Metzgar et al v. U.A. Plumbers and Steamfitters Local No. 22 Pension Fund et al

Filing 125

DECISION AND ORDER GRANTING Defendants' Request as set forth in Defendants' Affirmation in Support of Award for Attorneys' Fees 85 . Plaintiff shall tender Plaintiff's check in the amount of $ 3,719.25 to Defendants' attorneys WITHIN 30 DAYS of this Decision and Order. Signed by Hon. Leslie G. Foschio on 5/8/2018. (TAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
GARY METZGAR, RICHARD MUELLER,
KEVIN REAGAN, RONALD REAGAN,
CHARLES PUGLIS, SHERWOOD NOBLE,
DANIEL O’CALLAGHAN,
Plaintiffs,
v.

DECISION
and
ORDER
13-CV-85V(F)

U.A. PLUMBERS AND STEAMFITTERS LOCAL
NO. 22 PENSION FUND,
BOARD OF TRUSTEES OF U.A. PLUMBERS AND
STEAMFITTERS LOCAL NO. 22 PENSION FUND, and
DEBRA KOROPOLINSKI, in her capacity as Plan
Administrator, for the U.A. Plumbers and Steamfitters
Local 22 Pension Fund,
Defendants.
________________________________________
APPEARANCES:

CHRISTEN ARCHER PIERROT, ESQ.
Attorney for Plaintiffs
3959 N. Buffalo Road
Orchard Park, New York 14052
COLLIGAN LAW LLP
Attorneys for Plaintiffs
A. NICHOLAS FALKIDES,
MATTHEW K. PELKEY, of Counsel
12 Fountain Plaza, Suite 600
Buffalo, New York 14202
BLITMAN & KING
Attorneys for Defendants
DANIEL R. BRICE,
JULES L. SMITH, of Counsel
The Powers Building
16 West Main Street, Suite 207
Rochester, New York 14614

In this ERISA action Plaintiffs allege violations of ERISA’s anti-cutback
prohibitions and related rules. In its Decision and Order filed August 29, 2017 (Dkt. 77)
(“the D&O”), the court granted Defendants’ motion to compel complete responses to

Defendants’ Interrogatories, particularly Interrogatory No. 4 and to schedule Plaintiffs’
depositions (“Defendants’ motion”) and denied Plaintiffs’ cross-motion to consolidate
and stay discovery. The court also directed Plaintiffs to show cause why Defendants
should not be awarded expenses pursuant to Fed.R.Civ.P. 37(b)(2)(C) and 37(d)(3) in
connection with Defendants’ motion. Thereafter, Plaintiffs moved for reconsideration of
the D&O and stated Plaintiffs’ opposition to an award of Defendants’ expenses relating
to Defendants’ motion (Dkt. 83). By Decision and Order filed October 17, 2017 (Dkt.
84), the court found Plaintiffs’ failure to provide discovery and schedule Plaintiffs’
deposition was not substantially justified nor would such an award be unjust in the
circumstances. The court therefore directed Defendants to file Defendants’ attorney
affidavit of expenses within 14 days or October 31, 2017 with which Defendants’
complied by filing on that date an Affirmation In Support Of Award For Attorneys’ Fees
(“Defendants’ Request”) (Dkt. 85). Plaintiffs were directed to file Plaintiffs’ opposition
within 14 days thereafter. However, to date, Plaintiffs have failed to oppose
Defendants’ Request in compliance with the court’s scheduling order.
In Defendants’ Request, Defendants asserted that supporting Defendants’
motion required 8.55 hours of attorney time for two attorneys – Mr. Jules L. Smith, an
experienced attorney – 45 years – specializing in ERISA related legal work and Mr.
Daniel R. Brice with 14 years of experience. The billing rate for both attorneys is
$435/hr. Mr. Smith avers that the statement of expenses was carefully reduced to only
time incurred by Mr. Smith and Mr. Brice on Defendants’ motion, and no time for related
matters was included. Significantly, as noted, Plaintiffs’ failure to timely oppose
Defendants’ Request indicates to the court Plaintiffs acquiesce in Defendants’ Request.
Roth v. 2810026 Canada Limited Ltd., 2017 WL 1337572, at *2 (W.D.N.Y. Apr. 12,
2

2017) (declining to reconsider earlier decision granting defendant’s attorneys fees
request which plaintiffs failed to timely oppose and court considered such failure to be
concession as to the reasonableness of defendant’s expenses).

CONCLUSION
Based on the foregoing, Defendants’ Request is GRANTED. Plaintiffs shall
tender Plaintiffs’ check in the amount of $3,719.25 to Defendants’ attorneys within 30
days of this Decision and Order.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: May 8th, 2018
Buffalo, New York

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