Trustees Of The New York City District Council Of Carpenters Pension Fund, Welfare Fund, Annuity Fund, and Apprenticeship, Journeyman Retraining, Educational and Industry Fund et al v. Best Falcon Construction Inc.
Filing
17
OPINION AND ORDER re: 10 MOTION for Summary Judgment against Best Falcon Construction Inc filed by New York City District Council of Carpenters, Trustees Of The New York City Carpenters Relief and Charity Fund, Trustees Of The New York City District Council Of Carpenters Pension Fund, Welfare Fund, Annuity Fund, and Apprenticeship, Journeyman Retraining, Educational and Industry Fund, The New York City and Vicinity Carpenters Labor-Management Corporation. For the re asons set forth above, Petitioners' motion for summary judgment to confirm the Award is GRANTED. The Clerk of Court shall enter judgment for Petitioners and against Respondent in the amount of $683,281.34, which consists of the arbitr ation award of $679,875.88 plus $3,405.46 in attorneys' fees and costs. Post-judgment interest will accrue at the statutory rate pursuant to 28 U.S.C. § 1961. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 11/27/2018) (mro) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TRUSTEES OF THE NEW YORK CITY DISTRICT
COUNCIL OF CARPENTERS PENSION FUND,
WELFARE FUND, ANNUITY FUND, AND
APPRENTICESHIP, JOURNEYMAN RETRAINING,
EDUCATIONAL AND INDUSTRY FUND, TRUSTEES
OF THE NEW YORK CITY CARPENTERS RELIEF
AND CHARITY FUND, THE NEW YORK CITY AND
VICINITY CARPENTERS LABOR-MANAGEMENT
CORPORATION, and NEW YORK CITY DISTRICT
COUNCIL OF CARPENTERS,
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: November 27, 2018
______________
18 Civ. 2997 (KPF)
OPINION AND ORDER
Petitioners,
-v.BEST FALCON CONSTRUCTION INC.,
Respondent.
KATHERINE POLK FAILLA, District Judge:
Petitioners Trustees of the New York City District Council of Carpenters
Pension Fund, Welfare Fund, Annuity Fund, and Apprenticeship, Journeyman
Retraining, Educational and Industry Fund; Trustees of the New York City
Carpenters Relief and Charity Fund; and the New York City and Vicinity
Carpenters Labor-Management Corporation (collectively, “the Funds”), along
with the New York City District Council of Carpenters (together with the Funds,
“Petitioners”) have filed a motion for summary judgment requesting two forms
of relief. First, Petitioners seek to confirm an arbitration award issued under
Section 301 of the Taft-Hartley Labor Management Relations Act (the “LMRA”),
29 U.S.C. § 185. Second, Petitioners move to recover the attorney’s fees and
costs they have incurred in seeking to confirm that award. The motion is
unopposed: Respondent Best Falcon Construction, Inc., did not appear in the
underlying arbitration, and has not appeared before this Court. For the
reasons set forth below, Petitioners’ motion is granted in full.
BACKGROUND 1
A.
Factual Background
Petitioners Trustees of the New York City District Council of Carpenters
Pension, Welfare, Annuity, Apprenticeship, Journeyman Retraining and
Educational and Industry Funds (the “ERISA Funds”) are employer and
employee trustees of multiemployer labor-management trust funds organized
and operated in accordance with the Employee Retirement Income Security Act
of 1974 (“ERISA”), codified in part at 29 U.S.C. ch. 18. Petitioners Trustees of
the New York City District Council of Carpenters Relief and Charity Fund (the
“Charity Fund”) are trustees of a charitable organization established under
section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3). Petitioner
New York City and Vicinity Carpenters Labor-Management Corporation is a
New York not-for-profit corporation. Petitioner New York City District Council
1
This Opinion draws on facts from the Declaration of Christopher Ozard (“Ozard Decl.”
(Dkt. #11)), and the exhibits attached thereto: the parties’ project-labor agreement (the
“PLA” (Dkt. #11-1–11-2)); the collective bargaining agreement upon which the PLA relies
(the “CBA” (Dkt. #11-3)); the Policy for Collection of Employer Contributions referenced
in the PLA and the CBA (the “Collections Policy” (Dkt. 11-4)); the Notice of Hearing
(“Notice of Hearing” (Dkt.#11-5)); and the Opinion and Default Award that Petitioners
seek to confirm (“Award” (Dkt. #11-6)).
The Court also cites to the Declaration of Todd Dickerson (“Dickerson Decl.” (Dkt. #12)),
and the exhibit attached thereto, which comprises Virginia & Ambinder, LLP’s (“V&A”)
billing records and itemization of costs of suit (“Time Sheets” (Dkt. #12-1)).
