Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Management Cooperation, Pension and Welfare Funds v. Sanders Construction, Inc.
Filing
25
ORDER granting 22 Motion for Attorney Fees For the reasons set forth herein, the Court awards plaintiffs $3707.00 in attorneys fees and $467.98 in costs. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/10/2015. (Mesrobian, David)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-5102 (JFB)(ARL)
_____________________
TRUSTEES OF EMPIRE STATE CARPENTERS ANNUITY, APPRENTICESHIP, LABORMANAGEMENT COOPERATION, PENSION AND WELFARE FUNDS,
Plaintiffs,
VERSUS
SANDERS CONSTRUCTION, INC.,
Defendant.
___________________
MEMORANDUM AND ORDER
April 10, 2015
___________________
I. PROCEDURAL HISTORY
JOSEPH F. BIANCO, District Judge:
The Court has set forth all relevant
background facts in its October 14, 2014
Memorandum and Order granting plaintiffs’
motion for summary judgment. See Trustees
of Empire State Carpenters Annuity,
Apprenticeship,
Labor-Mgmt.
Co-op.,
Pension & Welfare Funds v. Sanders
Construction, Inc., No. 13-CV-5102
(JFB)(ARL), 2014 WL 2014 WL 5140297,
at *1 (E.D.N.Y. Oct. 14, 2014). The Court
does not repeat those facts here.
The Trustees (“plaintiffs”) of Empire
State Carpenters Annuity, Apprenticeship,
Labor-Management Cooperation, Pension
and Welfare Funds (the “Funds”)
commenced this action against Sanders
Construction, Inc. (“defendant” or “Sanders
Construction”) to confirm and enforce an
arbitration award. In a Memorandum and
Order dated October 14, 2014, the Court
granted plaintiffs’ motion for summary
judgment and confirmed the arbitration
award.
After the Court issued its October 14,
2014 Memorandum and Order, plaintiffs
moved for attorneys’ fees and costs on
October 22, 2014.
Defendant did not
oppose the motion. The matter is fully
submitted.
Now before the Court is plaintiffs’
motion for attorneys’ fees and costs. For the
reasons set forth below, the Court awards
$3,707 in attorneys’ fees and $467.98 in
costs.
1
equitable powers, award attorney’s fees
when opposing counsel acts in bad faith,
attorney’s fees and costs may be proper
when a party opposing confirmation of
arbitration award ‘refuses to abide by an
arbitrator’s decision without justification.’”
N.Y.C. Dist. Council of Carpenters Pension
Fund v. E. Millenium Constr., Inc., No. 03CV-5122 (DAB), 2003 WL 22773355, at *2
(S.D.N.Y. Nov. 21, 2003) (quoting Int’l
Chem. Workers Union, Local No. 227, 774
F.2d at 47); see, e,g., TNS Mgmt. Servs.,
2014 WL 100008, at *4 (citing cases);
Trustees of Nat’l Org. of Indus. Trade
Unions Ins. Trust Fund v. Davis Grande
Co., No. 03-CV-6229 (NG)(SMG), 2006
WL 1652642, at *4 (E.D.N.Y. June 9,
2006).
II. DISCUSSION
A. Plaintiffs’ Entitlement to
Attorneys’ Fees and Costs
“The general rule in our legal system is
that each party must pay its own attorney’s
fees and expenses.” Perdue v. Kenny A. ex
rel. Winn, 559 U.S. 542, 550 (2010). Neither
Section 301 of the Labor Management
Relations Act (“LMRA”), 29 U.S.C. § 185,
nor the Federal Arbitration Act (“FAA”), 9
U.S.C. §§ 1 et seq., authorize the award of
attorneys’ fees in an action to confirm an
arbitration award. See, e.g., Trustees of
N.Y.C. Dist. Council of Carpenters Pension
Fund v. TNS Mgmt. Servs., Inc., No. 13-CV2716 (JMF), 2014 WL 100008, at *4
(S.D.N.Y. Jan. 10, 2014); Trustees of N.Y.C.
Dist. Council of Carpenters Pension Fund v.
