Opinion
No. 5:02-CV-00733 (NPM), No. 5:03-CV-00842 (NPM).
November 22, 2004
Gerald J. Green, Paravati, Karl, Green DeBella, Utica, New York, Attorney for the Plaintiff.
Terry J. Kirwan, Jr., Primo, Primo Kirwan, LLP, East Syracuse, New York, Attorney for the Defendants.
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
Plaintiffs, the trustees of the New York State Teamsters Conference Pension Retirement Fund ("Pension Fund") and the New York State Teamsters Council Health Hospital Fund ("Health Fund") (collectively, "Plaintiffs" or "the Funds") filed two separate actions against defendant, Syracuse Movers, Inc. ("Defendant" or "Syracuse") pursuant to section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, and sections 502 and 515 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. §§ 1132, 1145. On July 21, 2003 this court ordered that both actions be consolidated. Presently before the court is Plaintiffs' motion for summary judgment on the entire consolidated action seeking delinquent contributions, liquidated damages, auditor's fees, interest and attorney's fees. Defendant opposes. The motion was taken on submission without oral argument.
By the consolidation order, the original action, 02-CV-733, filed on June 3, 2002, became the Lead Case, and the latter action, 03-CV-842, filed on July 8, 2003, became the Member Case.
II. BACKGROUND
Initially, there is a procedural issue which shall be addressed. Pursuant to Rule 7.1 of the Local Rules of Practice for the United States District Court for the Northern District of New York, a motion for summary judgment must be accompanied by, among other things, a Statement of Material Facts, wherein each stated fact "shall set forth a specific citation to the record where the fact is established." See L.R. 7.1(a)(3). Also according to Rule 7.1, the opposing party is required to file a response to the movant's statement, indicating whether each fact is admitted and/or denied, and where denied, "a specific citation to the record where the factual issue arises" shall be set forth.Id. Finally, Rule 7.1 clearly states that "[f]ailure of the moving party to submit an accurate and complete Statement of Material Facts shall result in denial of the motion" and "[a]ny facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party." Id. It bears mentioning here that "the Local Rules are not empty formalities." Kilmer v. Flocar, Inc., 212 F.R.D. 66, 69 (N.D.N.Y. 2002). Specifically, Rule 7.1(a)(3), among others, not only "serve[s] to notify the parties of the factual support for their opponent's arguments, but more importantly inform the court of the evidence and arguments in an organized way — thus facilitating its judgment of the necessity for a trial." Id., quoting Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995).
Unfortunately, not one of Plaintiffs' 19 stated facts are supported by a citation to the record as required by Local Rule 7.1. To be sure, Defendant's "Counter Statement of Facts" likewise fails to comply with Rule 7.1, as its denials are anything but specific, nor are they accompanied by a citation to the record where a factual issue arises. While these omissions on the part of Defendant may be due to Plaintiffs' failure to cite to the record in the first instance, in many cases, Defendant fails to explain said omissions. The parties' collective failure to inform the court of the bases in the record for their respective arguments has done anything but facilitate this court's judgment. Nonetheless, in the interest of judicial economy, the court exercises its discretion to "conduct an assiduous review of the record in order to weigh the propriety of granting" plaintiff's motion. Jones v. Smithkline Beecham Corp., 309 F.Supp.2d 343, 346 n. 4 (N.D.N.Y. 2004), citing Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 291 (2d Cir. 2000). Therefore, the following constitutes the court's compilation of established material facts based upon those facts set forth in Plaintiffs' Statement of Undisputed Facts which were admitted by Defendant as well as the pleadings, affidavits and exhibits on file.
The Funds were each created and exist pursuant to respective trust agreements between participating employers and union locals affiliated with the International Brotherhood of Teamsters, A.F.L.-C.I.O. ("Teamsters"), and as such are "multiemployer plans" as defined by ERISA. 29 U.S.C. § 1002(37)(A). See Pls.' Exs. 26, 27, Dkt. No. 34. According to the aforementioned trust agreements, Plaintiffs' trustees are authorized to manage the Funds and as such are "plan sponsors" within the meaning of ERISA, 29 U.S.C. § 1002(16)(B)(iii). See id. Participating employers make contributions to the Funds, and in exchange the Funds provide pension and health benefits to participants. See Pls.' Exs. 24-27.
