Opinion
Civil Action 22 Civ. 6467 (VSB) (SLC)
11-17-2022
TRUSTEES OF THE NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS PENSION FUND, WELFARE FUND, ANNUITY FUND, AND APPRENTICESHIP, JOURNEYMAN RETRAINING, EDUCATIONAL AND INDUSTRY FUND, et al., Petitioners, v. M & RR CONSTRUCTION CORP., Respondent.
REPORT AND RECOMMENDATION
SARAH L. CAVE, United States Magistrate Judge
TO THE HONORABLE VERNON S. BRODERICK, United States District Judge:
I. INTRODUCTION
Before the Court is Petitioners' application to confirm a May 24, 2022 arbitration award entered in their favor (the “Award”) against Respondent M & RR Construction Corp. (“Respondent”), pursuant to Section 301 of the Labor Management Relations Act of 1947 (“LMRA”), as amended, 29 U.S.C. § 185. (ECF No. 1 (the “Petition”)). In addition to seeking confirmation of the Award, Petitioners also seek pre- and post-judgment interest on the Award and attorneys' fees and costs. (Id. at 8 ¶¶ 5-6). Respondent has neither opposed the Petition nor otherwise appeared in this action.
Petitioners are: (1) Trustees of the New York City District Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, and Apprenticeship, Journeyman Retraining, Educational and Industry Fund (“ERISA Funds”); (2) Trustees of the New York City Carpenters Relief and Charity Fund (“Charity Fund”); (3) the Carpenter Contractor Alliance of Metropolitan New York (“CCA Metro”; together with the ERISA Funds and the Charity Fund, the “Funds”); and (4) the New York City District Council of Carpenters (the “Union”).
For the reasons set forth below, I respectfully recommend that the Motion be GRANTED.
II. BACKGROUND
A. Factual Background
The ERISA Funds are employer and employee trustees of multi-employer labor-management trust funds organized and operated in accordance with ERISA. (ECF No. 1 ¶ 4). The Charity Fund is a charitable organization established under section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3). (Id. ¶ 5). The CCA Metro is a not-for-profit corporation organized under the laws of New York. (Id. ¶ 6). The Union is a labor organization that represents employees in an industry affecting commerce within the meaning of section 501 of the LMRA, 29 U.S.C. § 142, and is the certified bargaining representative for certain employees of the Respondent. (Id. ¶ 7). At all relevant times, Respondent was an employer within the meaning of section 3(5) of ERISA, 29 U.S.C. § 1002(5), and was an employer in an industry affecting commerce within the meaning of section 501 of the LMRA, 29 U.S.C. § 142. (Id. ¶ 8).
On August 15, 2020, Respondent executed a Project Labor Agreement Letter of Assent (the “Letter of Assent”) in connection with a New York City Housing Authority (“NYCHA”) project (the “Program Work”). (ECF Nos. 1 ¶ 10; 1-1). Pursuant to the Letter of Assent, Respondent agreed:
to be bound by the legally established collective bargaining agreements and local trust agreements as set forth in the Project Labor Agreement [Covering Specified Renovation & Rehabilitation of NYCHA Buildings and Structures (the “PLA”)] and this Agreement but only to the extent of Program Work and as required by the PLA.(ECF No. 1-1 ¶ 2; see ECF Nos. 1 ¶ 11; 1-2).
The PLA provides, inter alia, that the Respondent is bound by the Independent Building Construction Agreement (the “CBA”), covering the period from July 1, 2017 through June 30, 2024. (ECF Nos. 1 ¶ 14; 1-2 at 9-10; 1-3 at 1). The CBA states, inter alia, “[i]t shall be a violation of this Agreement for any signatory Employer to fail to furnish proper records when requested, for the purpose of completing an audit.” (ECF No. 1-3 at 41). The CBA also provides that “[e]ach Employer shall be bound by all of the terms and conditions of the Agreements and Declarations of Trust governing each of the Funds for which contributions are required under this Agreement, and by all By-Laws, rules, procedures and policies adopted to regulate each of said Funds, including but not limited to, the Funds' Revised Statement of Policy for Collection of Employer Contributions [the ‘Collection Policy'; together with the CBA, the ‘Agreements'].” (Id. at 44; see ECF No. 1 ¶ 21).
