The Annuity, Pension Welfare and Training Funds of the International Union Of Operating Engineers Local 14-14B, AFL-CIO v. Superior Site Work, Inc.
ORDER granting 25 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, the Court grants Plaintiffs' motion for summary judgment and requests that the Clerk of Court award judgment in the amount of $ 228,417.47 as detailed in the attached and below, and as calculated through the date of this Memorandum and Order: $120,897.55 in principal ERISA deficiencies; $7760.15 in interest on ERISA deficiencies through December 15, 2014; $15,7 59.45 in interest in ERISA deficiencies from December 16, 2014 through the date of this Memorandum and Order, and an additional $19.87 per day until judgment is entered; $23,519.60 in statutory damages and an additional $19.87 per day until judgment is entered; $15,793.75 in attorneys' fees; $495.00 in costs; $32,690.35 in principal non-ERISA deficiencies; and $11,501.62 in interest on non-ERISA deficiencies through the date of this Memorandum and Order, a nd an additional $8.06 per day until judgment is entered. If judgment is entered after the date of this Memorandum and Order, the Clerk of Court should add to the ERISA and non-ERISA deficiencies additional per-day interest rates in the amounts identified above. Ordered by Judge Margo K. Brodie on 2/16/2017. (Haji, Sara)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------THE ANNUITY, PENSION, WELFARE AND
TRAINING FUNDS OF THE INTERNATIONAL
UNION OF OPERATING ENGINEERS, LOCAL
14-14B, AFL-CIO by their trustees EDWIN L.
CHRISTIAN, CHRIS CONFREY, JOHN
CRONIN, DON DENARDO, KENNETH
KLEMENS, JOHN F. O’HAIRE, DENISE M.
RICHARDSON and ERNESTO TERSIGNI,
MEMORANDUM & ORDER
SUPERIOR SITE WORK, INC.,
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiffs Edwin L. Christian, Chris Confrey, John Cronin, Don Denardo, Kenneth
Klemens, John F. O’Haire, Denise M. Richardson and Ernesto Tersigni are trustees of the
Annuity, Pension, Welfare and Training Funds of the International Union of Operating
Engineers, Local 14-14B, AFL-CIO (collectively, the “Local 14 Trust Funds”) who commenced
this action on February 4, 2015, against construction company Superior Site Work, Inc. under
sections 502 and 515 of the Employee Retirement Income Security Act of 1974, as amended, 29
U.S.C. §§ 1132(a)(3) & 1145 (“ERISA”), and section 301 of the Labor Management Relations
Act of 1947, 29 U.S.C. § 185 (“LMRA”). (Compl. ¶¶ 1–2, Docket Entry No. 1.) Plaintiffs seek
to recover fringe benefit contributions owed to employee trust funds and statutory damages for
an alleged breach of a collective bargaining agreement. (Id.) Based on additional information
received during discovery, Plaintiffs filed an Amended Complaint on May 26, 2015 requesting
additional contributions. (Am. Compl., Docket Entry No. 12.)
On April 5, 2016, Plaintiffs moved for summary judgment seeking a judgment in the
amount of $177,636.80, consisting of a principal deficiency of $153,587.90, interest of $7760.15,
and attorneys’ fees and costs of $15,793.75 and $495.00, respectively, plus additional interest
and statutory damages in amounts to be determined. (Pls. Mot. for Summ. J. (“Pls. Mot.”),
Docket Entry No. 25; Statement of Damages at 1, annexed to Pls. Mot. as Ex. 1.) Despite
conferring with Plaintiffs on a briefing schedule and taking part in settlement negotiations as late
as February of 2016, Defendant has not opposed Plaintiffs’ motion for summary judgment and
appears to have stopped defending this action. (See Joint Mot. for Extension of Time, Docket
Entry No. 24.) For the reasons discussed below, the Court grants Plaintiffs’ motion for summary
The Local 14 Trust Funds are multi-employer benefit plans and third-party beneficiaries
to a collective bargaining agreement (“CBA”) between Defendant and Local 14-14B
International Union of Operating Engineers (“Local 14”). 2 (Pls. Statement of Undisputed Facts
Pursuant to Local R. 56.1 (“Pls. 56.1”) ¶¶ 3, 5, Docket Entry No. 26.) The CBA was signed on
Plaintiffs also moved pursuant to Rules 37(b) and 37(c)(1) of the Federal Rules of Civil
Procedure for an order precluding Defendant from offering any evidence in opposition to the
motion for summary judgment or at trial as a result of Defendant’s failure to adhere to the
Court’s scheduling orders. (See Pls. Mot.) Because the Court grants Plaintiffs’ motion for
summary judgment and Defendant has not offered any evidence, Plaintiffs’ motion to preclude is
denied as moot.
Local 14 is a union that represents operating engineers who work throughout the five
boroughs of New York City. (Pls. 56.1 ¶¶ 4, 8.)
September 13, 2006, has no expiration date and has not been voided by the parties. (Id. ¶ 5;
CBA, annexed to Affidavit of James M. Steinberg in Supp. of Pls. Mot. (“Steinberg Aff.”) as Ex.
