Trustees of the Pavers and Road Builders District Council Welfare, Pension, Annuity and Apprenticeship, Skill Improvement and Safety Funds et al v. Tri State Construction & Masonry Corp.
Filing
41
ORDER: REPORT AND RECOMMENDATIONS adopted without qualifications. SO Ordered by Judge Raymond J. Dearie on 6/13/2017. (Ramesar, Thameera)
S/ RJD
D STATES DISTRICT COURT
DISTRICT OF NEW YORK
N2 15-CV-6686(RJD)
(RER)
TRUSTEES OF THE PAVERS AND ROAD BUILDERS DISTRICT COUNCIL
WELFARE,PENSION,ANNUITY AND APPRENTICESHIP,SKILL
IMPROVEMENT AND SAFETY FUNDS AND THE HIGHWAY,ROAD AND
STREET CONSTRUCTION LABORERS LOCAL UNION 1010,
Plaintiffs,
VERSUS
TRI STATE CONSTRUCTION & MASONRY CORP.,HUDSON INSURANCE
COMPANY,AND AMERICAN FIRE AND CASUALTY COMPANY,
Defendants.
REPORT & RECOMMENDATION
May 11,2017
To the Honorable Raymond J. Dearie,
Senior United States District Judge
Ramon E.Reyes,Jr., U.S.M.J.:
Trustees of the Pavers and Road
Builders District Council Welfare, Pension,
Annuity
and
Apprenticeship,
Skill
Improvement and Safety Funds (collectively
the "Funds"), and the Highway, Road, and
Street Construction Laborers Local Union
10101
(the
"Union") (collectively
"Plaintiffs"), commenced this action against
Defendant Tri State Construction & Masonry
Corp. ("Tri State") on November 20, 2015.
(Dkt. No. 1). Plaintiffs brought this action
pursuant to Sections 502(a)(3)and 515 ofthe
Employee Retirement Income Security Act
of 1974 ("ERISA"), 29 U.S.C. §§ 1132 and
1145, as well as Section 301 of the Labor
Management Relations Act of 1947
("LMRA"), 29 U.S.C. § 185. (Dkt. No. 1,
Complaint("Compl.")^ 1). Plaintiffs filed an
Amended Complaint against Tri State and
added claims against Hudson Insurance
Company("Hudson")and American Fire and
Casualty Company ("American Fire") on
February 18, 2016. (Dkt. No. 8, Amended
Complaint, ("AC")). Plaintiffs have since
voluntarily dismissed their claims against
Hudson and American Fire. (Dkt. Nos. 35,
37). To date, Tri State has not filed an
appearance or participated in this action.
(Dkt. Nos. 7,22).
On September 27, 2016, Plaintiffs
requested a certificate of default against Tri
State.(Dkt. No. 21). On September 28,2016,
the Clerk of the Court entered default.(Dkt.
No. 22). On September 30, 2016, Plaintiffs
filed a motion for defaultjudgment.(Dkt.No.
23). Plaintiffs seek $47,268.22 in damages
and $5,787.21 in attorney's fees and costs
from Tri State. (Dkt. No. 29, ("Plaintiffs'
Memo") at 10). Your Honor has referred
Plaintiffs motion to me for a report and
recommendation. {See Dkt. Entry dated Oct.
27, 2016).
For the reasons stated below, I
Union.{Id. ^ 10).Tri State is an employer that
is a party to a collective bargaining
agreement("CBA")with the Union.{Id. 6,
9; Dkt. No.24-1). The CBA incorporates and
binds the parties to certain trust agreements
as well as a Collection Policy.(AC 14-16;
see also Dkt. Nos. 26-1, 26-2). Pursuant to
the CBA,Tri State is required to remit certain
moneys, including dues check-offs, to
Plaintiffs for work performed on its behalf
"within the trade and geographical
jurisdiction of the Union."(AC
10, 11).
The CBA establishes an annual interest rate
of10% for overdue fringe benefits.{Id. 112).
The CBA also requires that Tri State make its
books and records available for inspection.
