Rochester Laborers' Welfare-S.U.B. Fund by Robert Brown as Chairman, and Daniel Hogan as Secretary et al v. Akwesasne Construction Inc.

Filing 99

DECISION AND ORDER: Because neither Defendants nor their attorneys - Underberg & Kessler LLP, Jennifer A. Shoemaker, and/or Aaron Griffin - filed a proper motion to withdraw, Defendants remain represented by counsel, and the Court declines to conside r Cardinell's pro se letter. Therefore, Plaintiffs' motion to strike 96 is GRANTED.Plaintiffs' supplemental motion for summary judgment 92 is GRANTED IN PART and DENIED IN PART without prejudice. Plaintiffs are entitled to $349,086.79 against Akwesasne in unpaid contributions, interest, and liquidated damages, and Cardinell is jointly and severally liable for a portion of those damages - namely, $89,223.17 in unpaid contributions and interest. The Court will assess Plaintiffs' requests for audit fees, attorney's fees, and costs when they file their renewed motion, which is due by December 14, 2020.Insofar as Defendants remain represented, the Court presumes that defense counsel will communicate this order, and any future orders, to Defendants.SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 11/13/2020. (MFM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROCHESTER LABORERS’ WELFARE-S.U.B. FUND,
et al.,
Plaintiffs,
Case # 15-CV-6757-FPG
v.
DECISION AND ORDER

AKWESASNE CONSTRUCTION, INC., et al.,
Defendants.

In December 2015, Plaintiffs brought this action against Defendant Akwesasne
Construction Inc. (“Akwesasne”), seeking to recover allegedly unpaid contributions due under
various collective bargaining agreements. ECF No. 1. In November 2016, Plaintiffs filed an
amended complaint adding Defendant Francis F. Cardinell, Jr. to the action. ECF No. 21. In
September 2019, the Court granted in part Plaintiffs’ motion for summary judgment. ECF No. 63.
The Court concluded that Plaintiffs established Defendants’ liability as a matter of law, but denied
without prejudice Plaintiffs’ motion insofar as it concerned damages. The Court instead granted
Plaintiffs’ request to conduct a payroll audit, and it ordered Defendants to produce all their records
for the period between July 24, 2016 to date. Id. at 10.
When Defendants did not comply with that order, the Court issued an Order to Show Cause.
ECF No. 66. Thereafter, the parties litigated the issue of “Defendants’ compliance with [the
payroll audit] order.” ECF No. 91 at 1. After a number of hearings and conferences, the Court
declined to find Defendants in contempt—it stated that although Cardinell had “been unable to
produce every document that Plaintiffs [] requested,” he had made diligent efforts to do so, and
had in fact produced “stacks of payroll documents.” Id. at 2. The Court therefore ordered Plaintiffs

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to file a supplemental motion for summary judgment on the issue of damages. Id. at 3. The Court
cautioned Defendants and their counsel that it expected “all submissions by Defendants [to] be
made through counsel.” Id.
On September 14, 2020, Plaintiffs filed their supplemental motion for summary judgment.
ECF No. 92. Defendants did not file any opposition through defense counsel. Instead, Cardinell,
acting pro se, submitted a one-page letter contesting Plaintiffs’ motion. ECF No. 94. Plaintiffs
responded by filing a motion to strike Cardinell’s pro se letter, on the ground that it violated the
Court’s previous order. ECF No. 96.
The Court first addresses the motion to strike. The Court previously warned Defendants
that “a party may not proceed in federal courts represented by counsel and simultaneously appear
pro se.” ECF No. 91 at 3. During the contempt proceedings, the Court had given some leeway to
Defendants and their counsel because “Cardinell was in a better position to respond to Plaintiffs’
production requests,” but the August 20, 2020 Order made clear that it would not do so moving
forward. The Court explicitly warned Defendants and their counsel that it intended “strike any
submission that Mr. Cardinell files pro se.” Id. Nevertheless, Cardinell proceeded to file a pro se
letter on behalf of himself and—though he cannot do so—Akwesasne. See Donoghue v. Think
P’ship Inc., No. 07-CV-4240, 2008 WL 11449242, at *2 (E.D.N.Y. Sept. 29, 2008) (“[I]t is well
established in the Second Circuit that corporate entities cannot appear pro se.”). Given the Court’s
prior, explicit warning, the Court strikes the letter and will not consider it. 1

