New York State Teamsters Conference Pension & Retirement Fund et al v. Yank Waste Company, Inc.

Filing 14

MEMORANDUM-DECISION & ORDER: that 12 Motion for Default Judgment is GRANTED; that the Clerk of the Court shall enter judgment in favor of the Pension Fund inthe amount of $19,075.32 against Defendant Yank Waste Company, Inc., consisting of (1 ) $7,881.68 in delinquent employee benefit contributions, (2) $788.17 in liquidated damages, (3) $844.83 in audit fees, (4) $5,687.50 in legal fees, (5) $222.50 in costs, (6) $1,825.32 in interest at the Pension Fund ado pted Plan rate of 11% from August 31, 2022 through May 28, 2024, and (7) $1,825.32 in an additional award of the greater of 11% interest on the delinquent amount($1,825.32) or 10% liquidated damages ($788.17) pursuant to 29 U.S.C. § 1132 (g)(2)(C)(i); the parties' participation agreement; and Plan documents; that the Pension Fund is awarded post-judgment interest at the rate of 11% per annum pursuant to 28 U.S.C. § 1961(a); that the Clerk of the Court shall enter judgment in favor of the Health Fund in the amount of $11,834.65 against Defendant Yank Waste Company, Inc., consisting of (1) $3,173.32 in delinquent employee benefit contributions, (2) $317.16 in liquidated damages, (3)$793.29 in audit fees, (4) $5,687.50 in legal fees, (5) $222.50 in costs, (6) $820.44 in interest at the Pension Fund adopted Plan rate of 11% from August 31, 2022 through May 28, 2024, and (7) $820.44 in an addition al award of the greater of 11% interest on the delinquent amount ($820.44) or 10% liquidated damages ($317.16) pursuant to 29 U.S.C. § 1132 (g)(2)(C)(i); the parties' participation agreement; and Plan documents; that the Health Fund is awarded post-judgment interest at the rate of 11% per annum pursuant to 28 U.S.C. § 1961(a); and that the Clerk of the Court shall enter judgment in Plaintiffs' favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 9/25/2024. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
NEW YORK STATE TEAMSTERS CONFERENCE
PENSION & RETIREMENT FUND, BY ITS
TRUSTEES, John A. Bulgaro, Michael S. Scalzo, Sr.,
Daniel W. Schmidt, Brian K. Hammond, Mark May,
Samuel D. Pilger, and George F. Harrigan
and
NEW YORK STATE TEAMSTERS COUNCIL
HEALTH AND HOSPITAL FUND, by it's Trustees,
Daniel W. Schmidt, Brian K. Hammond, Mark May,
Samuel D. Pilger, and George F. Harrigan
Plaintiffs,
vs.

5:24-CV-84
(MAD/TWD)

YANK WASTE COMPANY, INC.
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

PARAVATI, KARL LAW FIRM
520 Seneca Street, Suite 105
Utica, New York 13502
Attorneys for Plaintiffs

BENJAMIN SWEET, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On January 18, 2024, New York State Teamsters Conference Pension & Retirement Fund
("Pension Fund") and New York State Teamsters Council Health and Hospital Fund ("Health