Dejil Sys., Inc., No. 12-CV-005 (JMF), 2012
WL 3744802, at *4 (S.D.N.Y. Aug. 29,
2012); N.Y.C. Dist. Council of Carpenters
Pension Fund v. Angel Constr. Grp., LLC,
No. 08-CV-9061 (RJS), 2009 WL 256009,
at *2 (S.D.N.Y. Feb. 3, 2009) (citing Int’l
Chem. Workers Union, Local No. 227 v.
BASF Wyandotte Corp., 774 F.2d 43, 47 (2d
Cir. 1985)). Moreover, although Section
502(g) of the Employee Retirement Income
Security Act (“ERISA”) requires the award
of attorneys’ fees to a plan that prevails in
an action to recover delinquent contributions
pursuant to a collective bargaining
agreement, see 29 U.S.C. § 1132(g)(2)(D),
“this does not necessarily mean that a
successful party is also entitled to its costs
and attorney’s fees in bringing a petition to
confirm an arbitration award.” Abondolo v.
Jerry WWHS Co., Inc., 829 F. Supp. 2d 120,
130 (E.D.N.Y. 2011) (holding that ERISA
authorizes award of costs, but not attorneys’
fees,
in
arbitration
confirmation
proceedings); accord TNS Mgmt. Servs.,
2014 WL 100008, at *4; Dejil Sys., 2012
WL 3744802, at *4. Nonetheless, “because a
court may, in the exercise of its inherent
Here, the Court need not decide whether
defendant refused to abide by the arbitrator’s
award without justification because the
parties’ Collective Bargaining Agreement
(“CBA”) and the Funds’ Joint Policy for
Collection of Delinquent Contributions,
incorporated by referenced into the CBA,
explicitly obligate employers who fail to
make timely contributions to the Funds to
pay attorneys’ fees and costs incurred in
recovering the delinquent contributions. (See
Pls.’ Mot. for Summ. J., Craven Decl. Exs.
B (CBA app’x K art. 1.1(C)(4)) & C
(Collection Policy art. 6.2).) The parties’
agreements are a sufficient basis upon which
to award attorneys’ fees and costs. See
N.Y.C. Dist. Council of Carpenters Pension
Fund v. Dafna Constr. Co., Inc., 438 F.
Supp. 2d 238, 242 (S.D.N.Y. 2006)
(“Whether Dafna had no justification in
refusing to comply with the arbitrator’s
ruling is irrelevant, however, because the
Agreement itself requires Dafna to pay
attorneys’ fees incurred by the Trustees in
seeking confirmation . . . . Since the parties
bargained for the awarding of attorneys’ fees
in this precise circumstance, the Court
respects their agreement and orders Dafna to
2
he or she had been representing a paying
client who was billed by the hour in a
comparable case.” Id. at 551 (emphasis in
original). “The burden is on the party
seeking attorney’s fees to submit sufficient
evidence to support the hours worked and
the rates claimed.” Hugee v. Kimso
Apartments, LLC, 852 F. Supp. 2d 281, 298
(E.D.N.Y. 2012) (citing Hensley, 461 U.S.
at 433).
pay the costs incurred by the Trustees in
seeking confirmation of the arbitrator’s
award.”); see also Trustees of N.Y.C. Dist.
Council of Carpenters Pension Fund,
Welfare
Fund,
Annuity
Fund,
&
Apprenticeship, Journeyman Retraining,
Educ. & Indus. Fund v. Alliance Workroom
Corp., No. 13-CV-5096 (KPF), 2013 WL
6498165, at *6 (S.D.N.Y. Dec. 11, 2013)
(holding that CBA authorized award of
attorneys’ fees and costs in action to confirm
arbitration award). Additionally, the Court
notes that defendant did not oppose
plaintiffs’ entitlement to attorneys’ fees and
costs under the CBA. Accordingly, for the
reasons discussed supra, the Court
concludes that plaintiff is entitled to recover
attorneys’ fees and costs.
1. Reasonable Hourly Rate
“The reasonable hourly rate is the rate a
paying client would be willing to pay.”
