Gesualdi et al v. Laws Construction Corp.

Filing 61

OPINION & ORDER. Plaintiffs are therefore entitled to their full request of $216,853 in fees. As plaintiffs observe, however, this figure does not include the time spent establishing their entitlement to fees, which they are also due. See Gagne v. Maher, 594 F.2d 336, 344 (2d Cir. 1979). Plaintiffs shall therefore submit a revised proposed judgment by March 28, 2013. (Signed by Judge Denise L. Cote on 3/21/2013) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
THOMAS GESUALDI, LOUIS BISIGNANO,
:
ANTHONY PIROZZI, DOMINICK MARROCCO,
:
ANTHONY D’AQUILA, FRANK FINKEL, JOSEPH :
FERRARA, MARC HERBST, THOMAS PIALI, and :
DENISE RICHARDSON, as Trustees and
:
fiduciaries of Local 282 Welfare,
:
Pension Annuity, Job Training and
:
Vacation and Sick Leave Trust Funds,
:
:
Plaintiffs,
:
-v:
:
LAWS CONSTRUCTION CORP.,
:
:
Defendant.
:
----------------------------------------X

09 Civ. 1067 (DLC)
OPINION & ORDER

Appearances:
For the plaintiffs:
James Robert Grisi
Trivella & Forte, LLP
1311 Mamaroneck Avenue, Suite 170
White Plains, NY 10605
For the defendant:
Paul T. Vink
Andrew Greene & Associates, P.C.
202 Mamaroneck Avenue
White Plains, NY 10601

DENISE COTE, District Judge:
Having successfully maintained an action under the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et
seq., on behalf of certain union benefit funds (the “Funds”) to
recover unpaid contributions owed by defendant Laws Construction
Corp. (“Laws”), the plaintiffs seek an award of $216,853 in

attorneys’ fees pursuant to one of ERISA’s cost-shifting
provisions, 29 U.S.C. § 1132(g)(2).

For the following reasons,

plaintiffs’ application for fees is granted.
BACKGROUND
The Court has already issued three opinions in this
litigation.

See 759 F. Supp. 2d 432 (S.D.N.Y. 2010); 759 F.

Supp. 2d 447 (S.D.N.Y. 2011); 2012 WL 6043661 (S.D.N.Y. Dec. 5,
2012).

Familiarity with those Opinions is assumed; only those

facts necessary to explain the present decision are recited
below.
Plaintiffs initiated this suit with the filing of a
complaint on February 5, 2009.

At that time, plaintiffs were

represented by the firm of Friedman & Wolf.
2010, plaintiffs moved for summary judgment.

On November 5,
After full

briefing, summary judgment was entered in plaintiffs’ favor in
an Opinion dated December 22, 2010.

759 F. Supp. 2d at 432.

In

that Opinion, plaintiffs were awarded $50,129 in fees pursuant
to § 1132(g)(2)’s mandatory fee shifting provision for
successful suits “by a fiduciary for or on behalf of a plan to
enforce section 1145 of this title.”

29 U.S.C. § 1132(g)(2).

The fees awarded reflected billing by Friedman & Wolf up to the
date the motion for summary judgment was filed.
Laws filed a motion to stay enforcement of the judgment on
January 6, 2011.

On January 21, after briefing on that motion
2

had concluded, Laws filed a notice of appeal.

On February 14,

the Court issued an Opinion and Order denying Laws’s motion.
759 F. Supp. 2d at 447.

Plaintiffs filed a notice of

substitution of attorney on July 11, replacing Friedman & Wolf
with their current counsel, Trivella & Forte.
On June 4, 2012, the Second Circuit issued a summary order
vacating in part the December 22 summary judgment Opinion and
remanding the case to this Court for further proceedings.
Gesualdi v. Laws Const. Corp., 485 Fed. App’x 450 (2d Cir.
2012).

Because the grant of summary judgment had been vacated,

the panel observed, the grant of attorney’s fees was vacated as
well.

Id. at 454.

After the remand, Laws was given the opportunity to take
additional discovery to show cause why summary judgment should
not again be entered for the plaintiffs.

On December 5, 2012,

this Court issued an Opinion once again granting summary
judgment in favor of plaintiffs.

2012 WL 6043661.

On December

14, plaintiffs filed a renewed declaration seeking fees.
The plaintiffs’ current request for fees totals $216,853.
This amount includes:
(1)

$50,129 originally awarded in the first grant of
summary judgment, covering work by Friedman & Wolf
through November 5, 2010, when plaintiffs’ motion
for summary judgment was filed.
3

(2)

$133,610 for work by Friedman & Wolf between November
8, 2010, and July 13, 2011, including the
remainder of the summary judgment briefing,
briefing on Laws’s motion for a stay, and the
appellate briefing.