Pursuant to the Collection Policy, the outside accounting firms engaged by the ERISA Funds must periodically conduct periodic audits of “the books and records of all of the employers bound by or signatory to a collective bargaining agreement with the District Council or any other agreements under which they are obligated to contribute to the Funds.” (ECF No. 1-8 at 4).
Petitioners requested an audit to determine whether Respondent had remitted appropriate contributions to the Funds. (ECF No. 1 ¶ 24). Respondent failed to provide its books and records for the audit. (Id. ¶ 25). Pursuant to the CBA's arbitration clause, Petitioners initiated arbitration proceedings (the “Arbitration”) before arbitrator Steven C. Kasarda (the “Arbitrator”). (Id. ¶ 26; see ECF Nos. 1-3 at 35-36; 1-9 - 1-10).
On May 19, 2022, the Arbitrator held hearings and invited the parties to present evidence regarding the audit. (ECF Nos. 1-9; 1-10 at 1). Despite receiving notice of the Arbitration, Respondent did not participate. (ECF Nos. 1-9; 1-10 at 1-2).
On May 24, 2022, after considering the “substantial and credible evidence of the case as a whole[,]” the Arbitrator issued the Award, ordering Respondent to “pay the Funds the sum of $2,900, consisting of court costs of $400, attorneys' fees of $1,500, and [an A]rbitrator's fee of $1,000, with interest to continue at the rate of 5.[2]5% on the unpaid principal through [the] date of payment.” (ECF Nos. 1 ¶ 28; 1-10 at 2). Petitioners allege that the Arbitrator “ordered Respondent to make available its books and records for an audit covering September 4, 2020 through the present,” (ECF No. 1 ¶ 28), and although the Arbitrator found that Respondent violated the CBA for failing to facilitate an audit, the Award does not specifically direct Respondent to make its books and records available. (See ECF No. 1-10 at 2). To date, Respondent has not complied with the Award. (ECF No. 1 ¶ 30).
B. Procedural Background
On July 29, 2022, Petitioners filed the Petition seeking an order confirming the Award pursuant to Section 301 of the LMRA. (ECF No. 1 ¶ 1). On August 2, 2022, the Honorable Vernon S. Broderick referred the Petition to the undersigned for a Report and Recommendation. (ECF No. 7). On August 3, 2022, Petitioners served the Petition on Respondent, but Respondent did not timely appear or respond. (ECF No. 8). On August 25, 2022, the Court, nunc pro tunc, extended Respondent's deadline to respond to the Petition. (ECF No. 9). The Court cautioned Respondent that, “failure to appear or respond may result in the Court treating the Petition as an unopposed motion for summary judgment.” (Id.) Despite this warning, Respondent did not oppose the Petition or otherwise appear. (ECF Nos. 11-15).
III. LEGAL STANDARDS
A. Confirmation of an Arbitration Award
“Section 301 of the [LMRA] provides federal courts with jurisdiction over petitions brought to confirm labor arbitration awards.” Drywall Tapers & Pointers of Greater New York Loc. Union 1974, IUPAT, AFL-CIO v. Top Rock Interiors, Inc., No. 18 Civ. 7557 (VSB), 2019 WL 4784750, at *2 (S.D.N.Y. Sept. 30, 2019) (quoting Loc. 802, Assoc. Musicians of Greater N.Y. v. Parker Meridien Hotel, 145 F.3d 85, 88 (2d Cir. 1998)). Federal common law governs suits under LMRA § 301(a). See Beth Israel Med. Ctr. v. 1199/S.E.I.U. United Healthcare Workers E., 530 F.Supp.2d 610, 614 (S.D.N.Y. 2008); see also Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Carolina Trim LLC, No. 17 Civ. 6485 (VSB), 2020 WL 915815, at *5 (S.D.N.Y. Feb. 26, 2020) (“Although the [Federal Arbitration Act [the ‘FAA']] does not govern [a LMRA] petition, ‘federal courts have often looked to the [FAA] for guidance in labor arbitration cases.'”) (quoting 1199/SEIU United Healthcare Workers E. v. S. Bronx Mental Health Council Inc., No. 13 Civ. 2608 (JGK), 2014 WL 840965, at *6 (S.D.N.Y. Mar. 4, 2014)).