A, Docket Entry No. 27.) The CBA provides the terms and conditions of employment for
Defendant’s employees, who perform “heavy construction work” within the jurisdiction of Local
14. (Pls. 56.1 ¶ 7; CBA ¶¶ 1, 6.) By its terms, the CBA also incorporates certain other
agreements that Local 14 negotiated with employers’ associations, including an agreement
between Local 14 and the General Contractors Association of New York (the “GCA”) that
defines the obligations of heavy construction employers. (Pls. 56.1 ¶ 9; 2010–2014 GCA
Contract, annexed to Steinberg Aff. as Ex. B; 2014–2018 GCA Contract, annexed to Steinberg
Aff. as Ex. C.) Because Defendant performs heavy construction work, it is bound by the terms
of Local 14’s contracts with the GCA governing heavy construction employers’ obligations (the
“GCA Contracts”). (Pls. 56.1 ¶ 10; 2010–2014 GCA Contract at 4; 2014–2018 GCA Contract at
5.) The GCA Contracts provide that employers like Defendant must make contributions to the
Local 14 Trust Funds on behalf of their employees who perform work covered by the GCA
Contracts. (CBA ¶ 5; 2010–2014 GCA Contract at 71–76; 2014–2018 GCA Contract at 108–
14.) In order to make contributions to the Local 14 Trust Funds, employers like Defendant are
required to purchase and distribute “fringe benefit stamps” 3 to their employees from the Local 14
In order to track benefit contributions, Local 14, like many unions, uses a stamp plan
that requires Defendant and other employers to purchase stamps from the union or another
authorized institution in an amount equal to the benefits owed to the Local 14 Trust Funds. See
N.Y.C. Dist. Council of Carpenters Pension Fund v. Quantum Constr., No. 06-CV-13150, 2008
WL 5159777, at *5 (S.D.N.Y. Dec. 9, 2008) (explaining unions’ stamp systems). Employees
receive the stamps from the employer in connection with their weekly pay as proof that the
employer made the required contribution to the Local 14 Trust Funds. Employees redeem the
Trust Funds in proportion to the number of eligible hours their employees work. (Pls. 56.1 ¶ 12;
CBA ¶ 5; Affidavit of Marlene Monterroso in Supp. of Pls. Mot. (“Monterroso Aff.”) ¶ 2,
Docket Entry No. 29.) Defendant is also required to make its books and records available to the
Local 14 Trust Funds for audit of those contributions. (CBA ¶ 4.)
On or about November 18, 2014, Plaintiffs and their certified public accounting firm
conducted an audit of Defendant’s books and records. (Affidavit of Lisa Madeiras in Supp. of
Pls. Mot. (“Madeiras Aff.”) ¶ 3, Docket Entry No. 30.) The audit covered Defendant’s payroll
records from July 1, 2011 through December 7, 2014. (Id.) The initial audit report identified a
deficiency of $162,750.17 in the amount due and owing to Local 14 Trust Funds. 4 (Id. ¶ 4; Pls.
56.1 ¶ 21.) Based on the initial report, Plaintiffs filed the instant suit. (Madeiras Aff. ¶ 4; Pls.
56.1 ¶¶ 16, 17.) On February 13, 2015, one of Defendant’s employees contacted the auditor with
two objections to the initial report. First, the employee objected to the deficiency calculated on
behalf of employee Perry Notarnicola as understating the amount owed because Defendant had
provided Notarnicola with “straight” stamps, reflecting regular hours worked, instead of the
stamps for benefits, and the Local 14 Trust Funds track the stamps that are purchased and
redeemed via a serial number on each stamp. See generally id.
In brief, the auditors used Defendant’s payroll records to calculate the total payroll
hours worked in “straight time” and “double time” (overtime) worked by employees covered by
the CBA. (Monterroso Aff. ¶¶ 7–9.) The auditors deducted from the total payroll hours the
amount in fringe benefit stamps redeemed by the employees, and then reviewed the stamp
purchase history reports for the relevant time periods to determine if Defendant had purchased
stamps that had not been redeemed, for which it would be owed credit. (Id.) There were no
unredeemed stamps, and Defendant was therefore not entitled to any credit. (Id.) The auditors
then multiplied the total deficiency hours by the applicable regular and double-time fringe
benefit rates to calculate the fringe benefit deficiency. (Id.) The CBA’s applicable interest rate
of six percent was applied to the deficiency through the date of the audit report to reach the
“Total Fringe Benefit Deficiency” for the contract period. (Id.)
“double” stamps reflecting the overtime hours Notarnicola actually worked. (Madeiras Aff. ¶ 4;
Email from Susan Caruso dated Feb. 13, 2015 (“Caruso Email”), annexed to Steinberg Aff. as
Ex. J.) Second, Defendant’s employee objected to the deficiency calculated on behalf of
employee Joaquim Batista, a member of the affiliated Local 138 in Long Island, which should
not have been included because Batista had not operated heavy construction equipment during
the audit period. (Id.)
The Local 14 Trust Funds requested that Defendant produce a contribution history report
from the Local 138 Trust Funds, Batista’s home funds, or other independent documentation to
support Defendant’s position that Batista had not operated heavy construction equipment despite
having received and redeemed stamps from Defendant during that period. 5 (Pls. 56.1 ¶ 33;
Caruso Email; see Steinberg Aff. ¶ 4.) Defendant did not respond or provide any further
information, and the audit report was revised to reflect only Notarnicola’s additional hours. (Pls.
