Trustees of the Pavers and Road Builders District Council Welfare, Pension, Annuity and Apprenticeship, Skill Improvement and Safety Funds v. WJL Equities Corp.
Filing
52
ORDER. Plaintiffs' attorneys' unopposed motion for fees and costs incurred during their prosecution of this action is granted in part and denied in part. For the reasons provided in the annexed memorandum, the court concludes that plaintiffs' attorneys are entitled to $21,608 in fees and $350.00 in costs, for a total of $21,958. Ordered by Judge Kiyo A. Matsumoto on 11/10/2015. (Jacobson, Jonathan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------TRUSTEES OF THE PAVERS AND ROAD
BUILDERS DISTRICT COUNCIL WELFARE,
PENSION, ANNUITY AND
APPRENTICESHIP, SKILL, IMPROVEMENT
AND SAFETY FUNDS,
x
:
:
:
:
MEMORANDUM AND ORDER
:
:
Plaintiffs,
:
No. 13-CV-0853 (KAM)(PK)
:
-against:
:
WJL EQUITIES CORP.,
:
:
Defendant.
:
---------------------------------- x
MATSUMOTO, United States District Judge:
Plaintiffs Trustees of the Pavers and Road Builders
District Council Welfare, Pension, Annuity and Apprenticeship,
Skill Improvement and Safety Funds (“plaintiffs”) commenced this
action against defendant WJL Equities Corporation (“defendant”),
alleging that defendant failed to contribute funds, or “fringe
benefits,” pursuant to a collective bargaining agreement (“CBA”)
between September 2012 and June 2013. (ECF No. 8, Amended Complaint
(“Amend. Compl.”) ¶¶ 11, 13.) On March 27, 2015, the court granted
summary judgment to plaintiffs, concluding that WJL had failed to
remit employee benefit fund contributions required under the CBA.
(ECF No. 40, Memorandum and Order (“Order”) at 37.) The court also
granted summary judgment to plaintiffs “with regard to defendant’s
liability for interest, liquidated damages, and attorneys’ fees
and costs.” (Id.)
1
Presently before the court is plaintiffs’ attorneys’
unopposed
motion
for
fees
and
costs
incurred
during
their
prosecution of this action. (ECF No. 47, Plaintiffs’ Motion for
Attorney’s Fees and Costs (“Pls. Mot.”); ECF No. 49, Plaintiffs’
Memorandum of Law in Support of Plaintiffs’ Motion for Attorney’s
Fees and Costs (“Pls. Mem.”).) For the reasons provided below, the
court grants plaintiff’s motion in part.
BACKGROUND
The court assumes familiarity with the underlying facts
in this litigation, but will provide background relevant to the
instant motion. On February 15, 2013, plaintiffs brought this
action to recover unpaid employee benefit fund contributions. (ECF
No. 1, Complaint Against WJL Equities Corp.) An amended complaint
addressing additional delinquencies was filed on August 15, 2013.
(Amend.
Compl.)
After
settlement
talks
were
unsuccessful,
plaintiffs filed a motion for summary judgment that defendant
opposed. (ECF No. 20, Motion for Summary Judgment by Trustees; ECF
No. 30, Defendant’s Opposition to Plaintiffs’ Motion for Summary
Judgment.)
In an order issued on March 27, 2015, the court granted
plaintiffs’ motion for summary judgment. (Order at 37.) The court
determined that the “CBA unambiguously obligated defendant to make
contributions, and defendant failed to do so.” (Id.) The court
also granted plaintiffs’ motion for summary judgment with respect
2
to
defendant’s
liability
for
interest,
liquidated
damages,
attorney’s fees, and costs. (Id.) As relevant here, the court
explained that defendant was liable for “[a]ttorneys’ fees and
costs that will be determined after plaintiffs’ application and
additional documentation related to fees and costs have been
submitted.” (Id. at 38.)
On May 29, 2015, plaintiffs’ attorneys filed the instant
motion for attorney’s fees. (Pls. Mot.) Michael Isaac, an associate
at Virginia & Ambinder, LLP (“V&A”), the law firm representing
plaintiffs, signed a declaration explaining in detail the hours
billed.
(ECF No. 48, Declaration of Michael Isaac in Support of
Plaintiffs’ Motion for Attorney’s Fees and Costs (“Isaac Decl.”).)
V&A billed the associates who worked on the case at $200 per hour.