Arbor Hill, 522 F.3d at 190. The Second
Circuit’s “‘forum rule’ generally requires
use of ‘the hourly rates employed in the
district in which the reviewing court sits in
calculating the presumptively reasonable
fee.’” Bergerson v. N.Y. State Office of
Mental Health, Cent. N.Y. Psychiatric Ctr.,
652 F.3d 277, 290 (2d Cir. 2011) (quoting
Simmons v. N.Y.C. Transit Auth., 575 F.3d
170, 174 (2d Cir. 2009)). “Fees should not
be awarded at higher out-of-district rates
unless ‘a reasonable client would have
selected out-of-district counsel because
doing so would likely . . . produce a
substantially better net result.’” Id. (quoting
Simmons, 575 F.3d at 172). In Arbor Hill,
the Second Circuit also instructed district
courts to consider the factors set forth in
Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714 (5th Cir. 1974), abrogated on
other grounds by Blanchard v. Bergeron,
489 U.S. 87, 92–93 (1989). See 522 F.3d at
190.
B. Attorneys’ Fees
Generally, to determine a reasonable
attorney’s fee, a court must calculate a
“lodestar figure,” which is determined by
multiplying the number of hours reasonably
expended on a case by a reasonable hourly
rate. See Hensley v. Eckerhart, 461 U.S.
424, 433 (1983); see also Luciano v. Olsten
Corp., 109 F.3d 111, 115 (2d Cir. 1997).
“Both [the Second Circuit] and the Supreme
Court have held that the lodestar . . . creates
a ‘presumptively reasonable fee.’” Millea v.
Metro-N. R.R. Co., 658 F.3d 154, 166 (2d
Cir. 2011) (quoting Arbor Hill Concerned
Citizens Neighborhood Assoc. v. Cnty. of
Albany, 522 F.3d 182, 183 (2d Cir. 2008);
citing Perdue, 559 U.S. 542). “‘[T]he
lodestar figure includes most, if not all, of
the relevant factors constituting a
‘reasonable’ attorney’s fee’ . . . .” Perdue,
559 U.S. at 553 (quoting Pennsylvania v.
Del. Valley Citizens’ Council for Clean Air,
478 U.S. 546, 565–66 (1986)). Thus, the
Supreme Court has recognized that “the
lodestar method produces an award that
roughly approximates the fee that the
prevailing attorney would have received if
The twelve Johnson factors are: (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
3
associates. See, e.g., Pall Corp. v. 3M
Purification
Inc.,
No.
97-CV-7599
(RRM)(ETB), 2012 WL 1979297, at *4
(E.D.N.Y. June 1, 2012). Courts have also
concluded that $85 to $100 per hour is a
reasonable rate for paralegals. See, e.g.,
Barrella v. Vill. of Freeport, No. 12-CV0348 (ADS)(WDW), 2014 WL 4273339, at
*51 (E.D.N.Y. Aug. 28, 2014) (citing cases).
Of course, in light of the numerous factors
that courts in this circuit consider to
determine a reasonable hourly rate, “the
range of ‘reasonable’ attorney fee rates in
this district varies depending on the type of
case, the nature of the litigation, the size of
the firm, and the expertise of its attorneys.”
Siracuse v. Program for the Dev. of Human
Potential, No. 07-CV-2205 (CLP), 2012 WL
1624291, at *30 (E.D.N.Y. Apr. 30, 2012).
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.
Id. at 186 n.3 (quoting Johnson, 488 F.2d at
717–19). Finally, a district court should also
consider “that a reasonable, paying client
wishes to spend the minimum necessary to
litigate the case effectively,” and “that such
an individual might be able to negotiate with
his or her attorneys, using their desire to
obtain the reputational benefits that might
accrue from being associated with the case.”
Id. at 190. “The burden rests with the
prevailing party to justify the reasonableness
of the requested rate,” and plaintiff’s
attorney “should establish his hourly rate
with satisfactory evidence—in addition to
the attorney’s own affidavits.” Hugee, 852
F. Supp. 2d at 298.
Here, plaintiffs request the following
hourly rates: Michael Isaac ($225); Richard
Epstein ($200 to $225); and Legal Assistants
($90 to $100). (See Isaac Decl. ¶¶ 3–5.)
Isaac and Epstein are associates of Virginia
and Ambinder, LLP. (Id. ¶¶ 3–5.) Isaac
graduated Rutgers University School of
Law-Newark in 2007 (id. ¶ 3); Epstein
graduated Brooklyn Law School in 2010 (id.
¶ 4). Both aver that they have “regularly
represented multiemployer employee benefit
plans in ERISA litigation.” (Id. ¶¶ 3–4.)