1

Fund") (collectively "Plaintiffs" and the "Funds"), commenced this action against Yank Waste
Company, Inc. ("Defendant") alleging violations of Employee Retirement Income Security Act of
1974, as amended ("ERISA"), 29 U.S.C. § 1001 et seq., and the Labor Management Relations Act
("LMRA"), 29 U.S.C. § 141 et seq. See Dkt. No. 1 at ¶ 1. According to the complaint,
[T]he Pension Fund and Health Fund are separate and distinct
employee benefit funds which were created and exist pursuant to
Agreements and Declarations of Trust entered into between
participating employers and union locals affiliated with the
International Brotherhood of Teamsters (hereinafter referred to as
the "Teamsters") and are multi-employer plans (hereinafter referred
to as the "Plan" or "Plans") as defined in 29 U.S.C. § 1002(37)(A).
Id. at ¶ 5. Plaintiffs allege that Defendant agreed to make certain benefit contributions to the
Funds on behalf of all its covered employees, and now is liable to the Funds for delinquent
employee benefit contributions, liquidated damages and audit fees together with interest, costs
and attorneys' fees under ERISA, 29 U.S.C. § 1132(g)(2), Plan documents and/or participation
agreements. See id. at ¶ 19. Plaintiffs also argue that the Funds are owed additional
compensatory relief in the form of interest on the unpaid contributions, the greater of liquidated
damages or an additional interest award, and reasonable attorneys' fees and costs. See id. at ¶¶
21-22, 31-32, 42-43, 52-53. Presently before the Court is Plaintiffs' unopposed motion for default
judgment. See Dkt. No. 13. For the following reasons, the motion is granted.
II. BACKGROUND
Defendant is a domestic corporation with offices in Albany, New York, and is an
employer as defined in 29 U.S.C. § 1002(5). See id. at ¶ 9. The Pension Fund and Health Fund
have offices located in Syracuse, New York. See id. at ¶ 6. This suit is brought by John A.
Bulgaro, Daniel W. Schmidt, Michael S. Scalzo, Sr., Samuel D. Pilger, Brian K. Hammond, Mark

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May and George F. Harrigan, who are trustees of the Funds and "fiduciaries" as defined in 29
U.S.C. § 1002(21). See id. at ¶ 7.
Plaintiffs invoke 29 U.S.C. § 1132(g)(2) and seek the payment to the Pension Fund of
unpaid delinquent contributions, liquidated damages, audit fees, and interest in the amount of
$19,075.32 together with an additional award of interest in the amount of $2.87 per diem from
May 28, 2024, to the date of judgment. See Dkt. No. 12-6. Plaintiffs also seek a judgment
against Defendant for post-judgment interest at the rate of 11% per annum pursuant to 29 U.S.C.
§ 1961(a). See id. Additionally, Plaintiffs seek the payment to the Health Fund of unpaid
delinquent contributions, liquidated damages, audit fees, and interest to May 28, 2024, in the
amount of $11,834.65 together with an additional award of interest in the amount of $1.29 per
diem from May 28, 2024, to the date of judgment, and post-judgment interest at the rate of 11%
per annum pursuant to 29 U.S.C. § 1961(a). See id.
Accordingly, Plaintiffs contend that Defendant owes the Pension Fund $7,881.68 in
delinquent employee benefit contributions, $788.17 in liquidated damages, $844.83 in audit fees,
$5,687.50 in legal fees, $222.50 in costs, $1,825.32 in interest, and $1,825.32 in an additional
award for violations of the LMRA, the participation agreements, Plan documents, and ERISA.
See Dkt. No. 12-1 at ¶¶ 15-19. Plaintiffs also contend that Defendant owes the Health Fund
$3,173.32 in delinquent employee benefit contributions, $317.16 in liquidated damages, $793.29
in audit fees, $5,687.5 in legal fees, $222.50 in costs, $820.44 in interest, and $820.44 in an
additional award for violations of the LMRA, the participation agreements, Plan documents, and
ERISA. See id.
III. Discussion
A.

Standard of Review

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"Generally, 'Federal Rule of Civil Procedure 55 provides a two-step process that the Court
must follow before it may enter a default judgment against a defendant.'" United States v.
Simmons, No. 10-CV-1272, 2012 WL 685498, *2 (N.D.N.Y. Mar. 2, 2012) (quoting Robertson v.
Doe, No. 5-CV-7046, 2008 WL 2519894, *3 (S.D.N.Y. June 19, 2008)). "First, under Rule 55(a),
when a party fails to plead or otherwise defend . . . the clerk must enter the party's default." Id.
(quotation marks and citation omitted); see also FED. R. CIV. P. 55(a). Local Rule 55.1 requires
the party requesting an entry of default to submit an affidavit showing that the party against
whom judgment is sought is "not an infant, in the military, or an incompetent person," that the
party has "failed to plead or otherwise defend the action," and that the party has been "properly
served the pleading" without responding. N.D.N.Y. L.R. 55.1.
"Second, pursuant to Rule 55(b)(2), the party seeking default is required to present its
application for entry of judgment to the court." Simmons, 2008 WL 685498, at *2 (citation
omitted). "Notice of the application must be sent to the defaulting party so that it has an
opportunity to show cause why the court should not enter a default judgment." Id. (citation
omitted); see also FED. R. CIV. P. 55(b)(2). Local Rule 55.2(b) requires the moving party to (1)
accompany a default judgment motion with the clerk's certificate of default, the complaint, and a
proposed form of default judgment; and (2) submit an affidavit attesting that the defendant is
neither an infant nor incompetent, is not serving with the armed forces of the United States, and
has defaulted in appearance in this action, that service was properly effected under Rule 4 of the
Federal Rules of Civil Procedure, and the amount shown is justly due and owing. See N.D.N.Y.
L.R. 55.2(b).
"When a default is entered, the defendant is deemed to have admitted all of the wellpleaded factual allegations in the complaint pertaining to liability." Bravado Int'l Group Merch.