{Id. ^19; see also Dkt. Nos. 24-1 at 28-29,
26-2 at 1).
respectfully recommend that Plaintiffs'
motion for default judgment be granted. 1
In April 2014, the Funds conducted
further recommend that the Court award:
an audit of Tri State's books and records for
$2,190.41 in outstanding contributions from
the April 2014 audit, interest on the sum of
$1,801.55 to be calculated by the Clerk ofthe
the time period from March 1, 2011 through
December 31, 2013, which revealed that Tri
Court at an annual rate of 10% from April 28,
amount of $16,828.00 during that time.(AC
2014 through the date of final judgment, and
% 21; see also Dkt. No. 25, Declaration of
State failed to make contributions in the
punitive damages in the amount of$438.08.1
Robert Castiglia,("Castiglia Deck")
also recommend that the Court award
Plaintiffs claim that $2,190.41 ofthat amount
3, 5).
Plaintiffs interest on previous late payments
in the amount of $2,558.19 and $4,667.21 in
attorney's fees and costs.
remains outstanding. (AC ^ 21).' As a
consequence. Plaintiffs seek the outstanding
contributions along with interest owed based
on an annual rate of 10% and liquidated
BACKGROUND
damages at 20% of the principal amount of
the delinquency. {Id. ^21).
The Funds are employee benefit plans
within the meaning of 29 U.S.C. § 1002(3)
and are "trustees of multiemployer labormanagement trust funds organized and
operated in accordance with section 302(c)of
the LMRA, 29 U.S.C. § 186(c)."(AC ^ 4).
The Funds also act as collection agents for the
' The AC articulates that the Funds are owed
$1,801.55 in past dues check-offs and $388.86 in other
contributions.(AC ^21).
Plaintiffs also claim that Tri State
failed to remit contributions and dues check
offs pursuant to the CBA totaling $25,612.26
for a separate period from August 2014
through June 2015.{Id. ^ 25).^ The CBA also
requires Tri State to report to the Funds on a
^ The AC articulates that the Funds owed from this
period comprise of $24,831.03 in contributions and
$781.23 in dues check-offs and other contributions.
(AC 1125).
monthly basis the number of hours of
applicable work performed by each
employee.{Id. ^ 24). Plaintiffs allege that Tri
Fed. R. Civ. P. 55(b)(1), (b)(2);
also
Enron Oil Corp. v. Dialmhara, 10 F.3d 90,95
(2d Cir. 1993).
State failed to do so for the month of
December 2014, and the period of July 2015
through December 2015. ^ {Id. ^ 25).
Plaintiffs claim that Tri State therefore also
owes the Funds unpaid contributions and
dues check-offs in an unknown amount for
this period. {Id.).
Plaintiffs
seek:
(1)
unpaid
contributions and dues check-offs totaling
$2,190.41 along with interest and punitive
damages; (2) $25,612.26 in unpaid
contributions and dues check-offs for August
2014 through June 2015 along with interest
and punitive damages; (3) an unknown
amount of unpaid contributions and dues
check-offs for December 2014 and the period
from July through December of 2015; (4)
interest on previous late payments in the
amount of $2,558.19; and (5) the attorney's
fees, expenses and costs incurred in
prosecuting this suit. {Id. 23-49).
DISCUSSION
Tri State has failed to appear in this
action, respond to the Complaint, or
otherwise challenge the default. {See Dkt.
No. 22). The clerk has therefore
appropriately entered default. Further,
Plaintiffs have applied to this Court for
default judgment in accordance with Fed. R.
Civ. P. 55(b). (Dkt. No. 23). Accordingly,
Plaintiffs have satisfied the two-step process
for obtaining a defaultjudgment.
L LIABILTIY
After the clerk enters the default of a
party, the Court accepts all the well-pleaded
allegations in the complaint as true.
Greyhound Exhibitgroup Inc. v. E.L.U.L.
Realty Corp., 973 F.2d 155, 158-59(2d Cir.
1992). However, the Court must decide
whether those pleadings are sufficient to
establish liability as a matter oflaw. Finkel v.
RomanowicZy 577 F.3d 79, 84(2d Cir. 2009)
(citing.(4m Bon Pain Corp. v. Artect, Inc.,653
F.2d61,65(2dCir.l981)).
The Federal Rules of Civil Procedure
provide "a two-step process for obtaining a
default judgment." Priestley v. Headminder,
Inc. 647 F.3d 497, 504(2d. Cir. 2011). First,
Every employer who is obligated to
the clerk of the court must enter a party's
make
default upon being advised that the party has
"failed to plead or otherwise defend" against
an action. Fed. R. Civ. P. 55(a). Then, in
multiemployer plan under the terms
of the plan or under the terms of a
collectively bargained agreement
shall, to the extent not inconsistent
cases where the relief sought is not "a sum
certain or a sum that can be made certain by
computation," the party seeking relief"must
apply to the court for a default judgment."