1

Regardless, Cardinell’s arguments are not persuasive. First, he argues that Plaintiffs’ claim that he owes “over
$400,000” is inconsistent with their settlement offer of $80,000. ECF No. 94 at 1. However, a settlement offer is not
admissible evidence of the “validity or amount of a disputed claim.” Fed. R. Ev. 408(a); Trebor Sportswear Co., Inc.
v. The Limited Stores, Inc., 865 F.2d 506, 510 (2d Cir. 1989). Second, he contends that he paid some employees
directly for unpaid contributions, pursuant to a New York Department of Labor settlement. See ECF No. 94 at 1; ECF
No. 59-1. But where, as here, the CBAs require that employee benefits be paid to the funds, “[p]aying benefits to
employees is not a substitute for this obligation.” Nesse v. Green Nature-Cycle, LLC, No. 18-CV-636, 2020 WL
733103, at *5 (D. Minn. Feb. 13, 2020); see also ECF No. 48-3 at 50, 102-04, 155-57.

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The Court recognizes that this may appear to be a harsh result in light of the apparent
breakdown of the attorney-client relationship, which the Court previously highlighted. See ECF
No. 91 at 3. But it is worth emphasizing that the Court gave Defendants and their counsel a full
opportunity for counsel to withdraw, so long as the motion conformed with the Local Rules. See
id. They did not file anything in response, let alone a conforming motion. In short, it is wellsettled that a court may refuse “to accept pro se submissions once an attorney has been retained,”
Mitchell v. Senkowski, 489 F. Supp. 2d 147, 149 (N.D.N.Y. 2006), and because Underberg &
Kessler LLP remains listed as counsel for Defendants, the Court declines to consider Cardinell’s
pro se letter.
The Court turns to the summary judgment motion. Because Defendants failed to file a
proper opposition to Plaintiffs’ motion, the Court treats Plaintiffs’ proffered facts as “undisputed
for purposes of the motion.” Fed. R. Civ. P. 56(e)(2); Jackson v. Fed. Express, 766 F.3d 189, 194
(2d Cir. 2014); see also FirstStorm Partners 2, LLC v. Vassel, No. 10-CV-2356, 2013 WL 654396,
at *15 (E.D.N.Y. Feb. 21, 2013) (noting that defense counsel’s actions, like a failure to abide by
rules and deadlines, “is imputed to his client”). “However, [e]ven when a motion for summary
judgment is unopposed, the district court is not relieved of its duty to decide whether the movant
is entitled to judgment as a matter of law.” Charter Oak Fire Ins. Co. v. Fleet Bldg. Maintenance,
Inc., 707 F. Supp. 2d 329, 333 (E.D.N.Y. 2009) (internal quotation marks omitted). Since
Defendants’ liability has already been established, ECF No. 63 at 10, the Court need only
determine whether Plaintiffs have presented sufficient record evidence to demonstrate the extent
of their damages.
The Court begins by addressing the damages pertaining to Akwesasne. Plaintiffs’ claims
against Akwesasne arise under the Employee Retirement Income Security Act of 1974 (“ERISA”),