56.1 ¶ 34; Madeiras Aff. ¶ 4; Revised Audit Report dated Apr. 16, 2015 (“Revised Report”),
annexed to Steinberg Aff. as Ex. L.) The Revised Report identified a deficiency of $164,202.46,
the amount included in the Amended Complaint. (Revised Report; see also Am. Compl. ¶ 26.)
On June 2, 2015, Plaintiffs served their initial disclosures on Defendant. (Pls. Initial
Disclosures, annexed to Steinberg Aff. as Ex. O.) At a conference held before Magistrate Judge
Viktor Pohorelsky on June 17, 2015, Defendant was ordered to “provide initial disclosures
within 7 days.” (Minute Entry dated June 17, 2015, Docket Entry No. 15.) Defendant never
Plaintiffs state that Batista is a member of Local 138, an affiliated local union of
operating engineers that has jurisdiction over Nassau and Suffolk Counties. (Monterroso Aff.
¶¶ 10.) When Batista redeemed stamps provided to him by Defendant, Local 14 “reciprocated
[their] money value” to the trust funds maintained by Local 138. (Id.)
served its initial disclosures. (Steinberg Aff. ¶ 6.) Plaintiffs attempted, but were unable, to
informally gather additional information from Defendant to support the alleged discrepancy
regarding Batista’s hours. (Id. ¶ 7.) Accordingly, Plaintiffs served their first set of discovery
requests on August 10, 2015. (Pls. Interrogs., annexed to Steinberg Aff. as Ex. Q; Pls. Req. for
Prod., annexed to Steinberg Aff. as Ex. R.) The requests included a demand for further
information to support Defendant’s objection to the audit results as to Batista’s hours. (Id.;
Steinberg Aff. ¶ 7.) At a status conference held on September 9, 2015, Judge Pohorelsky ordered
Defendant to respond to Plaintiffs’ discovery requests by September 30, 2015. (Order dated
Sept. 9, 2015, Docket Entry No. 17.) Judge Pohorelsky advised Defendant that if it failed to
respond by the deadline, Plaintiffs would be entitled to “move for such relief as they deem
appropriate including the preclusion of evidence.” (Id.) Defendant did not respond to Plaintiffs’
discovery requests. (Pls. 56.1 ¶ 40; Ltr. from Pl. dated Oct. 5, 2015, annexed to Steinberg Aff. as
In support of their motion for summary judgment, Plaintiffs have submitted a final audit
report identifying a deficiency of $161,348.05, which reflects specific amounts owed for ERISA
and non-ERISA contributions. (Affidavit of Edwin L. Christian in Supp. of Pls. Mot. (“Christian
Aff.”) ¶ 9, Docket Entry No. 28; Final Audit Report dated Dec. 9, 2015 (“Final Report”),
annexed to Steinberg Aff. as Ex. V.) The Final Report reflects an amount that includes sixpercent interest on the ERISA funds for welfare, pension, annuity and training; 6 and no interest
The Trust Agreements establishing the Local 14 Trust Funds provide that an employer
who fails to pay fringe benefit contributions will pay interest at the rate of six percent (6.0%).
(Pls. 56.1 ¶ 41; see Trust Agreements at 9–11, annexed to Steinberg Aff. as Exs. D–G.)
on the non-ERISA funds for voluntary annuity (including political action contributions), dues
assessment and legal defense. 7 (Final Report; see Madeiras Aff. ¶¶ 2, 10–13 (explaining minor
differences between Revised Report and Final Report); Pls. 56.1 ¶¶ 30–32.) Defendant has not
paid any part of the deficiency. (Pls. 56.1 ¶ 29; Monterroso Aff. ¶ 11.)
Standard of review
Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Davis v. Shah, 821 F.3d 231,
243 (2d Cir. 2016); see also Cortes v. MTA NYC Transit, 802 F.3d 226, 230 (2d Cir. 2015);
Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015); Zann Kwan v. Andalex Grp. LLC, 737 F.3d
834, 843 (2d Cir. 2013). The role of the court “is not to resolve disputed questions of fact but
only to determine whether, as to any material issue, a genuine factual dispute exists.” Rogoz v.
City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015) (first quoting Kaytor v. Elec. Boat Corp.,
609 F.3d 537, 545 (2d Cir. 2010); and then citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249–50 (1986)). A genuine issue of fact exists when there is sufficient “evidence on which the
jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. The “mere existence of
a scintilla of evidence” is not sufficient to defeat summary judgment. Id. The court’s function is
The non-ERISA funds include: a voluntary annuity contribution, which is a successor
to a type of vacation benefit and includes a fee to fund the union’s political action committee; the
dues check-off or union assessment, which is an amount allocated by the union membership as
supplemental dues; and the union defense fund, which is an allocation for Local 14 to defend
lawsuits. (Monterroso Aff. ¶ 9.) Because these are non-ERISA contributions, they are not
entitled to a claim for interest at the rate provided for ERISA contributions in the Trust
Agreements. (Madeiras Aff. ¶ 12.)
to decide “whether, after resolving all ambiguities and drawing all inferences in favor of the
non-moving party, a rational juror could find in favor of that party.” Pinto v. Allstate Ins. Co.,
221 F.3d 394, 398 (2d Cir. 2000).
Where, as here, a motion for summary judgment is unopposed, “the district court may not
grant the motion without first examining the moving party’s submission to determine if it has
met its burden of demonstrating that no material issue of fact remains for trial.” Amaker v.