Copies of certain participation agreements between Syracuse, the Funds and Teamsters Local 317 as well as copies of certain collective bargaining agreements between Syracuse and Teamsters Local 317, to wit, those dated November 1, 1994 through December 31, 2003, were submitted by plaintiffs as exhibits in support of the present motion. See Pls.' Exs. 6-7, 11-17, 20-22. The copies reflect that all agreements were signed by an officer of Syracuse, except the collective bargaining agreement for the period November 1, 1998 through October 31, 1999, wherein Syracuse's signature line is left blank. See Pls.' Ex. 14. By Syracuse's admission, however, it was a participating employer in both Funds and a signatory to the Funds' participation agreements as well as to collective bargaining agreements with Teamsters Local 317. See Lead Compl. and Amended Ans. to Lead Compl. ¶ 10, Lead Dkt. Nos. 1, 11; Member Compl. ¶ 9, Member Dkt. No. 1; Member Ans. ¶ 9, Lead Dkt. No. 23. More specifically, at his deposition, Samuel A. Reilly, Jr., Vice President of Syracuse ("Reilly"), admitted that Syracuse was a party to the November 1, 1998 through October 31, 1999 collective bargaining agreement and that he was the person that negotiated that particular contract.See Pls.' Ex. 10: Dep. of Samuel Adams Reilly, Jr., Mar. 5, 2003, 39:5-9, 21-40:4, Dkt. No. 33.
As a signatory to the Funds' participation agreements during the period November 1, 1994 through December 31, 2003, Syracuse agreed to be bound by the rules and regulations of the Funds, including the requirement that it make certain contributions to the Funds on behalf of its covered employees as defined by the collective bargaining agreements. See Lead Compl. and Amended Ans. to Lead Compl. ¶ 12, Lead Dkt. Nos. 1, 11; Member Compl. ¶ 12, Member Dkt. No. 1; Member Ans. ¶ 12, Lead Dkt. No. 23.
According to the Funds' participation agreements for the period November 1, 1994 through December 31, 1999, Syracuse agreed that it would make contributions to the Funds on behalf of "all employees performing bargaining unit work, and . . . all other employees performing the same work as bargaining unit employees, whether or not they are included in the bargaining unit, whether or not they are union members, whether full time, part time, casual or seasonal." Pls.' Exs. 6, 7, Dkt. No. 33. According to said agreements for the period January 1, 2000 through December 31, 2003, Syracuse agreed that it would make contributions to the Funds on behalf of "all employees doing bargaining unit work irrespective of whether said employees are full time, part time, casual or seasonal." Id.; Pls.' Exs. 22, 23, Dkt. No. 34.
The quoted language between both the Pension and Health Fund participation agreements is identical in all respects except that the Health Fund agreement utilizes the word "doing" instead of the word "performing" to describe covered employees.
By the participation agreements, Syracuse further agreed that the Funds could audit its records and that, in the event an audit disclosed that contributions were not properly made, Syracuse would be liable for all contribution delinquencies, liquidated damages at ten percent of the delinquency amount, audit fees, reasonable attorney's fees and court costs. See Lead Compl. and Amended Ans. to Lead Compl. ¶ 13, Lead Dkt. Nos. 1, 11. See also Pls.' Exs. 6, 7, Dkt. No. 33; Pls.' Exs. 21, 22, Dkt. No. 34.
In approximately February or March 2002, the Funds conducted an audit of Syracuse's records for the period January 1, 1995 through December 31, 2001, which revealed that Syracuse failed to make contributions to plaintiff Pension Fund in the amount of $37,065.80 and to plaintiff Health Fund in the amount of $122,355.50. See Lead Compl. and Amended Ans. to Lead Compl. ¶ 14, Lead Dkt. Nos. 1, 11; Pls.' Exs. 8, 9, Dkt. No. 33. Thereafter, the Pension Fund notified Syracuse of the audit results in writing, and requested payment of $42,633.34, which included the amount of delinquent contributions, ten percent of same in liquidated damages, and an audit fee of $1860.92. See Pls.' Ex. 8, Dkt. No. 33. Contemporaneously with the Pension Fund's letter, the Health Fund issued a letter to notify Syracuse of the audit results and requested payment of $136,452.00, which included the amount of delinquent contributions, ten percent of same in liquidated damages, and an audit fee of $1860.92. See Pls.' Ex. 9, Dkt. No. 33.