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29 U.S.C. §§1001, et seq., and the Labor-Management Relations Act of 1947 (“LMRA”), 29
U.S.C. §185(a). See ECF No. 21 at 1-2. Under ERISA, employers obligated to “make [benefit]
contributions within the meaning of the statute must do so in accordance with the relevant
multiemployer plan or CBA,” Arch Ins. Co. v. DCM Grp. LLC, No. 11-CV-930, 2012 WL
3887098, at *3 (E.D.N.Y. Aug. 2, 2012), and, if left unpaid, they may be held liable for unpaid
contributions, interest on those contributions, liquidated damages, and attorney’s fees and costs.
Trs. of the Pavers & Road Builders Dist. Council Welfare v. Arbor Concrete Corp., No. 15-CV2481, 2015 WL 9598872, at *2 (E.D.N.Y. Dec. 15, 2015). Under the LMRA, a union may bring
suit against an employer for violation of a collective bargaining agreement. See Arch Ins. Co.,
2012 WL 3887098, at *3. Like ERISA, the CBAs in this case provide for awards of interest,
liquidated damages, and attorney’s fees and costs where an employer fails to make the required
contributions. See, e.g., ECF No. 48-3 at 302, 471, 484.
Consistent with ERISA and the CBAs, Plaintiffs request damages in the amount of (1) the
unpaid contributions, deductions, and dues; (2) interest on those delinquencies; and (3) liquidated
damages. The Court has reviewed the materials that Plaintiffs submitted with their present and
previous motions for summary judgment. ECF Nos. 48, 92.
First, Plaintiffs claim that unpaid contributions and dues amount to $119,919.56. See ECF
No. 48-3 at 15-19; ECF No. 92-1 at 4. In light of the evidence presented and Defendants’ nonopposition, the Court accepts Plaintiffs’ proffered damages, and, under ERISA and the CBAs, they
are entitled to unpaid contributions in that amount. See Arbor Concrete Corp., 2015 WL 9598872,
at *2.
Second, Plaintiffs calculate interest in the amount of $114,451.39, which is based on the
collective bargaining agreements’ rate of 1.5% per month for certain unpaid ERISA contributions

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and 9% per year for other unpaid deductions. 2 See ECF No. 48-3 at 10-11, 15-19; ECF No. 92-2
at 2. The Court finds such interest appropriate under ERISA and the CBAs. See Arbor Concrete
Corp., 2015 WL 9598872, at *2; ECF No. 48-3 at 10-11 (citing relevant language in the CBAs).
Third, Plaintiffs seek liquidated damages in the amount of $114,715.84. See ECF No. 483 at 15-19; ECF No. 92-1 at 4; ECF No. 92-2 at 2. ERISA and the CBAs both permit such relief.
See Arbor Concrete Corp., 2015 WL 9598872, at *4 (under ERISA, laborer funds entitled to
liquidated damages equal to “the greater of twenty percent (20%) of the total amount of
contributions or the interest due on unpaid contributions”); ECF No. 48-3 at 10-11 (citing relevant
contractual provisions). Plaintiffs are entitled to liquidated damages in that amount.
Thus, in total, Plaintiffs are entitled to $349,086.79 against Akwesasne in unpaid
contributions, interest, and liquidated damages.
Concerning Cardinell individually, Plaintiffs seek to hold him liable on the theory that he
was a fiduciary who “breached his fiduciary duties” by failing to “pay the contributions to
Plaintiffs.” ECF No. 48-6 at 25. They request $69,893.34 in unpaid contributions and $19,329.83
in interest, which covers the income Plaintiffs would have generated had the contributions been
timely paid. See ECF No. 48-3 at 20-21; ECF No. 92-1 at 4-6; ECF No. 92-3 at 6.
The Court previously granted summary judgment against Cardinell on this theory of
liability. See ECF No. 48-6 at 23-26; ECF No. 63 at 1, 10. Cardinell is thus liable for the unpaid
contributions. See Engineers Joint Welfare Fund v. C. Destro Dev. Co., Inc., 178 F. Supp. 3d 27,
38 (N.D.N.Y. 2016). As to interest, the Court has reviewed the materials pertaining to Plaintiffs’

2

The collective bargaining agreements do not specify the interest rate for delinquent “dues deductions, PAC monies
and ASP monies.” ECF No. 48-3 at 11. Plaintiffs calculate interest on those delinquencies at the New York statutory
rate, id., which the Court finds appropriate. See, e.g., Trs. of Local 7 Tile Indus. Welfare Fund v. Caesar Max Constr.
Inc., No. 18-CV-1339, 2019 WL 1130727, at *10 (E.D.N.Y. Feb. 11, 2019) (“[W]here a collective bargaining
agreement does not identify an interest rate for unpaid dues, courts award interest at the New York statutory rate of
9% per annum.”); id. (noting that, for delinquencies not covered by ERISA, an award of prejudgment interest is
“within the Court’s discretion”).