“The Second Circuit has ‘repeatedly recognized the strong deference appropriately due arbitral awards and the arbitral process.'” Trustees of the N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Land Cruising Prop. Inc., No. 21 Civ. 7877 (KPF), 2022 WL 1125623, at *2 (S.D.N.Y. Apr. 15, 2022) (quoting Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC, 497 F.3d 133, 138 (2d Cir. 2007)). The court's function in reviewing an arbitration award under the LMRA is thus “severely limited.” Dolan v. Barile Mech., Inc., 933 F.Supp.2d 634, 638 (S.D.N.Y. 2013); see Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n, 820 F.3d 527, 532 (2d Cir. 2016) (“[A] federal court's review of labor arbitration awards is narrowly circumscribed and highly deferential-indeed, among the most deferential in the law.”). The Court may not “reexamine the merits of an arbitration award, even though the parties to the agreement may argue that the award arises out of a misinterpretation of the contract or a factual error.” Int'l Bhd. of Elec. Workers, Loc. 97 v. Niagara Mohawk Power Corp., 143 F.3d 704, 714 (2d Cir. 1998); see United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 596 (1960) (“The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.”).
“Confirmation of a labor arbitration award under LMRA § 301 is a summary proceeding that merely makes what is already a final arbitration award a judgment of the Court.” Drywall Tapers, 2019 WL 4784750, at *3; see also D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006) (“Normally, confirmation of an arbitration award is a summary proceeding that merely makes what is already a final arbitration award a judgment of the court, and the court must grant the award unless the award is vacated, modified, or corrected.” (internal citations and quotation marks omitted)). “It is only when the arbitrator strays from interpretation and application of the agreement and effectively dispenses his own brand of industrial justice that his decision may be unenforceable.” Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509 (2001) (internal quotation marks and alterations omitted). A reviewing court need only find “a barely colorable justification for the outcome reached” by the arbitrator to confirm an award. D.H. Blair, 462 F.3d at 110 (quoting Landy Michaels Realty Corp. v. Local 32B-32J, Serv. Emp. Int'l Union, 954 F.2d 794, 797 (2d Cir. 1992)). Thus, barring a remedy that directly contradicts the express language of the collective bargaining agreement, see N.Y.C. & Vicinity Dist. Council of United Bhd. of Carpenters & Joiners of Am. v. Ass'n of Wall-Ceiling & Carpentry Indus. of N.Y., Inc., 826 F.3d 611, 618 (2d Cir. 2016), fraud, or violation of public policy, “a reviewing court must confirm an arbitration award so long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority.” Drywall Tapers, 2019 WL 4784750, at *3 (quoting Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund v. A to E Inc., No. 16 Civ. 4455 (CM), 2018 WL 1737133, at *4 (S.D.N.Y. Mar. 20, 2018).
B. Summary Judgment Standard
Where a petition to confirm an arbitration award is unopposed, the Second Circuit has instructed district courts to treat the petition “‘as akin to a motion for summary judgment based on the movant's submissions' and the court ‘may not grant the motion without first examining the moving party's submission to determine' that it satisfactorily demonstrates the absence of material issues of fact.” Neshgold LP v. N.Y. Hotel & Motel Trades Counsel, AFL-CIO, No. 13 Civ. 2399 (KPF), 2013 WL 5298332, at *7 (S.D.N.Y. Sept. 19, 2013) (quoting D.H. Blair, 462 F.3d at 107); see Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. All. Workroom Corp., No. 13 Civ. 5096 (KPF), 2013 WL 6498165, at *4 (S.D.N.Y. Dec. 11, 2013). In D.H. Blair, the Second Circuit explained that Federal Rule of Civil Procedure 55, which governs motions for default judgment, “does not operate well in the context of a motion to confirm or vacate an arbitration award[,]” because such a motion “is generally accompanied by a record, such as an agreement to arbitrate and the arbitration award decision itself[.]” 462 F.3d at 107-09.
