Trustees of Empire State Carpenters Annuity v. Allied Design & Construction, LLC
Filing
11
MEMORANDUM AND OPINION. Petitioners' motion to confirm the arbitration award is hereby granted. Ordered by Judge Joseph F. Bianco on 11/18/2016. (Hammond, Daniel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-3854 (JFB) (AKT)
_____________________
TRUSTEES OF EMPIRE STATE CARPENTERS ANNUITY, APPRENTICESHIP, LABORMANAGEMENT COOPERATION, PENSION AND WELFARE FUNDS,
Petitioners,
VERSUS
ALLIED DESIGN & CONSTRUCTION, LLC,
Respondent.
___________________
MEMORANDUM AND ORDER
November 18, 2016
___________________
JOSEPH F. BIANCO, District Judge:
Petitioners, Trustees of Empire State
Carpenters Annuity, Apprenticeship, LaborManagement Cooperation, Pension and
Welfare Funds (the “petitioners” or the
“Funds”) brought this action to confirm an
arbitration award obtained against Allied
Design & Construction, LLC (the
“respondent” or “Allied”). The petitioners
also move to recover attorneys’ fees and costs
in connection with this action. For the
reasons set forth below, the Court grants the
petitioners’ motion to confirm the arbitration
award and grants the petitioners’ motion for
fees and costs.
I. BACKGROUND
A. Facts
The following facts are drawn from the
Funds’ Petition to Confirm an Arbitration
Award (“Pet.”) and accompanying exhibits.
(ECF No. 1.)
Allied is subject to a collective
bargaining agreement (“CBA”) with the
Northeast Regional Council of Carpenters
(“Union”). (Pet. ¶ 7, Ex. A.) The CBA
compels Allied to make contributions to the
Funds for all work within the trade and
geographical jurisdiction of the Union. (Id.
¶ 8, Ex. A, art. 17.) The Funds also
established a Joint Policy for Collection of
Delinquent
Contributions
(“Collection
Policy”), which requires an employer to
submit to a payroll audit upon the Funds’
request to ensure compliance with the CBA’s
contribution requirement. (Id. ¶¶ 10–11, Ex.
B, art. 4.1.) In the event an employer refuses
to permit an audit, the Collection Policy
provides that the Funds “shall determine the
estimated amount of the employer’s
delinquent contributions,” at which time the
II. CONFIRMATION OF ARBITRATION AWARD
matter becomes subject to arbitration. (Id.
¶ 11, Ex. B, art 4.7.) Should the arbitrator
find the employer deficient, the Collection
Policy renders the employer “responsible for
all delinquent contributions in the estimated
amount . . . and all interest, attorneys’ fees,
costs, auditor’s fees, arbitrator’s fees and
liquidated damages.” (Id., Ex. B, art. 4.7.)
Interest on delinquent contributions is
calculated at a rate of 0.75% per month, and
liquidated damages are set at 20% of the
delinquent contributions. (Id. ¶¶ 12–13, Ex.
B, arts. 2.1.C, 6.1.)
A. Standard of Review
Courts treat motions to confirm an
arbitration award “as akin to a motion for
summary judgment.” As such, the movant
must show that “there is no genuine dispute
as to any material fact and the movant is
entitled to judgment as a matter of law.”
Urbont v. Sony Music Entm’t, 831 F.3d 80,
88 (2d Cir. 2016) (quoting Fed. R. Civ. P.
56(a)). A party must support an assertion that
a fact cannot be or is genuinely disputed by
The Funds initiated arbitration, claiming
Allied failed to submit to a payroll audit, and
sent notice of the arbitration to Allied. (Id.
¶¶ 14, 15, 18, Ex. C.) They estimated that
Allied owed $175,032.51 for the period from
April 17, 2012 through December 31, 2014.
(Id. ¶ 15, Ex. F.) The arbitrator held a hearing
on May 20, 2015, but Allied failed to appear.
(Id. Ex. F.) In his written findings dated May
23, 2015, the arbitrator concluded that Allied
refused to submit to an audit and was
deficient in the amount calculated by the
Funds. (Id.) He then ordered Allied to pay
the Funds $175,032.51 in estimated deficiency, $28,212.46 in interest, $35,006.50 in
liquidated damages, $900.00 in attorneys’
fees, and $750.00 in the arbitrator’s fees, for
a total amount of $239,901.47. (Id. Ex. F.)