Finally, this Opinion cites to the Complaint (“Compl.” (Dkt. #1) and to Petitioners’ Local
Civil Rule 56.1 Statement of Material Facts (“Pet’rs 56.1” (Dkt. #13)), the latter of which
is uncontested. For ease of reference, the Court refers to Petitioners’ brief in support of
their motion for summary judgment as “Pet’rs Br.” (Dkt. #14).
2
of Carpenters (the “Union”) is a labor organization that represents employees in
an industry affecting commerce within the meaning of section 501 of the
LMRA, 29 U.S.C. § 142, and is the certified bargaining representative for
certain of Respondent’s employees. (Compl ¶¶ 4-7). Respondent is “a domestic
limited liability corporation incorporated under the laws of the State of New
York.” (Id. at ¶ 8).
This case arises from Respondent’s alleged breach of a project laboragreement (the “PLA’”) with the Union, covering specified construction work on
a project known as the IS 223 (Brooklyn) - Flood Elimination (the “Project”).
(Pet’rs 56.1 ¶¶ 1-7; see also Ozard Decl. ¶¶ 9-10). The PLA bound Respondent
to the collective bargaining agreement (the “CBA”) between the Building
Contractors Association, Inc. and the Union. (PLA, art. 2, § 4). At issue in this
case, “[t]he CBA requires Respondent to furnish its books and payroll records
when requested by the Funds for the purpose of conducting an audit to ensure
compliance with required benefit fund contributions, and to remit
contributions to the Funds for every hour worked by Respondent’s employees
on the Project.” (Ozard Decl. ¶ 11 (citing CBA, art. XIV, § 1)). Furthermore,
both the PLA and the CBA bind employers to the “Collections Policy.” (See PLA,
art. 11, § 2(b); CBA, art. XVI, § 3). In relevant part, the Collections Policy
states:
In the event that an employer refuses to permit a payroll
review and/or audit upon request … the Fund Office
shall determine the estimated amount of the employer’s
delinquent contributions based on the assumption that
the employer’s weekly hours subject to contributions for
each week of the requested audit period are the highest
3
number of average hours reported per week for any
period of four consecutive weeks during the audit
period.
(Ozard Decl. ¶ 13 (citing Collections Policy § IV(12))).
Equally relevant here, at Article XVI, Section 7, the CBA outlines a
grievance procedure requiring any complaint that is not resolved through
negotiation to be submitted to arbitration. (CBA, art. XVI, § 7). Section 6(a), in
turn, provides that
in the event that formal proceedings are instituted
before a court of competent jurisdiction by the trustees
of a Benefit Fund or Funds to collect delinquent
contributions to such Fund(s), and if such court
renders a judgment in favor of such Fund(s), the
Employer shall pay to such Fund(s) … (4) reasonable
attorney’s fees and costs of the action.
(Id. at § 6(a)).
The dispute giving rise to the instant litigation began when Respondent
failed to permit Petitioners to conduct an audit from August 20, 2013, through
the present, in violation of the CBA. (Notice of Hearing). 2 Petitioners initiated
an arbitration before the CBA-designated arbitrator (the “Arbitrator”), and the
dispute was submitted to arbitration. (Id.; Pet’rs 56.1 ¶ 14).
On January 9, 2018, the Arbitrator held a hearing, at which no one
appeared on behalf of Respondent. (Award 1). The Arbitrator proceeded to
hear the testimony of Petitioners and
found that Respondent violated the CBA when it failed
to permit an audit covering August 20, 2013 through
2
The Court draws the terminal date of “the present” from Petitioners’ submissions, but
recognizes that the date of the Notice of Hearing was October 5, 2017, and that the date
of the Award was January 12, 2018.
4
the present, and ordered Respondent to pay the Funds
the sum of $679,875.88, consisting of an estimated
principal deficiency of $510,313.05, interest of
$65,100.22, liquidated damages of $102,062.61, court
costs of $400, attorneys’ fees of $1,500, and the
arbitrator’s fee of $500.
(Pet’rs 56.1 ¶ 16; see also Award 2-3). In addition, interest was to accrue on
the award “at the rate of 5.75 % from the date of [the] award.” (Pet’rs 56.1
¶ 17; see also Award 2-3). To date, Respondent has not complied with the
terms of the Award. (Pet’rs 56.1 ¶ 20).
B.