Consistent with the Second Circuit's direction and the precedent of other courts in this District, the Court analyzes the Petition as an unopposed motion for summary judgment. See Bishop v. Dalton Kent Sec. Grp., Inc., No. 21 Civ. 8957 (PAC) (SLC), 2022 WL 2307089, at *3 (S.D.N.Y. June 6, 2022), adopted by, 2022 WL 2307742 (S.D.N.Y. June 27, 2022); Theatrical Drivers & Helpers Loc. Union No. 817, Int'l Bhd. of Teamsters v. BNM Prod. Servs., Inc., No. 21 Civ. 1755 (AJN) (SLC), 2021 WL 7186729, at *2 (S.D.N.Y. Dec. 27, 2021), adopted by, 2022 WL 596844 (S.D.N.Y. Feb. 28, 2022); Trustees of the N.Y.C. Carpenters Relief & Charity Fund v. Acme Steel Shelving Corp., No. 12 Civ. 5572, 2013 WL 12109394, at *1 (S.D.N.Y. June 5, 2012) (following D.H. Blair, and construing default judgment motion seeking to confirm arbitration award as summary judgment motion); see also Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Clear It Out Contracting LLC, No. 19 Civ. 1188 (VSB), 2019 WL 2171233, at *2 (S.D.N.Y. May 20, 2019) (“[A]n unanswered petition to confirm an arbitration award is to be treated ‘as an unopposed motion for summary judgment.'”) (quoting D.H. Blair, 462 F.3d at 110); Loc. 355 United Serv. Workers Union, Int'l Union of Journeymen & Allied Trades v. LA Mech. Corp., No. 15 Civ. 4474 (MKB) (VMS), 2016 WL 4367220, at *3 (E.D.N.Y. July 14, 2016) (collecting cases treating unopposed motions to confirm arbitration awards as motions for summary judgment).
“Summary judgment is appropriate when ‘the parties' submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” Vasquez v. Victor's Cafe 52nd St., Inc., No. 18 Civ. 10844 (VSB), 2019 WL 4688698, at *1 (S.D.N.Y. Sept. 26, 2019) (quoting Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002)); see Fed. R. Civ. P. 56(a). When evaluating an unopposed confirmation of an arbitration award, “the court cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion.” Dishner v. Zachs, No. 16 Civ. 04191 (LGS), 2016 WL 7338418, at *2 (S.D.N.Y. Dec. 19, 2016) (quoting Trustees of the UNITE HERE Nat'l Health Fund v. JY Apparels, Inc., 535 F.Supp.2d 426, 428-29 (S.D.N.Y. 2008)).
C. Attorney's Fees
Generally, “attorney's fees cannot be recovered in a federal action in the absence of statutory authority, and neither Section 301 of the LMRA nor the [FAA] provides for attorney's fees in actions to confirm an arbitration award.” Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund v. Dejil Sys., Inc., No. 12 Civ. 005 (JMF), 2012 WL 3744802, at *4 (S.D.N.Y. Aug. 29, 2012); see Int'l Chem. Workers Union (AFL-CIO), Loc. No. 227 v. BASF Wyandotte Corp., 774 F.2d 43, 47 (2d Cir. 1985) (“Under the prevailing American rule, in a federal action, attorney's fees cannot be recovered by the successful party in the absence of statutory authority for the award.”). Although neither the FAA nor Section 301 of the LMRA provide for the award of attorneys' fees, two independent bases exist to support such an award. See Land Cruising Prop. Inc., 2022 WL 1125623, at *5. First, “a contractual provision for the payment of such fees provides a basis to award them.” N.Y.C. Dist. Council of Carpenters v. JFD Sales Consulting Servs. Corp., No. 17 Civ. 3733 (LGS), 2017 WL 4736742, at *2 (S.D.N.Y. Oct. 19, 2017) (collecting cases). Second, “a court may, in the exercise of its inherent equitable powers, award attorney's fees when opposing counsel acts in bad faith or when a party opposing confirmation of an arbitration award refuses to abide by an arbitrator's decision without justification.” Abondolo v. Jerry WWHS Co., 829 F.Supp.2d 120, 130 (E.D.N.Y. 2011) (internal quotation marks and alterations omitted); see Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, Apprenticeship, Journeyman, Retraining, Educ. & Indus. Fund v. Mountaintop Cabinet Mfr. Corp., No. 11 Civ. 8075 (JMF), 2012 WL 3756279, at *4 (S.D.N.Y. Aug. 29, 2012) ("[T]he guiding principle has been stated as follows: when a challenger refuses to abide by an arbitrator's decision without justification, attorney's fees and costs may properly be awarded.” (quoting Int'l Chem. Workers Union, 774 F.2d at 47)); see Trustees of Empire State Carpenters Annuity v. Fourmen Constr., Inc., No. 15 Civ. 3252 (JFB) (ARL), 2016 WL 146245, at *3 (E.D.N.Y. Jan. 13, 2016) (collecting cases). Failure to pay an arbitration award immediately, by itself, does not necessarily constitute bad faith. See In re Arb. Between Westchester Fire Ins. Co. v. Massamont Ins. Agency, Inc., 420 F.Supp.2d 223, 227 (S.D.N.Y. 2005).