Isaac has declared that “[t]he foregoing
hourly rates are consistent with V&A’s
customary billing arrangement with
Plaintiffs, as negotiated with Plaintiffs’
Board of Trustees.” (Id. ¶ 6.) Defendant
does not contest the reasonableness of these
requested rates.
“Courts have awarded rates of $200 to
$400 per hour for partners in this district.”
Capone v. Patchogue-Medford Union Free
Sch. Dist., No. 04-CV-2947 (JS)(MLO),
2011 WL 743573, at *2 (E.D.N.Y. Feb. 23,
2011); see also United States v. Jones, No.
11-CV-2869 (JFB), 2013 WL 6408639, at
*3 (E.D.N.Y. Dec. 9, 2013) (noting that
“recent Eastern District cases have indicated
that the range of appropriate billing rates in
this District is $200-$375 for partners”). As
for associates, courts in this district have
concluded that approximately $200 to $300
is a reasonable hourly rate for senior
associates, and that $100 to $200 is a
reasonable hourly rate for more junior
In light of the prevailing hourly rates in
this district and all other factors set forth in
Arbor Hill and Johnson, the Court concludes
that $225 is a reasonable rate for Isaac, who
is a more senior associate; $200 is a
reasonable hourly rate for Epstein, a more
4
assistants spent the following number of
hours on this litigation: Michael Isaac (14.4
hours); Richard Epstein (1.3 hours); Legal
Assistants (2.3 hours). (See id.)
junior associate; and $90 is a reasonable
hourly rate for the work of legal assistants.
2. Reasonable Hours
Having determined a reasonable hourly
rate for plaintiffs’ counsel, the Court must
determine the reasonable number of hours
expended by plaintiffs’ counsel in this
litigation.
As an initial matter, the Court concludes
that the invoice printout satisfies the
contemporaneous records requirement.
Courts have accepted the printout of an
invoice that provides “a clear description of
the work performed, the time spent on the
respective matter, the attorney who rendered
services, and the date the services were
performed.” Big R Food Warehouses v.
Local 338 RWDSU, 896 F. Supp. 292, 295
(E.D.N.Y. 1995); see, e.g., Home Loan Inv.
Bank, F.S.B. v. Goodness & Mercy, Inc., No.
10-CV-4677 (ADS)(ETB), 2012 WL
1078963, at *7 (E.D.N.Y. Jan. 4, 2012),
report & recommendation adopted, 2012
WL 1078886 (E.D.N.Y. Mar. 30, 2012);
Fuerst v. Fuerst, No. 10-CV-3941, 2012 WL
1145934, at *4 (E.D.N.Y. Apr. 5, 2012);
New Paltz Cent. Sch. Dist. v. St. Pierre, No.
02-CV-981 (FJS/RFT), 2007 WL 655603, at
*1–2 (N.D.N.Y. Feb. 26, 2007); Boster v.
Braccia, No. 06-CV-4756 (JG)(RER), 2007
WL 4287704, at *2 (E.D.N.Y. Dec. 4,
2007). The invoice submitted by plaintiffs
provides all of this information in sufficient
detail, and plaintiffs’ counsel avers that the
information was entered contemporaneously
as the work was performed. (See Isaac Decl.
¶ 2.) The Court does not find otherwise
merely because the printout is dated October
21, 2014, which is clearly the date the
invoice was printed, not when it was
created. See N.Y. Dist. Council of
Carpenters Pension Fund v. Perimeter
Interiors, Inc., 657 F. Supp. 2d 410, 424
(S.D.N.Y. 2009) (“[T]he defendants note
that the date on the top of the plaintiffs’ fee
invoice is April 16, 2009, and they suggest
that counsel’s fees were formulated on that
date. However, there is nothing in the record
to suggest that this date is anything but the
“The party seeking attorney’s fees also
bears the burden of establishing that the
number of hours for which compensation is
sought is reasonable.” Custodio v. Am.
Chain Link & Const., Inc., No. 06-CV-7148
(GBD), 2014 WL 116147, at *9 (S.D.N.Y.
Jan. 13, 2014) (citing Cruz v. Local Union
No. 3 of Int’l Bhd. of Elec. Workers, 34 F.3d
1148, 1160 (2d Cir. 1994)). “Applications
for fee awards should generally be
documented by contemporaneously created
time records that specify, for each attorney,
the date, the hours expended, and the nature
of the work done.” Kirsch, 148 F.3d at 173.