4

Servs., Inc. v. Ninna, Inc., 655 F. Supp. 2d 177, 188 (E.D.N.Y. 2009) (citing Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)).
"A district court is empowered under Rule 55(b)(2), in the exercise of its discretion, to
'conduct hearings or make referrals' as may be necessary, inter alia, to determine the amount of
damages or establish the truth of the plaintiff's allegations." Pac. M. Int'l Corp. v. Raman Int'l
Gems, Ltd., 888 F. Supp. 2d 385, 392 (S.D.N.Y. 2012) (quoting FED. R. CIV. P. 55(b)(2)(B)-(C)).
"[A] court may rely upon affidavits and documentary evidence" to evaluate the sum of damages
in a default judgment, as it does in this case. Overcash v. United Abstract Group, Inc., 549 F.
Supp. 2d 193, 196 (N.D.N.Y. 2008); see also Action S.A. v. Marc Rich & Co., 951 F. 2d 504, 508
(2d Cir. 1991) (upholding an award of damages in a default judgment without a hearing as the
district judge was "inundated with affidavits, evidence, and oral presentations by opposing
counsel").
Although the Court accepts factual allegations in the complaint for purposes of
determining liability, the Court must be sure there is proof in the record to support a damages
award. See Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974) ("While a default judgment
constitutes an admission of liability, the quantum of damages remains to be established by proof
unless the amount is liquidated or susceptible of mathematical computation") (citations omitted);
Overcash, 549 F. Supp. 2d. at 196 ("[E]ven upon default, a court may not rubber-stamp the nondefaulting party's damages calculation, but rather must ensure that there is a basis for the damages
that are sought") (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.
1999)). "The burden is on the plaintiff to establish [] entitlement to recovery." Bravado Int'l, 655
F. Supp. 2d at 189 (citing Greyhound Exhibitgroup, Inc., 973 F.2d at 158).
B.

Default Judgment and Liability

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Plaintiffs have satisfied the procedural prerequisites for obtaining a default judgment.
Plaintiffs have properly served Defendant with the summons and complaint, see Dkt. No. 5;
obtained an entry of default, see Dkt. Nos. 9, 10, 11; served this motion on Defendant, see Dkt.
No. 13; and provided an affidavit showing that Defendant is not an infant, incompetent, or a
member of the United States Military. See Dkt. No. 12-1 at ¶ 7. Accordingly, the Court turns to
whether Plaintiffs have met their burden of demonstrating that they are entitled to the relief
requested.
As Defendant has failed to appear in this action, it is deemed to have admitted all well
pled, relevant factual allegations for purposes of establishing liability. See Bravado Int'l, 655 F.
Supp. 2d at 188; see also United States v. Beam, No. 12-CV-0087, 2012 WL 1802316, *2
(N.D.N.Y. May 17, 2012) ("By failing to answer [the] plaintiff's complaint or oppose this motion,
[the] defendant has effectively conceded that [it] is bound by the terms of the [agreement it]
entered into with [the] plaintiff").
Because Plaintiffs brings this action under ERISA and LMRA, federal statutes, subjectmatter jurisdiction is proper pursuant to 28 U.S.C. § 1331. See Dkt. No. 1 at ¶ 1.
1. Standing
Standing is an "irreducible constitutional minimum." Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). Therefore, the Court still must evaluate whether Plaintiffs have standing
even where Defendant has not challenged Plaintiffs' standing. See Garnet v. Ramos Bros. Inc.,
No. 16-CV-2792, 2017 WL 590323, *1 (E.D.N.Y. Feb. 13, 2017) (other citation omitted). "To
establish standing, a plaintiff must prove: '(1) injury in fact, which must be (a) concrete and
particularized, and (b) actual or imminent; (2) a causal connection between the injury and the
defendant's conduct; and (3) that the injury is likely to be redressed by a favorable decision.'"