Foley, 274 F.3d 677, 681 (2d Cir. 2001). “Before summary judgment may be entered, the
district court must ensure that each statement of material fact is supported by record evidence
sufficient to satisfy the movant’s burden of production even if the statement is unopposed.”
Jackson v. Fed. Exp., 766 F.3d 189, 194 (2d Cir. 2014) (citing Vt. Teddy Bear Co., Inc. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004)). “In doing so, the court may rely on other
evidence in the record even if uncited.” Id. (citing Fed. R. Civ. P. 56(c)(3)).
Liability under ERISA and the LMRA
Section 515 of ERISA provides:
Every employer who is 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.
29 U.S.C. § 1145. Similarly, the LMRA authorizes federal “[s]uits for violation of contracts
between an employer and a labor organization representing employees.” Id. § 185(a); see also
Brown v. C. Volante Corp., 194 F.3d 351, 354 (2d Cir. 1999) (explaining lawsuit for failure to
abide by a collective bargaining agreement is governed by 29 U.S.C. § 185(a)).
Here, the facts establish that Defendant failed to make required contributions pursuant to
the CBA, violating ERISA. Local 14 and Defendant are parties to a CBA for the period covered
by the auditor’s report. Pursuant to that CBA and the GCA Contracts, Defendant purchased
stamps for work performed by its employees between July 1, 2011 and December 7, 2014. The
auditor reviewed Defendant’s books and records and discovered that Defendant had failed to
purchase the required number of stamps for all hours worked by employees covered under the
CBA and GCA Contracts. 8 Plaintiffs, as plan fiduciaries, may bring a civil action to enforce the
provisions of the CBA. See 29 U.S.C. § 1132(a)(3)(B)(ii) (empowering a fiduciary to enjoin any
act or practice in violation of ERISA or to enforce any provisions of the employee plan); see also
Finkel v. Ommega Commc’n Servs., Inc., 543 F. Supp. 2d 156, 160 (E.D.N.Y. 2008) (applying
same provision). Accordingly, the Court finds that Plaintiffs have met their burden of proving
that Defendant violated section 515 of ERISA, as well as the terms of the CBA for which
Plaintiffs may seek enforcement under the LMRA. Plaintiffs are therefore entitled to summary
Plaintiffs request that the Court accept their damages calculations and award damages as
listed in their Statement of Damages. (Pls. Mem. 17.) Ordinarily, claims for damages must be
established in an evidentiary proceeding at which a defendant is afforded an opportunity to
It appears that at an early stage in the litigation, Defendant raised a concern about the
inclusion of Batista’s hours in the deficiency amount. However, in the absence of any evidence
from Defendant that Batista did not perform covered work under the CBA and GCA Contracts
during the relevant time period, the Court finds that Batista’s hours were properly included in the
final deficiency owing to Plaintiffs. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53 (2d Cir.
1993) (“If a particular worker is not covered by the bargaining agreement because of a position
in management or for some other reason, it is reasonable to expect the employer to bring forth
the correct information in his possession.”); see also Annuity, Welfare & Apprenticeship Skill
Improvement & Safety Funds of Int'l Union of Operating Eng’rs, Local 15, 15A, 15C & 15D,
AFL-CIO v. Eastport Excavation & Util. Inc., 3 F. Supp. 3d 204, 215 (S.D.N.Y. 2014)
(explaining burden-shifting after benefit fund has produced evidence that employer’s records are
inaccurate (collecting cases)).
contest the amount claimed. See Fustok v. Conticommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir.
1989). However, a court may make this determination based upon evidence presented at a
hearing or upon a review of detailed affidavits and documentary evidence submitted by the
plaintiffs. See Action S.A. v. March Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991); Fustok,
873 F.2d at 40. Here, Defendant has been on notice of the damages Plaintiffs sought since the
filing of the Complaint, (Compl. ¶ 25), and it has not disputed Plaintiffs’ documentary evidence.
The Court will therefore determine damages based on the documentary record before it.
Section 502(g) of ERISA provides that upon finding a violation of section 515, “the court
shall award the plan” the following:
(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 amount determined by the court under subparagraph
(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
For purposes of this paragraph, interest on unpaid contributions shall
be determined by using the rate provided under the plan, or, if none,
the rate prescribed under section 6621 of Title 26.
Id. § 1132(g). In other words, the “special remedy against employers who are delinquent in
meeting their contractual obligations that is created by § 502(g)(2) includes a mandatory award
of prejudgment interest plus liquidated damages in an amount at least equal to that interest, as
well as attorney’s fees and costs.” Int’l Ass’n of Heat & Frost Insulators v. CAC of N.Y., Inc.,
No. 13-CV-39, 2015 WL 691192, at *2 (S.D.N.Y. Feb. 18, 2015) (quoting Laborers Health &
Welfare Tr. Fund v. Adv. Lightweight Concrete Co., Inc., 484 U.S. 539, 547 (1988)).
Unpaid ERISA and non-ERISA contributions
Plaintiffs seek $120,897.55 in delinquent ERISA contributions and $32,690.35 in
delinquent non-ERISA contributions. (Statement of Damages at 1.) As explained above, the
auditors arrived at these sums by taking the number of regular and overtime hours worked by
covered employees during each of the relevant time periods and multiplying those categories of
hours by their respective fringe benefit contribution rates. (See Wage Scales, annexed to
Steinberg Aff. as Ex. H; Final Report at Summary; see also Monterroso Aff. ¶¶ 7–9.) The Court
is satisfied that the evidence substantiates the amount of unpaid principal reflected in the
auditor’s Final Report and in Plaintiffs’ Statement of Damages.