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rate of return, ECF No. 48-3 at 20; ECF No. 92-1 at 5, and finds that Plaintiffs’ interest calculations
are reasonable and adequately serve to place Plaintiffs “in the position [they] would have occupied
but for the breach.” Destro Dev. Co., 178 F. Supp. 3d at 38.
Accordingly, Plaintiffs are entitled to $89,223.17 against Cardinell in unpaid contributions
and interest.
Next, Plaintiffs request audit fees, attorney’s fees, and costs against both Defendants. See
ECF No. 92-4 at 7. The Court declines to address these items at this time. Plaintiffs indicate that
they intend to file another request for attorney’s fees and costs “incurred by Plaintiffs subsequent
to August 24, 2020.” ECF No. 92-5 at 4. The Court concludes that these items are better addressed
together in one motion rather than piecemeal. Furthermore, because the Court is deferring
judgment on audit fees, attorney’s fees, and costs, Plaintiffs will have an opportunity to address
two issues:
(1) It is unclear what theory Plaintiffs are relying on to hold Cardinell individually
liable for audit fees. Some filings suggest that Cardinell is contractually liable
for audit fees, see ECF No. 48-3 at 22, while others seem to premise such relief
on provisions of ERISA, though the sections in question do not explicitly
address audit fees. See ECF No. 92-5 at 4 (citing 29 U.S.C. §§ 1106, 1109,
1132(g)(1)); see also ECF No. 48-6 at 26-29. Plaintiffs should clarify and
provide legal support for their position.
(2) Plaintiffs indicate that they do not intend to “recover from Defendant Cardinell
any debt arising before his March 9, 2015 bankruptcy filing.” ECF No. 48-6 at
9 n.1. However, their present request for audit and attorney’s fees appears to
include services that pre-dated Cardinell’s bankruptcy petition. Compare ECF
No. 48-6 at 28 (indicating that Cardinell would only be liable for $9,893.55 in
audit fees and $45,512.62 in attorney’s fees and costs for the period before June
2018), with ECF No. 92-4 at 2, 5-7 (suggesting that Cardinell would be liable
for $14,298.23 in audit fees and $46,491.95 in attorney’s fees and costs for the
period before June 2018). Plaintiffs should re-examine their calculations and
clarify their position.
Plaintiffs shall file their renewed motion for attorney’s fees, audit fees, and costs, by December
14, 2020. The Court will issue a scheduling order thereafter.

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CONCLUSION
Because neither Defendants nor their attorneys—Underberg & Kessler LLP, Jennifer A.
Shoemaker, and/or Aaron Griffin—filed a proper motion to withdraw, Defendants remain
represented by counsel, and the Court declines to consider Cardinell’s pro se letter. Therefore,
Plaintiffs’ motion to strike is GRANTED.
Plaintiffs’ supplemental motion for summary judgment is GRANTED IN PART and
DENIED IN PART without prejudice. Plaintiffs are entitled to $349,086.79 against Akwesasne
in unpaid contributions, interest, and liquidated damages, and Cardinell is jointly and severally
liable for a portion of those damages—namely, $89,223.17 in unpaid contributions and interest.
See Bricklayers Ins. & Welfare Fund v. McGovern & Co., LLC, No. 17-CV-6067, 2019 WL
2271942, at *8 (E.D.N.Y. Mar. 6, 2019). The Court will assess Plaintiffs’ requests for audit fees,
attorney’s fees, and costs when they file their renewed motion, which is due by December 14,
2020.
Insofar as Defendants remain represented, the Court presumes that defense counsel will
communicate this order, and any future orders, to Defendants.
IT IS SO ORDERED.
Dated: November 13, 2020
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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