To calculate a reasonable fee award, “district courts employ ‘the lodestar method-hours reasonably expended multiplied by a reasonable hourly rate.'” Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund v. 1st Choice Constr. LLC, No. 20 Civ. 07119 (LTS), 2021 WL 4482278, at *3 (S.D.N.Y. Sept. 30, 2021) (quoting Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining Educ. & Indus. Fund v. Furniture Bus. Sols., LLC, No. 20 Civ. 02867 (GHW), 2020 WL 6525466, at *4 (S.D.N.Y. Nov. 5, 2020)); see Land Cruising Prop. Inc., 2022 WL 1125623, at *5. A reasonable hourly rate is “the rate a paying client would be willing to pay.” Trustees of Ne. Carpenters Health, Pension, Annuity, Apprenticeship, & Lab. Mgmt. Cooperation Funds v. Patt Constr., Inc., No. 17 Civ. 1544 (JFB) (GRB), 2017 WL 4990552, at *5 (E.D.N.Y. Nov. 1, 2017); see Trustees of Empire State Carpenters Annuity, Apprenticeship, Lab. Mgmt. Cooperation, Pension & Welfare Funds v. Sanders Constr., Inc., No. 13 Civ. 5102 (JFB) (ARL), 2015 WL 1608039, at *3 (E.D.N.Y. Apr. 10, 2015). “Applications for fee awards should generally be documented by contemporaneously created time records that specify, for each attorney, the date, the hours expended, and the nature of the work done.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998). “A court should decrease the number of hours included in the fee calculation if the claimed time is ‘excessive, redundant, or otherwise unnecessary.'” Garcia-Severino v. TDL Restoration, Inc., No. 18 Civ. 11401 (CS), 2020 WL 7239678, at *2 (S.D.N.Y. Dec. 9, 2020) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
In addition to attorneys' fees, the prevailing party may recover reasonable costs incurred in seeking to confirm an arbitration award. Land Cruising Prop. Inc., 2022 WL 1125623, at *5. Courts will generally award “those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged fee-paying clients.” Trustees of Empire State Carpenters Annuity, Apprenticeship, Lab. Mgmt. Cooperation, Pension & Welfare Funds v. FMC Const. LLC, No. 13 Civ. 923 (DRH) (AKT), 2014 WL 1236195, at *12 (E.D.N.Y. Mar. 25, 2014). “The fee applicant bears the burden of adequately documenting and itemizing the costs requested.” Sanders Constr., Inc., 2015 WL 1608039, at *5.
IV. DISCUSSION
A. Confirmation of the Arbitration Award
Given the deferential LMRA standard, the Court finds that the Petitioners have adequately demonstrated that they are entitled to confirmation of the Award. First, Petitioners have provided uncontroverted materials demonstrating the absence of material issues of fact. Petitioners have established that Respondent was bound by the Agreements, which obligated Respondent to make certain contributions to the Funds as well as permit audits meant to ensure that Respondent was remitting the required contributions. (ECF No. 1 ¶¶ 9-23). Petitioners have also established that Respondent failed to make its books and records available for an audit, despite numerous requests. (Id. ¶ 24; see ECF No. 1-11 at 2). Because Respondent has neither appeared nor contested any of the material facts in the Petition, nor does the record disclose any dispute concerning those facts, no material facts are in dispute. See Doud v. Gold, No. 19 Civ. 6561 (KPF), 2019 WL 5209615, at *3 (S.D.N.Y. Oct. 16, 2019).
