Mason Tenders District Council Welfare Fund, Pension Fund, Annuity Fund, Training Fund, Health and Safety Fund v. Kafka Construction, Inc
Filing
56
OPINION AND ORDER re: 48 MOTION for Summary Judgment Plaintiffs' Rule 56.1 Statement filed by Mason Tenders District Council Welfare Fund, Pension Fund, Annuity Fund, Training Fund, Health and Safety Fund, Dominick Giammona, 46 MOTION for Summary Judgment filed by Mason Tenders District Council Welfare Fund, Pension Fund, Annuity Fund, Training Fund, Health and Safety Fund, Dominick Giammona. Given the foregoing, Plaintiffs' motion for summ ary judgment is GRANTED. The Clerk of Court is directed to terminate the motions at docket entries 46 and 48. Plaintiffs are hereby ORDERED to submit a proposed judgment, along with contemporaneous time records supporting plaintiffs' award o f attorneys' fees, within 30 days of the date of this Opinion and Order. Kafka is hereby ORDERED to submit to an audit of its books and records for the period subsequent to March 25, 2016, within 90 days of the date of this Opinion and Order. (Signed by Judge Katherine Polk Failla on 5/8/2018) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MASON TENDERS DISTRICT COUNCIL
:
WELFARE FUND, PENSION FUND,
:
ANNUITY FUND, TRAINING FUND, HEALTH :
AND SAFETY FUND; and DOMINICK
:
GIAMMONA, as funds’
:
Contributions/Deficiency Manager;
:
:
:
Plaintiffs,
:
:
v.
:
KAFKA CONSTRUCTION, INC,
:
:
Defendant. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: May 8, 2018
______________
16 Civ. 9911 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
The plaintiffs in this action consist of jointly administered, multiemployer, labor management trust funds (the “Funds”) established and
maintained under various collective bargaining agreements in accordance with
Sections 302(c)(5) and (c)(6) of the Labor Management Relations Act of 1947
(the “LMRA”), 29 U.S.C. §§ 186(c)(5), (c)(6), as well as the Manager of the Funds’
Contributions and Deficiency Department, Dominick Giammona (along with
the Funds, “Plaintiffs”) in his fiduciary capacity pursuant to Sections 3(21) and
502(a)(3) of the Employee Retirement Income Security Act of 1974 (as
amended, “ERISA”), 29 U.S.C. §§ 1002(21), 1132(a)(3). The Funds are also
employee benefit funds within the meaning of Sections 3(1), 3(2), and 3(3) of
ERISA, 29 U.S.C. §§ 1002(1)-(3).
Plaintiffs sued Kafka Construction, Inc. (“Kafka”) after it failed to remit
fringe benefits, dues checkoffs, and Political Action Committee (“PAC”)
contributions to the Funds pursuant to a collective bargaining agreement.
Before the Court is Plaintiffs’ motion for summary judgment. For the reasons
below, the Court grants the motion.
BACKGROUND 1
A.
Factual Background
1.
Kafka’s Obligations Under the Collective Bargaining Agreement
The relevant facts are undisputed. (See Def. Opp. 2). Collective
bargaining agreements between the Mason Tenders District Council of Greater
New York (the “Union”) and employers of the Union’s members require the
employers to contribute to the Funds in order to provide fringe benefits to
eligible employees. (Pl. 56.1 ¶ 5). The Funds are thus third-party beneficiaries
of the collective bargaining agreements, and one of the Funds, the Mason
Tenders District Council Welfare Fund, is the authorized collection agent for
remittances to the Union and the Mason Tenders District Council Political
Action Committee. (Id. at ¶¶ 6-7).
1
This Opinion draws facts from Plaintiffs’ Statement Pursuant to Local Rule 56.1 (Dkt.
#48 (“Pl. 56.1”)), the Declaration of Joy K. Mele in Support of Plaintiffs’ Motion for
Summary Judgment (Dkt. #49 (“Mele Decl.”)), the Declaration of David Bolger in
Support of Plaintiffs’ Motion for Summary Judgment (Dkt. #50 (“Bolger Decl.”)), the
Declaration of Dominick Giammona in Support of Plaintiffs’ Motion for Summary
Judgment (Dkt. #51 (“Giammona Decl.”)) and the exhibits attached to those
declarations. In addition, the Court shall refer to Plaintiffs’ Memorandum of Law in
Support of Summary Judgment (Dkt. #47) as “Pl. Br.,” Defendant’s Memorandum of
Law in Opposition to Summary Judgment (Dkt. #54) as “Def. Opp.,” and Plaintiffs’
Reply to Defendant’s Opposition (Dkt. #55) as “Pl. Reply.”