^ At some points, the AC states that the relevant time
period ends in September 2015. (AC
28, 35).
However, Plaintiffs revert to identifying December in
the second claim for relief and the prayer for relief.
(AC ^38; AC at 12). The Court will treat the date of
Section 515 of ERISA states:
contributions
to
a
with law, make such contributions in
accordance
with
the
terms
and
December listed in the prayer for relief as controlling.
See Silge v. Men, 510 F.3d 157, 160 (2d Cir. 2007)
("defendants will look to the demand clause [of the
complaint]to understand their exposure in the event of
default").
conditions of such plan or such
II. DAMAGES
agreement.
While the Court accepts all well29 U.S.C. § 1145 (2012). ERISA "does not
require employers to provide any particular
benefits, but once an employer does elect to
provide benefits, ERISA regulates the terms
of administration . . . [and requires the
employer to] do so in accordance with the
relevant multi-employer plan or collective
bargaining agreement." Finkel v. Metro Elec.
Control Systems Ltd., No. lO-cv-2012
(CBA) (JO), 2012 WL 4049803, at *4
(E.D.N.Y. 2012). Further, Section 301 ofthe
LMRA authorizes this Court to enforce valid
CBAs.
The CBA here requires Tri State to
remit contributions and dues check-offs to
the Funds as well as submit to the Funds a
pleaded allegations as to liability, it must
determine on its own the extent of damages.
Id. The burden rests with the plaintiff '*to
establish its entitlement to recovery. Trustees
ofPlumbers & Pipefitters Nat. Pension Fund
V. Daniel Weintraub & Assocs., Inc^ No. 04-
CV-2611 (FB)(CLP),2007 WL 4125453, at
*3 (E.D.N.Y. Nov. 16, 2007). In addition,
"Rule 55(b)(2) of the Federal Rules of Civil
Procedure provides that on the matter of
damages 'the court may conduct such
hearings or order such references as it deems
necessary and proper.' The rule 'allows but
does not require the districtjudge to conduct
a hearing.'" Tamarin v. Adam Caterers, Inc.,
13 F.3d 51, 53 (2d Cir. 1993) (citations
omitted); Fed. R. Civ. P. 55(b)(2).
record of the number of hours worked by
each employee.(AC 23, 24; see also Dkt.
No. 24-1). Plaintiffs adequately allege that:
(1) they are owed any unpaid contributions
and dues check-offs along with interest and
punitive damages that remain outstanding
from the April 2014 audit; (2) they are
entitled to known unpaid contributions and
dues check-offs for August 2014 through
June 2015; (3) under the CBA, Tri State is
liable for whatever unknown amount ofdues
check-offs and other contributions are owed
from December 2014 and July 2015 through
December 2015; (4) under New York law,
Tri State is liable for interest on late payments
of dues check-offs and contributions; and (5)
Tri State is liable for the attorney's fees,
expenses, and costs that Plaintiffs have
incurred in prosecuting this suit. In
defaulting, Tri State admits its liability for
violating the CBA,LMRA,and ERISA with
regards to the claims stated above.
Greyhound,973 F.2d at 158-59.
I find that an evidentiary hearing is
not warranted in this case. See W. Heritage
Ins. Co. V. Jacobs Dev. Corp., No. 12-CV5718(NOG)(LB), 2014 WL 297792, at *4
(E.D.N.Y. Jan. 27,2014)(noting that district
courts are not required to hold hearings where
"[djetailed affidavits and other documentary
evidence can suffice")(quoting Chanel, Inc.
V. Louis, No.06-CV-5924(ARR)
(JO), 2009
WL 4639674,at *4(E.D.N.Y.Dec.7,2009)).
Additionally, the Federal Rules of Civil
Procedure provide that "[a] default Judgment
must not differ in kind from, or exceed in
amount, what is demanded in the pleadings."