Second, the Court finds that the Award itself demonstrates the Arbitrator's sound reasoning. The Award reflects that the Arbitrator assessed the merits of the available evidence and determined that Respondent failed “to permit [ERISA Funds'] auditors to examine its [b]ooks & [r]ecords for the period of 9/4/2020 through” the date of the Award. (ECF No. 1-10 at 2). These findings meet or “surpass the degree of reasoning courts require to confirm an arbitration award.” Doud, 2019 WL 5209615, at *3; see D.H. Blair, 462 F.3d at 110 (“The arbitrator's rationale for an award need not be explained, and the award should be confirmed ‘if a ground for the arbitrator's decision can be inferred from the facts of the case.'”) (quoting Barbier v. Shearson Lehman Hutton Inc., 948 F.2d 117, 121 (2d Cir. 1991)). Thus, the Court concludes that the Award provides more than a “barely colorable justification for the outcome reached.” Landy Michaels, 954 F.2d at 797; see Dejil Sys., 2012 WL 3744802, at *3 (confirming an arbitration award pursuant to Section 301 of the LMRA because it provided a “colorable justification for the outcome reached”).
Third and finally, there are no grounds to set aside the Award. See A to E Inc., 2018 WL 1737133, at *4 (explaining that “a reviewing court must confirm an arbitration award ‘so long as the arbitrator is ‘even arguably construing or applying the contract and acting within the scope of his authority.'” (quoting Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Port Parties, Ltd., No. 16 Civ. 4719 (KPF), 2017 WL 3267743, at *10 (S.D.N.Y. July 31, 2017)). There is no indication that the Award was procured through fraud or dishonesty, or that the Arbitrator was acting in disregard of the Agreements or outside the scope of his broad authority. See Trustees for Mason Tenders Dist. Council Welfare Fund, Pension Fund, Annuity Fund, & Training Program Fund v. IBEX Constr., LLC, No. 18 Civ. 2797 (VSB), 2019 WL 2281276, at *3 (S.D.N.Y. May 29, 2019). Here, it is undisputed that the express language of the CBA dictates that Petitioners were entitled to arbitrate Respondent's refusal to submit to an audit, and that the parties had the opportunity to participate fully in the arbitration proceeding, the Arbitrator issued the Award, and Respondent has not challenged it. (ECF Nos. 1 ¶¶ 24-32; 1-10 at 1-3). The record does not reflect that the Award has been vacated or modified on any grounds, nor has Respondent made any effort to do so, and the Court sees “no basis to do so sua sponte.” Doud, 2019 WL 5209615, at *3. (ECF No. 1 ¶ 28).
Accordingly, the undisputed evidence demonstrates that “no material issue of fact remains,” and Petitioners have therefore met their burden to establish that the Award should be confirmed. D.H. Blair, 462 F.3d at 110 (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004)); see N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Vista Eng'g Corp., No. 19 Civ. 5280 (VSB), 2021 WL 4077943, at *3 (S.D.N.Y. Sept. 7, 2021).
B. Attorneys' Fees and Costs
Petitioners request attorneys' fees and costs under the CBA. (ECF No. 1 ¶ 33). The CBA states that:
In the event that formal proceedings are instituted before a court of competent jurisdiction by the trustees of a Benefit Fund or Funds
to collect delinquent contributions to such Fund(s), and if such court renders a judgment in favor of such Fund(s), the Employer shall pay to such Fund(s), in accordance with the judgment of the court, and in lieu and any other liquidated damages, costs, attorney's fees and/or interest, the following:
....
(4) reasonable attorney's fees and costs of the action[.](ECF No. 1-3 at 46). Here, Petitioners seek $190.50 in attorneys' fees and $77.00 in costs. (ECF No. 1 ¶¶ 40-41). Because Respondent (i) agreed to the CBA, which provided for the recovery of reasonable attorneys' fees and costs, (ii) has not participated in the Arbitration or opposed the Petition, and (iii) continues to refuse to comply with the Award without justification, the Court recommends that Petitioners be awarded their reasonable attorneys' fees and costs. See Abondolo, 829 F.Supp.2d at 130.