2
The Union entered a collective bargaining agreement (the “CBA”) with the
Building Contractors Association (the “BCA”), which was effective from July 1,
2010, to June 30, 2014, and was extended by a separate memorandum of
understanding from July 1, 2014, to June 30, 2018. (Pl. 56.1 ¶ 10). As a
member of the BCA, Kafka was required “to make fringe benefit contributions
to the Funds for every hour of work performed by its employees within the
trade and geographic jurisdiction of the” CBA. (Id. at ¶¶ 11-13). In addition,
Kafka was obligated “to deduct and remit [principal] dues checkoffs and PAC
contributions from the wages of all authorized employees” within the trade and
geographic jurisdiction of the CBA. (Id. at ¶ 14).
2.
The Funds’ Audit of Kafka’s Books and Records, and Kafka’s
Stipulation to Amounts Owed
A provision of the CBA entitles the Funds to audit the books and records
of employers to ensure that all contributions are paid in full. (Pl. 56.1
¶¶ 15-16). Pursuant to this provision, the Funds audited Kafka’s books and
records for the period of March 28, 2015, to March 25, 2016, and found “that
Kafka failed to pay $562,810.93 in principal fringe benefit contributions and
failed to remit $42,648.84 in principal dues checkoffs and PAC contributions
for 20,146.6 hours” of work that required such contributions. (Id. at ¶ 17).
After bringing this action, the Funds revised the audits on March 17, 2017,
and again on August 23, 2017; the most recent revised audit (the “Second
Revised Audit”) “found that Kafka owed $449,162.18 in principal fringe benefit
contributions and $34,167.39 in principal dues checkoffs and PAC
contributions.” (Id. at ¶¶ 18-19).
3
Kafka has stipulated that it accepts the findings of the Second Revised
Audit and owes a total of $483,329.57 to the Funds, consisting of principal
fringe benefit contributions, dues checkoffs, and PAC contributions for the
period March 28, 2015, through March 25, 2016. (Mele Decl., Ex. 1, at
¶¶ 6-8). But Kafka reserved its right to contest any portion of a judgment
obtained by the Funds in excess of that amount. (Id. at ¶ 8). Kafka also
agreed, however, to cooperate with any audit conducted by the Funds “for any
time period following the Second Revised [A]udit period” and that the Funds
could recover additional damages for unpaid contributions pursuant to the
findings of such audit. (Id. at ¶ 10). In exchange, Plaintiffs forewent a
deposition of a corporate representative for Kafka. (Id. at ¶ 11).
3.
The Fund Credits a Post-Audit Payment Toward Kafka’s
Outstanding Dues
Following the Second Revised Audit, on November 1, 2017, the Funds
received a payment from the New York City School Construction Authority in
the amount of $27,798.40 for 1,165 hours of work performed by Kafka from
April 3, 2015, through May 20, 2016. (Pl. 56.1 ¶¶ 28-29). This work period
includes 144 hours of work by Kafka for the week ending April 1, 2016,
through the week ending May 20, 2016, which is outside of the period of time
relevant to the Second Revised Audit. (Id. at ¶ 30). The Funds credited the
remainder of the payment ($23,318.56) toward the amount of Kafka’s
deficiency, which reduces such amount to $460,011.01, consisting of
$427,453.74 in principal fringe benefits and $32,557.27 in principal dues
checkoffs and PAC contributions. (Id. at ¶¶ 31-33).
4
B.
Procedural Background
Plaintiffs filed the complaint in this action on December 23, 2016 (Dkt.
#1 (“Complaint” or “Compl.”)), and Kafka filed its answer on February 24, 2017
(Dkt. #17). The Complaint includes claims for breach of contract; ERISA
violations; remedies provided by the CBA, including attorneys’ fees and costs;
injunctive relief; and an order directing Kafka to comply with an audit of its
books and records for the period after March 25, 2016. (See Compl. ¶¶ 17-84).
The parties entered into the stipulation discussed above after completing
discovery on September 25, 2017. (Dkt. #44). On November 3, 2017, Plaintiffs
moved for summary judgment to recover the amounts owed along with interest
calculated under New York law, liquidated damages equal to the amount of
interest on the unpaid contributions, attorneys’ fees and costs, and the
imputed costs of the Second Revised Audit. (See Dkt. #46-51). Kafka filed a
partial opposition to the motion on December 11, 2017 (Dkt. #54), and
Plaintiffs replied to the opposition on December 22, 2017 (Dkt. #55).