On several occasions thereafter, the Funds issued letters to Syracuse notifying it of the results of the audit and demanding payment, but Syracuse never responded to the letters, nor did it remit said payment. See Pls.' Statement of Undisputed Facts at ¶ 13, Dkt. No. 31; Def.'s Counter Statement of Facts at ¶ 13, Dkt. No. 37; Reilly Dep. at 72:16-73:22, Pls.' Ex. 10, Dkt. No. 33. Not only did Syracuse not contact the Funds regarding any of the aforementioned letters or the subject of the delinquent contributions, it failed to seek arbitration or any administrative remedy through either the Funds' Board of Trustees or the Teamsters Local 317. See Reilly Dep. at 72:16-73:22, Pls.' Ex. 10, Dkt. No. 33.
At his deposition, Syracuse's Vice President Reilly testified that all of the employees identified in the Funds' audit reports performed bargaining unit work and he further admitted that he failed to pay contributions to the Funds for any non-union and/or part-time employee even if those employees were performing bargaining unit work. Id. at 79:19-80:11.
On June 3, 2002 the Funds filed suit against Syracuse Movers, now entitled the Lead Case, 02-CV-733, seeking a judgment in the amount of $179,085.34 for delinquent contributions to the Pension and Health Funds, liquidated damages and auditor's fees, plus interest on the delinquent contributions pursuant to 29 U.S.C. § 1132(g)(2)(B), an additional award of the greater of interest or liquidated damages pursuant to 29 U.S.C. § 1132(g)(2)(C), and court costs and attorney's fees pursuant to 29 U.S.C. § 1132(g)(2)(D).
Thereafter, on July 8, 2003, the Funds filed a second suit against Syracuse Movers, now entitled the Member Case, 03-CV-842, which was subsequently consolidated with the Lead Case. In the Member Case the Funds seek a judgment for the post audit period of January 1, 2002 through May 31, 2003 in the amount of $7376.87 for delinquent contributions to the Pension Fund and liquidated damages, $14,290.92 for delinquent contributions to the Health Fund and liquidated damages, as well as interest on the delinquent contributions pursuant to 29 U.S.C. § 1132(g)(2)(B), an additional award of the greater of interest or liquidated damages pursuant to 29 U.S.C. § 1132(g)(2)(C), and court costs and attorney's fees pursuant to 29 U.S.C. § 1132(g)(2)(D).
In support of its request for a judgment for the period January 2002 through May 2003, the Funds submitted an affidavit signed by Kenneth R. Stilwell, Finance Manager for the New York State Benefit Funds, which includes the plaintiff Funds ("Stilwell"). Stilwell is also the direct supervisor to Thomas Nanna, field auditor, who along with John Tierney, conducted the audit of Syracuse in February or March 2002. See Aff. of Kenneth R. Stilwell, Sept. 25, 2003, Dkt. No. 29, Ex. C. Stilwell averred that, based on his experience with Syracuse's records and his understanding that the same number of persons remained in Syracuse's employ doing the same bargaining unit work for the same number of hours during the post audit period of January 2002 through May 2003, he was able to extrapolate the amount of delinquent contributions and liquidated damages owed to the Funds for said period. See id. at ¶¶ 4-5. According to Stilwell, his extrapolated figures are also based upon Syracuse's Employer Report forms which evidence its continuing failure to remit contributions to the Funds on behalf of its covered employees during the stated period. See id. at ¶ 6. See also Pls.' Ex. 23, Dkt. No. 33.
Both suits were consolidated on July 21, 2003 and shortly thereafter, the Funds filed the present motion for summary judgment on the entire action.