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Hennessy by & through Hennessy v. 194 Bedford Ave Rest Corp., No. 21-CV-5434, 2022 WL
4134502, *2 (E.D.N.Y. Aug. 8, 2022) (quoting Kreisler v. Second Ave. Diner Corp., 731 F.3d
184, 187 (2d Cir. 2013)).
"ERISA is a comprehensive federal law that sets standards for private retirement and
health plans, governs their administration, and generally preempts state regulation of benefits
plans." Annuity, Pension, Welfare, Training & Lab. Mgmt. Cooperation Tr. Funds of Int'l Union
of Operating Engineers Loc. 14-14B, AFL-CIO v. C.M. Ashland Constr., No. 23-CV-5434, 2024
WL 360665, *5 (E.D.N.Y. Jan. 31, 2024) (quoting ERISA § 514(a) (29 U.S.C. § 1144(a))).
"'ERISA vests the Court with jurisdiction over civil actions brought by fiduciaries of employee
benefit plans to enforce provisions of such plans.'" Id. (quoting Trustees of Loc. 7 Tile Indus.
Welfare Fund v. City Tile, Inc., No. 10-CV-322, 2011 WL 917600, *1 (E.D.N.Y. Feb. 18, 2011);
29 U.S.C. § 1132(a)(3) (permitting fiduciaries of a plan to bring an ERISA action)).
Section 301 of the LMRA provides a federal cause of action for "violation of contracts
between an employer and a labor organization representing employees in an industry affecting
commerce." 29 U.S.C. § 185(a). The LMRA confers standing on unions and employee benefit
funds. See Metal Lathers Local 46 Pension Fund v. River Ave. Contracting Corp., 954 F. Supp.
2d 250, 256 (S.D.N.Y. 2013) (employee benefit funds have standing to sue under LMRA for
employer's failure to make contributions required under collective bargaining agreement with
union) (citing 29 U.S.C. § 185(a)); Legal Aid Society v. City of New York, 114 F. Supp. 2d 204,
214 (S.D.N.Y. 2000) ("Section 301 generally grants unions standing to vindicate employee rights
pursuant to a collective bargaining agreement").
Here, Plaintiffs have established their standing under both ERISA and the LMRA. The
Trustees are "fiduciaries" within the meaning of Section 3(21) of ERISA, 29 U.S.C. § 1002(21).

7

See Dkt. No. 1 at ¶ 7. The Funds are multi-employer/employee benefit plans under ERISA. Id. at
¶ 5. Accordingly, Plaintiffs have standing to bring their claims against Defendant.
2. Liability
Section 515 of ERISA requires that "[e]very employer who is obligated to make
contributions to a multi employer plan under the terms of the plan or under the terms of a
collectively bargained agreement shall . . . make such contributions in accordance with the terms
and conditions of such plan or agreement." 29 U.S.C. § 1145. For ERISA, the damages
recoverable for delinquent contributions are enumerated in Section 1132(g)(2), which provides
that the court shall award the plan as follows:
(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 . . . of the amount
determined by the court under subparagraph (A),
(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
appropriate.
29 U.S.C. § 1132(g)(2).
Here, Plaintiffs' undisputed allegations establish that Defendant is liable to Plaintiffs. See
Rusyniak v. Gensini, No. 07-CV-0279, 2009 WL 3672105, *1 n.1 (N.D.N.Y. Oct. 30, 2009)
(concluding that when a motion for default judgment is unopposed, the movant only needs to
satisfy the "modest burden of demonstrating entitlement to the relief requested"); see also

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Bricklayers Ins. & Welfare Fund v. Primo Brick, Inc., No. 11-CV-5742, 2013 WL 2120338, *3
(E.D.N.Y. Apr. 3, 2013) (citations omitted) (determining that the "[p]laintiffs allege that
defendant failed to make contributions to the Funds, as required by the terms of the CBA.
Therefore, defendant's failure to make the required contributions to the Funds constitutes a
violation of ERISA . . . . [P]laintiffs allege that defendant failed to remit dues to Local 1 and make
required contributions to LMRC. These failures constitute a breach of the CBA, and thus,
defendant is liable under Section 301 of the LMRA").
C.