DISCUSSION
A.
Summary Judgment under Fed. R. Civ. P. 56
Rule 56(a) provides that a “court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine dispute exists where “the
evidence is such that a reasonable jury could return a verdict for the
5
nonmoving party.” Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 822
F.3d 620, 631 n.12 (2d Cir. 2016) (internal quotation marks and citation
omitted). A fact is “material” if it “might affect the outcome of the suit under
the governing law[.]” Anderson, 477 U.S. at 248.
While the moving party “bears the initial burden of demonstrating ‘the
absence of a genuine issue of material fact,’” ICC Chem. Corp. v. Nordic Tankers
Trading a/s, 186 F. Supp. 3d 296, 301 (S.D.N.Y. 2016) (quoting Catrett, 477
U.S. at 323), the party opposing summary judgment “must do more than
simply show that there is some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see
also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). Rather, the
non-moving party “must set forth specific facts showing that there is a genuine
issue for trial.” Parks Real Estate Purchasing Grp. v. St. Paul Fire & Marine Ins.
Co., 472 F.3d 33, 41 (2d Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).
“When ruling on a summary judgment motion, the district court must
construe the facts in the light most favorable to the non-moving party and
must resolve all ambiguities and draw all reasonable inferences against the
movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.
2003). In considering “what may reasonably be inferred” from witness
testimony, however, the court should not accord the non-moving party the
benefit of “unreasonable inferences, or inferences at war with undisputed
facts.” Berk v. St. Vincent’s Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 342
(S.D.N.Y. 2005) (quoting Cty. of Suffolk v. Long Island Lighting Co., 907 F.2d
6
1295, 1318 (2d Cir. 1990)). Moreover, “[t]hough [the Court] must accept as
true the allegations of the party defending against the summary judgment
motion, … conclusory statements, conjecture, or speculation by the party
resisting the motion will not defeat summary judgment.” Kulak v. City of N.Y.,
88 F.3d 63, 71 (2d Cir. 1996) (internal citation omitted) (citing Matsushita, 475
U.S. at 587; Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983)); accord
Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010).
B.
Plaintiffs Are Entitled to Summary Judgment
In light of its September 25, 2017 Stipulation, Kafka only opposes two
portions of Plaintiffs’ motion for summary judgment: (i) the interest rate
applicable to the principal dues checkoffs and PAC contributions owed by
Kafka; and (ii) Plaintiffs’ entitlement to the imputed, rather than actual, cost of
the Second Revised Audit. (See Def. Opp. 1). As the Court explains below,
Kafka’s arguments fail.
1.
Kafka Has Admitted Liability for Unremitted Principal Fringe
Benefit Contributions, Unremitted Dues Checkoffs, Unremitted
PAC Contributions, Interest on Unpaid Principal Fringe Benefit
Contributions, Liquidated Damages, and Attorneys’ Fees
The CBA required Kafka to deduct fringe benefits, dues checkoffs, and
PAC contributions from wages paid to its employees. See also 29 U.S.C. § 1145
(“Every employer who is obligated to make contributions to a multiemployer
plan under the terms of the plan or under the terms of a collectively bargained
agreement shall, to the extent not inconsistent with law, make such
contributions in accordance with the terms and conditions of such plan or
such agreement.”). Kafka has stipulated to the unremitted amounts in each of
7
these categories, and Plaintiffs have properly reduced such amounts in light of
the payment received from the New York City School Construction Authority.
Kafka is thus liable for unremitted payments under the CBA amounting to
$460,011.01, which consists of $427,453.74 in principal fringe benefits and
$32,557.27 in principal dues checkoffs and PAC contributions. (Pl. 56.1 ¶¶ 3133).
Both the CBA and ERISA entitle Plaintiffs to collect interest on the
unremitted fringe benefit contributions, and Kafka does not challenge this.
(See Mele Decl. ¶ 12; Bolger Decl., Ex. 2, at 33-34). See 29 U.S.C.
§ 1132(g)(2)(B). Those same provisions require such interest to be calculated
pursuant to 26 U.S.C. § 6621, which Plaintiffs properly applied to arrive at
interest on the $427,453.74 in unpaid principal fringe benefits in the amount
of $32,916.26 for the period of May 15, 2015, through November 1, 2017. (See
Mele Decl. ¶ 13). Plaintiffs are thus entitled to this amount of interest.