III. DISCUSSION
A. Summary Judgment Standard
A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Peck v. Public Serv. Mut. Ins. Co., 326 F.3d 330, 337 (2d Cir. 2003), cert. denied, 124 S.Ct. 540 (2003). When deciding whether to grant a motion for summary judgment, "a 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." See Baisch v. Gallina, 346 F.3d 366, 372 (2d Cir. 2003), citing Anderson V. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986). While the initial burden of demonstrating the absence of a genuine issue of material fact falls upon the moving party, once that burden is met, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial," see Koch v. Town of Brattleboro, Vermont, 287 F.3d 162, 165 (2d Cir. 2002), citing Fed.R.Civ.P. 56(c), by a showing sufficient to establish the existence of every element essential to the party's case, and on which that party will bear the burden of proof at trial. See Peck, 326 F.3d at 337.
B. ERISA Liability
Section 515 of ERISA provides:
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.29 U.S.C. § 1145 (2004). Trustees of multiemployer plans may enforce the terms of section 515 by bringing an action against an employer in federal court pursuant to section 502, codified at 29 U.S.C. § 1132(a). See Laborers Health Welfare Trust Fund for Northern California v. Advanced Lightweight Concrete Co., 484 U.S. 539, 547, 108 S.Ct. 830, 835 (1988).
In order to prevail on its claims for delinquent contributions pursuant to section 515, the Funds must establish that (1) they are multiemployer plans within the definition of ERISA, see 29 U.S.C. § 1002(37)(A), (2) Syracuse is an employer obligated to pay contributions under the terms of the plans, and (3) Syracuse failed to pay contributions in accordance with said terms. See Teamsters Employers Welfare Trust of Illinois v. Gorman Bros. Ready Mix, 139 F.Supp.2d 976, 980 (C.D. Ill. 2001), rev'd and remanded on other grounds, 283 F.3d 877 (2002).
Syracuse admits that the Funds are multiemployer plans as defined by ERISA. See Def.'s Counter Statement of Facts at ¶ 1, Dkt. No. 37. However, in its opposition papers, Syracuse disputes the second and third elements of the Funds' claims, arguing that (1) certain of the Funds' claims of delinquent contributions occurred prior to the applicable six year statute of limitations, (2) the Funds failed to establish that Reilly had the authority to bind Syracuse in contract, and (3) the Funds' allegations of delinquent contributions for the period January 2002 through May 2003 are unsubstantiated.
Before addressing the aforementioned arguments, the court notes that Syracuse's first affirmative defense set forth in its amended answer to the lead complaint is that non bargaining unit employees are not covered under the participation agreement it executed and therefore, Syracuse is not responsible for any payment to the Funds on behalf of such employees. However, because Syracuse does not address this affirmative defense in its opposition papers, the court finds that it fails to meet its burden in relation thereto and dismisses same.
1. Statute of Limitations
In its opposition papers, Syracuse, relying on New York law, reiterates its second affirmative defense that many of the Funds' claims of delinquent contributions are barred by the statute of limitations as they accrued prior to six years before the date the actions were filed. It is true, as Syracuse implies, that New York's six year statute of limitations for breach of contract claims is applicable to claims, such as those currently before the court, for unpaid contributions under ERISA. See Hanley v. Aperitivo Restaurant Corp., No. 97-Civ.-5768, 1998 WL 307376, at *7 (S.D.N.Y. 1998). It is also true that in New York, a statute of limitations begins to run from the date a contract is breached, and not the date the breach was discovered.See Eli-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402, 615 N.E.2d 985, 986, 599 N.Y.S.2d 501, 502 (1993). However, federal, not state law, governs when the statute of limitations begins to run in a claim for unpaid contributions under ERISA.See id., citing Northern California Retail Clerks Unions and Food Employers Joint Pension Trust Fund v. Jumbo Markets, Inc., 906 F.2d 1371, 1372 (9th Cir. 1990). Under federal law, such a claim accrues "when the plaintiff knows or has reason to know of the injury that is the basis of the action." Id.