Fed. R. Civ. P. 54(c). This provision
"anticipates that defendants will look to the
demand clause [of the complaint] to
understand their exposure in the event of
default." Silge v. Merz,510 F.3d at 160. This
is of course subject to the exception for
"damages that accrued during the pendency
of the litigation if the complaint put the
defendant on notice that plaintiff might seek
such damages." Finkel v. Triple A Grp., Inc.,
708 F. Supp. 2d 277,282(E.D.N.Y. 2010).
A. Outstanding Delinquent
Contributions
Grp., Inc., 708 F. Supp. 2d at 282. Moreover,
the outstanding dues owed from the prior
audit were ascertainable before this action
ERISA provides that in successful
actions such as this,"the court shall award the
plan(A)the unpaid contributions." 29 U.S.C.
§ 1132(g)(2)(A)(2012). Plaintiffs seek such
commenced. Accordingly, 1 respectfully
recommend
that Plaintiffs
be
awarded
$2,190.41 in outstanding contributions from
the April 2014 audit.
contributions for various time periods.
B. Other Delinquent
In April 2014, Castiglia LLP
performed an audit of Tri State's books and
records for the period of March 1, 2011
through December 31, 2013.(Castiglia Deck
If 2, 3). The audit revealed that Tri State
Plaintiffs allege that Tri State owes
the Union $25,612.26 in contributions and
dues check-offs for the period of August
owed the Funds a total of$16,828.00 for that
2014 through June 2015.
(AC 125).Plaintiffs
period. {Id. 5; Dkt. No. 25-1). Plaintiffs
|
also claim that Tri State owes the Funds an
unknown amount of contributions and dues
claim that of the $16,828.00, "contributions
in the amount of $1,801.55 and dues check
Contributions
offs and other contributions to the Union in
check-offs for the period of December 2014
and July 2015 through December 2015. {Id.
the amount of $388.86 remain outstanding."
at 12).^
(AC I 21). This amounts to an outstanding
balance of $2,190.41. The Declaration of
Joseph
Montelle, however, states that
$8,759.00 ofthe balance from the April 2014
audit remains outstanding. (Dkt. No. 26,
("Montelle|support of this
Deck") 10). In
claim, Montelle appends two remittance
reports totaling $8,069.00—^the difference
As to Plaintiffs' request for
$25,612.26, Plaintiffs claim that Tri State
submitted remittance reports to the Funds
showing "the number of hours worked by its
employees and the total amount of
contributions owed to the Funds for work
The declarations and exhibits do not
establish that Plaintiffs are entitled to
performed during the relevant months."
(Montelle Deck 111). Yet, Plaintiffs did not
provide these remittance reports to the Court.
The only support that Plaintiffs provide for
these numbers is a single "Employer
Discrepancy Status Report" that allegedly
$8,579.00. The AC put Tri State on notice
reflect amounts reported but unpaid, by Tri
that it was liable for a total of $2,190.41 for
State. {Id:, Dkt. No. 26-4).
outstanding
dues
check-offs
and
contributions from the prior audit. Further,on
a default judgment, the Court is constrained
to awarding at most the relief sought in the
complaint. Fed. R. Civ. P. 54(c); Triple A
This report is insufficient to
substantiate
Plaintiffs'
request
for
$25,612.26. Not only does the report fail to
reflect the period from August 2014 to June
^ Plaintiffs later change both the relevant time period
"in the amount of $977.76." (Montelle Decl. ^ 12).
and amount of money owed from the AC. For
Plaintiffs' Memo then refers to April 2014, which is
between the principal amount and the amount
claimed to be owing.(Dkt. No. 26-3).
example, Plaintiffs later claim that "Tri State failed to
remit contributions for August 2014 and July through
August 2015 in the amount of $19,781.08" as well as
dues check-offs and other contributions to the Union
outside of any time period for which Plaintiffs
originally sought relief.(Plaintiffs' Memo at 6).
2015, but the total adds up to $20,758.84, a
different amount from that in the AC. {See
Dkt. No. 26-4). Based on the multitude of
discrepancies in Plaintiffs' submissions as
well as the lack of evidentiary support for
Plaintiffs' demand for $25,612.26 from the
2014 audit. As the Court has already
determined, the outstanding contributions to
amount to $1,801.55 for outstanding unpaid
contributions and $388.86 in outstanding
dues check-offs. Ofthese, only the $1,801.55
constitute fringe benefits. Plaintiffs are
Complaint, I recommend that this Court deny
therefore entitled to collect interest on the
Plaintiffs' request for such damages.^
$1,801.55 at a rate of 10% per annum from
the date those contributions became due and
As to Plaintiffs request for the
unknown amount of contributions and dues
check-offs owed for the period of December
2014 and July 2015 through December 2015,
nowhere in the AC do Plaintiffs request an
audit to substantiate the compensation owed;
and as such, this Court is not at liberty to
issue monetary relief on such dues.