Interest on ERISA deficiency
Plaintiffs also seek interest on unpaid contributions to the ERISA plans. (Statement of
Damages at 1.) ERISA provides that interest will be calculated using the rate in the relevant
benefit plan, or if the plan sets no such rate, a prescribed statutory rate. 29 U.S.C. § 1132(g)(2);
26 U.S.C. § 6621. Under the Trust Agreements establishing the Local 14 Trust Funds, a sixpercent (6%) interest rate applies to late and unpaid ERISA plan contributions. 9 (See Madeiras
Aff. ¶¶ 9, 12; Pls. 56.1 ¶ 41 (citing Trust Agreements at 10–12).) Applying that rate as of the last
Plaintiffs note that although the Trust Agreements do not provide the period over which
the six percent interest rate should be calculated, the interest rate in trust agreements normally
accrue on either a monthly or annual basis. (Pls. Mem. in Supp. of Mot. (“Pls. Mem.”) 19,
Docket Entry No. 31.) Here, Plaintiffs have calculated interest on an annual basis, and, in the
absence of any objection from Defendant, the Court will apply an annual interest rate of six
percent to the ERISA deficiency.
date of each contribution period 10 and through December 15, 2014, the date of the initial audit
report, Plaintiffs seek $7760.15 in prejudgment interest on the delinquent ERISA contributions.
(Statement of Damages at 1.) Plaintiffs seek an additional amount in prejudgment interest
calculated at a rate of six percent from December 16, 2014 through the date of final judgment.
(Id.) The Court grants Plaintiffs’ request for prejudgment interest on delinquent ERISA
contributions at a rate of six percent per year from December 16, 2014 through the date of this
Memorandum and Order, amounting to an additional $15,759.45. 11 In sum, Plaintiffs are
entitled to $23,519.60 in interest on the delinquent ERISA contributions.
iii. Statutory damages
Plaintiffs request an additional sum equal to the amount of prejudgment interest on the
delinquent ERISA contributions. (Pls. Mem. 19.) Under section 502(g)(2) of ERISA, Plaintiffs
Plaintiffs have not identified the date from which interest typically accrues on unpaid
or late contributions, but they appear to have applied interest from the last day of each fourmonth period audited from July 1, 2011 to December 7, 2014. (See Madeiras Aff. ¶¶ 5, 9.)
Presumably, this is because an employer purchases stamps that are valid for a four-month period,
and employees redeem those stamps at the end of the four-month period. See Annuity, Pension,
Welfare & Training Funds of the Int’l Union of Operating Eng’rs Local 14-14B v. Integrated
Structures Corp., No. 12-CV-6354, 2013 WL 4095651, at *7 (E.D.N.Y. Aug. 13, 2013)
(explaining stamps process for Local 14). For example, the auditors examined the period from
July 1, 2011 to October 31, 2011, and calculated the principal owing during that period. (Id.
¶ 9.) They then applied interest on that amount, accruing as of October 31, 2011 and through the
date of the audit. (Id.) The Trust Agreements specify that the six-percent interest rate applies
“from the first day of the month for which such payments are due to the Trustees,” but do not
identify the month that payments are due to Trustees relative to the work performed. (See
Welfare Fund Trust Agreement at 11, annexed to Steinberg Aff. as Ex. F.) However, because
the interest accrual method applied by Plaintiffs is reasonable and appears to be more generous
to Defendant than is explicitly required by the Trust Agreements, the Court accepts Plaintiffs’
interest accrual method.
Plaintiffs’ six percent rate amounts to $19.87 per day on the $120,897.55 principal,
applied over two full years and sixty-three additional days. If judgment is entered after the date
of this Memorandum and Order, Plaintiffs are entitled to an additional $19.87 per day on the
are entitled to interest on the delinquent contributions and are also entitled to statutory damages
at “an amount equal to the greater of interest on the unpaid contributions, or liquidated damages
provided for under the plan.” See 29 U.S.C. § 1132(g)(2). The Trust Agreements do not provide
for liquidated damages, therefore Plaintiffs are entitled to statutory damages in an amount equal
to that of the interest calculated in the section above.
iv. Attorneys’ fees and costs
Plaintiffs also seek to recover attorneys’ fees in the amount of $15,793.75 and costs in the
amount of $495.00. (Statement of Damages at 1.) A district court must award attorneys’ fees
and costs in a successful ERISA action that results in judgment in favor of the plan. See 29
U.S.C. § 1132(g)(2)(D); Labarbera v. Clestra Hauserman, Inc., 369 F.3d 225, 226 (2d Cir.
2004) (“In that case, the statute renders fees and costs mandatory: ‘the court shall award the
plan’ reasonable fees and costs.” (quoting 29 U.S.C. § 1132(g)(2))).