Here, it is undisputed that the Funds' did not know or have reason to know of Syracuse's failure to pay contributions until sometime in February or March 2002, less than six months before the date the complaint in the Lead Case was filed. Therefore, Syracuse is unable to establish that the Funds' claims are barred by the statute of limitations, and its second affirmative defense is accordingly dismissed.
2. Reilly's Authority to Bind Syracuse in Contract
Next, Syracuse argues that the Funds cannot prevail on their motion for summary judgment because they failed to establish that Syracuse's Vice President Reilly, who signed the majority of the agreements at issue in this case, possessed the authority to bind Syracuse in contract.
In support of their motion for summary judgment, the Funds submitted a copy of the transcript of Reilly's deposition, which reflects his testimony that, as one of three shareholders of Syracuse, Reilly owns 46 percent of its shares, and he is both an executive officer and a director of the corporation. See Reilly Dep., 8:19-20, 9:9-11:11, Pls.' Ex. 10, Dkt. No. 33. Moreover, Syracuse, in its amended answer to the Lead Complaint, admitted that it "is a participating employer in the Pension and Health Funds and a signatory to said Funds' participation agreements" and that it "is also signatory to collective bargaining agreements with Teamsters Local 317." See Lead Compl. at ¶ 10, Dkt. No. 1; Def.'s Amended Ans. at ¶ 10, Dkt. No. 11.
An executive officer of a corporation need not have express authority to execute a contract on behalf of the corporation.See Barnum v. Frickey, 497 N.Y.S.2d 543, 544, 115 A.D.2d 977 (App.Div. 4th Dep't). Thus, where the officer's execution of a contract is in furtherance of the purposes of the corporation, the corporation will be bound by the terms of said contract.See id. It is clear that here, Reilly, as an officer of Syracuse, executed the participation agreements and collective bargaining agreements in furtherance of the purposes of Syracuse. Therefore, this court need go no further to conclude that Reilly possessed authority to enter into the agreements on behalf of Syracuse.
The Funds have established that Syracuse is obligated to pay contributions under the terms of the agreements and therefore, no question of material fact exists as to the second element of the Funds' claims for delinquent contributions.
3. Evidence of Delinquent Contributions for January 2002 through May 2003
Finally, Syracuse contends that the Funds' have not substantiated their claims for delinquent contributions for the period January 2002 through May 2003 because no audit was conducted of Syracuse's records for that time period. Notably, this argument is set forth by one sentence in Syracuse's Counter Statement of Facts and is not briefed by Syracuse in its memorandum of law. Nonetheless, the court will address this argument for the sake of completeness.
ERISA by its terms does not require an audit to determine the amount of delinquent contributions and Syracuse fails to cite any authority which would suggest otherwise. Moreover, courts have accepted the affidavits of persons familiar with the multiemployer plan at issue as well as copies of relevant employer reports and records for the time period at issue as evidence of an employer's delinquent contributions. See New York State Teamsters Conference Pension Retirement Fund, et al. v. United Parcel Service, Inc., 382 F.3d 272, 281-82 (2d Cir. 2004); I.B.E.W. Local No. 910 Welfare, Annuity and Pension Funds v. Dexelectrics, Inc., 98 F.Supp.2d 265, 272 (N.D.N.Y. 2000). Here, in support of its motion for summary judgment, the Funds submitted an affidavit from their Finance Manager as well as Syracuse's reports and records for the period January 2002 through May 2003. Syracuse does not offer any contrary evidence nor does it identify any question of fact raised by the evidence submitted by the Funds in support of their motion.
Therefore, because no question of material fact remains as to the elements of the Funds' claims for delinquent contributions pursuant to section 515 of ERISA, the court concludes that the Funds have established said claims as a matter of law and accordingly grants their motion for summary judgment.
C. Remedies
Having awarded summary judgment in favor of the Funds on its claims for delinquent contributions, the court must now determine the amount of damages due pursuant to section 502 of ERISA. According to the statute, the court shall award the Funds:
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of —
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A),
(D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court deems proper.
For purposes of this paragraph, interest on unpaid contributions shall be determined by using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of Title 26.29 U.S.C. § 1132(g)(2) (2004). An award of damages pursuant to section 1132(g) has been deemed to be mandatory. See Laborers Health Welfare Trust, 484 U.S. at 547, 108 S.Ct. at 835.
