence on the issue of damages, the Court is able to make an informed recommendation regarding damages.
1. Required Contributions
According to plaintiff, Universal Electric owes $3,570.38 in unpaid JIB Contributions for the weeks ending May 2, 2012 through May 23, 2012.
Plan Contributions Due
PHBP $1,613.40
DEN $163.04
ANN $1,540.00
E & C $51.14
NEBF $175.32
EESISP $27.48
Total JIB Contributions $3,570.38
DSP 25
Total Required Contributions $4378.63
(See Hock Decl. ¶ 10; Sessa Decl. ¶¶ 20-22).
2. Audit Deficiency
As mentioned above, on or about May 22, 2012, the Joint Board completed an audit of defendant’s payroll records (the “Audit Report”) for the period of January 1, 2011 through December 31, 2011 (the “Audit Period”). (Sessa Deck ¶ 23). According to the Audit Report, defendant failed to report wages for three employees performing work covered by the 2010 CBA. (Id. ¶ 24). As a result, plaintiff asserts that Universal Electric failed to pay Required Contributions for these employees in the amount of $10,147.03. (Id.; Hock Deck ¶ 11). Plaintiff states that defendant has not yet remitted the amounts owed pursuant to the Audit Report. (See Hock Deck ¶ 12; Sessa Deck ¶ 26).
Having reviewed the Audit Report, which is attached to the Sessa Declaration as Exhibit Q (see Sessa Deck ¶ 25), the Court respectfully recommends that plaintiffs request for the amounts identified in the Audit Report be denied at this time. Although plaintiff has provided a copy of the Audit Report, he fails to specify for which periods of time Required Contributions were allegedly still owed in 2011. Without this information, the Court cannot confirm the accuracy of plaintiffs allegation that the Funds are still owed the full amount identified in the Audit Report. Particularly since plaintiffs papers contain indications that at least some Required Contributions previously owed by defendant during this period may have already been paid,
3. Interest
Plaintiff claims that under ERISA and the CBAs, the Funds are entitled to an award of: (1) interest on unpaid JIB Contributions for the period of weeks ending May 2, 2012 through May 23, 2012; (2)
Pursuant to Section 1132(g)(2) of ERISA, the interest rate on unpaid contributions is calculated “using the rate provided under the plan, or, if none, the rate prescribed under Section 6621 of Title 26.” 29 U.S.C. § 1132(g)(2). In this case, the Joint Board has adopted the rate established by Section 6621, except for the NEBF Plan, the only benefit plan that provides for a specific interest rate; the NEBF Plan has established a ten percent (10%) interest rate. (See Hock Deck ¶ 13; Sessa Deck ¶ 29, Exs. R, S). Accordingly, interest for the NEBF Plan is to be calculated at the rate of 10%; interest owed to the remaining benefit plans will be calculated using the rates prescribed by Section 6621 of Title 26.
According to plaintiff, interest started accruing as of the “last day the contributions have become due and owing, i.e., the last day [defendant’s] employees could have performed covered work which triggered the contribution obligation, or the payroll week ending date.” (Id. ¶ 14).
a) Interest Owed on Unpaid Contributions
In his papers, plaintiff provides two formulas for calculating interest: one for the NEBF benefit plan, which provides for a specific interest rate often percent (10%), compounding monthly throughout the period of delinquency (id. ¶ 15, n. 5), and another formula for the remaining Plans. (Id. ¶ 15). According to plaintiff, the interest owed as of September 30, 2012 on unpaid Required Contributions is as follows:
Plan_Interest Owed Per Diem Rate
PHBP_$18.63_$0,12
DEN_$1.89_$0.00
ANN_$17.90_$0,11
E & C_$059_$0,00
NEBF_$6.72_$0,04
EESISP_$0,32_$0.00
Total JIB Interest_$46.05_$0,27
DSP_$9.11_$0,06
Total Interest_$55.16_$0,33
(Id. ¶ 16).