(A) citing to particular parts of
materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including
those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited
do not establish the absence or
presence of a genuine dispute, or that
an adverse party cannot produce
admissible evidence to support the
fact.
Fed. R. Civ. P. 56(c)(1). If the moving party
meets its burden, the non-moving party “must
do more than simply show that there is some
metaphysical doubt as to the material
facts. . . . [T]he nonmoving party must come
forward with specific facts showing that there
is a genuine issue for trial.” Caldarola v.
Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87,
106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986))
(emphasis added in original). In ruling on the
motion, a district court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
B. Procedural History
The Funds filed their petition in this
Court seeking confirmation of the award as
well as costs and attorneys’ fees on July 1,
2015. (ECF No. 1.) A summons was issued
as to Allied on July 2, 2015 (ECF No. 5.), and
was returned executed on July 15, 2015.
(ECF No. 6.) To date, Allied has not filed an
Answer or appeared in this action.
2
Employees Union Local 338, Affiliated with
the Retail, Wholesale & Dep’t Store Union,
AFL-CIO, 118 F.3d 892, 896 (2d Cir. 1997).
An award satisfies this standard if the
“arbitrator is even arguably construing or
applying the contract and acting within the
scope of his authority.” Major League
Baseball, 532 U.S. at 509, 121 S. Ct. at 1728.
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Phaneuf v. Fraikin, 448 F.3d
591, 595 (2d Cir. 2006) (quoting Amnesty
Am. v. Town of W. Hartford, 361 F.3d 113,
122 (2d Cir. 2004)).
B. Discussion
Federal courts have jurisdiction over
petitions brought to confirm labor arbitration
awards under Section 301 of the Labor
Management Relations Act (LMRA), 29
U.S.C. § 185.
Local 802, Associated
Musicians of Greater N.Y. v. Parker
Meridien Hotel, 145 F.3d 85, 88 (2d Cir.
1998). The LMRA embodies a “federal
policy of settling labor disputes by
arbitration,” and the Supreme Court has
recognized that giving courts final say on the
merits of arbitration awards would
undermine this policy. United Paperworkers
Int’l Union, AFL-CIO v. Misco, Inc., 484
U.S. 29, 36, 108 S. Ct. 364, 370, 98 L. Ed. 2d
286 (1987) (quoting Steelworkers v.
Enterprise Wheel & Car Corp., 363 U.S. 593,
596, 80 S. Ct. 1358, 1360, 4 L. Ed. 2d 1424
(1960)). It follows that “courts play only a
limited role when asked to review the
decision of an arbitrator.” Id.; see also Major
League Baseball Players Ass’n v. Garvey,
532 U.S. 504, 509, 121 S. Ct. 1724, 1728, 149
L. Ed. 2d 740 (2001) (“Judicial review of a
labor-arbitration decision pursuant to such an
agreement is very limited.”); Florasynth, Inc.
v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984)
(“[T]he confirmation of an arbitration award
is a summary proceeding that merely makes
what is already a final arbitration award a
judgment of the court.”).
In Local 1199, Drug, Hospital and
Health Care Employees Union, RWDSU,
AFL-CIO v. Brooks Drug Co., 956 F.2d 22,
26 (2d Cir. 1992), for example, the Second
Circuit upheld an arbitrator’s interpretation
of a contract even though he arguably
misconstrued it. Specifically, the court
discerned “ambiguity in the clause” of the
contract in question, and thus held that the
arbitrator could justifiably consult extrinsic
evidence as well as other clauses of the
contract. Id. Although the factors the
arbitrator consulted were “by no means
dispositive of the issue in th[e] case,” the
Second Circuit upheld the district court’s
confirmation of the award because “the
rationale behind the arbitrator’s award was
supported at least in part by extrinsic
evidence of the parties’ intent.” Id.
Under Brooks Drug Co., the arbitrator’s
award in this case plainly draws its essence
from the CBA. Unlike in Brooks Drug Co.,
where there was ambiguity in the contract,
the CBA here expressly requires Allied to
make contributions to the Funds, Pet. ¶ 8, Ex.