In deciding what fees are due to a plaintiff’s attorneys, the Court must consider “what a
reasonable client would be willing to pay to determine the ‘presumptively reasonable fee.’” Trs.
of Local 813 Ins. Trust Fund v. Bradley Funeral Serv., Inc., No. 11-CV-2885, 2012 WL
3871759, at *5 (E.D.N.Y. Aug. 10, 2012), report and recommendation adopted, 2012 WL
3871755 (E.D.N.Y. Sept. 4, 2012); see also Arbor Hill Concerned Citizens Neighborhood Ass’n
v. Cty. of Albany, 522 F.3d 182, 183–84 (2d Cir. 2007). To calculate the amount of a
“presumptively reasonable fee,” the court multiplies a reasonable hourly rate by the number of
hours reasonably expended on the matter. Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174
(2d Cir. 2009) (explaining the “substance of” the traditional lodestar approach and a twelvefactor “reasonableness” approach to determining fees informed the “presumptively reasonable
fee” test). When determining whether the presumptively reasonable fee is ultimately reasonable,
a court must “bear in mind all of the case-specific variables that we and other courts have
identified as relevant to the reasonableness of attorneys’ fees . . . .” 12 Simmons, 575 F.3d at 174
(internal quotation marks and citation omitted). In what has become known as the “forum rule,”
courts assess the reasonableness of hourly rates by comparing the rates requested with the
prevailing rates charged by attorneys practicing in the district where the court sits. See id. at
174–76 (discussing forum rule); see also Bergerson v. N.Y. State Office of Mental Health, Cent.
N.Y. Psychiatric Ctr., 652 F.3d 277, 290 (2d Cir. 2011).
The Second Circuit has identified a number of variables to guide the inquiry as to what
constitutes a reasonable fee, including:
(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
Finkel v. Rico Elec., Inc., No. 11-CV-4232, 2012 WL 6569779, at *12–14 (E.D.N.Y. Oct. 1,
2012) (quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany, 522 F.3d
182, 187 n.3 (2d Cir. 2007)) (internal quotation marks omitted) report and recommendation
adopted, No. 11-CV-4232, 2012 WL 6561270 (E.D.N.Y. Dec. 17, 2012). In addition, courts are
also instructed to evaluate the complexity and difficulty of the case, the availability and expertise
of the client’s other counsel, the resources necessary to effectively litigate the case, the timing
demands of the case, the attorney’s interest in achieving the ends of the litigation and whether
the attorney may have initially aced pro bono, and other returns the attorney may expect from
representation. Arbor Hill, 522 F.3d at 184. While the traditional “lodestar” method, which does
not consider the above factors, has “achieved dominance in the federal courts,” courts in this
Circuit continue to take the Arbor Hill factors into consideration when determining what
constitutes a reasonable fee. See Finkel, 2012 WL 6569779, at *13. In any event, determining
the “presumptively reasonable fee” and adjusting it based on the above factors produces the same
result as applying the traditional “lodestar” analysis in this case.
In reviewing a fee application, courts may review the expenditure of hours submitted by
counsel, and adjust to a reasonable amount, as determined in light of the particulars of the case.
Gayle v. Harry’s Nurses Registry, Inc., No. 07-CV-4672, 2013 WL 5502951, at *7 (E.D.N.Y.
Aug. 26, 2013) report and recommendation adopted, No. 07-CV-4672, 2013 WL 5502950
(E.D.N.Y. Sept. 30, 2013). To obtain an award of attorneys’ fees, a plaintiff must provide
contemporaneous time records which support the date work was performed, the nature of the
hours expended, and the work done. See Scott v. City of New York, 643 F.3d 56, 58–59 (2d. Cir.
2011); Pilitz v. Inc. Vill. of Freeport, No. 07-CV-4078, 2011 WL 5825138, at *4 (E.D.N.Y. Nov.
17, 2011) (“The burden is on the party seeking attorney’s fees to submit sufficient evidence to
support the hours worked and the rates claimed . . . . Accordingly, the party seeking an award of
attorney’s fees must support its application by providing contemporaneous time records that
detail ‘for each attorney, the date, the hours expended, and the nature of the work done.’” (first
citing Hensley v. Eckerhart, 461 U.S. 424, 453 (1983) and then citing Cho v. Koam Med. Servs.
P.C., 524 F. Supp. 2d 202, 209 (E.D.N.Y. 2007); quoting N.Y. Ass’n for Retarded Children, Inc.
v. Carey, 711 F.2d 1136, 48 (2d Cir. 1983))).
Here, although Plaintiffs do not support their fee request with contemporaneous time
records, Plaintiffs’ counsel has submitted a summary of his time records. 13 Those records reflect
Although applications for attorneys’ fees generally must be supported by
contemporaneous time records specifying “relevant dates, time spent and work done,” N.Y. State
Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983); Broadcast
Music, Inc. v. R Bar of Manhattan, Inc., 919 F. Supp. 656, 661 (S.D.N.Y. 1996), courts
recognize that “[a]ttorney affidavits which set forth all charges with the required specificity but
which are reconstructions of the contemporaneous records satisfy [this requirement] and suffice
to permit recovery of attorneys’ fees,” as do “typewritten transcriptions of the original
handwritten time sheets filled out by attorneys . . . .” David v. Sullivan, 777 F. Supp. 212, 223
43.25 hours of work at an hourly rate of $350.00 per hour and 3.75 hours of travel at a reduced
hourly rate of $175.00 per hour. (Hours Expended by Counsel, annexed to Steinberg Aff. as Ex.
