Mason Tenders District Council of Greater New York et al v. Concore Equipment, Inc. et al
Filing
80
OPINION 104344 re: 70 MOTION for Attorney Fees filed by Mason Tenders District Council of Greater New York, Mason Tenders District Council Welfare Fund, Pension Fund, Annuity Fund, and Training Fund, John J. Virga. As an exercise of discretion, the motion for attorneys' fees is denied. (Signed by Judge Robert W. Sweet on 5/15/2014) (cd) Modified on 5/16/2014 (nt).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MASON TENDERS DISTRICT COUNCIL OF
GREATER NEW YORK, MASON TENDERS
DISTRICT COUNCIL WELFARE FUND,
PENSION FUND, ANNUITY FUND, and
TRAINING FUND, and JOHN J. VIRGA,
in his fiduciary capacity as
FUNDS Director,
10 Civ. 4227
OPINION
Plaintiffs,
-against-
I
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I
CONCORE EQUIPMENT, INC. and
PATRICIA RICE a/k/a PAT RICE,
Defendants.
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A P P E A RA N C E S:
Attorneys for Plaintiffs
GORLICK, KRAVITZ & LISTHAUS,
17 State Street, 4th Floor
New York, NY 10004-1501
By:
Deke W. Bond, Esq.
P.C.
Attorneys for Defendants
TRIVELLA & FORTE, LLP
1311 Mamaroneck Avenue, Suite 170
White Plains, NY 10605
By:
Christopher A. Smith, Esq.
Sweet, D.J.
This ERISA action has been convoluted and difficult as
demonstrated in the opinions filed on November 10, 2011 and
September 20, 2013. Ultimately, the defendants Concore
Equipment, Inc.
("Concore") and Patricia Rice
("Rice"),
Concore's owner, have been held liable for the $288,000
settlement of the initial ERISA claim.
Concore is defunct and Rice is without resources and
is contemplating bankruptcy. The plaintiffs Mason Tenders
District Council of Greater New York,
the Mason Tenders District
Council Welfare Fund, Pension Fund, Annuity Fund and Training
Fund and John J. Virga, as Funds Director ("Mason Tenders" or
collectively, the "Plaintiffs") now seek attorneys'
$108, 814 as prevailing parties under ERISA
§
fees of
502 (g) (2) (D).
The settlement did not provide for attorneys'
fees and
did not constitute an ERISA determination. The summary judgment
requiring an audit has not resulted in an ERISA judgment.
However,
in any ERISA action, the Court also has the discretion
to award reasonable attorneys' fees and costs of action to
either party. Hardt v. Reliance Stand. Life Ins.
1
Co.,
560 U.S.
242,
130 S. Ct. 2149, 2159
Health Ins.
(2010); Levitian v.
Co.; 90 Civ. 2965; 2013 U.S.
Sun Life and
Dist. LEXIS 11567
(S.D.N.Y. Aug. 14, 2013). That standard provides that attorney's
fees may be awarded by the court when a party has achieved "some
degree of success on the merits." Id. At 2159.
The November 1, 2006 settlement document is not a
collective bargaining agreement and its enforcement does not
trigger the attorney fee provisions of 29 U.S.C. § 1132.
Plaintiffs also do not meet the five factor test
established by the Second Circuit for a discretionary award of
attorneys'
fees:
(1) the degree of the offending party's
culpability or bad faith, (2) the ability of the
offending party to satisfy an award of attorney's
fees, ( 3) whether an award of fees would deter
other persons from acting similarly under like
circumstances, (4) the relative merits of the
parties' positions, and (5) whether the action
conferred a common benefit on a group of pension
plan participants.
Jones v.
UNUM Life Ins.
Cir. 2000)
Co. of Am.,
223 F. 3d 130, 138
(2d
(quoting Chambless v. Masters, Mates & Pilots
Pension Plan,
815 F.2d 869, 871
(2d Cir. 1987),
2
cert.
denied,
496 U.S.
905, 110 S.Ct. 2587, 110 L.Ed.2d 268
(1990)). Bad faith has not been established, the ability of
the Defendants to satisfy an award is problematic, and the
unique circumstances presented diminish any deterrent
effect. The merits favor the Plaintiffs, but practicality
favor the Defendants, and the benefits to granting the
motion is limited.
Conclusion
As an exercise of discretion, the motion for
attorneys'
fees is denied.
It is so ordered.
New York, NY
May
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2014
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