A, art. 17., and the Collection Policy
expressly permits payroll audits to which
Allied must submit. Id. ¶¶ 10–11, Ex. B, art.
4.1. The Collection Policy also spells out the
procedures for the parties to follow in the
event an employer fails to submit to an audit,
which include an estimation of the deficient
contributions by the Funds and submitting
the dispute to binding arbitration. Id. ¶ 11,
Ex. B, art 4.7. Furthermore, the Policy
directs arbitrators to hold employers
responsible for the estimated deficient
Specifically, the court’s role is to confirm
the arbitration award if it “‘draws its essence
from the collective bargaining agreement’
and is not the arbitrator’s ‘own brand of
industrial justice.’” First Nat. Supermarkets,
Inc. v. Retail, Wholesale & Chain Store Food
3
amount, interest calculated at a rate of 0.75%
per month, attorneys’ fees, costs, auditor’s
fees, arbitrator’s fees, and liquidated
damages set at 20% of the delinquent
contributions. Id. ¶¶ 11–13, Ex. B, arts. 4.7,
2.1.C, 6.1.
nor the Federal Arbitration Act, 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 The N.Y. City Dist.
Council of Carpenters Pension Fund v. TNS
Mgmt. Servs., Inc., No. 13-CIV.-2716 (JMF),
2014 WL 100008, at *4 (S.D.N.Y. Jan. 10,
2014), and “[t]he 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, 130
S. Ct. 1662, 176 L. Ed. 2d 494 (2010), the
Collection Policy provides that delinquent
employers shall pay the Funds’ attorneys’
fees and cost incurred in collection efforts.
Pet. Ex. B, art. 6.3. This agreement provides
a basis for this court to award attorneys’ fees
and costs. See, e.g., N.Y. City Dist. Council
of Carpenters Pension Fund v. Dafna Const.
Co., 438 F. Supp. 2d 238, 242 (S.D.N.Y.
2006) (awarding attorneys’ fees in a
confirmation proceeding where “the
Agreement itself require[d] [the defendant] to
pay attorneys’ fees incurred by the Trustees
in seeking confirmation”); Trustees of N.Y.
City Dist. Council of Carpenters Pension
Fund, Welfare Fund, Annuity Fund, &
Apprenticeship, Journeyman Retraining,
Educ. & Indus. Fund v. All. Workroom Corp.,
No. 13-CIV-5096 (KPF), 2013 WL 6498165,
at *6 (S.D.N.Y. Dec. 11, 2013) (“Petitioners
The arbitrator’s award followed the terms
of the CBA and Collection Policy to the
letter. The arbitrator found that the Funds
followed all the appropriate procedures and
awarded an amount consistent with the
contract’s requirements. The award is based
on uncontroverted evidence that Allied failed
to pay the estimated amount of $175,032.51
in deficient contributions from April 17, 2012
through December 31, 2014. 1 The award
amounts for interest, liquidated damages,
attorneys’ fees, and the arbitrator’s fee are
also consistent with the contract’s terms, and
nothing in the record suggests the award is
“in contradiction of the clearly expressed
language of the contract.” Brooks Drug Co.,
956 F.2d at 26. The court therefore confirms
the arbitration award of May 23, 2015.
III. PETITIONER’S ENTITLEMENT TO
ATTORNEYS’ FEES AND COSTS
The petitioners also seek to recover
$850.00 in attorneys’ fees and costs
associated with this action to confirm the
arbitration award. While neither the LMRA
1
Upon review of the record, it appears that Allied may
have agreed to the CBA on September 6, 2012. See
Pet. Ex. A (short form agreement signed by Allied on
September 6, 2012).
If Allied’s contribution
obligation did not begin until that time, the Funds
overestimated Allied’s deficiency because their
estimate covered the period from April 17, 2012
through December 31, 2014, a period which began
before Allied signed the contract. It is certainly
possible, however, that there was an earlier agreement
covering the period from April 17 through September
6, 2012, although this was not included in the petition.