owing.See Finkel, 708 F. Supp.2d at 286-87
(E.D.N.Y. 2010). Here, Plaintiffs fail to
specify the date upon which the contributions
became due and owing. Because the original
audit revealing the delinquent contributions
was conducted on or before April 28, 2014,
annual interest has been accruing since at
least then. {See Dkt. No. 25-1). Therefore, I
recommend that the amount ofinterest on the
unpaid contributions should be calculated by
C. Interest
the Clerk of Court from the date ofthe audit
ERISA provides for the payment of
"interest on the unpaid contributions ...[at]
the rate provided under the plan." 29 U.S.C.
§ 1132(g)(2)(2012). The CBA establishes an
annual interest rate of 10% on delinquent
fringe benefits.(AC ^12;Dkt. No.26-2 at 3).
through the date final judgment is entered.
Plaintiffs also seek interest from
September 30,2016—^the date Plaintiffs filed
their Motion for Default Judgment—^through
the date of Judgment. (Dkt. No. 29 at 10).
Plaintiffs did not seek such interest in the
AC.® Therefore, Tri State was not put on
a. Outstanding Delinquent
Contributions
Plaintiffs
seek
interest
notice that Plaintiffs were seeking those
damages. Accordingly, I recommend that
on
the
Plaintiffs not receive such interest. See Fed.
outstanding contributions from the April
This Court has warned Plaintiffs that such an
outcome would result if their legal requests continued
to be unsupported. See Trustees of the Local 7 Tile
Indus. Welfare Fund v. Alp Stone, Inc., No. 12-CV5974 (NGG) (RER), 2015 WL 4094615, at *6
(E.D.N.Y. June
17, 2015), report and
recommendation adopted. No. 12-CV-5974 (NGG)
(RER),2015 WL 4112449(E.D.N.Y. July 7,2015)("I
would be remiss if I did not mention that this is not the
the future, if incorrect calculations are submitted to
this Court, this Court will not recalculate and
reconstruct damages based on what evidence is
presented, but instead disallow recovery as a whole. It
is not the Court's job nor duty to perform such
calculations in the first instance, rather the Court is to
insure that such calculations presented are
arithmetically sound and supported, both factually and
legally.").
first time that the law firm representing Plaintiffs,
Virginia & Ambinder LLP, has failed to provide the
® While Plaintiffs do seek such interest on their third,
Court with accurate calculations and complete
fourth, fifth, and sixth claims for relief, all of those
submissions. On a number of occasions this Court has
claims are against Hudson or American Fire and have
since been voluntarily dismissed.(AC at 12, 13; Dkt.
had to recalculate various plaintiffs' damages because
the documentation and calculations provided by
plaintiffs' counsel were replete with inaccuracies. In
No. 35; Dkt. No. 37).
R. Civ. P. 54(c); Triple A Grp., Inc.., 708 F.
Supp. 2d at 282.
b. Other Delinquent Contributions
Plaintiffs also seek interest on the
claim. Plaintiffs provide a "Billing Status
Report" that shows each month of late
payments, when the payment was actually
made, and how much interest is owing to
each fund for each such month.(See Dkt. No.
26-6).
unpaid contributions for the period ofAugust
2014 and July through December 2015.^(AC
^ 35). Since I recommended above that this
Court not grant Plaintiffs' request for those
unpaid contributions, I further recommend
that this Court not grant Plaintiffs' request for
interest on those damages.
c. Previous Late Pavments
ERISA does not provide for the
payment of interest on delinquent
contributions that were in fact paid before the
filing of the action. See Iron Workers Dist.
Council of W. N.Y. & Vicinity Welfare &
Pension Funds v. Hudson Steel Fabricators
& Erectors, Inc.,68 F.3d 1502, 1507(2d Cir.
1995). Nonetheless,'Svhere a contribution is
paid late in violation ofthe CBA,the LMRA
provides a statutory basis for enforcing the
relevant contractual terms. Finkel v. Fervent
Elec. Corp., No. 13-CV-3289(NGG)
(RER),
2015 WL 1469560, at *5 (E.D.N.Y. Feb. 23,
2015), report and recommendation adopted
as modified, 2015 WL 1469728 (E.D.N.Y.