Damages
"While a default judgment constitutes an admission of liability, the quantum of damages

remains to be established by proof unless the amount is liquidated or susceptible of mathematical
computation." Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974) (citations omitted); see also
Bravado Int'l Group Merchandising Services, Inc. v. Ninna, Inc., 655 F. Supp. 2d 177, 189-90
(E.D.N.Y. 2009) (citation omitted). "[E]ven upon default, a court may not rubber-stamp the nondefaulting party's damages calculation, but rather must ensure that there is a basis for the damages
that are sought." Overcash v. United Abstract Group, Inc., 549 F. Supp. 2d 193, 196 (N.D.N.Y.
2008) (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)).
"The burden is on the plaintiff to establish its entitlement to recovery." Bravado Int'l, 655 F.
Supp. 2d at 189 (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158
(2d Cir. 1992)). "While 'the court must ensure that there is a basis for the damages specified in a
default judgment, it may, but need not, make the determination through a hearing.'" Id. at 190
(citation omitted).
1. Unpaid Contributions

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Plaintiffs request delinquent employee benefit contributions consisting of $7,881.68 to the
Pension Fund and $3,173.32 to the Health Fund, and have now met their burden of proving that
they are entitled to this recovery. See Dkt. No. 12-6; see also Dkt. No. 12-3. In support of their
request, Plaintiffs present an audit report from September 26, 2022, reflecting the hours worked
by covered employees from January 2015 through August 2022. See Dkt. No. 12-3 at 38- 49; see
also Dkt. No. 12-1 at ¶ 15. Plaintiffs also provide the participation agreements and the Funds,
Policies and Procedures for Contributing Employers. See Dkt. No. 12-2 at 21-28; Dkt. No. 12-3
at 2-36. After reviewing Plaintiffs' motion and supporting documentation, the Court awards the
Pension Fund $7,881.68 and the Health Fund $3,173.32 in unpaid employee benefit contributions.
2. Liquidated Damages
Pursuant to 29 U.S.C. § 1132(g)(2)(C)(ii), the Court may award "liquidated damages
provided for under the plan in an amount not in excess of 20 percent . . . of the" unpaid
contributions. 29 U.S.C. § 1132(g)(2)(C)(ii).
The Policies Concerning Contributions include the following language:
If the Fund Office has not received payment by the last day of the
month of the Due Date, the Fund Office will send a Reminder
Notice to the employer stating that the contributions and report are
past due. The Notice will indicate that contributions due for the
month plus liquidated damages at ten percent (10%).
Dkt. No. 12-3 at 6, 28.
Plaintiffs seek liquidated damages consisting of $788.17 owed the Pension Fund and
$317.16 owed the Health Fund. See Dkt. No. 12-1 at 4. The September 2022 audit report reflects
the same liquidated damages amounts owed. See Dkt No. 12-3 at 38-48. Plaintiffs' calculations
accurately reflect ten percent of the $7,881.68 and $3,173.32 principal amounts due for unpaid
employee benefit contributions. After reviewing Plaintiffs' motion and supporting

