Opinion
18-CV-9905 (GBD) (VF)
10-17-2022
TRUSTEES of the SHEET METAL WORKERS' LOCAL UNION NO. 28 FUNDS and PLANS, individually named herein as SHEET METAL WORKERS' LOCAL UNION NO. 28 VACATION FUND, SHEET METAL WORKERS' LOCAL UNION NO. 28 WELFARE FUND, SHEET METAL WORKERS' LOCAL UNION NO. 28 SUPPLEMENTAL UNEMPLOYMENT FUND, SHEET METAL WORKERS' LOCAL UNION NO. 28 ANNUITY FUNDS, SHEET METAL WORKERS' LOCAL UNION NO. 28 PENSION FUND, SHEET METAL WORKERS' LOCAL UNION NO. 28 JOINT LABOR MANAGEMENT FUND, SHEET METAL WORKERS' LOCAL UNION NO. 28 EDUCATION FUND, SHEET METAL WORKERS' LOCAL UNION NO. 28 SCHOLARSHIP FUND, SHEET METAL WORKERS' LOCAL UNION NO. 28 ASSESSMENTS FUND, SHEET METAL WORKERS' LOCAL UNION NO. 28 POLITICAL ACTION FUND, SHEET METAL WORKERS' LOCAL UNION NO. 28 BUILDING FUND, and INTERNATIONAL ASSOCIATION OF SHEET METAL, AIR, RAIL AND TRANSPORTATION WORKERS' LOCAL UNION NO. 28, AFL-CIO, Plaintiffs, v. FIVE STAR KITCHEN INSTALLATIONS, INC., Defendant.
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO, United States Magistrate Judge
TO THE HONORABLE GEORGE B. DANIELS, U.S.D.J.
Plaintiffs, the trustees of a number of related funds along with the International Association of Sheet Metal, Air, Rail, and Transportation Workers' Local Union No. 28, AFL- CIO, commenced this action alleging that Five Star Kitchen Installations, Inc. (“Five Star” or “Defendant”) failed to pay fringe benefit contributions to the funds as required by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.; the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 et seq.; and a Collective Bargaining Agreement (the “CBA”). Upon Plaintiffs' application and given Defendant's failure to appear in or otherwise defend against this action, the Honorable George B. Daniels granted Plaintiffs' motion for default judgment against Defendant and referred this matter to the undersigned for an inquest on damages. See Jan. 7, 2020 Orders, ECF Nos. 40, 42. For the reasons that follow, I respectfully recommend that the Court award Plaintiffs damages as calculated below.
BACKGROUND
Plaintiffs are a group of employee benefit plans under ERISA, contractually generated funds created pursuant to a collective bargaining agreement, and a labor union. See Compl. ¶¶ 46, ECF No. 1. Plaintiffs commenced this action on October 26, 2018, alleging that Defendant violated ERISA and the LMRA by failing to make contributions to the funds as required under the CBA. See Compl. ¶¶ 9-11, 17, 25, 29. Plaintiffs also sought to compel Defendant to submit to a payroll audit. See id. ¶¶ 39-43. Despite not appearing in the action, Defendant submitted to an audit. See Decl. of Thomas P. Keane, dated Feb. 14, 2020 (“Keane Decl”) ¶ 6, ECF No. 44. An audit of Defendant's payroll records conducted by an accounting firm for the period of November 3, 2015, through November 13, 2018, determined that Defendant had failed to make contributions to the funds in the amount of $376,801.76. See Keane Decl. ¶¶ 6, 17; Declaration of Glen Camisa, dated Dec. 17, 2019 (“Camisa Decl.”) ¶ 12, ECF No. 36; Audit Report, dated Jan. 15, 2019 (“Audit Report”), ECF No. 36-4. Plaintiffs subsequently filed an Amended Complaint on June 26, 2019, which included additional allegations based on the results of the audit. See, e.g., Am. Compl. ¶ 17, ECF No. 20. Plaintiffs served the Amended Complaint on Defendant's Authorized Agent on June 27, 2019. See Aff. of Service, ECF No. 21. Defendant failed to file an answer or otherwise move with respect to the Complaint or Amended Complaint, and the Clerk of the Court entered a Certificate of Default on July 19, 2019. See Clerk's Cert. of Default, ECF No. 27.