(3)

$33,113 for work by Trivella & Forte between July 1,
2011, and December 14, 2012, including oral
argument before the Second Circuit and the postremand summary judgment proceedings.

Laws submitted a declaration in opposition to plaintiffs’
request for fees on January 4, 2013, and plaintiffs’ submitted
their reply on January 18.
DISCUSSION
Where judgment is entered in the fiduciary’s favor in a
suit to enforce 29 U.S.C. § 1145, awarding fees and costs
pursuant to 29 U.S.C. § 1132(g)(2) is mandatory. 1

See Labarbera

v. Clestra Hauserman, Inc., 369 F.3d 224, 226 (2d Cir. 2004).
To determine the amount of a prevailing party’s fee award, a
court first calculates the “presumptively reasonable fee.”
Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of
1

Laws argues that plaintiffs are not entitled to fees under the
five-factor test used to determine whether, in a court’s
discretion, fees should be awarded under 29 U.S.C. § 1332(g)(1).
That subdivision, however, is not applicable here. Rather,
because this action was brought by a fiduciary to enforce 29
U.S.C. § 1145, the award of reasonable fees is mandatory. 11
U.S.C. § 1132(g)(2).
4

Albany, 493 F.3d 110, 111 (2d Cir. 2007), amended on other
grounds, 522 F.3d 182 (2d Cir. 2008) (“Arbor Hill”).
The focus of the inquiry is on “a reasonable hourly rate,
taking account of all case-specific variables.”

Id. at 117; see

also Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 174 (2d
Cir. 2009). 2

“The presumptively reasonable fee boils down to

‘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.’”

Simmons, 575 F.3d at 174

(quoting Arbor Hill, 493 F.3d at 112, 118).

“[T]he fee

applicant bears the burden of establishing entitlement to an
award and documenting the appropriate hours expended and hourly
rates,” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), and
applications for award of fees must be documented by
contemporaneously created time records.

2

Bliven v. Hunt, 579

Among the factors that Arbor Hill counsels the district court
to consider are: “the complexity and difficulty of the case, the
available expertise and capacity of the client’s other counsel
(if any), the resources required to prosecute the case
effectively . . ., the timing demands of the case, whether the
attorney had an interest . . . in achieving the ends of the
litigation or initiated the representation himself, whether the
attorney was initially acting pro bono . . . , and other returns
(such as reputation, etc.) the attorney expected from the
representation.” Arbor Hill, 493 F.3d at 112. The Second
Circuit has also counseled district courts to consider the
twelve “Johnson factors” enumerated in Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). See Arbor
Hill, 493 F.3d at 114 n.3 (listing the twelve factors).
5

F.3d 204, 213 (2d Cir. 2009) (citation omitted); see also Scott
v. City of New York, 626 F.3d 130, 132 (2d Cir. 2010).
The plaintiffs have supported their application for fees
with contemporaneous time records, organized by attorney and
then by date, which describe the tasks performed and the number
of hours expended in tenth-of-an-hour increments.

Plaintiffs’

first firm, Friedman & Wolf, billed plaintiff for the work of
two attorneys and one paralegal at rates of $390, $280, and $105
per hour, respectively.

According to plaintiffs, the fee amount

for Friedman & Wolf does not include work performed by three
additional attorneys who worked less than 4 hours on the case.
Plaintiffs’ second firm, Trivella & Forte, billed plaintiffs at
the rate of $400 for partners, $375 for of counsel, and $110 for
paralegals.

With the exceptions just noted, the fees requested

are the amounts actually billed to plaintiffs.

Laws does not

object to the hourly rates requested for either of the two
firms, and there is no cause to find them unreasonable.

See

Crescent Publ’g Grp., Inc., v. Playboy Enters., Inc., 246 F.3d
142, 151 (2d Cir. 2001) (“The actual billing arrangement [used]
certainly provides a strong indication of what private parties
believe is the ‘reasonable’ fee to be awarded.”).
Laws does object, however, to the number of hours billed,
on several grounds.

Laws first argues that fees should not be

awarded for any work on either plaintiffs' original summary
6

judgment motion or on appeal, because Laws was “successful” on
appeal and the original summary judgment opinion was vacated.
Laws cites no authority for this proposition, and indeed,
§ 1132(g)(2) instructs a court to award “reasonable attorney’s
fees and costs of the action” where “judgment is entered in a
fiduciary’s favor” (emphasis added).

It is thus clear that

plaintiffs are entitled to fees for all the work performed on
the case, not just the relatively minimal work done after the
remand.

See O’Hare v. General Marine Transp. Corp., 740 F.2d

160, 171 (2d Cir. 1984) (awarding fees for defense of
counterclaim because it was “part of the same action”); see also
Hensley, 461 U.S. at 435 (where plaintiff succeeds, “the fee
award should not be reduced simply because the plaintiff failed
to prevail on every contention raised in the lawsuit”).
Moreover, for reasons explained in the Opinion of December
5, 2012, it is not entirely accurate to describe Laws as
“successful” on appeal.