The CBA and ERISA also entitle Plaintiffs to liquidated damages equal to
the interest on the unremitted fringe benefit contributions. (See Mele Decl.
¶ 14; Bolger Decl., Ex. 2, at 33-34). See 29 U.S.C. § 1132(g)(2)(C). Plaintiffs
are thus entitled to liquidated damages in the amount of $32,916.26.
Finally, the CBA and ERISA entitle Plaintiffs to reasonable attorneys’
fees. (See Mele Decl. ¶ 18; Bolger Decl., Ex. 2, at 33-34). See 29 U.S.C.
§ 1132(g)(2)(D). Plaintiffs have not yet submitted an accounting of their fees
and costs, and the Court thus grants Plaintiffs’ request to do so after the
resolution of the instant summary judgment motion.
8
2.
Kafka’s Unpaid Dues Checkoffs and PAC Contributions Are
Subject to New York’s 9% Interest Rate
Plaintiffs contend that the Funds are entitled to recover prejudgment
interest beginning from May 7, 2015, on the outstanding principal unpaid dues
checkoffs and PAC contributions, which outstanding payments amount to
$32,557.27, at an annual 9% rate pursuant to New York law. (See Pl. Br. 8, 10
(citing N.Y. C.P.L.R. §§ 5001 (allowing recovery of interest on award for breach
of contract), 5004 (setting interest rate at annual 9% “except where otherwise
provided by statute”)). In opposition, Kafka contends that Plaintiffs’ claim is for
breach of a collective bargaining agreement, is therefore preempted by the
LMRA, and that instead of New York’s 9% interest rate, an award for the claim
should be subject to “the average interest over one year on a treasury bill”
under federal law. (Def. Opp. 4-7). See 28 U.S.C. § 1961(a) (establishing
interest “on any money judgment in a civil case recovered in a district court”
“at a rate equal to the weekly average 1-year constant maturity Treasury
yield”). 2
Section 301 of the LMRA bestows federal jurisdiction over “[s]uits for
violation of contracts between an employer and a labor organization
representing employees[.]” 29 U.S.C. § 185(a). The Supreme Court has
understood this section “as a congressional mandate to the federal courts to
fashion a body of federal common law to be used to address disputes arising
out of labor contracts.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209
2
According to Kafka, such “one year average, per Bankrate.com is currently
approximately 1.64% and one year ago was 0.80%.” (Def. Opp. 7).
9
(1985). Section 301 “completely preempts ‘any state cause of action’” for
violations of labor contracts. Silverman v. Miranda, 116 F. Supp. 3d 289, 306
(S.D.N.Y. 2015) (quoting Franchise Tax Bd. of State of Cal. v. Constr. Laborers
Vacation Tr. for S. Cal., 463 U.S. 1, 23 (1983)). Thus, “when resolution of a
state-law claim is substantially dependent upon analysis of the terms of an
agreement made between the parties in a labor contract, that claim must either
be treated as a § 301 claim, or dismissed as pre-empted by federal laborcontract law.” Lueck, 471 U.S. at 220 (internal citation omitted).
As mentioned above, Kafka contends that Plaintiffs’ contract claims are
preempted, but does not seek dismissal on that basis. See also, e.g.,
Silverman, 116 F. Supp. 3d at 310 (rejecting argument that Court was
precluded from construing LMRA-preempted claims as § 301 claims). Whether
the Court were to award damages to Plaintiffs under § 301 or common law
breach of contract principles, however, it would apply New York’s 9% annual
interest rate.
With respect to awards under § 301, “[b]ecause the LMRA is silent with
respect to a prejudgment interest rate, the ‘common practice’ among courts
within the Second Circuit is to grant interest at a rate of 9%, the rate of
prejudgment interest under New York State law.” Serv. Employees Int’l Union,
Local 32BJ, AFL-CIO v. Stone Park Assocs., LLC, 326 F. Supp. 2d 550, 555
(S.D.N.Y. 2004) (citation omitted); accord N.Y.C. Dist. Council of Carpenters v.