(Id. ¶ 7-8.) Legal assistants who worked on the case billed $80
per hour. (Id. ¶ 9.) These rates are reflected in the chart below:
Attorney
Michael
Isaac,
(Associate)
Jesse
Barton,
(Associate)
Legal Assistants
Hourly Rate
Esq.
Esq.
$200
$200
$80
Isaac stated that these “hourly rates are consistent
with V&A’s customary billing arrangement with” the plaintiffs (Id.
¶ 10) and also that their rates “are similar to or lower than the
rates typically charged by attorneys of commensurate skill and
3
experience in similar actions in the Eastern and Southern Districts
of New York.” (Id. ¶ 11.)
V&A seeks $21,608 in fees reflecting 112.3 hours of work
on this case. (Id. ¶ 12.) V&A provided a detailed accounting for
the hours in a spreadsheet included in its motion. 1 (ECF No. 51,
Ex. A.) The hours were largely expended on drafting the complaints,
early
court
appearances,
settlement
negotiations,
conducting
limited discovery, and preparing for and fully briefing the motion
for summary judgment. (Id.) In addition to the associates’ and
legal assistants’ hours, V&A is seeking $712.80 in costs and
expenses,
“none
of
which
have
been
incorporated
into
V&A’s
attorneys’ or legal assistants’ hourly rates.” (Isaac Decl. ¶ 13.)
In total, then, the firm is seeking $22,320.80 in fees and costs.
Defendant has not opposed this motion. (ECF No. 46, Ex.
A,
E-Mail
From
Defendant’s
Counsel
to
Plaintiffs’
Counsel
Confirming Decision Not to Oppose Motion for Fees.)
DISCUSSION
I.
LEGAL STANDARD
Because
this
suit
was
brought
under
the
Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.,
1
V&A’s initial spreadsheet accounting for its hours included 130.9
hours billed for a total of $25,316. (ECF No. 48, Ex. A.) V&A amended
its spreadsheet on November 3, 2015, excluding hours spent on the fee
application and certain de minimis hours spent by other members of the
firm assisting in the litigation. (ECF No. 51.) This reduced the
initial amount on the spreadsheet to $21,608. (ECF No. 51, Ex. A.)
4
and because plaintiffs secured a judgment in their favor, they are
entitled to “reasonable attorney’s fees and costs of the action,
to be paid by the defendant.” 29 U.S.C. § 1132(g)(2)(D); see also
Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 252 (2010)
(recognizing that plaintiffs who recover delinquent employment
contributions to a multiemployer plan — after obtaining “a judgment
in
favor
of
the
plan”
—
may
seek
attorney's
fees
(quoting
§ 1132(g)(2)(D))). Additionally, where the employer fails to pay
its required contributions, the CBA itself entitles plaintiffs to
“[c]osts and attorneys’ fees.” (ECF No. 23, Ex. A, CBA, Article
IX, § 5(b); see also U.S. Fid. & Guar. Co. v. Braspetro Oil Servs.
Co., 369 F.3d 34, 74 (2d Cir. 2004) (noting that attorney’s fees
are recoverable where the parties have so agreed in a valid
contract).)
The
district
court
has
substantial
discretion
in
fashioning an appropriate award for attorney’s fees. See Hensley
v. Eckerhart, 461 U.S. 424, 436-37 (1983); Matusick v. Erie Cty.
Water Auth., 757 F.3d 31, 64 (2d Cir. 2014) (“We afford a district
court
considerable
discretion
in
determining
what
constitutes
reasonable attorney’s fees in a given case, mindful of the court’s
superior understanding of the litigation and the desirability of
avoiding frequent appellate review of what essentially are factual
matters.”
(internal
quotation
marks
5
and
citations
omitted));
McDonald ex rel Prendergast v. Pension Plan of the NYSA-ILA Pension
Trust Fund, 450 F.3d 91, 96 (2d Cir. 2006) (same).
As the Supreme Court has explained,
[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. This calculation provides an
objective basis on which to make an initial estimate of
the value of a lawyer's services. The party seeking an
award of fees should submit evidence supporting the
hours worked and rates claimed. Where the documentation
of hours is inadequate, the district court may reduce
the award accordingly.
Hensley, 461 U.S. at 433.
Calculating reasonable hours and multiplying that number
by a reasonable rate, referred to as the lodestar method, is often
employed alongside an analysis of the factors articulated by the
Fifth Circuit in Johnson v. Ga. Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974), abrogated on other grounds by Blanchard v.
