Opinion
03 Civ. 2703 (RLC) (AJP)
September 16, 2003
REPORT AND RECOMMENDATION
On August 6, 2003, Judge Carter referred this case to me for an inquest on damages after entering a default judgment for plaintiff Trustees of the Elevator Division Retirement Benefit Plan ("Trustees"). (Dkt. No. 7: 8/6/03 Order.) The plaintiff in this ERISA action seeks delinquent contributions to the Elevator Division Retirement Benefit Plan in the amount of $14,678.53, plus interest, liquidated damages, and attorney fees. (Pergue 9/10/03 Aff. ¶ 3; Dkt. No. 1: Compl. ¶ 11.)
For the reasons set forth below, the Court should enter judgment for plaintiff Trustees against defendant Premier Elevator Company ("Premier Elevator") in the amount of $14,678.53, plus accrued interest in the amount of $1,117.59, statutory liquidated damages of $2,935.71, attorneys' fees of $860.00, and costs of $177.00, for a total of $19,768.83.
FACTS
"Where, as here, 'the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc., 30 F. Supp.2d 622, 623 (S.D.N.Y. 1998) (Carter, D.J. Peck, M.J.) (quoting 10A C. Wright, A. Miller M. Kane, Federal Practice Procedure: Civil 3d § 2688 at 58-59 (3d ed. 1998)).The Elevator Division Retirement Benefit Plan is an employee benefit plan within the meaning of ERISA. (Dkt. No. 1: Compl. ¶ 4.) Defendant Premier Elevator is a member of the Elevator Industry Association, which entered into a series of collective bargaining agreements with the Local Union No. 3 International Brotherhood of Electrical Workers covering the terms and conditions of Premier Elevator's employees for the period from March 2, 1997 to February 23, 2003. (Compl. ¶¶ 6-7.) Those agreements obligate Premier Elevator to make contributions to the Retirement Benefit Plan on behalf of covered employees. (Compl. ¶ 10.) Premier Elevator failed to make these required payments. (Compl. ¶ 11.)
The complaint asserts that Premier Elevator "has failed to remit contributions to the Plan in the estimated amount of $18,377.00." (Compl. ¶ 11.) On August 8, 2003, the Court directed plaintiff Trustees to provide support for that amount. (Dkt. No. 8: 8/11/03 Order). However, because plaintiff Trustees merely filed a courtesy copy of their papers in support of their "Argument to Enter Default Judgment," the Court directed plaintiff Trustees on September 4 to file a proper inquest damages submission. (Dkt. No. 9:9/5/03 Order). On September 11, 2003, plaintiff Trustees filed an affidavit and worksheet prepared by the Manager of the Elevator Division Retirement Benefit Plan showing a principal amount due of $14,678.53 for 2002 and 2003. (Pergue 9/10/03 Aff. ¶ 3 Ex. A: Aff. of Plan Manager Karen Campbell ¶¶ 3-4 Attachment.)
Procedural Background
Judge Carter granted plaintiff a default judgment against defendant Premier Elevator and referred the matter to me for an inquest on August 6, 2003. (Dkt. No. 7: 8/6/03 Order.) By Orders dated August 8 and September 4, 2003, this Court directed an inquest on written submissions, with opposition papers due on August 29 and September 11, 2003. (Dkt. Nos. 8-9.) The Court has not received any submissions from defendant Premier Elevator.
ANALYSIS
Inquest DamagesThe Second Circuit has approved the holding of an inquest by affidavit, without an in-person court hearing, "'as long as [the Court has] ensured that there was a basis for the damages specified in the default judgment.'" Transatlantic Marine Claims Agency. Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).
Accord, e.g., cases cited in fn.1 above; see also. e.g., Chen v. Jenna Lane, Inc., 30 F. Supp.2d 622, 624 (S.D.N.Y. 1998) (Carter, DJ. Peck, M. J.): Semi Conductor Materials, Inc. v. Agriculture Inputs Corp., 96 Civ. 7902, 1998 WL 388503 at *8 (S.D.N.Y. June 23, 1998) (Kaplan, DJ. Peck, M.J.).
Plaintiff has provided sufficient proof of the principal amount of Plan contributions sued for, $14,678.53, in the form of the Plan Managers affidavit and worksheets. (Pergue 9/10/03 Aff. ¶ 3 Ex. A: Campbell Aff. ¶¶ 3-4 Attachment.) Accordingly, the Court should award plaintiff Trustees $14.678.53 as the principal amount owed to the Retirement Benefit Plan.
In addition to the principal amount, ERISA entitles the Plan to interest, liquidated damages and attorneys' fees:
(2) In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan —
(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 attorneys fees and costs of the action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court deems appropriate.