Mar. 30, 2015).
Again, the Court is unable to award
damages that differ in kind, or exceed in
amount, those listed in the complaint.
Accordingly, I recommend that Plaintiffs
receive $2,558.19 in interest for previous late
payments.
D. Liquidated Damages
ERISA entitles successful litigants to
receive liquidated damages in an amount
equal to the greater of: the amount provided
for in the plan up to 20% or the amount of
interest on unpaid contributions. 29 U.S.C. §
1132(g)(2)(C) (2012). Here, Plaintiffs seek
liquidated damages in the amount of 20% of
the amount adjudged to be due and owing
from the April 2014 audit, as well as 20% on
the alleged delinquency of $28,540.08.(AC
at 12, ^ 22; Plaintiffs' Memo at 8; Montelle
Decl. 113).
Because the Court finds that the
Plaintiffs have not established their
entitlement to $25,612.26 in unpaid
contributions and dues check-offs for August
Here, Plaintiffs seek interest in the
.amount of $2,558.19 for late contribution
2014 through 2015, they may not seek
liquidated damages on such unpaid
payments.(AC ^ 27).' However, Plaintiffs'
contributions. The Court finds that Plaintiffs
Memo changes this number to $5,230.13 and
are only entitled to liquidated damages of
clarifies that the relevant time period is June
2012, December 2013, April through June of
2014, and February through July of 2015.
20% on the outstanding principle of
$2,190.41 from the April 2014 audit, which
amounts to $438.08. Accordingly, the Court
(Plaintiffs' Memo at 5). In support of this
'
Plaintiffs later change this period to July through
August 2015.(Plaintiffs' Memo at 8).
February through July of 2015. (Plaintiffs' Memo at
5). In support of this claim. Plaintiffs provide a late
® Plaintiffs' Memo changes this number to $5,230.13
and clarifies that the relevant time period is June 2012,
payment interest report that shows each month of late
payments, when the payment was actually made, and
how much interest is owing to each fund for each such
December 2013, April through June of 2014, and
month.(See Dkt. No.26-6).
recommends awarding Plaintiffs $438.08 in
liquidated damages.
E. Attorney's Fees and Costs
Pursuant
to
ERISA,
litigants
successful in enforcing multiemployer plans
under collective bargaining agreements are
entitled to "reasonable attorney's fees and
costs of the action, to be paid by the
this case graduated from law school in 2014,
and is therefore a junior associate.^ {Id. 18).
In a default Judgment ERISA case
such as this, "the range of appropriate billing
rates is . . . $100-$295 per hour for
associates." Gesualdi v. Giacomelli Tile Inc.,
No. 09-CV-0711 (JS), 2010 WL 1049262, at
*3 (E.D.N.Y. Mar. 18, 2010). However,
courts in this District have recently lowered
determining the amount ofa reasonable fee is
the requested rate for Ms. Marimon down to
$150 per hour. Trustees of the Local 7 Tile
Indus. Welfare Fund v. Richard's
Improvement Bldg. Inc., No. CV 153898(JS)
(AKT),2016 WL 6110455, at *14(E.D.N.Y.
Aug. 1, 2016); Trustees of Empire State
Carpenters Annuity, Apprenticeship, LaborMgmt. Cooperation v. Dipizio Constr,, Inc.,
the number of hours reasonably expended on
the litigation multiplied by a reasonable
hourly rate." Hensley v. Eckerhart^ 461 U.S.
424, 433 (1983). "The actual billing
arrangement certainly provides a strong
indication of what private parties believe is
No. 15CV2592 (JFB) (AYS), 2016 WL
3033722, at *6 (E.D.N.Y. May 25, 2016).
Therefore, I find the reasonable rate for Ms.
Marimon in this case to be $150 per hour.
Since Plaintiffs provide no information as to
the attorney listed as "TH," I find the
the 'reasonable' fee to be awarded." Crescent
appropriate rate to be $100 per hour. This
Publ'g Group, Inc. v. Playboy Enters., 246
F.3d 142, 151 (2d Cir. 2001). Nevertheless,
"the court may exclude hours that it finds to
be excessive, duplicative, or unnecessary."
Gesualdi v. T & M Specialties, Ltd.^ No. CV
09-49(ENV)(VVP), 2011 WL 1326648, at
*3 (E.D.N.Y. Feb. 18, 2011), report and
recommendation adopted^ 2011 WL 1253734
(E.D.N.Y. Mar.31,2011)(citations omitted).