In any event, the Supreme Court has established that a
district court may not “reconsider the merits of an
award even though the parties may allege that the
award rests on errors of fact.” United Paperworkers,
484 U.S. at 36, 108 S. Ct. at 370. Indeed, it has held
that “serious error[s]” and “‘improvident, even silly,
factfinding’ do[] not provide a basis for a reviewing
court to refuse to enforce the award.” Major League
Baseball, 532 U.S. at 509, 121 S. Ct. at 1728 (quoting
United Paperworkers, 484 U.S. at 39, 108 S. Ct. at
371). In light of this rule, coupled with Allied’s failure
to allege any factual error, the court’s discovery of a
possible factual error on the arbitrator’s part does not
give it the authority to reconsider the award.
4
2016); Ferrara v. Prof'l Pavers Corp., No.
11-CV-1433 (KAM)(RER), 2013 WL
1212816, at *2 (E.D.N.Y. Mar. 23, 2013);
Finkel v. Omega Commc’n Servs., Inc., 543
F. Supp. 2d 156, 165 (E.D.N.Y. 2008).
are entitled to attorney’s fees under both
ERISA and the CBA.”).
A. Attorneys’ Fees
Courts in the Second Circuit employ the
“lodestar figure” to determine reasonable
fees and costs. Luciano v. Olsten Corp., 109
F.3d 111, 115 (2d Cir. 1997). This figure is
calculated by multiplying the number of
hours reasonably expended on a case by a
reasonable hourly rate. Id. It is well
established that the “lodestar . . . creates a
‘presumptively reasonable fee,’” Millea v.
Metro-N. 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),
and the burden is on the party seeking
attorneys’ fees to present evidence of hours
worked and rates claimed, Cruz v. Local
Union No. 3 of Int'l Bhd. of Elec. Workers, 34
F.3d 1148, 1160 (2d Cir. 1994).
The petitioners seek attorneys’ fees at a
rate of $225.00 per hour for attorneys Elina
Burke and Jonathan Roffe. Ms. Burke
graduated from Fordham University School
of Law in 2011 and works as an associate at
Virginia & Ambinder, LLP (“V&A”). Pet.
¶ 27. Mr. Roffe graduated from Benjamin N.
Cardozo School of Law in 2014 and is also
an associate at V&A. Pet. ¶ 28. As a more
experienced associate, Ms. Burke’s requested
rate of $225.00 per hour falls within the range
routinely approved by courts for associates of
her level. See Dipizio, 2016 WL 3033722, at
*5; Hugee v. Kimso Apartments, LLC, 852 F.
Supp. 2d 281, 298 (E.D.N.Y. 2012)
(collecting cases). Mr. Roffe’s requested
rate, however, is too high, as the rate for
junior associates in this district is $100 to
$200. See Dipizio, 2016 WL 3033722, at *5;
Hugee, 852 F. Supp. 2d at 298 (collecting
cases). Therefore, Ms. Burke’s rate shall be
set at $225.00 per hour and Mr. Roffe’s rate
shall be set at $150.00 per hour.
A “reasonable hourly rate” is “what a
reasonable, paying client would be willing to
pay, given that such a party wishes to spend
the minimum necessary to litigate the case
effectively.” Bergerson v. N.Y. State Office
of Mental Health, Cent. N.Y. Psychiatric Ctr.,
652 F.3d 277, 289 (2d Cir. 2011). This Court
follows the “forum rule,” which “generally
requires use of the hourly rates employed in
the district in which the reviewing court sits
in calculating the presumptively reasonable
fee.” Id. at 290. Courts in this district
consistently determine that an hourly rate of
$200 to $325 is a reasonable hourly rate for
senior associates while $100 to $200 is a
reasonable hourly rate for more junior
associates. See Favors v. Cuomo, 39 F. Supp.