After reviewing the materials submitted by plaintiff, the Court respectfully recommends that plaintiff be awarded interest in the amount of $158.45 owed on unpaid Required Contributions. This amount was determined by adding the amount owed as of September 30, 2012, which was $55.16, to the interest that accrued between October 1, 2012 and August 9, 2013, the date of this Report and Recommendation,
b) Interest Owed on the Audited Deficiency
Based on the deficiencies identified in the Audit Report, plaintiff also seeks interest that has accrued on the unpaid contri
For the reasons discussed earlier with respect to the amounts allegedly identified by the Audit Report as due, the Court respectfully recommends that plaintiffs request for interest on the deficiency identified in the Audit Report be denied because plaintiff has failed to provide sufficient supporting documentation to allow the Court to determine the accuracy of the amounts requested.
c) Interest Owed on the Late-Paid Contributions
It appears from plaintiffs submissions that plaintiff also seeks interest on late-paid JIB Contributions for the period of weeks ending April 27, 2011 through February 22, 2012, as well as for the period of weeks ending March 14, 2012 through March 28, 2012. (See Pl.’s Mem. at 12-13; PL’s 7/8 Ltr. at 1). After computing the accumulated interest using the figures provided in Exhibit U of the Sessa Declaration for the period of weeks ending April 27, 2011 through February 22, 2012, it appears that the amount sought by plaintiff for the interest that accrued on late-paid JIB Contributions for those dates is $4,323.10. (See Sessa Deck, Ex U). Additionally, plaintiff claims that the Funds are owed $75.21 for the interest that accrued on the late-paid JIB Contributions from March 14, 2012 through March 2012. (See Hock Deck ¶ 18).
Plaintiff also requests interest on- late-paid DSP Contributions for the period of weeks ending February 2, 2011 through December 7, 2011, in the sum of $2,478.53. (See Pl.’s 7/8 Ltr. at 1). However, as discussed supra at page 116, there are two weeks of DSP Contributions — the weeks end April 13 and April 20, 2011, that were not alleged in the Complaint to have been paid late.
Accordingly, having reviewed the calculations submitted by plaintiff, the Court respectfully recommends that plaintiff be awarded the full amount of interest sought for late-paid Required Contributions, totaling $6,876.84 in interest.
d) Summary of Interest Owed
The Court respectfully recommends that plaintiff be awarded a total amount of $7,035.29, which is the total interest on unpaid and late-paid Required Contributions that has accrued up until the date of this Report and Recommendation, August 9, 2013 — exclusive of interest on the audit amounts. Additionally, the Court recommends that plaintiff be awarded interest that will continue to accrue from the date of this Report and Recommendation until the entry of judgment, together with post-
4. Liquidated Damages
Plaintiff requests liquidated damages for unpaid and underpaid contributions that were alleged in the Complaint, as well as liquidated damages for unpaid and late-paid contributions that became due after the Complaint was filed. (See PL’s Mem. at 18).
Plaintiff is entitled to an amount equal to either liquidated damages for unpaid, underpaid, and late-paid ERISA Plan Contributions pursuant to Section 502(g)(2) of ERISA (see Hock Decl. ¶¶ 22-23), or interest on the unpaid contributions (not to exceed more than 20% of the amount owed in unpaid contributions). See 29 U.S.C. § 1132(g)(2)(c). In this case, plaintiff seeks liquidated damages based on 20% of the unpaid and audited ERISA Plan Contributions, in the amount of $2,672.81. (See Hock Decl. ¶ 23).
According to plaintiff, liquidated damages on the unpaid and audited ERISA Plan Contributions are as follows for each of the ERISA plans:
Plan_Liquidated Damages
PHBP_$1,366.43
DEN_$138.08
ANN_$308.00
E & C_$20.93
NEBF_$148.47_
DSP_$690.90
Total_$2,672.81
(Id. ¶ 24). According to plaintiff, 20% of the Required ERISA Contributions is $870.23,
5. Attorney’s Fees and Costs
Plaintiff also requests reasonable attorney’s fees and costs in connection with this action, pursuant to 29 U.S.C. § 1132(g)(2)(D), which provides that when an employee benefit fund prevails in a legal action, the defendant is hable for legal costs. (See Hock Deck ¶ 26).
a) Reasonable Attorney’s Fees
“The district court retains discretion to determine ... what constitutes a reasonable fee.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir.2011) (citing LeBlanc-Stemberg v. Fletcher, 143 F.3d 748, 758 (2d Cir.1998)). “The traditional starting point for determining a reasonable attorneys’ fee award is the ‘lodestar’ amount, which results in a presumptively reasonable fee.” Dunn v. Advanced Credit Recovery, Inc., No. 11 CV 4023, 2012 WL 676350, at *5 (S.D.N.Y. March 1, 2012) (citing Perdue v. Kenny A., 559 U.S. 542, 130 S.Ct. 1662, 1672-73, 176 L.Ed.2d 494 (2010); Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 188-90 (2d Cir.2008)); see also Millea v. Metro-North R.R. Co., 658 F.3d at 166-67 (explaining that it is legal error to fail to calculate the lodestar “as a starting point”).