District has found rates of $90 per hour for
defendant." 29 U.S.C. § 1132(g)(2)(D)
(2012). Since Plaintiffs have proved that Tri
State is liable under ERISA,they are entitled
to their reasonable attorney's fees and costs,
as determined by this Court.(AC. at 12).
"The most useful starting point for
The declaration of Nicole Marimon
paralegals to be reasonable. See McMahonPitts V. Sokoloff, No. 15-CV-4975,2017 WL
1011473, at *4 (E.D.N.Y. Mar. 15, 2017).
Therefore, I find Plaintiffs' requested rate for
paralegals of$90 per hour to be reasonable.
Exhibit D of the Marimon Decl.
shows that Ms. Marimon billed 21.5 hours,
the attorney listed as "TH" billed 1.2 hours
and the legal assistants billed 7.5 hours on
this case,for a combined total of30.2 hours.'®
states that Plaintiffs' firm charged $200 per
hour for associates and $80 per hour for legal
assistants.(Dkt. No. 27,("Marimon Decl."))
(Dkt. No. 27-4). I find this to be a reasonable
^ 7). The principle associate that worked on
Bakery & Confectionery Union & Indus. Int'l
'
The invoice shows that another associate listed as
case."(Plaintiffs' Memo at 5). However,the Marimon
number of hours for this kind of case. See
"TH" billed a total of 1.2 hours, but billed at the same
Decl. and the exhibits thereto establish that 30.2 hours
rate of$200 per hour.(Dkt. No. 27-4 at 4).
is the correct number, and it is the only number that
corresponds to their final calculation of $5,140.
Plaintiffs' Memo states that "Plaintiffs' attorneys
and their assistants spent a total of 5.1 hours on this
(Marimon Decl.; Dkt. No. 27-4).
Pension Fund v. Ges Bake Shop,Inc., No. 13CV-728 (FB)(CLP), 2014 WL 1159821, at
*10 (E.D.N.Y. Mar. 21, 2014)(finding 31.2
hours of work reasonable in a "relatively
straightforward ERISA" default judgment
case). At the rates above. Plaintiffs'
attorney's fees total $4,020.00.
Plaintiffs are hereby directed to serve
copies of this Report and Recommendation
upon Tri State by next-day mail by May 16,
2017, at each of their last known addresses,
and to promptly file proofofservice with the
Clerk of the Court. Any objections to the
recommendations made in this Report must
be filed with the Clerk of the Court and the
Plaintiffs also seek costs totaling
$647.21 for court filing fees, postage, and
related costs. (Marimon Decl. ^ 10). "A
prevailing party is entitled to compensation
for out-of-pocket expenses that are normally
charged to the client." Gesualdi v. T & M
Specialties, Ltd., 2011 WL 1326648, at *4
(citing United States Football League v.
National Football League,887 F.2d 408,416
(2d. Cir. 1989)); see also Gesualdi v. Lubco
Transp. Inc., No. CV156727ADSARL,2017
WL 946297, at *4(E.D.N.Y. Feb. 22, 2017),
report and recommendation adopted, 2017
WL 943937 (E.D.N.Y. Mar. 9, 2017)
Honorable Raymond J. Dearie within
fourteen (14) days of receipt hereof. Failure
to file timely objections waives the right to
appeal the District Court's Order. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72;Small
V. Sec y ofHealth
Human Servs., 892 F.2d
15,16(2d Cir. 1989).
SO ORDERED.
RAMON E. REYES,JR.
United States Magistrate Judge
(approving similar costs). Thus, I find
Plaintiffs' requested costs reasonable.
In sum, I recommend awarding
Plaintiffs a total of $4,667.21 as reasonable
attorney's fees and costs.
CONCLUSION
Based on the foregoing, I respectfully
recommend that the Court grant Plaintiffs'
motion for a default judgment. I further
recommend that the Court award: $2,190.41
in outstanding contributions from the April
2014 audit, interest on the sum of $1,801.55
to be calculated by the Clerk of the Court at
an annual rate of 10% from April 28, 2014
through the date of final judgment, and
liquidated damages in the amount of$438.08.
I also recommend that the Court award
Plaintiffs interest for previous late payments
in the amount of $2,558.19 and $4,667.21 in
attorney's fees and costs.
Dated: May 11,2017
Brooklyn, NY
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