Gen-Cap Indus., Inc., No. 11 Civ. 8425 (JMF), 2012 WL 2958265, at *4
(S.D.N.Y. July 20, 2012); Mason Tenders Dist. Council of Greater N.Y. v. G & C
10
Constr. Safe, Inc., No. 10 Civ. 3399 (JGK) (MHD), 2011 WL 744918, at *8
(S.D.N.Y. Feb. 8, 2011), report and recommendation adopted Mason Tenders
Dist. Council of Greater N.Y. v. G & C Constr. Safe, Inc., No. 10 Civ. 3399 (JGK),
2011 WL 744914 (S.D.N.Y. Mar. 2, 2011).
Similarly, courts awarding interest on unremitted dues checkoffs and
PAC contributions without reliance on § 301 of the LMRA have awarded
interest under New York’s 9% annual rate. See, e.g., Virga v. Big Apple Constr.
& Restoration Inc., 590 F. Supp. 2d 467, 473 (S.D.N.Y. 2008), on
reconsideration in part (May 12, 2008); Trustees of Mason Tenders Dist. Council
v. Multi Recycling Corp., No. 04 Civ. 3051 (DLC), 2005 WL 3446042, at *5
(S.D.N.Y. Dec. 15, 2005); Mason Tenders Dist. Welfare Fund v. Santa Fe Constr.,
Inc., No. 03 Civ. 5882 (RCC), 2005 WL 486700, at *2 (S.D.N.Y. Mar. 2, 2005);
Mason Tenders Dist. Council Welfare Fund, Pension Fund, Annuity Fund,
Training Program Fund v. Ciro Randazzo Builders, Inc., No. 03 Civ. 2677 (RMB)
(JCF), 2004 WL 1152933, at *2-3 (S.D.N.Y. May 24, 2004), report and
recommendation adopted sub nom. Mason Tenders Dist. Council Welfare Fund v.
Ciro Randazzo Builders, Inc., No. 03 Civ. 2677 (RMB) (JCF), 2004 WL 1462220
(S.D.N.Y. June 28, 2004); Bricklayers Dist. Council Welfare Fund v. Capri
Constr. Corp., No. 93 Civ. 2904 (SS), 1995 WL 72403, at *4 (S.D.N.Y. Feb. 10,
1995). Tellingly, Kafka cites to no case applying the federal interest rate based
on the weekly average one-year constant maturity treasury yield to cases under
the LMRA or, more generally, cases seeking unremitted dues checkoffs and
PAC contributions. And the Court’s independent research has revealed none.
11
Given the foregoing, Plaintiffs are entitled to prejudgment interest on the
outstanding principal unpaid dues checkoffs and PAC contributions,
amounting to $32,557.27, at an annual 9% rate pursuant to New York law,
calculated from May 7, 2015.
3.
Plaintiffs Are Entitled to the Imputed Costs of the Second
Revised Audit
Plaintiffs seek the imputed costs of the Second Revised Audit pursuant
to the terms of the CBA, which provide as follows:
If after an audit of its books and records the Employer
is found to be substantially delinquent, as defined
herein, in the payment of fringe benefit contributions to
the Trust Funds set forth in this Article of the
Agreement, the Employer shall bear the imputed cost of
the audit as set forth below:
total audited deficiency X number of months audited = imputed cost of audit
150
(Pl. 56.1 ¶ 42). The CBA also defines “substantially delinquent” as “any
delinquency in the payment of fringe benefit contributions to the [Funds] … in
excess of 10% of the fringe benefit contributions paid to the [Funds] … during
the period that is subject to the audit.” (Id.; see also id. at ¶ 45). During the
period examined under the Second Revised Audit, Kafka paid $1,003,293.10 in
fringe benefits; its deficiency of $427,453.74 thus far exceeds 10% of the total
contributions that Kafka paid during that period, rendering its deficiency
“substantially delinquent” under the terms of the CBA. (See id. at ¶¶ 46-48).
Kafka seeks to avoid paying the imputed cost of the Second Revised
Audit as calculated pursuant to the CBA’s formula, arguing that the “imputed
audit costs” so defined are “essentially liquidated damages” amounting to “a
12
penalty for a larger delinquency, not a remedy of repayment of the cost of the
audit.” (Def. Opp. 2). In Kafka’s view, a more appropriate payment would be
“the actual audit costs paid.” (Id. at 4). But this argument is unavailing.