W.) The time expenditure for the case appears reasonable in view of the documentation
Plaintiffs have provided to support their motion for summary judgment and the time spent
making discovery requests and attending conferences while Defendant was active in the
litigation. The hourly rate is also reasonable, although on the higher end of the prevailing rate
within this district. See Trustees of Empire State Carpenters Annuity, Apprenticeship, LaborMgmt. Coop., Pension & Welfare Funds v. Sanders Constr., Inc., No. 13-5102, 2015 WL
1608039, at *4 (E.D.N.Y. Apr. 10, 2015) (describing $200 to $400 range for partners); Trustees
of the Local 813 I.B.T. Ins. Trust Fund v. Amanda Carting Corp., No. 07-CV-656, 2007 WL
4324019, at *6 (E.D.N.Y. Dec. 7, 2007) (finding that the prevailing rates in the Eastern District
range from $200–$375 per hour for partners and $200–250 per hour for senior associates).
Plaintiffs’ counsel is a partner at his law firm and has been practicing labor law since 1995. His
prior rates, between $285 and $325, have been approved within this district for similar work, and
counsel asserts that his rates have increased to $350 per hour since January 1, 2015. (Pls. Mem.
21); see Annuity, Pension, Welfare & Training Funds of the Int’l Union of Operating Eng’rs
Local 14-14B, AFL-CIO v. Lori Contracting, Inc., No. 14-CV-2467, 2015 WL 1321672, at *5
(E.D.N.Y. Mar. 5, 2015) (awarding same attorney $325 per hour); Annuity, Pension, Welfare &
Training Funds of the Int’l Union of Operating Eng’rs Local 14-14B, AFL-CIO v. Rice Mohawk
(E.D.N.Y. 1991); see also Cruz v. Local Union No. 3 of Int’l Bhd. of Elec. Workers, 34 F.3d
1148, 1160 (2d Cir. 1994) (typed summaries of hours drawn from contemporaneous time
records, without submission of actual time records, was sufficient to support attorney’s fees
Structural Steel Corp., No. 12-CV-902, 2013 WL 1342267, at *4 (E.D.N.Y. Mar. 12, 2013)
(awarding same attorney $317 per hour); Annuity, Pension, Welfare & Training Funds of the
Int’l Union of Operating Eng’rs Local 14-14B, AFL-CIO v. Marbro Realty Co., No. 11-CV5722, 2012 WL 3536499, at *5 (E.D.N.Y. July 16, 2012) (awarding same attorney $317.24 per
hour); Annuity, Pension, Welfare & Training Funds of the Int’l Union of Operating Eng’rs Local
14-14B, AFL-CIO v. Star Structural, Inc., No. 07-CV-876, 2008 WL 817915, at *3 (E.D.N.Y.
Mar. 26, 2008) (awarding same attorney $285 per hour).
Plaintiffs’ costs — $400.00 for filing fees and $95.00 for service of process — are also
reasonable. (See Statement of Damages at 1; Pls. Mem. 22.) Accordingly, Plaintiffs will be
awarded the requested $15,793.75 in attorneys’ fees and $495.00 in costs.
Interest on non-ERISA deficiency
Finally, Plaintiffs seek prejudgment interest on the delinquent non-ERISA contributions.
(Statement of Damages at 1.) Plaintiffs request that the Court apply a nine-percent annual
interest rate derived from New York C.P.L.R. section 5004 to an intermediate date between July
1, 2011 and December 15, 2014. (Pls. Mem. 24.)
The Second Circuit permits an award of prejudgment interest for LMRA claims at the
Court’s discretion and at a rate within the Court’s discretion. See Finkel, 543 F. Supp. 2d at 162
(citing Lodges 743 & 1746, Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. United
Aircraft Corp., 534 F.2d 422, 446–47 (2d Cir. 1975)); see also Taaffe v. Life Ins. Co. of N. Am.,
769 F. Supp. 2d 530, 538 (S.D.N.Y. 2011) (“Choosing an interest rate, as noted above is a matter
‘confided to the district court’s broad discretion.’” (quoting Sec. & Exch. Comm’n v. First Jersey
Sec., Inc., 101 F.3d 1450, 1476 (2d Cir. 1996))).
New York C.P.L.R. section 5004 applies a nine-percent annual interest rate for judgments
arising under New York law. N.Y. C.P.L.R. § 5004 (applying a nine-percent annual rate “except
where otherwise provided by statute”). Because Plaintiffs seek to recover the delinquent nonERISA contributions under the LMRA, which allows them to sue in federal court for breaches of
state-law labor contracts, the rate under section 5004 is appropriate here. 14 See 29 U.S.C. §
185(a) (authorizing federal “[s]uits for violation of contracts between an employer and a labor
organization representing employees”); see also Brown, 194 F.3d at 354 (explaining that a
lawsuit for failure to abide by a collective bargaining agreement is governed by 29 U.S.C.