To determine the lodestar amount, a court must determine “the num
Although the lodestar approach results in a “presumptively reasonable” fee, “it is not ‘conclusive in all circumstances.’” Millea v. Metro-North R.R. Co., 658 F.3d at 167 (quoting Perdue v. Kenny A., 130 S.Ct. at 1673). Rather, in “rare circumstances,” a court may adjust the lodestar “when [the lodestar method] ‘does not adequately take into account a factor that may properly be considered in determining a reasonable fee.’ ” Id. (quoting Perdue v. Kenny A., 130 S.Ct. at 1673); see also Adusumelli v. Steiner, 2013 WL 1285260, at *2. In other words, “a court may not adjust the lodestar based on factors already included in the lodestar calculation itself because doing so effectively double-counts those factors.” Id. As the court explained in Dunn v. Advanced Credit Recovery, Inc., a court should “first use[] the lodestar method to determine the amount of attorneys’ fees and then, if necessary, adjust[ ] the resulting figure using the [Johnson v. Georgia Highway Express, Inc.] factors to reflect consideration of any special circumstances.”
“The burden is on the party moving for attorney’s fees to justify the hourly rates sought.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In addition to the parties’ evidentiary submissions, the Court may consider its own experience and familiarity with the case and with rates generally charged. See Cruz v. Local Union No. 3, 34 F.3d 1148, 1160 (2d Cir.1994) (noting that “[a] district court’s ‘choice of rates [is] well within [its] discretion’ ”) (quoting Cabrera v. Jakabovitz, 24 F.3d 372, 393 (2d Cir.1994), cert. denied, 513 U.S. 876, 115 S.Ct. 205, 130 L.Ed.2d 135 (1994)). To “inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence — in addition to the attorney’s own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).
Indeed, the Second Circuit has held that in calculating the presumptively reasonable fee, “courts ‘should generally
In this case, plaintiff was represented by Cohen, Weiss and Simon LLP (the “Firm”), which is located at 330 West 42nd Street, New York, N.Y. 10036. In accordance with New York State Association for Retarded Children. Inc. v. Carey, the Firm submitted contemporaneous billing records, setting forth the dates and amount of time during which services were rendered, the rate at which the services were charged, along with the name of the attorney and a description of services performed. 711 F.2d 1136, 1148 (2d Cir.1983). (See Hock Deck, Ex. D).
Plaintiff seeks attorney’s fees in the amount of $2,929.50, representing services performed during the period from April 2, 2012 through September 28, 2012 by David R. Hock, Esq. and paralegals, Maureen A. Slack, and Benjamin D. Berger, in connection with plaintiffs efforts to obtain this judgment. (See id. ¶¶27, 33, Ex. D). Specifically, plaintiff seeks the following fees: (1) $1,480.50 for the 5.4 hours of work done by Mr. Hock, charging a rate of $260 per hour prior to July 1, 2012 and $275 per hour after that date; (2) $396.00 for the 4.4 hours of work completed by Ms. Slack charged at a rate of $90 per hour; and (3) $1,053.00 for Mr. Berger’s 11.7 hours of work, billed at $90 per hour. (See Hock Deck ¶¶ 28, 29, 33, Ex. D). According to the Declaration of Mr. Hock, he graduated from Washington College of Law at American University in 1999. (See id. ¶ 32). He has been practicing in the employee benefits area since 2000 and effective July 1, 2012, he became a partner of the Firm. (See id.).