Bergeron, 489 U.S. 87, 92-93, 96 (1989). 2 See Arbor Hill Concerned
Citizens Neighborhood Ass'n v. Cty. of Albany & Albany Cty. Bd. of
Elections, 522 F.3d 182, 190 (2d Cir. 2008)
2
The 12 Johnson factors are as follows: (1) the time and labor
required; (2) the novelty and difficulty of the questions; (3) the
level of skill required to perform the legal service properly; (4) the
preclusion of employment by the attorney due to acceptance of the
case; (5) the attorney's customary hourly rate; (6) whether the fee is
fixed or contingent; (7) the time limitations imposed by the client or
the circumstances; (8) the amount involved in the case 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. See 488 F.2d at 717-19.
6
The Second Circuit has provided some further guidance in
the field, cautioning courts to consider:
the complexity and difficulty of the case, the available
expertise and capacity of the client's other counsel (if
any), the resources required to prosecute the case
effectively (taking account of the resources being
marshaled on the other side but not endorsing scorched
earth tactics), the timing demands of the case, whether
an attorney might have an interest (independent of that
of his client) in achieving the ends of the litigation
or might initiate the representation himself, whether an
attorney might have initially acted pro bono (such that
a client might be aware that the attorney expected low
or non-existent remuneration), and other returns (such
as reputation, etc.) that an attorney might expect from
the representation.
Id. at 184.
II.
Analysis
A.
Reasonable Hourly Rate
In calculating a reasonable hourly rate, the “Supreme
Court directed that district courts should use the prevailing
market rates in the community in calculating the lodestar, or what
the Second Circuit is now calling the ‘presumptively reasonable
fee.’” U.S. Bank, N.A. v. Byrd, 854 F. Supp. 2d 278, 286 (E.D.N.Y.
2012)
(internal
quotation
marks
and
citation
omitted).
The
community is generally defined as the district in which the court
sits. See Lynch v. Town of Southampton, 492 F. Supp. 2d 197, 211
(E.D.N.Y. 2007); see also Polk v. New York State Dep’t of Corr.
Servs., 722 F.2d 23, 25 (2d Cir. 1983). But see Arbor Hill, 522
7
F.3d at 191 (recognizing that in certain circumstances an out-ofdistrict rate may be used).
1.
Associate Attorneys
As noted above, the associate attorneys here charged
$200 per hour. These attorneys had between three and eight years
of experience, and regularly litigated cases concerning ERISA
funds. (Isaac Decl. ¶¶ 7-8.) The court finds that these fees are
reasonable in light of fees awarded to counsel with comparable
experience in similar litigation. See Trustees of United Teamster
Fund
v.
Ronnie's
Truck
Serv.,
Inc.,
No.
07-CV-4456,
2008
WL
2686993, at *1, *4 (E.D.N.Y. July 8, 2008) (awarding $200 per hour
for law firm associates in an ERISA action to collect unpaid
contributions); Ferrara v. Oakfield Leasing Inc., 904 F. Supp. 2d
249, 274 (E.D.N.Y. 2012) (finding “fair and reasonable” fees in
ERISA litigation to be $275 per hour for senior associates and
$225 per hour for junior associates); Ferrara v. CMR Contracting
LLC, 848 F. Supp. 2d 304, 307-08, 314 (E.D.N.Y. 2012) (awarding
law firm associates between $200 and $300 per hour in ERISA suit);
Finkel v. Fred Todino & Sons, Inc., No. 08–CV–4598, 2010 WL
4646493, at *5–6, (E.D.N.Y. Oct. 8, 2010) (finding reasonable an
hourly
rate
unopposed
of
$275
motion
liability),
report
for
for
and
associates
summary
in
judgment
recommendation
(E.D.N.Y. Nov. 3, 2010), ECF No. 25.
8
ERISA
to
case
collect
adopted,
No.
involving
withdrawal
08-CV-4598
2.
Legal Assistants
V&A billed its legal assistants at $80 per hour, a rate
the court finds reasonable in this district. See Trustees of Local
531 Pension Fund v. Flexwrap Corp., 818 F. Supp. 2d 585, 591
(E.D.N.Y. 2011) (awarding $125 per hour for paralegals in ERISA
case that proceeded to summary judgment); Finkel, 2010 WL 4646493,
at *5–6 (finding that $90 per hour for paralegals in ERISA case
was reasonable); see also Ferrara, 904 F. Supp. 2d at 274 (“The
Court finds that fair and reasonable attorneys’ fees within this
forum are the following: . . . $90 per hour for paralegals and law
clerks.”); Carco Group, Inc. v. Maconachy, No. 05–CV-6038, 2011 WL
6012426, at *3 (E.D.N.Y. Dec. 1, 2011) (“In recent years, courts
in this district have approved hourly fee rates in the range
of . . .