To categorize the above formula for imputed audit costs as a liquidated
damages provision would be misleading, as the CBA provision at issue does not
provide a sum certain in the event of breach. See CIT Grp./Commercial Servs.,
Inc. v. Holladay-Tyler Printing Corp., No. 94 Civ. 6642 (HB), 1995 WL 702343,
at *1 (S.D.N.Y. Nov. 29, 1995) (“By definition, … the liquidated damages clause
must specify a sum certain.”); cf. Reich v. S. New England Telecomms. Corp.,
121 F.3d 58, 71 n.4 (2d Cir. 1997) (“As used in the [Fair Labor Standards Act]
‘liquidated damages’ is something of a misnomer. It is not a sum certain,
determined in advance as a means of liquidating damages that may be
incurred in the future.” (quoting Brock v. Superior Care, Inc., 840 F.2d 1054,
1063 n.3 (2d Cir. 1988)). Kafka’s theory that the CBA’s provision awarding
imputed audit costs constitutes an unenforceable liquidated damages provision
thus falls flat.
Moreover, both ERISA and the CBA authorize the Court to award any
legal or equitable relief it deems appropriate. See 29 U.S.C. § 1132(g)(2)(E);
Mason Tenders Dist. Council v. Aurash Constr. Corp., No. 04 Civ. 2427 (RCC),
2006 WL 647884, at *4 (S.D.N.Y. Mar. 15, 2006). 3 Given such authority,
3
Section 18(f) of the CBA reads as follows:
In the event that formal proceedings are instituted before a court
of competent jurisdiction by the Trustees of the Trust Funds … to
collect delinquent contributions to such Fund, and if such court
renders a judgment in favor of such Fund, the Employer shall pay
13
courts have awarded imputed audit costs as a matter of course. See, e.g., Bd.
of Trs. of Pointers, Cleaners & Caulkers Annuity Fund, Pension Fund & Welfare
Fund v. Harbor Island Contracting, Inc., No. 13 Civ. 6075 (MKB), 2015 WL
1245963, at *6 (E.D.N.Y. Mar. 16, 2015) (“Courts have routinely interpreted
[§ 1132(g)(2)(E)] to allow audit costs as part of the damages award.” (citing
Ferrara v. PJF Trucking LLC, No. 13 Civ. 7191 (JS) (AKT), 2014 WL 4725484, at
*17 (E.D.N.Y. Sept. 22, 2014) (collecting cases))); Virga, 590 F. Supp. 2d at 476;
Mason Tenders Dist. Council v. Envirowaste & Transcontractors, Inc., No. 98 Civ.
4040 (DC), 1999 WL 370667, at *2 (S.D.N.Y. June 7, 1999).
Thus, pursuant to ERISA and the CBA, Plaintiffs are entitled to an award
of imputed audit costs in the amount of $38,927.39. (Mele Decl., Ex. 1, at
Bates Number 1357).
to such Fund, in accordance with the judgment of the Court, and
in lieu of any other liquidated damages, costs, attorney’s fees
and/or interest, the following:
(A)
[T]he unpaid contributions.
(B)
Interest on unpaid contributions determined by using the
rate prescribed under section 6621 of Title 26 of the United
States Code.
(C)
Interest on the unpaid contributions as and for liquidated
damages.
(D)
[R]easonable attorneys’ fees and costs of the action.
(E)
[S]uch other legal or equitable relief as the court deems
appropriate.
(Bolger Decl., Ex. 2, at 33-34 (emphasis added)).
Although, at first glance, this provision may seem to supersede an award of “costs”
such as those associated with an audit, see, e.g., Mason Tenders Dist. Welfare Fund v.
Santa Fe Constr., Inc., No. 03 Civ. 5882 (RCC), 2005 WL 486700, at *2 (S.D.N.Y. Mar. 2,
2005), courts within this District have awarded imputed audit costs despite such a
provision, by construing the award under the catch-all “other legal … relief” that the
provision entitles courts to award, see Virga v. Big Apple Constr. & Restoration Inc., 590
F. Supp. 2d 467, 476 (S.D.N.Y. 2008) (collecting cases), on reconsideration in part
(May 12, 2008).
14
CONCLUSION
Given the foregoing, Plaintiffs’ motion for summary judgment is
GRANTED. The Clerk of Court is directed to terminate the motions at docket
entries 46 and 48.
Plaintiffs are hereby ORDERED to submit a proposed judgment, along
with contemporaneous time records supporting plaintiffs’ award of attorneys’
fees, within 30 days of the date of this Opinion and Order.
Kafka is hereby ORDERED to submit to an audit of its books and records
for the period subsequent to March 25, 2016, within 90 days of the date of this
Opinion and Order.
SO ORDERED.
Dated:
May 8, 2018
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
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