3d 276, 301 (E.D.N.Y. 2014) (collecting
cases); see also, e.g., Trustees of Empire
State Carpenters Annuity, Apprenticeship,
Labor-Mgmt. Cooperation v. Dipizio
Constr., Inc., No. 15-CV-2592 (JFB)(AYS),
2016 WL 3033722, at *5 (E.D.N.Y. May 25,
A party seeking attorneys’ fees “bears the
burden of establishing entitlement to an
award and documenting the appropriate
hours expended and hourly rates.” Cruz, 34
F.3d at 1160 (quoting Hensley v. Eckerhart,
461 U.S. 424, 437, 103 S. Ct. 1933, 1941, 76
L. Ed. 2d 40 (1983)). The hours worked
“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 v. Fleet St., Ltd., 148 F.3d 149, 173
(2d Cir. 1998). In calculating the number of
hours worked, a court must exclude “[h]ours
that are ‘excessive, redundant, or otherwise
unnecessary.’” Id. (quoting Hensley, 461
U.S. at 434, 103 S. Ct. at 1939–40.).
5
that the lodestar figure includes “most, if not
all,” relevant factors in setting reasonable
attorney’s fee).
The attorneys submitted an invoice from
V&A dated July 1, 2015 documenting the
hours worked on June 22, 23, 30 and July 1,
2015. Pet. Ex. E. It shows that the attorneys
worked for a total of two hours on this matter.
Id. Ms. Burke billed 0.50 hours of time
reviewing and revising the petition to
confirm the award, and Mr. Roffe billed 1.5
hours for drafting and editing the petition and
the memorandum of law in support of the
petition and preparing exhibits. Id.
The Court therefore awards
petitioners $337.50 in attorneys’ fees.
the
B. Costs
A court may also award “those
reasonable out-of-pocket expenses incurred
by attorneys and ordinarily charged to their
clients” as a portion of attorney’s fees.
LeBlanc-Sternberg v. Fletcher, 143 F.3d 748,
763 (2d Cir. 1998) (quoting United States
Football League v. National Football
League, 887 F.2d 408, 416 (2d Cir.1989)).
Again, the party seeking to recover costs
must “adequately document[] and itemize[e]
the costs requested.” Pennacchio v. Powers,
No. 05-CV-985 (RRM)(RML), 2011 WL
2945825, at *2 (E.D.N.Y. July 21, 2011); see
also First Keystone Consultants, Inc. v.
Schlesinger Elec. Contractors, Inc., No. 10CV-696 (KAM)(SMG), 2013 WL 950573, at
*10 (E.D.N.Y. Mar. 12, 2013). Local Civil
Rule 54.1 provides that the party seeking
costs shall submit “an affidavit that the costs
claimed are allowable by law, are correctly
stated and were necessarily incurred” as well
as “[b]ills for the costs claimed . . . attached
as exhibits.”
Courts in this district routinely accept
invoices as sufficient to satisfy the
contemporaneous records requirement so
long as they provide “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 and 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);
Boster v. Braccia, No. 06–CV–4756
(JG)(RER), 2007 WL 4287704, at *2
(E.D.N.Y. Dec. 4, 2007). The Court sees no
reason to depart from this practice here, as the
V&A invoice reports in sufficient detail the
type of work performed by the two attorneys,
the date on which the work was performed,
and the time spent on each task. Furthermore,
based on the descriptions of the tasks
performed and the lack of opposition to the
petition, the Court finds that the two hours
bills on the matter is a reasonable number of
hours billed.
The petitioners’ invoice for attorneys’
fees includes an itemization of the sole cost
they are requesting: the $400 filing fee. Pet.
Ex. E; see also id. ¶ 32. The invoice satisfies
the itemization requirement, and it is well
established in this district that the filing fee
qualifies as a recoverable cost. See, e.g.,
Labarbera v. ASTC Labs. Inc., 752 F. Supp.
2d 263, 279 (E.D.N.Y. 2010); Jacobson v.
Peterbilt Elec. Contracting, Inc., 553 F.
Supp. 2d 211, 217 (E.D.N.Y. 2008); New
Consequently, the court calculates the
lodestar figure to be $337.50 and there
appears to be no reason to depart from this
figure. See Perdue, 559 U.S. at 553 (noting
6
Leadership Comm. v. Davidson, 23 F. Supp.
2d 301, 305 (E.D.N.Y.1998).
Accordingly,
the
Court
petitioners $400.00 in costs.
awards
***
In sum, the Court confirms the
arbitrator’s award of $239,901.47 and further
orders Allied to pay an additional $737.50 in
attorneys’ fees and costs associated with this
litigation.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: __________________
Central Islip, NY
7
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