In support of their request for attorneys' fees and costs, Petitioners submitted an invoice, listing the completed tasks, attorneys' hourly rates, and billed hours. (ECF Nos. 1-12). Petitioners were represented by the law firm of Virginia & Ambinder, LLP (“V&A”). (ECF No. 1 at 1, 8). One V&A associate, Maura Moosnick, recorded 0.3 hours at a rate of $275 per hour, and one V&A legal assistant, Eva Keating, recorded 0.9 hours at a rate of $120 per hour. (ECF Nos. 1 ¶¶ 3740; 1-12).
The Court concludes that Ms. Moosnick's requested rate of $275 per hour is higher than appropriate. Ms. Moosnick is a 2021 graduate of Fordham University School of Law and has experience as a former legal assistant at V&A. (ECF No. 1 ¶ 34). Although courts in this District have awarded Ms. Moosnick an hourly rate of $275, the Court finds that a rate of $200 per hour is more reasonable for an associate with less than two years of experience. See Dejil Sys., 2012 WL 3744802, at *5 (collecting cases); Furniture Bus. Sols., LLC, 2020 WL 6525466, at *5 (same).
See Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Kaja Custom Builders LLC, No. 22 Civ. 171 (VM), 2022 WL 987667, at *2 (S.D.N.Y. Mar. 31, 2022); Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Reliable Build, Inc., No. 21 Civ. 9332 (VM), 2022 WL 214389, at *2 (S.D.N.Y. Jan. 25, 2022).
The Court concludes that Ms. Keating's requested rate of $120 per hour is reasonable. (ECF Nos. 1 ¶ 38; 1-12). Courts in this District have routinely deemed $120 a reasonable rate for legal assistants. See Trustees of The N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, and Apprenticeship, Journeyman Retraining, Educational and Industry Fund v. Blue Moon Health Management LLC, No. 22 Civ. 1807 (KPF), 2022 WL 16578119, at *6 (S.D.N.Y. Oct. 31, 2022) (holding that $120 was a reasonable rate for services provided by Ms. Keating); Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Mahi Painting, Inc., No. 22 Civ. 6496 (GHW), 2022 WL 7584364, at *5 (S.D.N.Y. Oct. 13, 2022) (holding that $120 per hour for services performed by V&A legal assistants is “reasonable”).
In assessing the reasonableness of the hours expended, “courts uphold fee requests in ERISA cases when they determine that such fees are ‘reasonable.'” Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund v. Metroplex Serv. Grp., Inc., No. 18 Civ. 5889 (PAE), 2018 WL 4141034, at *6 (S.D.N.Y. Aug. 30, 2018) (quoting Finkel v. Jones Lang LaSalle Americas, Inc., No. 08 Civ. 2333 (RRM) (RML), 2009 WL 5172869, at *5 (E.D.N.Y. Dec. 30, 2009). “To determine the reasonable number of hours worked, the court should strike a balance ‘between principles of thoroughness and efficiency.'” Morozov v. ICOBOX Hub Inc., No. 18 Civ. 3421 (GBD) (SLC), 2020 WL 5665639, at *8 (S.D.N.Y. May 5, 2020) (quoting LCS Grp. LLC v. Shire LLC, 383 F.Supp.3d 274, 280 (S.D.N.Y. 2019)). The court must examine the amount of time spent on each task and decide “how much of that time was reasonably expended given the scope and complexity of the litigation.” Pichardo v. C.R. Bard, Inc., No. 09 Civ. 7653 (SHS), 2015 WL 13784565, at *4 (S.D.N.Y. Jan. 26, 2015) (internal citation omitted).
The time records submitted by Petitioners' counsel are sufficiently detailed and establish that, inter alia, counsel drafted the Petition and other court documents. (ECF No. 1-12). Petitioners' counsel's hours are not “excessive, redundant, or otherwise unnecessary.'” TDL Restoration, Inc., 2020 WL 7239678, at *2 (quoting Hensley, 461 U.S. at 434). Thus, the Court concludes that the number of hours expended is reasonable and respectfully recommends that Petitioners be awarded $168.00, reflecting the reduced rate of $200 per hour for Ms. Moosnick's work, and a rate of $120 per hour for Ms. Keating's work.
Applying the lodestar formula, the total amount of attorneys' fees is $168.00 ((0.3 * $200) + (0.9 * $120) = $168.00).