1. Unpaid Contributions
The Funds have submitted evidence in support of their claims for unpaid contributions in the following amounts:
January 1995 through December 2001
Health Fund $122,355.50 Pension Fund $37,065.80
January 2002 through May 2003
Health Fund $12,991.70 Pension Fund $6,706.20
Therefore, the total amount of unpaid contributions due the Funds pursuant to § 1132(g)(2)(A) is $179,119.20.
2. Interest
Pursuant to section 502, the court shall award interest on the unpaid contributions in accordance with the rate provided under the plan, or, if none, the rate provided by 26 U.S.C. § 6621. According to the terms of the participation agreements executed by Syracuse and the Funds, Syracuse shall be "bound by all the rules and regulations of [the Funds] now and/or hereinafter adopted by [the Funds'] Board of Trustees." See Pls.' Exs. 6,7, Dkt. No. 33. The Funds have submitted evidence that in 1984, their Board of Trustees adopted a resolution to decrease the rate of interest to be charged pursuant to 29 U.S.C. § 1132(g)(2)(B) from 14 percent to 11 percent, and that said resolution remained in effect as of the date of filing of the present motion. See Notice of Motion at ¶ 16, Ex. A, Dkt. No. 29.
By their Notice of Motion, the Funds compute the interest for the audit period at 11 percent as of the date of filing of the Lead Complaint, and for the post audit period at 11 percent as of the date of filing of the Member Complaint. See Notice of Motion at ¶¶ 16, 26, Dkt. No. 29. By their moving papers the Funds do not direct the court to the exact location in the record where the Funds' Board of Trustees resolution sets forth the applicable date for commencement of the computation of interest, nor was the court able to locate same. Notably, however, the Funds have chosen a commencement date for computation of interest that is the least advantageous to them, as opposed to, for example, the date of its first letter to Syracuse demanding payment of the delinquent contributions, see New York State Teamsters Council Health and Hospital Fund v. City of Utica, 643 F.Supp. 619, 622 (N.D.N.Y. 1986), or even the date of delinquency, see DeVito v. Hempstead China Shop, Inc., 831 F.Supp. 1037, 1040 (E.D.N.Y. 1993). That being said, and there being no opposition to the Funds' interest computation, the court, in accordance with section 1132(g)(2)(B) awards interest on the unpaid contributions to be calculated as follows:
Of course, the court expresses no opinion as to the legality of applying either of the aforementioned interest calculations to the facts of this case, as neither form of calculation was presented to the court by either party in their respective arguments regarding the instant motion.
$159,421.30 at 11% beginning June 3, 2002 $19,697.90 at 11% beginning July 8, 2003
3. Liquidated Damages or Interest
The court shall award the Funds an amount equal to the greater of interest on the unpaid contributions, or liquidated damages as provided under the plan, not to exceed 20 percent (or higher as may be permitted under Federal or State law). See § 1132(g)(2)(C).
According to the participation agreements at issue, liquidated damages are to be calculated at a rate of ten percent of the delinquent contributions. Because interest on the unpaid contributions is calculated at 11 percent and is therefore greater than the amount of liquidated damages provided for under the participation agreements, pursuant to section 1132(g)(2)(C), the Funds are granted an additional award of interest to be computed as follows:
$159,421.30 at 11% beginning June 3, 2002 $19,697.90 at 11% beginning July 8, 2003
4. Attorney's Fees and Costs
In any action by a multiemployer plan against an employer where, as here, judgment is awarded to the plan for delinquent contributions, an award for reasonable attorney's fees and costs associated with prosecuting the action is governed by § 1132(g)(2) and is therefore mandatory. See DeVito, 831 F.Supp. at 1042. Nonetheless, a determination of whether a fee is reasonable is within the court's discretion. See id. at 1043.
In determining whether a request for attorney's fees is reasonable, the court must calculate the "lodestar" figure based upon a reasonable number of hours spent on the litigation multiplied by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 (1983). See also Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997); King v. JCS Enterprises, Inc., 325 F.Supp.2d 162, 166 (E.D.N.Y. 2004). The prevailing party bears the burden of establishing the number of hours worked on the litigation and the rates claimed. See Hensley, 461 U.S. at 433, 103 S.Ct. at 1939.