Based on the Court’s knowledge of the rates generally charged for this type of work in connection with an ERISA default, the Court finds that the rates of $260/$275 per hour for the legal work performed by Mr. Hock are within the range of billing rates of similarly experienced attorneys working on comparable matters in the Eastern District. Although perhaps slightly higher than what is customarily requested in this District, see, e.g., Finkel v. Triple A Grp., Inc., 708 F.Supp.2d 277, 290 (E.D.N.Y.2010) (determining that hourly rates for associates ranging from $200 to $225 are reasonable in connection with an ERISA inquest); Finkel v. Jones Lang LaSalle Americas, Inc., No. 08 CV 2333, 2009 WL 5172869, at *5 (E.D.N.Y. Dec. 30, 2009) (finding that hourly rates of $250 for partners, $235 for senior associates, and $225 for junior associates); Finkel v. Rico Electric, Inc., No. 05 CV 2145, 2009 WL 3367057, at *7 (E.D.N.Y. Oct. 16, 2009) (awarding attorneys with five years of employee benefits experience the rate of $225 per hour in an ERISA inquest), the Court finds the requested rates to be reasonable in light of the fact that Mr. Hock became a partner during the period of time the work was performed.
With regard to the rate charged for the paralegals’ work, the Court respectfully recommends that the requested rate of $90 per hour be approved as reasonable and appropriate. See, e.g., Finkel v. Frank Torrone & Sons, Inc., No. 12 CV 924, 2012 WL 1393021, at *1 n. 1 (E.D.N.Y. Apr. 23, 2012) (recognizing that $90 per hour is a reasonable rate for a paralegal on an ERISA matter); see also Ferrara v. PI Trucking Corp., No. 11 CV 661, 2011 WL 7091562, at *4 (E.D.N.Y. Dec. 20, 2011). But see Finkel v. Detore Elec. Const. Co., Inc., No. 11 CV 814, 2012 WL 1077796, at *12 (E.D.N.Y. Mar. 6, 2012) (reducing a paralegal’s hourly rate in an ERISA action from $90 to $80).
In reviewing a fee application, the court “should exclude excessive, redundant or otherwise unnecessary hours.” Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir.1999) (citing Hensley v. Eckerhart, 461 U.S. at 433-35, 440, 103 S.Ct. 1933); see also Rotella v. Board of Educ., No. 01 CV 434, 2002 WL 59106, at *3-4 (E.D.N.Y. Jan. 17, 2002) (applying percentage reduction to fees of several attorneys for excessive and redundant billing); Quinn v. Nassau County Police Dep’t, 75 F.Supp.2d 74, 78 (E.D.N.Y.1999) (reducing one attorney’s fees by 20% and another’s by 30% for unnecessary and redundant time); Perdue v. City Univ. of N.Y., 13 F.Supp.2d 326, 346 (E.D.N.Y.1998) (imposing a 20% reduction for redundancy); American Lung Ass’n v. Reilly, 144 F.R.D. 622, 627 (E.D.N.Y.1992) (finding that “use of so many lawyers for relatively straightforward legal tasks was excessive and led to duplication of work” and deducting 40% of plaintiffs’ lawyer’s hours).
Similarly, courts routinely apply across-the-board reductions for vague entries, see, e.g., In re Olson, 884 F.2d 1415, 1428-29 (D.C.Cir.1989) (reducing fees based on lack of specificity in description of work performed); DeVito v. Hempstead China Shop, Inc., 831 F.Supp. 1037, 1045 (E.D.N.Y.1993) (reducing fee request by 40% for, inter alia, insufficient descriptions of work performed), rev’d & remanded on other grounds, 38 F.3d 651 (2d Cir. 1994); Cabrera v. Fischler, 814 F.Supp. 269, 290 (E.D.N.Y.1993) (reducing fees by 30% for vague entries with insufficient descriptions of work performed), rev’d in part & remanded on other grounds, 24 F.3d 372 (2d Cir.), cert. denied, 513 U.S. 876, 115 S.Ct. 205, 130 L.Ed.2d 135 (1994); Nu-Life Constr. Corp. v. Board of Educ., 795 F.Supp. 602, 607-08 (E.D.N.Y.1992) (reducing fees by 30% due in part to lack of specificity in descriptions of work performed); Meriwether v. Coughlin, 727 F.Supp. 823, 827 (S.D.N.Y.1989) (finding an overall reduction of 15% warranted based on vague descriptions of work performed).
Courts in this district also reduce fees where attorneys appear to have submitted careless or inaccurate work on behalf of their clients. For example, in Gesualdi v. Stallone Testing Laboratories, Inc., the court reduced the requested attorney’s fees for plaintiffs’ counsel in a default by 50% “due to errors and poor drafting in plaintiffs’ filings, including mistakes as to the interest rate used, the number of days of delinquent payment, and plaintiffs’ failure” to abide by both the Federal Rules of Civil Procedure and the Eastern District of New York Local Rules.