$70
to
$100
for
paralegal
assistants.”
(collecting
cases)), reversed in part and vacated in part on other grounds,
718 F.3d 72 (2d Cir. 2013).
B.
Reasonable Hours
Next, the court evaluates the reasonableness of the
hours expended in this case. The attorneys seek compensation for
112.3 hours of work, and provided contemporaneous time records to
support their request. (Isaac Decl. ¶¶ 6, 12; ECF No. 51, Ex. A.)
Over the course of this litigation, the plaintiffs’ attorneys
engaged in discovery, filed two complaints, attended conferences,
diligently pursued settlement, and finally moved successfully for
9
summary judgment. (ECF. No. 51, Ex. A.) The court concludes that
112.3 hours is a reasonable amount of time to complete this
litigation. See King v. Unique Rigging Corp., No. 01–CV–3797, 2006
WL 3335011, at *1, *4 (E.D.N.Y. Oct. 27, 2006) (finding 339.5 total
billable hours reasonable in an ERISA case that proceeded to
summary judgment and involved a damages inquest); LaBarbera v.
Ovan Const., Inc., No. 06-CV-2867, 2011 WL 5822629, at *5 (E.D.N.Y.
Sept. 20, 2011) (“The total number of attorney hours billed” –
184.5
–
“is
reasonable
for
this
ERISA
case,
which
involved
discovery, a summary judgment motion, and an inquest on damages
after default.”), report and recommendation adopted, No. 06-CV2867, 2011 WL 5825785, at *1 (E.D.N.Y. Nov. 16, 2011); see also
Alfano v. CIGNA Life Ins. Co. of New York, No. 07-CV-9661, 2009 WL
890626, at *5 (S.D.N.Y. Apr. 2, 2009) (concluding that 235.2 hours
was reasonable in ERISA case that advanced to summary judgment).
C.
Costs
Finally,
the
plaintiffs’
attorneys
have
sought
reimbursement for $712.80 in costs, including court fees, copying
costs, and transcript fees. (Isaac Decl. ¶ 13; ECF. No. 51, Ex.
A.)
“As
reasonable
for
costs,
out-of-pocket
a
court
expenses
will
generally
incurred
by
award
attorneys
those
and
ordinarily charged to their clients.” Barbu v. Life Ins. Co. of N.
Am., No. 12-CV-1629, 2015 WL 778325, at *6 (E.D.N.Y. Feb. 24, 2015)
10
(internal quotation marks and citations omitted). However, the
“fee applicant bears the burden of adequately documenting and
itemizing the costs requested.” First Keystone Consultants, Inc.
v. Schlesinger Elec. Contractors, Inc., No. 10-CV-696, 2013 WL
950573, at *10 (E.D.N.Y. Mar. 12, 2013) (internal quotation marks
and citation omitted). Under Local Rule 54.1(a), the “bill of costs
shall include an affidavit that the costs claimed are allowable by
law, are correctly stated and were necessarily incurred. Bills for
the costs claimed shall be attached as exhibits.” E.D.N.Y. Civ. R.
54.1(a). Certain costs, though, may be apparent from the court’s
docket. See D.J. ex rel. Roberts v. City of New York, No. 11–CV–
5458, 2012 WL 5431034, at *9 (S.D.N.Y. Oct. 16, 2012) (“Raysor has
failed to provide any invoices, receipts, or similar documentary
support for any costs being sought, despite the Court’s request
that she do so. This failure should not be considered fatal with
respect to the Court's $350 filing fee, as the payment of that fee
is
clearly
reflected
on
the
Court’s
Docket.”),
report
and
recommendation adopted, 2012 WL 5429521 (S.D.N.Y. Nov. 7, 2012).
Here, no documentation (beyond Isaac’s declaration) was
provided for any of the costs. However, the docket reflects payment
of the $350 filing fee. (ECF No. 1.) The court will therefore award
that fee, but deny the balance of the cost requests for lack of
documentation. See D.J. ex rel. Roberts, 2012 WL 5431034, at *9.
11
CONCLUSION
The
court
concludes
that
plaintiffs’
attorneys
are
entitled to $21,608 in fees and $350.00 in costs, for a total of
$21,958.
SO ORDERED
/s/
Kiyo A. Matsumoto
United States District Judge
DATED:
Brooklyn, New York
November 10, 2015
12
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