Here, the Funds have submitted an affidavit by their attorney, Gerald Green, wherein he describes the time spent on the litigation and the amounts charged, as well as an itemization of fees and costs which is attached to the affidavit as an exhibit.See Aff. of Gerald J. Green, Sept. 26, 2003, ¶¶ 19, 28, Ex. B., Dkt. No. 29. According to attorney Green, he personally supervised the prosecution of this action and has reviewed the legal fees charged to the Funds in relation thereto. The itemization of those fees details the type of work completed, the date of completion, and the amount of time spent, which yields a total of 88.95 hours. This amount of time is reasonable for an ERISA action that spanned approximately 15 months, the subject of which is greater than eight years of unpaid benefit contributions. Therefore, the court must next determine the reasonable hourly rate for the Funds' attorney's fees in this action.
Whether an hourly rate for attorney's fees is deemed reasonable depends upon the prevailing rate charged by attorneys in the community who are of "reasonably comparable skill, experience and reputation." See New York State Teamsters Conference Pension Retirement Fund, et al. v. United Parcel Service, Inc., No. 5:98CV1902, 2004 WL 437474, at *2 (N.D.N.Y. 2004), aff'd, 382 F.3d 272, (quoting Blum v. Stenson, 465 U.S. 886, 895, n. 11, 104 S.Ct. 1541 (1984)). The community to be considered for this determination is the community where the court sits. See id., citing Luciano, 109 F.3d at 115. The reasonable hourly rate for legal fees in this district have recently been identified as "$175 per hour for the most experienced attorneys, $125 per hour for attorneys with four or more years of experience, $100 per hour for attorneys with less than four years experience, and $65 per hour for work done by paralegals." New York State Teamsters, 2004 WL 437474, at *2, citing I.B.E.W. Local No. 910, 98 F.Supp.2d at 275.
The itemization of fees submitted by the Funds lists an hourly rate of $185, and attorney Green describes the total fee charged as "attorneys' fees in the sum of $16,455.74." Green Aff. at ¶ 19. However, there is nothing in the attorney affidavit or the itemization of fees to indicate the level of expertise of the attorney who performed each task listed, nor is there a sufficient explanation to justify an hourly rate which is higher than that for the services of the most experienced attorneys in this community. Therefore, the court will issue an award of attorney's fees in an amount to be determined pending submission of further evidence by the Funds to substantiate the hourly rate requested.
The Funds also submitted evidence of costs associated with this litigation such as filing fees, service fees, and transcript costs, which total $658.95, and shall be awarded in accordance with section 1132(g)(2)(D). Further, by the terms of the participation agreements, the Funds are due $3721.84 in auditor's fees which also shall be awarded pursuant to section 1132(g)(2)(D).
IV. CONCLUSION
There being no genuine issues of material fact regarding Plaintiffs' claims for unpaid contributions pursuant to section 515 of ERISA, Plaintiffs' motion for summary judgment on the entire action hereby GRANTED.
Further, it is ORDERED that within thirty days of entry of this Order Plaintiffs are directed to submit a proposed form of judgment to the Court and to Defendant awarding judgment to the Plaintiffs in an amount to be calculated as follows:
(1) $179,119.20 in unpaid contributions;
(2) an amount equal to twice the amount of interest to be computed at a rate of 11 percent of $159,421.30 in unpaid contributions from June 3, 2002 and 11 percent of $19,697.90 in unpaid contributions from July 8, 2003;
(3) $3721.84 in auditor's fees;
(4) $658.95 in costs incurred in prosecuting this action;
(5) post judgment interest to be calculated in accordance with 28 U.S.C. § 1961(a),
and it is further
ORDERED that Plaintiffs' request for an award of attorney's fees is hereby GRANTED and Plaintiffs are directed to submit to the court within thirty days after entry of this Order documentation supporting their request in accordance with the terms outlined in this decision so that the court can determine the amount of said award.
IT IS SO ORDERED.