Procedural Background
Petitioners brought the instant action against Respondent on April 5,
2018. (Dkt. #1). In response to this Court’s June 13, 2018 Order (Dkt. #9), on
July 6, 2018, Petitioners filed a motion for summary judgment and supporting
papers (Dkt. #10-15). In addition to seeking to confirm the arbitration award,
and to include post-judgment interest at the statutory rate, 3 Petitioners ask
this Court to award $3,300.50 in attorneys’ fees and $103.96 in legal costs.
(Pet’rs Br. 5). 4
3
Under 28 U.S.C. § 1961, awards of post-judgment interest in actions to confirm
arbitration are mandatory. See, e.g., Trs. of N.Y.C. Dist. Council of Carpenters Pension
Fund, Welfare Fund, Annuity Fund v. DV I, LLC, No. 17 Civ. 7367 (PAE), 2018 WL
461244, at *6 (S.D.N.Y. Jan. 18, 2018).
4
The requested costs exclude the $400 court filing fee, which was included in the Award.
(Dickerson Decl. ¶ 9; see also Award 3).
5
DISCUSSION
A.
The Court Confirms the Arbitration Award
1.
Applicable Law
“The LMRA establishes a federal policy of promoting ‘industrial
stabilization through the collective bargaining agreement,’ with particular
emphasis on private arbitration of grievances.” Nat’l Football League Mgmt.
Council v. Nat’l Football League Players Ass’n, 820 F.3d 527, 536 (2d Cir. 2016)
(quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S.
574, 578 (1960)). 5 Accordingly, judicial “review of an arbitration award under
the LMRA is … ‘very limited.’” Id. (quoting Major League Baseball Players Ass’n
v. Garvey, 532 U.S. 504, 509 (2001) (per curiam)). “[U]nless the award is
procured through fraud or dishonesty … the arbitrator’s factual findings,
interpretation of the contract[,] and suggested remedies” are binding on the
reviewing court. Trs. of the N.Y.C. Dist. Council of Carpenters Pension Fund v.
High Performance Floors Inc., No. 15 Civ. 781 (LGS), 2016 WL 3194370, at *2
(S.D.N.Y. June 6, 2016) (first alteration in original) (internal quotation marks
omitted) (quoting Local 97, Int’l Bhd. of Elec. Workers, A.F.L.-C.I.O. v. Niagara
5
The LMRA, not the Federal Arbitration Act (the “FAA”), governs this Court’s review of
Petitioners’ motion to confirm. “[I]n cases brought under Section 301 of the [LMRA] …
the FAA does not apply.” Coca-Cola Bottling Co. of N.Y. v. Soft Drink & Brewery Workers
Union Local 812 Int’l Bhd. of Teamsters, 242 F.3d 52, 53 (2d Cir. 2001). And
Section 301 of the LMRA “serves as the foundation for a substantive body of federal law
that is ‘analytically distinct from the [FAA].’” 1199 SEIU United Healthcare Workers E. v.
Lily Pond Nursing Home, No. 07 Civ. 408 (JCF), 2008 WL 4443945, at *3 (S.D.N.Y.
Sept. 29, 2008) (quoting Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 221 (2d
Cir. 2002)). Nonetheless, “the FAA is useful as a source of principles to guide the
development of law under LMRA § 301 … particularly [ ] in the context of a petition to
confirm or vacate an arbitration award.” Id. Both statutes call for courts to be
“extremely deferential” when reviewing arbitration awards. Supreme Oil Co. v. Abondolo,
568 F. Supp. 2d 401, 405 (S.D.N.Y. 2008).
6
Mohawk Power Corp., 196 F.3d 117, 124 (2d Cir. 1999)), reconsideration
denied, 2016 WL 3911978 (S.D.N.Y. July 15, 2016).
A court may not “review the arbitrator’s decision on the merits despite
allegations that the decision rests on factual errors or misinterprets the parties’
agreement, but” instead may “inquire only as to whether the arbitrator acted
within the scope of his authority as defined by the collective bargaining
agreement.” Nat’l Football League, 820 F.3d at 536. A reviewing court’s “task
is simply to ensure that the arbitrator was ‘even arguably construing or
applying the contract and acting within the scope of his authority’ and did not
‘ignore the plain language of the contract.’” Id. at 537 (quoting United
Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987)). “As
long as the award ‘draws its essence from the collective bargaining agreement
and is not merely the arbitrator’s own brand of industrial justice,’ it must be
confirmed.” Id. (quoting Int’l Bhd. of Elec. Workers, Local 97 v. Niagara Mohawk
Power Corp., 143 F.3d 704, 714 (2d Cir. 1998)).