The Court of Appeals considered an

alternative way in which the employees’ rights may have been
protected, even though Laws had not shown that they were so
protected.

With the remand, Laws was given a second opportunity

to show that the employees’ rights had been protected.

For a

second time it failed to make that showing, and judgment was
again entered for the plaintiffs.

7

Laws also suggests that plaintiffs’ request for fees is per
se unreasonable because it is disproportionate to the amount of
delinquent contributions at issue, $54,094.51.

There is,

however, no requirement in this context that the amount of an
award of attorneys fees be proportional to the amount of
damages.

Bldg. Servs. Local 47 Pension Plan v. Grandview

Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995); Operating Engineers
Pension Trusts v. B & E Backhoe, Inc., 911 F.2d 1347, 1355 (9th
Cir. 1990); Mason Tenders Dist. Council v. Aurash Const. Corp.,
05 Civ. 1891 (RCC), 2006 WL 647884, at *3 (S.D.N.Y. Mar. 15,
2006); Trustees of Bricklayers & Allied Craftworkers Local 5 New
York Retirement v. Helmer-Cronin Const., Inc., 03 Civ. 748
(MDF), 2005 WL 3789085, at *6-*7 (S.D.N.Y. Oct. 24, 2005).

In

the civil rights context, the Second Circuit has “repeatedly
rejected the notion that a fee may be reduced merely because the
fee would be disproportionate to the financial interest at stake
in the litigation.”

Barbour v. City of White Plains, 700 F.3d

631, 635 (2d Cir. 2012) (quoting Kassim v. City of Schenectady,
415 F.3d 246, 252 (2d Cir. 2005).

The case law thus counsels

against reducing a lodestar figure simply because it is
significantly higher than a non-nominal damages award, and there
is no reason to do so here.
Laws next argues that the fees should not be awarded for
time spent by Friedman & Wolf attorneys consulting with one
8

another, which Laws alleges represents improper “double
billing.”

“Double billing” is normally understood to refer to

billing a client twice for the same thing, not billing for the
time of two lawyers consulting with each other.

See, e.g., In

re Arlan’s Dep’t Stores, Inc., 615 F.2d 925, 941 (2d Cir. 1979)
(“. . . Lappin was double billing parent and subsidiary for the
same services.”); Resolution Trust Corp. v. 12A Associates, 782
F. Supp. 270, 270 (S.D.N.Y. 1992) (firm double billed when it
“included in the escrow deficiency $7,089.98 for attorneys’ fees
and also included that $7,089.98 in a separate calculation of
attorneys’ fees owed”).

Indeed, “repeated communications

between multiple attorneys who are representing the same client
are to be expected.”

Tucker v. City of New York, 704 F. Supp.

2d 347, 356 (S.D.N.Y. 2010).

Furthermore, Laws does not

specifically identify any tasks it views as duplicative.

See

Sugarman v. Village of Chester, 213 F. Supp. 2d 304, 311
(S.D.N.Y. 2002) (citing New York State Ass’n of Retarded
Children v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983)).

Nothing

in the inter-firm consultations appears unduly duplicative or
unreasonable; to the contrary, “a reasonable attorney would have
engaged in similar time expenditures,” Grant v. Martinez, 973
F.2d 96, 99 (2d Cir. 1992). 3

3

Laws also objects to billing by Friedman & Wolf for the time of
“SJ,” but plaintiffs explain that SJ is a paralegal, and
9

Finally, Laws argues, again citing no authority, that
attorneys’ travel time is not compensable and should be excluded
from any fee award.

In this circuit, however, the general rule

is that fees are awarded for travel time but may be reduced by
50%.

Sea Spray Holdings, Ltd. v. Pali Fin. Group, Inc., 277 F.

Supp. 2d 323, 326 (S.D.N.Y. 2003).

The only billing for travel

time to which Laws objects is 1.4 hours by Trivella & Forte, and
the notes in the contemporaneous time records indicate that this
figure represents half of the total travel time.

There is

therefore no reason for a deduction on this basis.

paralegals’ time is properly included in an award of attorneys’
fees. Richlin Security Service Co. v. Chertoff, 553 U.S. 571,
590 (2008); Missouri v. Jenkins, 491 U.S. 274, 285 (1989);
Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d
1053, 1058 (2d Cir. 1989).
10

CONCLUSION
Plaintiffs are therefore entitled to their full request of
$216,853 in fees.

As plaintiffs observe, however, this figure

does not include the time spent establishing their entitlement
to fees, which they are also due.
336, 344 (2d Cir. 1979).

See Gagne v. Maher, 594 F.2d

Plaintiffs shall therefore submit a

revised proposed judgment by March 28, 2013.

SO ORDERED:
Dated:

New York, New York
March 21, 2013

11