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documentation, the Court awards the Pension Fund $788.17 and the Health Fund $317.16 in
liquidated damages. See Bricklayers & Allied Craftworkers Loc. 2, 2020 WL 6781512, at *3.
3. Interest
For the purposes of an action to collect interest on unpaid contributions under ERISA,
"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." 29 U.S.C. § 1132(g)(2). "Under
the LMRA, it is within the court's discretion to award prejudgment interest." Finkel v. INS Elec.
Servs. Inc., No. 06-CV-4862, 2008 WL 941482, *7 (E.D.N.Y. Apr. 4, 2008).
The Funds have adopted a Plan interest rate in accordance with 29 U.S.C. § 1132(g)(2)(B)
and (E). See Dkt. No. 12-1 at ¶ 17. Plaintiffs present minutes of a New York State Teamsters
Conference Pension and Retirement Fund meeting establishing that the Plan interest rate is eleven
percent. Dkt. No. 12-3 at 56; see also id. at 38, 44; Dkt. No. 12-1 at ¶ 17. Plaintiffs request
$2,645.76 in interest on the unpaid contributions from August 31, 2022, through May 20, 2024,
when Plaintiffs filed their motion for default judgment, which represents $1,825.32 in interest
owed to the Pension Fund and $820.44 in interest owed to the Health Fund. See Dkt. No. 12-1 at
¶ 17.
Plaintiffs present policies concerning contributions which state that,
Unless otherwise excused, the Fund, in its sole discretion, will
assess interest on the amount of delinquent contributions at the rate
of eleven percent (11%) per annum from the Due Date, plus ten
percent (10%) liquidated damages on delinquent contributions.
Regardless of whether litigation is commenced, a delinquent
employer will be liable for 11% interest on the delinquency together
with the greater of another award of interest at 11% or 10%
liquidated damages, costs and attorney's fees.
Dkt. No. 12-3 at 6, 27.

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Plaintiffs request an additional award of the greater of 11% interest on the delinquent
amount ($1,825.32 to the Pension Fund and $820.44 to the Health Fund) or 10% liquidated
damages ($788.17 to the Pension Fund and $317.32 to the Health Fund) pursuant to 29 U.S.C. §
1132(g)(2)(C)(i); the parties' participation agreement; and Plan documents. See Dkt. No. 12-1 at ¶
18.
Plaintiffs also provide calculations of the amount owed to the Pension Fund and Health
Fund, documentation reflecting interest rates, and an attorney affidavit affirming the amount
owed. See Dkt. No. 12-6 at 2-4; Dkt. No. 12-4. After reviewing Plaintiffs' submissions, the Court
finds that these calculations accurately reflect the amount of interest owed by Defendants and, as
such, awards the Pension Fund $1,825.32 in interest and $1,825.32 in additional award, and the
Health Fund $820.44 in interest and $820.44 in additional award.
4. Audit Fees
"Requests for audit fees are 'generally determined by utilizing the same standards the court
applies in awarding attorneys' fees.'" Teamsters Local 814 Welfare Fund v. Dahill Moving &
Storage Co., 545 F. Supp. 2d 260, 269 (E.D.N.Y. 2008) (quoting King v. Unique Rigging Corp.,
No. 01-CV-3797, 2006 WL 3335011, *5 (E.D.N.Y. Oct. 27, 2006)). Accordingly, a party
requesting audit fees must provide sufficient information to allow a court to determine the
reasonableness of the fees requested.
Plaintiff requests $844.83 in audit fees to the Pension Fund and $793.29 in audit fees to
the Health Fund. See Dkt. No. 12-1 at ¶ 15; Dkt. No. 12-3 at 39, 45; Dkt. No. 12-6. Plaintiffs
have submitted copies of the Pension Fund Audit Report and Health Fund Audit Report. See Dkt.
No. 12-3 at 38-49. After reviewing the audit reports, the Court awards Plaintiffs' the requested
audit fees.