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).
The plaintiff initially calculated, in its proposed judgment dated June 19, 2003, the interest due under the Plan (at 12% annually) on unpaid contributions to be $1,1117.59. (Dkt. No. 5: Pergue 6/19/03 Aff. Ex. B.) Plaintiffs worksheet, submitted September 11, 2003, demonstrates that the correct amount of interest due is $1,461.45, but plaintiff declines to seek this larger amount. (Pergue 9/10/03 Aff. ¶ 4 Ex. B.) Accordingly, the Court should award plaintiff Trustees interest of$1,117.59.
ERISA provides for liquidated damages of up to 20% of the principal amount, and since Premier Elevator has not responded in connection with the inquest, the Court sees no reason not to award the maximum. The Court should award plaintiff Trustees liquidated damages under ERISA of$2.935.71.
Plaintiff Trustees also seeks $860.00 in attorneys' fees. (Pergue 9/10/03 Aff. ¶ 5.) As the fee applicant, plaintiff Trustees (and its attorney, Mr. Pergue) "bear the burden of documenting the hours reasonably spent by counsel, and the reasonableness of the hourly rates claimed." General Elec. Co. v. Compagnie Euralair, S.A., 96 Civ. 0884, 1997 WL 397627 at *4 (S.D.N.Y. July 3, 1997) (Scheindlin, DJ. Peck, MJ.).
Accord, e.g., Cablevision Sys. New York City Corp. v. Torres, 02 Civ. 7602, 2003 WL 22078938 at *5 (S.D.N.Y. Sept. 9, 2003) (Peck, M.J.);Sowemimo v. D.A.O.R. Sec., Inc., 97 Civ. 1083, 2000 WL 890229 at *3 (S.D.N.Y. June 30, 2000), aff'd, No. 00-7342, 1 Fed. Appx. 82, 2001 WL 3 8267 (2d Cir. 2001); Lavin-McEleney v. Marist College, 96 Civ. 4081, 1999 WL 33500070 at *3 (S.D.N.Y. Sep. 28, 1999), aff'd, 239 F.3d 476 (2d Cir. 2001); N.S.N. Int'l Indus. N.V. v. E. I. DuPont de Nemours Co., 1996 WL 154182 at *2; see, e.g., Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941 (1983).
The Trustees' counsel has asserted that his law firm devoted seven hours of paralegal work and two hours of attorney work on this case, amounting to $860.00. (Pergue 9/10/03 Aff. ¶ 5 Ex. C.) In support of the fee amounts, Mr. Pergue has submitted his affidavit and documentation detailing his firm's time expenditures on this case. (Id.) Based on that affidavit and the Court's "'own knowledge of private firm hourly rates in the community,'" Schruefer v. Winthorpe Grant, Inc., 99 Civ. 9365, 2003 WL 21511157 at *3 (S.D.N.Y. July 2, 2003) (Peck, M.J.) (quoting Miele v. New York State Teamsters Conference Pension Ret. Fund, 831 F.2d 407, 409 (2d Cir. 1987)); accord, e.g., Cablevision Sys. New York City Corp. v. Torres, 2003 WL 22078938 at *5; Eastern Freight Ways v. Eastern Motor Freight, 02 Civ. 3138, 2003 WL 21540382 at *2 (S.D.N.Y. July 9, 2003) (Peck, M.J.), report rec. adopted as modified on other grounds, 2003 WL 21921270 (S.D.N.Y. Aug. 11, 2003), the Court finds the Trustees counsel's and paralegals' time spent and hourly rates to be reasonable and appropriate, and the costs incurred also to be reasonable. The Court thus finds that plaintiff is entitled to $860.00 in attorneys' fees and $177 in costs.
Plaintiffs counsel billed two hours of attorney work at a rate of $220.00 an hour and seven hours of paralegal work at $60.00 an hour. (Pergue 9/10/03 Aff. Ex. C.)
Plaintiff incurred costs of $150.00 for the filing fee and $27.00 for service of process upon the defendant. (Pergue 9/10/03 Aff. ¶ 7).
CONCLUSION
For the reasons set forth above, the Court should award plaintiff $19,768.83, as follows:
Principal Amount $14,678.53 Interest 1,117.59 Liquidated Damages 2,935.71 Attorneys' Fees 860.00 Costs 177.00 ___________
Total $19,768.83
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Robert L. Carter, 500 Pearl Street, Room 2220, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Carter. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985): IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied. 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992): Small v. Secretary of Health Human Servs., 892 F.2d 15.16 (2dCir. 1989): Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy.v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).