Opinion
Case No. 3:04 CV 7176.
November 8, 2007
MEMORANDUM OPINION AND ORDER
BACKGROUND
This matter is before the Court on Plaintiff's Motion for Attorney Fees (Doc. No. 22). Plaintiff moved for (1) $269.29 in interest on the August 20, 2004 Judgment Entry (Doc. No. 9) and (2) $3,818.89 for attorney fees dating from the August 2, 2006 Order of this Court (Doc. No. 21).
On April 5, 2004, Plaintiff Sheet Metal Workers Benefit Funds filed a Complaint (Doc. No. 1) against Defendant Air Stream Plumbing and Heating alleging Defendant violated Section 301 of the Labor Management Relations Act ("LMRA") and Sections 502(a)(3), (e) and (f) of the Employee Retirement Income Security Act of 1974 ("ERISA"). Plaintiff, a group of funds created by a collective bargaining agreement, alleged Defendant, an employer of employees represented by Plaintiff, failed to make payments to the funds as required by the bargaining agreement. Section 502(g) of ERISA allows assessment of liquidated damages and attorney fees against an employer who fails to make contributions.
Because Defendant failed to serve an Answer, default judgment was entered on June 8, 2004 (Doc. No. 5) and later this Court awarded Plaintiff $292.88 in liquidated damages, with interest in the amount of one and one-half percent per calendar month on the unpaid amount and $1,117.99 in attorney fees and costs (Doc. No. 9). On April 25, 2006, this Court ordered a debtor examination of Defendant and its representative, John Workentin, who failed to appear at this hearing. On May 22, 2006, this Court entered an Order to Show Cause why Defendant should not be held in contempt for failure to appear (Doc. No. 18). This Court later ordered another debtor's examination be held on August 22, 2006 and Plaintiff shortly thereafter tendered partial payment of $1,410.87.
Interest on August, 20, 2004 Judgment
Defendant's payment for the August 20, 2004 judgment in the amount of $1,410.87 did not include interest. Plaintiff requests $269.29 for interest calculated at the applicable rates on the unpaid balance from August, 2004 through August, 2006. It appears Plaintiff calculated interest at ten percent compounded annually on the entire balance. However, the Order specified a one and one-half percent monthly rate for the liquidated damages balance and a ten percent annual rate for the attorney fees and costs.
Applying these rates and compounding interest annually, the Court calculates interest at $234.78 on the attorney's fees and $114.93 on the liquidated damages. Therefore, the Court awards $349.71 in interest.
Reasonable Attorney Fees Subsequent to May 5, 2006
Plaintiff submitted an Affidavit of Attorney Fees claiming reasonable attorney fees and costs in the amount of $3,818.89. The Order allowed "an accounting of all attorney fees expended subsequent to Defendant's first failure to appear at a debtor's examination on May 5, 2006." In addition, Plaintiff is entitled to reasonable attorney fees under 29 U.S.C. § 1132(g). Because Defendant defaulted in this case, Plaintiff's request was unopposed. The Court next considers the reasonableness of the categories of fees and costs.
Attorney's Fees
The Court awards Plaintiff fees for time spent following the hearing scheduled for May 5, 2006. The fees range from $120 to $140 per hour for attorneys and $70 per hour for paralegals. The Court awards these fees except for certain duplicative fees or fees related to the September 2006 debtor's examination that was never held. These excluded fees are: (1) $125 for time in "Preparation for Debtor's Exam of Air Stream" billed on September 7, 2006; (2) $21 for "Discussion with Reggie regarding the status of the proceedings and answer his questions" billed on September 23, 2006; and (3) $30 for "Reviewed and revised letter to Ed Snyder regarding payments yet to be made to Funds by Air Stream."
All other attorney's fees detailed by Plaintiff are awarded. Plaintiff submitted bills for "professional services" totaling $3,453.49 This amount is reduced by the $176 in excluded fees noted above, resulting in an award of attorney's fees of $3,277.49. Costs
Plaintiff also submitted bills for court filing fees, photocopying expenses and other related costs. Title 28 U.S.C. § 1920 permits courts to tax certain costs. "Recoverable costs under section 1920 include fees of the Clerk and Marshal; fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; fees and disbursements for printing and witnesses; fees for exemplification and copies of papers necessarily obtained for use in the case; docket fees; and compensation of court appointed experts, compensation of interpreters, and for special interpretation services." Audi AG v. D'Amato, 2007 WL 313537, at *3 (E.D.Mich. Jan. 30, 2007).
Plaintiff's itemized bills include $169.68 in costs. The following costs are not enumerated in the statute and therefore are excluded: (1) $.69 copying and postage for sending materials to the court on May 15, 2006; (2) $32.44 in overnight delivery costs for sending materials to Defendant and the Court of Appeals on June 2, 2006; (3) $40 to the Clerk of Court for Lucas County for garnishment on June 28, 2006; (4) $4 paid to four different banks for garnishment on June 28, 2006; (5) $6.88 for copying and postage of materials on July 27, 2006; (6) $4.11 in copying and postage on August 23, 2006; (7) $1.13 copying and postage on August 25, 2006; (8) $.98 copying and postage on February 9, 2007; (9) $17.25 paid to the Lucas County Court on February 27, 2007; (10) $7.25 copying and postage to send a copy of this Motion to clients and Defendant, which was not separated between the clients and Defendant, on August 31, 2007.
The Court deducts these costs totaling $114.73 and therefore awards costs totaling $54.95.
CONCLUSION
For the foregoing reasons, this Court awards $3,682.15 in interest, attorneys fees and costs.IT IS SO ORDERED.