Finally, the Court finds Petitioners' request for $77.00 in service fees to be “reasonable out-of-pocket expenses incurred by the attorney[s] and which are normally charged fee-paying clients.” FMC Const. LLC, 2014 WL 1236195, at *12; see N.Y.C. & Vicinity Dist. Council of Carpenters v. Plaza Constr. Grp., Inc., No. 16 Civ. 1115 (GHW), 2016 WL 3951187, at *2 (S.D.N.Y. July 19, 2016) (“Recovery of such [service fees] is routinely permitted.”); see also Reliable Build, Inc., No. 21 Civ. 9332 (VM), 2022 WL 214389, at *2 (S.D.N.Y. Jan. 25, 2022).
C. Pre-Judgment Interest
Petitioners seek pre-judgement interest on the Award, at the rate determined by the Arbitrator-5.25%-from May 24, 2022 through the date of judgment. (ECF No. 1 at 8 ¶ 5). The Second Circuit has endorsed a “presumption in favor of pre-judgment interest.” See Waterside Ocean Nav. Co. v. Int'l Nav. Ltd., 737 F.2d 150, 154 (2d Cir. 1984) (“[Defendant] does not present any reasons, let alone persuasive reasons, that would overcome our presumption in favor of prejudgment interest.”). Because Respondent has not overcome the Court's “presumption in favor of pre-judgment interest[,]” id., and Courts have routinely upheld pre-judgment interest awards at the rate determined by an arbitrator, the Court respectfully recommends Petitioners' request for pre-judgment interest be granted. See Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. VREX Constr. Inc., No. 21 Civ. 9408 (JMF), 2022 WL 19786, at *1 (S.D.N.Y. Jan. 3, 2022) (awarding “pre-judgment interest at a rate of 5.25 percent, the rate granted by the arbitrator”); Trustees of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Tried N True Interiors LLC, No. 19 Civ. 02083 (GHW), 2019 WL 2327524, at *3 (S.D.N.Y. May 31, 2019) (awarding pre-judgment interest at a rate of 7%, “the post-award rate prescribed by the arbitrator”).
The total amount accrued (i.e., principal plus interest), from simple interest on a principal of $2,900.00, at a rate of 5.25% per annum for 177 days (0.484932 years) is $2,973.83 (i.e., $2,973.83 = $2,900.00 * (1+ (.0525)(.484932))). Subtracting the $2,900.00 principal from the total amount accrued, $2,973.83, the Court concludes that as of the date of this Report and Recommendation total amount of interest is $73.83, which will need to be updated: the time of Judge Broderick's opinion and order.
D. Post-Judgment Interest
“Post-judgment interest is awarded on any money judgment recovered in a civil case.” Spin Master Ltd. v. Alan Yuan's Store, 325 F.Supp.3d 413, 426 (S.D.N.Y. 2018) (citing 28 U.S.C. § 1961); Trustees of the N.Y.C. Dist. Council of Carpenters Pension Fund v. Golden Dev. & Constr. Corp., No. 17 Civ. 1051 (VSB) (JLC), 2017 WL 2876644, at *6 (S.D.N.Y. July 6, 2017), adopted by, 2017 WL 3309737 (S.D.N.Y. Aug. 2, 2017) (“‘The award of post-judgment interest is mandatory on awards in civil cases as of the date judgment is entered,' including orders that confirm arbitration awards.”) (quoting Lewis v. Whelan, 99 F.3d 542, 545 (2d Cir. 1996)). Postjudgment interest is “calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, . . . for the calendar week preceding[] the date of judgment.” 28 U.S.C. § 1961(a). Accordingly, the Court respectfully recommends that Petitioners be awarded post-judgment interest in an amount to be determined according to the statutory formula set forth in 28 U.S.C. § 1961.
V. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that: (i) the Petition be GRANTED; (ii) the Award be confirmed; (iii) judgment in favor of Petitioners be entered in the amount of $3,145.00, consisting of the Award amount of $2,900.00, plus $168.00 in attorneys' fees and $77.00 in costs; (iv) Petitioners be awarded pre-judgment interest; and (v) Petitioners be awarded post-judgment interest in accordance with 28 U.S.C. § 1961.
NOTICEOF PROCEDUREFOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Broderick.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).