The billing statements submitted by the Firm begin on May 29, 2012 and end on September 27, 2012. (See Hock Deck, Ex. D). The Firm’s work on this case included drafting the Complaint, arranging for service of process, drafting plaintiffs Motion for Default Judgment, calculating the amounts owed, and compiling the materials annexed thereto. (See Hock Deck ¶ 30). While plaintiffs counsel does not request a particularly substantial amount in fees, the Court nonetheless respectfully recommends that counsel’s fees be decreased by 25% for the imprecise, confusing, and sometimes inaccurate papers submitted by plaintiff in this action. The Court does not recommend that plaintiffs counsel be awarded the full amount requested in fees given that plaintiffs Complaint and its papers filed in support of its Motion for Default Judgment contradicted each other in terms of the time periods covered, requested an award for periods of time covered by another action, and failed to provide sufficient supporting documentation. For example, despite the obvious conflicting dates for unpaid Required Contributions, no explanation was provided by plaintiff until the undersigned requested it. (See Pl.’s 7/8 Ltr. at 1). Moreover, when the Court received that clarifying information, it became evident not only that plaintiff appears to have sought the same set of damages in multiple actions, but additionally, that in this case, plaintiff had “erroneously requested” over $15,000 more in late-paid DSP Contributions than what plaintiff was actually allegedly owed. Given plaintiffs counsel’s carelessness, plaintiff would have been unjustly enriched had the Court not identified the inconsistencies and Ordered plaintiff to provide clarifying information.
As such, having carefully examined the billing records in this matter and having considered the nature of plaintiffs various submissions to the Court, the Court respectfully recommends that plaintiff be awarded $2,197.13, which represents a 25% reduction of the $2,929.50 in attorney’s fees sought by plaintiff in this matter,
b) Reasonable Costs
Plaintiff also requests $433.06 in costs for filing fees ($350.00), service of process fees ($62.00), and photocopies, facsimiles, and telephone tolls ($21.06 in total).
In sum, the Court recommends that plaintiff be awarded $2,630.19 in attorney’s fees and costs.
CONCLUSION
The Court respectfully recommends that plaintiffs motion for entry of a default judgment be granted, and that plaintiff be awarded the following damages
Any objections to this Report and Recommendation must be filed with the Clerk of the Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. Failure to file objections within the specified time waives the right to appeal the District Court’s order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989).
The Clerk is directed to send copies of this Report and Recommendation to the parties either electronically through the Electronic Case Filing (ECF) system or by mail.
SO ORDERED.
Dated: Brooklyn, New York, August 9, 2013.
. Citations to "Compl.” refer to the Complaint, filed on May 2, 2012.
. Citations to "Mot. for Default J.” refer to the Motion for Default Judgment, filed by plaintiff on September 28, 2012.
. Citations to "Sessa Decl.” refer to the Declaration of Christina A. Sessa, dated September 27, 2012.
. Citations to "PL's Mem.” refer to the Plaintiff's Memorandum of Law in Support of Motion for Default Judgment, filed on September 28, 2012.
. Although these amounts were not specified in the Complaint, plaintiffs Complaint seeks any "additional amounts [that] continue to become due and owing during the pendency of [the] action.” (Compl. ¶ 32).
.Since the Complaint was filed on May 2, 2012, it is presumed that these contributions were not included in the Complaint because they had not yet become due. However, nowhere in plaintiff's papers does he explain this. Plaintiff does allege in his papers filed in support of his Motion for Default Judgment that defendant owes JIB Contributions for the period of weeks ending May 2, 2013 through May 23, 2013. (See Sessa Deck ¶ 20).
. Citations to "PL's 7/8 Ltr.” refer to the letter filed by plaintiff on July 8, 2013.
. As discussed supra n. 5, the Complaint seeks any "additional amounts [that] continue to become due and owing during the pendency of [the] action.” (Compl. ¶ 32).
. The Court computed the interest on late-paid JIB Contributions being sought for the period of weeks ending April 27, 2011 through February 22, 2012 based upon the figures provided in Exhibit U of the Sessa Declaration; plaintiff failed to provide the precise amount being sought for this period of time in its papers.