“Hours that are ‘excessive, redundant, or
otherwise unnecessary,’ are to be excluded,
and in dealing with such surplusage, the
court has discretion simply to deduct a
reasonable percentage of the number of
hours claimed ‘as a practical means of
trimming fat from a fee application.’” Id.
(quoting Hensley, 461 U.S. at 434; N.Y.
Ass’n for Retarded Children, Inc. v. Carey,
711 F.2d 1136, 1146 (2d Cir. 1983)); see
also Lunday v. City of Albany, 42 F.3d 131,
134 (2d Cir. 1994) (“We do not require that
the court set forth item-by-item findings
concerning what may be countless
objections to individual billing items.”).
Here, plaintiffs have submitted the
printout of an invoice sent by Virginia and
Ambinder, LLP to plaintiffs for professional
services rendered in connection with the
case at bar. (See Isaac Decl. Ex. A.) These
records show that the attorneys and legal
5
Schlesinger Elec. Contractors, Inc., No. 10CV-696 (KAM)(SMG), 2013 WL 950573,
at *10 (E.D.N.Y. Mar. 12, 2013). In
particular, under Local Civil Rule 54.1, “the
party must include as part of the request ‘an
affidavit that the costs claimed are allowable
by law, are correctly stated and were
necessarily incurred,’” and “[b]ills for the
costs claimed must be attached as exhibits.”
D.J. ex rel. Roberts v. City of New York, No.
11-CV-5458
(JGK)(DF),
2012
WL
5431034, at *9 (S.D.N.Y. Oct. 16, 2012)
(quoting Local Civ. R. 54.1(a)), report &
recommendation adopted, 2012 WL
5429521 (S.D.N.Y. Nov. 7, 2012).
date on which the hours were summarized
for the Court’s convenience.”).
The Court proceeds to analyze the
reasonableness of the specific hours billed.
Defendant does not challenge the
reasonableness of any of the hours in the
invoice, and upon a review of plaintiffs’
submission, the Court concludes that all
hours expended were reasonable.
*
*
*
Accordingly, the Court calculates the
lodestar figure to be $3,707.00. The Court
bases this figure on the following
calculations:
Individual
Rate
Hours Total
Isaac
$225
14.4
Epstein
$200 1.3
Here, plaintiffs request $467.98 for the
following litigation costs: the filing fee
($400), the service fee ($67.50), and postage
($.48). (See Isaac Decl. Ex. A.) All costs
are recoverable. Accordingly, the Court
awards plaintiffs $467.98 in costs.
Legal Assts. $90
2.3
$3240.00
$260.00
$207.00
The Court sees no reason to depart from
the lodestar figure in this case. See, e.g.,
Perdue, 559 U.S. at 553 (noting that lodestar
figure includes “most, if not all,” relevant
factors in setting reasonable attorney’s fee).
Therefore, the Court awards plaintiffs
$3707.00 in attorneys’ fees.
C. Costs
“As for costs, a court will generally
award ‘those reasonable out-of-pocket
expenses incurred by attorneys and
ordinarily charged to their clients.’”
Pennacchio v. Powers, No. 05-CV-985
(RRM)(RML), 2011 WL 2945825, at *2
(E.D.N.Y. July 21, 2011) (quoting LeBlancSternberg v. Fletcher, 143 F.3d 748, 763 (2d
Cir. 1998)). “The fee applicant bears the
burden of adequately documenting and
itemizing the costs requested.” Id.; see also
First Keystone Consultants, Inc. v.
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III. CONCLUSION
For the reasons set forth herein, the
Court awards plaintiffs $3707.00 in
attorneys’ fees and $467.98 in costs.
SO ORDERED.
_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: April 10, 2015
Central Islip, NY
*
*
*
Plaintiffs are represented by Charles R.
Virginia, Richard B. Epstein, and Michael
Howard Isaac of Virginia & Ambinder,
LLP, 40 Broad Street, 7th Floor, New York,
NY 10004. Defendant is represented by
Anthony Scott Poulin of Stephen Einstein &
Associates, 20 Vesey Street, Suite 1406,
New York, NY 10007.
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