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5. Legal Costs and Attorneys' Fees
In an ERISA action involving delinquent contributions, "the court in its discretion may
allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. § 1132(g)(1).
"[A] district court must begin its § 1132(g)(1) analysis by determining whether a party has
achieved 'some degree of success on the merits,' but it is not required to award fees simply
because this pre-condition has been met." Toussaint v. JJ Weiser, Inc., 648 F.3d 108, 110 (2d Cir.
2011) (quoting Hardt v. Reliance Standard Life Ins. Co., 500 U.S. 242, 254 (2010)).
The Policies and Procedures for the Pension Fund and the Health Fund both state:
"Regardless of whether litigation is commenced, a delinquent employer will be liable for . . . costs
and attorney's fees." Dkt. No. 12-3 at 6, 27. The Funds' policies also "[r]equire that a delinquent
employer pay the cost of . . . attorney's fees, audit fees, court costs, disbursements, and any other
expenses incurred by the Fund in determining the amount of a delinquency and in collecting the
delinquency[.]" Id. at 4, 25.
As the Court finds that Defendant is liable to Plaintiffs for the delinquent contributions,
and Plaintiffs have succeeded on the merits, the Court finds that an award of attorneys' fees and
costs is appropriate. See Bricklayers & Allied Craftworkers Loc. 2, 2020 WL 6781512, at *3.
Here, Plaintiffs request $445.00 in costs and $11,375.00 in attorneys' fees under the
lodestar method. See Dkt. No. 12-3 at 58-65; Dkt. No. 12-1 at ¶¶ 19-20. Plaintiffs state that they
have spent 32.5 hours of counsel time. See Dkt. No. 12-3 at 58-59. In support of their request,
Plaintiffs provide an attorney affidavit and a report which contains narratives about the legal work
performed and associated time spent and dates. See Dkt. No. 12-1 at ¶¶ 19-20. After reviewing
the documents, the Court finds that the amount of time spent by Plaintiffs' attorney was
reasonable. The Court also finds that the requested hourly rate of $350.00 per hour is reasonable.

13

See Sarwar v. Lake Placid Hotel Partners, LLC, No. 8:20-CV-1387, 2022 WL 833374, *2
(N.D.N.Y. Mar. 21, 2022) ("Courts in this District have found that a reasonable rate for work for
an experienced partner is between $250 and $350 an hour"). Therefore, the Court awards
Plaintiffs $11,375.00 in attorney's fees, to be divided equally between Plaintiffs. Additionally, the
Court has reviewed Plaintiffs' request for $445.00 in legal costs representing $405.00 filing fee
and $40.00 service of process fee and finds the request reasonable and supported by the record.
See Dkt. No. 12-1 at ¶ 19; Dkt. No. 12-3 at 60-64; see also Muldowney v. Merit Recovery Sys.,
Inc., No. 5:18-CV-1057, 2019 WL 2024760, *5 (N.D.N.Y. May 8, 2019). Thus, the Court grants
Plaintiffs $11,375.00 for attorney's fees and $ 445.00 for costs. See Dkt. No. 12-6.
IV. CONCLUSION
Upon careful consideration of the entire record in this matter, the parties' submissions and
the applicable law, and for the reasons set forth herein, the Court hereby
ORDERS that Plaintiffs' motion for default judgment (Dkt. No. 12) is GRANTED; and
the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of the Pension Fund in
the amount of $19,075.32 against Defendant Yank Waste Company, Inc., consisting of (1)
$7,881.68 in delinquent employee benefit contributions, (2) $788.17 in liquidated damages, (3)
$844.83 in audit fees, (4) $5,687.50 in legal fees, (5) $222.50 in costs, (6) $1,825.32 in interest at
the Pension Fund adopted Plan rate of 11% from August 31, 2022 through May 28, 2024, and (7)
$1,825.32 in an additional award of the greater of 11% interest on the delinquent amount
($1,825.32) or 10% liquidated damages ($788.17) pursuant to 29 U.S.C. § 1132 (g)(2)(C)(i); the
parties' participation agreement; and Plan documents; and the Court further

14

ORDERS that the Pension Fund is awarded post-judgment interest at the rate of 11% per
annum pursuant to 28 U.S.C. § 1961(a); and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of the Health Fund in
the amount of $11,834.65 against Defendant Yank Waste Company, Inc., consisting of (1)
$3,173.32 in delinquent employee benefit contributions, (2) $317.16 in liquidated damages, (3)
$793.29 in audit fees, (4) $5,687.50 in legal fees, (5) $222.50 in costs, (6) $820.44 in interest at
the Pension Fund adopted Plan rate of 11% from August 31, 2022 through May 28, 2024, and (7)
$820.44 in an additional award of the greater of 11% interest on the delinquent amount ($820.44)
or 10% liquidated damages ($317.16) pursuant to 29 U.S.C. § 1132 (g)(2)(C)(i); the parties'
participation agreement; and Plan documents; and the Court further
ORDERS that the Health Fund is awarded post-judgment interest at the rate of 11% per
annum pursuant to 28 U.S.C. § 1961(a); and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Plaintiffs' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 25, 2024
Albany, New York

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