. The Complaint further alleges that when Universal Electric withholds employee contributions from a worker’s wages, it is required to segregate the funds from its general assets. 29 C.F.R. § 2510.3-102(a). (Id. ¶ 29).
. As mentioned above, the Complaint alleges that interest on late-paid DSP Contributions is owed for the period of weeks ending November 24, 2010 through April 6, 2011, as well as for the period of weeks ending April 27, 2011 through December 7, 2011. (See Compl. ¶ 28).
. Plaintiff submitted his Motion for Default Judgment on September 28, 2012, but computed the amounts due as of September 30, 2012. (See the Declaration of David R. Hock in Support of Plaintiff’s Motion for Default Judgment, filed on September 28, 2012 ("Hock Decl.” ¶ 16)).
.This chart excludes the interest plaintiff seeks for unpaid Required Contributions and unpaid audit deficiencies, as these amounts allegedly accrue on a per diem basis.
. Plaintiff alleges that these violations give rise to this action pursuant to ERISA Section 502(a)(3), 29 U.S.C. § 1132(a)(3). (Compl. ¶ 37).
. Plaintiff appears to be seeking all of the following in interest: (1) interest on unpaid Required Contributions, as of September 30, 2012 and accruing on a per diem basis; (2) interest on unpaid amounts identified in the Audit Report, as of September 30, 2012 and accruing on a per diem basis; (3) interest on late-paid JIB Contributions for the period of weeks ending April 27, 2011 through February 22, 2012 and March 14, 2012 through March 28, 2012; and (4) interest for late-paid DSP Contributions for the period of weeks ending February 2, 2011 through December 7, 2011.
. See discussion supra at pp. 114-15.
. See discussion supra at p. 115.
. According to plaintiff, no amounts were owed for the following plans: (1) JT Board; (2) Dues; (3) Delinquency Fund; (4) Loan Repayments; and (5) Cope Contributions. (See Hock' Decl. ¶ 10). Plaintiff also notes that although the CBAs require Universal Electric to submit Non-ERISA Contributions, no contributions were due to the Non-ERISA Funds for the relevant weeks, with the one exception of the EESISP. (Id. n. 2).
. For example, plaintiff states in his July 8, 2013 letter that he does not seek interest on late-paid JIB Contributions for the period of weeks ending February 2, 2011 through April 20, 2011 because the interest — and therefore presumably the principal as well — has already been paid by defendant. (See Pl.’s 7/8 Ltr. at 1). Since this time period covers, in part, the same period covered by the audit, the Court cannot, without further documentation, determine if contributions for this period are included in the Audit Report.
. As a separate issue, plaintiff appears to be seeking the same set of damages in more than one action. In plaintiffs papers filed in support of the Motion for Default Judgment, plaintiff seeks interest for late-paid DSP Contributions for various dates during the period of weeks ending March 5, 2008 through December 7, 2011. (See Pl.’s Mem. at 12). However, in plaintiff's July 8, 2013 letter, plaintiff states that the interest for late-paid DSP Contributions for the period of weeks ending March 5, 2008 through January 26, 2011 were already awarded in a could separate case. (See Pl.’s 7/8 Ltr. at 1). Similarly, plaintiff states that he no longer seeks interest for late-paid JIB Contributions for the period of weeks ending February 2, 2011 through April 20, 2011 because, here again, this interest has been awarded in the separate action. (Id.)
. Plaintiff determined the applicable interest rate by referring to the following website: http://www.dol.gov/ebsa/calculator/interest ratetables.html. (See Hock Deck ¶ 13, n. 3).
. As mentioned, the Complaint alleges that interest on late-paid DSP Contributions is owed for the period of weeks ending November 24, 2010 through April 6, 2011, as well as for the period of weeks ending April 27, 2011 through December 7, 2011. (See Compl. ¶ 28).
. According to the Court’s computation, 20% of the unpaid ERISA Contributions actually totals $875.73. However, the Court recommends that plaintiff be awarded $870.23 because that is all that plaintiff seeks in this action. (See Hock Decl. ¶ 24).
. The Johnson factors are as follows:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974).
. Additionally, the Court deems Mr. Hock’s fee reasonable particularly given the minimal number of hours he billed. (See discussion infra atpp. 715-16).
. The specific costs requested are as follows: $10.00 for in-house photocopies, $11.00 for in-house fax transmissions, and $0.06 in-house telephone tolls. (See Hock Deck, Ex. D).