Thus, “[c]onfirmation of a labor arbitration award under LMRA § 301 is a
summary proceeding that merely makes what is already a final arbitration
award a judgment of the Court.” Trs. for the Mason Tenders Dist. Council
Welfare Fund, Pension Fund, Annuity Fund & Training Program Fund v. Odessy
Constructioncorp, No. 14 Civ. 1560 (GHW), 2014 WL 3844619, at *1 (S.D.N.Y.
Aug. 1, 2014) (internal quotation marks omitted) (quoting N.Y. Med. Ctr. of
Queens v. 1199 SEIU United Healthcare Workers E., No. 11 Civ. 4421 (ENV)
(RLM), 2012 WL 2179118, at *4 (E.D.N.Y. June 13, 2012)). “When a petition to
7
confirm an arbitration award is unopposed, courts should generally treat ‘the
petition and accompanying record ... as akin to a motion for summary
judgment.’” Id. at *2 (omission in original) (quoting D.H. Blair & Co. v.
Gottdiener, 462 F.3d 95, 109 (2d Cir. 2006)). “Thus, like unopposed summary
judgment motions, unopposed confirmation petitions ‘must fail where the
undisputed facts fail to show that the moving party is entitled to judgment as a
matter of law.’” Id. (quoting D.H. Blair & Co., 462 F.3d at 110).
2.
Analysis
Viewed in light of the LMRA, the undisputed facts of this case make plain
that the Court must confirm the Award. The CBA required Respondent to
submit to an audit of its books and records to determine whether it had
remitted all the contributions it owed to the Petitioners. In addition, the PLA
entitled Petitioners to pursue arbitration if Respondent failed to so submit.
Petitioners determined that Respondent failed to permit such an audit covering
the time from August 20, 2013, to the present. Petitioners filed a Demand for
Arbitration, and served Respondent with the Notice of Hearing. (Notice of
Hearing). On the basis of the CBA and the unopposed testimony of Charles
Virginia, Esq., appearing on behalf of Petitioners, the Arbitrator found
Respondent “in violation of the Collective Bargaining Agreement for its failure
to permit the Funds’ auditors to examine its Books & Records for the period
8/20/2013 through [the Date of the Award.]” (Award 2). The Arbitrator
rendered a written decision directing Respondent to pay a total amount of
8
$510,313.05 plus interest, liquidated damages, as well as the Arbitrator’s fee.
(See id.).
Put simply, the Arbitrator properly construed and applied the CBA when
it issued the Award. The LMRA, in turn, requires the Court to confirm the
Award.
B.
The Court Grants Petitioners’ Application for Attorney’s Fees and
Costs
1.
Applicable Law
“Generally, ‘in a federal action, attorney’s fees cannot be recovered by the
successful party in the absence of statutory authority for the award.’” Trs. of
the N.Y.C. Dist. Council of Carpenters Pension Fund v. Formula 1 Builders, LLC,
No. 17 Civ. 1234 (GHW), 2017 WL 1483369, at *4 (S.D.N.Y. Apr. 25, 2017)
(quoting Int’l Chem. Workers Union, Local No. 227 v. BASF Wyandotte Corp., 774
F.2d 43, 47 (2d Cir. 1985)). “Section 301 of the LMRA does not provide for the
recovery of attorneys’ fees.” Id. However, an award of attorneys’ fees and court
costs is proper when consistent with the parties’ contractual obligations under
the CBA. See N.Y.C. Dist. Council of Carpenters v. JFD Sales Consulting Servs.
Corp., No. 17 Civ. 3733 (LGS), 2017 WL 4736742, at *2 (S.D.N.Y. Oct. 19,
2017). When the contract requires payment, the prevailing parties can recover
attorney’s fees.
In addition, a court may “exercise its inherent equitable powers to award
attorney’s fees when opposing counsel acts in bad faith.” N.Y.C. Dist. Council of
Carpenters v. Gen-Cap Indus., Inc., No. 11 Civ. 8425 (JMF), 2012 WL 2958265,
at *5 (S.D.N.Y. July 20, 2012). “In confirmation proceedings, ‘the guiding
9
principle has been stated as follows: [W]hen a challenger refuses to abide by
an arbitrator’s decision without justification, attorney’s fees and costs may
properly be awarded.’” Trs. of the N.Y.C. Dist. Council of Carpenters Pension
Fund, Welfare Fund, Annuity Fund, Apprenticeship, Journeyman, Retraining,
Educ. & Indus. Fund v. Mountaintop Cabinet Mfr. Corp., No. 11 Civ. 8075 (JMF),
2012 WL 3756279, at *4 (S.D.N.Y. Aug. 29, 2012) (quoting N.Y.C. Dist. Council
of Carpenters Pension Fund v. Angel Const. Grp., LLC, No. 08 Civ. 9061 (RJS),
2009 WL 256009, at *2 (S.D.N.Y. Feb. 3, 2009)).
Determining whether attorneys’ fees are reasonable requires a court to
assess that attorney’s hourly rate and the number of hours he or she billed at
that rate. “A reasonable hourly rate is ‘what a reasonable, paying client would
be willing to pay.’” N.Y.C. & Vicinity Dist. Council of Carpenters v. Plaza Constr.