Plaintiffs then filed a motion for a default judgment on December 18, 2019. See Mot. for Default Judgment, ECF No. 33. On January 7, 2020, Judge Daniels entered an Order of Default Judgment against Defendant (see Jan. 7, 2020 Orders, ECF No. 42) and referred the matter to the undersigned for a damages inquest (see Jan. 7, 2020 Orders, ECF No. 40). Plaintiffs filed an inquest submission with supporting declarations, which was served on defendant on February 27, 2020. See Aff. of Service, ECF No. 47. Defendant, as of the date of this Report and Recommendation, has not responded to Plaintiffs' submission or requested a damages hearing. Based on the audit, Plaintiffs seek $376,801.76 in delinquent contributions to the funds for the audit period of November 3, 2015, through November 13, 2018. See Camisa Decl. ¶ 12; see also Pls.' Proposed Findings (“Proposed Findings”) ¶ 22, ECF No. 45. Plaintiffs also seek an award of $128,505.85, representing the interest accrued on the unpaid contributions up to the date of the audit report, $75,360.35 in liquidated damages, attorneys' fees in the amount of $11,652, and costs in the amount of $768.84. See Proposed Findings ¶¶ 29, 33, 36-37.
In the concluding section of the Proposed Findings, Plaintiffs request different amounts for an award of attorneys' fees and costs, specifically $8,956 and $644.27, respectively. See Proposed Findings at 13.
As Plaintiffs' submissions did not explain how they had calculated their proposed award of $128,505.85 in interest, the Court asked Plaintiff on April 29, 2022, to submit a worksheet demonstrating their interest calculations. See ECF No. 48. The Court held a telephonic conference on May 25, 2022, at which it addressed Plaintiffs' interest rate calculation. See Minute Entry for proceedings held before Magistrate Judge Valerie Figueredo (Entered: 05/25/2022).
DISCUSSION
I. Relevant Legal Standard
Rule 55(a) of the Federal Rules of Civil Procedure provides that the Clerk of Court must enter a default against a party who “has failed to plead or otherwise defend” in an action. Fed.R.Civ.P. 55(a). Upon entry of a default, a plaintiff's well-pleaded allegations, except those relating to damages, are accepted as true. City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011); Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004); Cotton v Slone, 4 F.3d 176, 181 (2d Cir. 1993) (noting that “factual allegations are taken as true in light of the general default judgment”); Time Warner Cable of N.Y. City v. Barnes, 13 F.Supp.2d 543, 547 (S.D.N.Y. 1998).
Damages must be proven by a plaintiff with sufficient evidence to establish the amount sought “with reasonable certainty.” Trustees of Local 813 Ins. Trust Fund v. Rogan Brothers Sanitation Inc., 2018 WL 1587058, at *5 (S.D.N.Y. 2018). In conducting an inquest, the court need not hold a hearing so long as “a review of detailed affidavits and documentary evidence” establishes a basis for the damages specified in the default judgment. See Cement & Concrete Workers Dist. Counsel Welfare Fund v. Metro Foundation Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012); see also Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997). “Where a defendant has never appeared in an action, a court may base its determination of damages solely on the plaintiff's submissions.” Rogan Brothers, 2018 WL 1587058, at *5; see also Lenard v. Design Studio, 889 F.Supp.2d 518, 527 (S.D.N.Y. 2012) (“Where a defaulting defendant has not made any submission on a damages inquest, the Court must assess whether the plaintiff has provided a sufficient basis for the Court to determine damages.”).
II. Facts Relating to Five Star's Liability
The factual allegations in the amended complaint establish Five Star's liability for delinquent benefit contributions and related damages under Section 515 of ERISA, Section 301 of the LMRA, and the CBA. As alleged in the amended complaint, this action arises under Sections 502 and 515 of ERISA, 29 U.S.C. §§ 1132, 1145, and Section 301(a) of the LMRA, 29 U.S.C. §185(a). See Amend. Compl. ¶1. Plaintiff International Association of Sheet Metal, Air, Rail and Transportation Workers Local Union NO. 28, AFL-CIO (the “Union Plaintiff”) is a labor organization affecting commerce as defined in 29 U.S.C. § 152(5) and 29 U.S.C. § 1002(4). See id. ¶ 6. Plaintiffs, Trustees of the Sheet Metal Workers' Local Union No. 28 Funds and Plans, individually named herein as Sheet Metal Workers' Local Union No. 28 Vacation Fund, Sheet Metal Workers' Local Union No. 28 Welfare Fund, Sheet Metal Workers' Local Union No. 28 Supplemental Unemployment Fund, Sheet Metal Workers' Local Union No. 28 Annuity Fund, Sheet Metal Workers' Local Union No. 28 Pension Fund, Sheet Metal Workers' Local Union No. 28 Joint Labor Management Fund, Sheet Metal Workers' Local Union No. 28 Education Fund, and Sheet Metal Workers' Local Union No. 28 Scholarship Fund (hereafter “ERISA Funds”), are employee benefit plans under 29 U.S.C. § 1002(1) and (2). See id. ¶ 4. Plaintiffs Sheet Metal Workers' Local Union No. 28 Assessments Fund, Sheet Metal Workers' Local Union No. 28 Political Action Fund, and Sheet Metal Workers' Local Union No. 28 Building Fund (hereafter “Union Funds”) are contractually-generated funds created pursuant to the relevant CBA between the Union Plaintiff and non-parties Sheet Metal & Air Conditioning Contractors Association of New York City, Inc. and SMACNA of Long Island, Inc. See id. ¶ 5.