§ 185(a)); Lanzafame v. Dana Restoration, Inc., No. 09-CV-873, 2011 WL 1100111, at *4
(E.D.N.Y. Mar. 22, 2011) (“In awarding interest, a court may look to state law to determine an
Moreover, courts in this district regularly apply the section 5004 rate to non-ERISA
delinquencies. See Bricklayers Ins. & Welfare Fund v. J.K. Merillin Builders, Inc., No. 13-CV1048, 2014 WL 6674404, at *7 (E.D.N.Y. Oct. 6, 2014); Flanagan v. Marson Grp., Ltd., No. 11-
The Court finds persuasive the district court’s reasoning in Alfano v. CIGNA Life
Insurance Company of New York, as quoted in Taaffe v. Life Insurance Company of North
[W]hile there is no applicable federal statute establishing a
prejudgment interest rate, New York has adopted a statutory
prejudgment interest rate of 9%, thus making an objective legislative
judgment that 9% is an appropriate rate. Although [defendant]
argues that the Treasury rate constitutes a more appropriate rate,
there is no reason to think that that rate more accurately captures the
time value of money in New York, or the true loss to plaintiff,
particularly given the New York State Legislature's determination
Taaffe, 769 F. Supp. 2d 530, 538 (S.D.N.Y. 2011) (quoting Alfano, No. 07-CV-9961, 2009 WL
890626, at *7 (S.D.N.Y. Apr. 2, 2009)).
CV-2896, 2014 WL 4426277, at *5 (E.D.N.Y. Aug. 11, 2014); Trs. of Steamfitters’ Local Union
No. 638 v. Nexus Mech., Inc., No. 08-CV-3214, 2014 WL 1338377, at *6 (E.D.N.Y. Apr. 2,
2014); Bricklayers Ins. & Welfare Fund v. Verse Inc., No. 12-CV-4271, 2013 WL 4883966, at
*7 (E.D.N.Y. Sept. 11, 2013); Taaffe, 769 F. Supp. 2d at 538–39; but see Omega Commc’n
Servs, Inc., 543 F. Supp. 2d at 162 (“In the absence of an agreement between the parties
[regarding the non-ERISA rate], I see no reason to award a higher interest rate to the NonERISA Plans than that allotted to the ERISA Plans . . . .”); Finkel v. Fervent Elec. Corp., No. 13CV-3289, 2015 WL 1469650, at *5 (E.D.N.Y. Feb. 23, 2015) (applying the same interest rate
governing ERISA contributions to non-ERISA contributions under the parties’ contract).
Because Defendant has not disputed Plaintiffs’ proposed interest rate and the Court finds it
reasonable, the Court awards Plaintiffs nine-percent per year on the outstanding non-ERISA
In the absence of a specific interest rate to apply, Plaintiffs’ auditor did not calculate
interest on the non-ERISA deficiencies. (See Final Report.) Because those amounts came due at
different times, Plaintiffs encourage the Court to apply an intermediate date as the interest
accrual date. (Pls. Mem. 24.) Under New York law, where damages “were incurred at various
times, interest shall be computed upon each item from the date it was incurred or upon all of the
damages from a single reasonable intermediate date.” N.Y. C.P.L.R. § 5001(b). Accordingly,
courts in ERISA cases “routinely calculate prejudgment interest from a midpoint date in the
delinquency period.” Alston v. Northstar La Guardia LLC, No. 10-CV-3611, 2010 WL
3432307, at *3 (S.D.N.Y. Sept. 3, 2010) (citing Finkel v. Triple A Grp. Inc., 708 F. Supp. 2d
277, 287–88 (E.D.N.Y. 2010)); Tr. of the Plumbers Local Union No. 1 Welfare Fund v.
Manhattan Plumbing Corp., 2009 WL 5821676, at *5 n.4 (E.D.N.Y. Oct. 8, 2009) (“New York
law, which federal courts frequently apply in calculating interest in ERISA cases, provides that
when damages are incurred over a period of time, prejudgment interest may be calculated from a
‘single reasonable intermediate date.’” (quoting N.Y. C.P.L.R. § 5001(b))).
In this case, the delinquency period extended from July 1, 2011 until December 15, 2014.
(See Pls. 56.1 ¶ 16.) The intermediate date of the delinquency period is March 23, 2013.
Multiplying the amount Defendant owed in non-ERISA contributions ($32,690.35) by the annual
interest rate of nine percent, and dividing that amount by 365, the daily interest rate on
Defendant’s non-ERISA delinquency is $8.06. Accordingly, Defendant owes Plaintiffs
$11,501.62 in prejudgment interest from March 23, 2013 through the date of this Memorandum
and Order. 15
For the reasons set forth above, the Court grants Plaintiffs’ motion for summary judgment
and directs the Clerk of Court to award judgment in the amount of $228,417.47 as detailed above
and below, and as calculated through the date of this Memorandum and Order:
1. $120,897.55 in principal ERISA deficiencies;
2. $7760.15 in interest on ERISA deficiencies through December 15, 2014;
3. $15,759.45 in interest in ERISA deficiencies from December 16, 2014 through
the date of this Memorandum and Order, and an additional $19.87 per day until
judgment is entered;
If judgment is entered after the date of this Memorandum and Order, Plaintiffs are
entitled to $8.06 per day in additional interest on the non-ERISA deficiencies.
4. $23,519.60 in statutory damages and an additional $19.87 per day until judgment
5. $15,793.75 in attorneys’ fees;
6. $495.00 in costs;
7. $32,690.35 in principal non-ERISA deficiencies; and
8. $11,501.62 in interest on non-ERISA deficiencies through the date of this
Memorandum and Order, and an additional $8.06 per day until judgment is
If judgment is entered after the date of this Memorandum and Order, the Clerk of Court should
add to the ERISA and non-ERISA deficiencies additional per-day interest rates in the amounts
MARGO K. BRODIE
United States District Judge
Dated: February 16, 2016
Brooklyn, New York
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