Grp., Inc., No. 16 Civ. 1115 (GHW), 2016 WL 3951187, at *2 (S.D.N.Y. July 19,
2016) (quoting Watkins v. Smith, No. 12 Civ. 4635 (DLC), 2015 WL 476867, at
*3 (S.D.N.Y. Feb. 5, 2015)). An hourly rate is considered reasonable when it is
comparable to the prevailing rates in the community for similar services by
lawyers of commensurate skill. Trs. of N.Y.C. Dist. Council of Carpenters
Pension Fund v. Dejil Sys., Inc., No. 12 Civ. 5 (JMF), 2012 WL 3744802, at *4
(S.D.N.Y. Aug. 29, 2012). And “[h]ours that are excessive, redundant, or
otherwise unnecessary, are to be excluded from the calculation of a reasonable
fee.” Plaza Constr. Grp., 2016 WL 3951187, at *2 (internal quotation marks
and citation omitted).
10
As for costs, judges in this District “routinely permit[ ]” attorneys to
recoup “filing fees, service of process fees, charges for delivery of the summons
and petition to the process server, and for service of orders and motion papers
on” an opposing party. Plaza Constr. Grp., 2016 WL 3951187, at *2.
2.
Analysis
Petitioners seek $3,405.46 in attorneys’ fees and costs. Because
Respondent agreed to a CBA that specified for the recovery of fees and costs in
these circumstances; failed to participate in the initial arbitration after
receiving notice; and did not oppose the Petitioners’ application for
confirmation of the arbitration award, the Court concludes that Petitioners are
entitled to recover their and costs from the instant action. And because the
fees and costs Petitioners have requested are reasonable, the Court grants their
request in full.
First, the requested $3,300.50 fee is reasonable. In support of that
request, Petitioners submitted time records documenting the hours worked and
activities performed in support of this action. (See Time Sheets). A total of
16.60 hours of work were completed by two associates, who billed at $275 per
hour, one “of counsel,” who billed at $350 per hour, and several legal
assistants and law clerks, who billed at $120 per hour. (See id.). On review of
the contemporaneous time records, compared against the prevailing rates in
the community, the amounts requested are reasonable. See, e.g., Trs. of the
N.Y.C. Dist. Council of Carpenters Pension Fund v. Coastal Envtl. Grp., Inc., No.
16 Civ. 6004 (GHW), 2016 WL 7335672, at *4 (S.D.N.Y. Dec. 16, 2016) (noting,
11
in 2016, that rates of $300 per hour for “of counsel,” $225 per hour for
associates and law clerks, and $100 per hour for paralegals were reasonable).
In addition, other judges in the Second Circuit have awarded similar fees in
confirmation proceedings for V&A attorneys and legal assistants. See, e.g., Trs.
of N.Y. Dist. Council of Carpenters Pension Fund v. Metro. Fine Mill Work Corp.,
No. 14 Civ. 2509 (PAE), 2015 WL 2234466, at *5 (S.D.N.Y. May 12, 2015)
(approving rates of $225 for V&A’s associates and $100 for its legal assistants).
This Court finds that the billing rate and hours are reasonable and grants the
application for $3,300.50.
This Court also finds that Petitioners’ request for $100.96 in costs is
reasonable. This figure consists primarily of the $95.00 court service fee, along
with miscellaneous mailing costs. (See Time Sheets). “Recovery of such costs
is routinely permitted.” Plaza Constr. Grp., Inc., 2016 WL 3951187, at *2.
CONCLUSION
For the reasons set forth above, Petitioners’ motion for summary
judgment to confirm the Award is GRANTED. The Clerk of Court shall enter
judgment for Petitioners and against Respondent in the amount of
$683,281.34, which consists of the arbitration award of $679,875.88 plus
$3,405.46 in attorneys’ fees and costs. Post-judgment interest will accrue at
the statutory rate pursuant to 28 U.S.C. § 1961.
The Clerk of Court is directed to terminate all pending motions, adjourn
all remaining dates, and close this case.
12
SO ORDERED.
Dated:
November 27, 2018
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?