The Trustees of the funds have standing to bring these claims in their role as fiduciaries. See Silverman v. Teamsters Local 210 Affiliated Health & Ins. Fund, 761 F.3d 277, 285 (2d Cir. 2014). Defendant Five Star is a New York corporation engaged in an industry affecting commerce and is an employer as defined by the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 152, 185(a), and ERISA, 29 U.S.C. §§ 1002(5), 1145. See Amend. Compl. ¶¶ 7-8.
Under Section 515 of ERISA,
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. At all relevant times, Defendant and the Union Plaintiff have been parties to a CBA, which required Defendant to make fringe benefit contributions to the funds and the union at specified rates on behalf of Defendant's employees who are covered by the CBA. See Amend Compl. ¶¶ 9-10; see also Camisa Decl. ¶¶ 6-7. Plaintiffs allege that Defendant failed to make these contributions to the ERISA funds (see Amend. Compl. ¶¶ 17, 25), which establishes liability under Section 515 of ERISA.
Additionally, “[u]nder Section 301 of the LMRA, an employer may be held liable for failing to remit dues or contributions to a labor organization as required under the terms of a CBA.” Bricklayers Ins. & Welfare Fund v. McGovern & Co., LLC, No. 17-CV-6067, 2019 WL 2271942, at *3 (E.D.N.Y. Mar. 6, 2019), report and recommendation adopted, 2019 WL 1772399 (E.D.N.Y. Apr. 23, 2019); Trs. of the Sheet Metal Workers' Local Union No. 28 Funds & Plans, et al. v. Air Wise Heating & Cooling, Inc., No. 18-CV-11569, 2020 WL 2846693, at *2 (S.D.N.Y. June 2, 2020), report and recommendation adopted, 2020 WL 3440503 (S.D.N.Y. June 23, 2020). Here, under the terms of the CBA, Defendant was required to make contributions to the funds in the amount of $376,801.76, but failed to do so. See Amend. Compl. ¶¶ 10, 17, 2834. This allegation establishes breach of the CBA, and consequently establishes liability under Section 301 of the LMRA.
III. Plaintiffs' Damages
In an ERISA action brought by a fiduciary for or on behalf of a benefit plan to enforce rights under Sections 515 of ERISA, the statute specifies the damages to be awarded when judgment is entered in favor of the plaintiff. See 29 U.S.C. § 1132(g)(2). These damages include:
(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.29 U.S.C. § 1132(g)(2); see also Air Wise Heating & Cooling, Inc. 2020 WL 2846693, at *2-3. Plaintiffs here seek damages consisting of unpaid contributions to the funds, interest on the unpaid contributions, liquidated damages, attorneys' fees, and costs. See Proposed Findings ¶¶ 18-19, 24, 29, 33, 36-37; Am. Compl. at 8-9 (Prayer for Relief).
A. Unpaid Contributions
As part of their submissions for this inquest, Plaintiffs provided the audit report, prepared by Calibre CPA Group, of Five Star's compliance with the CBA's funds contribution requirements. See Camisa Decl. at Ex. 4, ECF No. 36-4. In conducting the audit, the auditors reviewed Defendant's payroll journals, individual earnings records, payroll tax returns, general disbursement records, and contribution reports for all covered employees between November 3, 2015, through November 13, 2018. See id. at 3-4. The independent audit determined that Defendant owed unpaid contributions to the Funds in the amount of $376,801.76, for the period from November 3, 2015, through November 13, 2018. See Proposed Findings ¶ 22.
The audit report establishes, through calculations for each covered employee of defendant, how the $376,801.76 figure was reached. “Courts have found it appropriate to rely on an audit or an auditor's opinion to prove that defendant employers did not make required contributions to funds.” Fuchs v. Rowlanti Constr., Inc., No. 05-CV-4906 (ADS) (AKT), 2010 WL 11651644, at *3 (E.D.N.Y. Nov. 24, 2010), report and recommendation adopted, 2011 WL 13323578 (E.D.N.Y. Jan. 11, 2011) (citation and internal quotation marks omitted); see also Air Wise Heating & Cooling, Inc. 2020 WL 2846693, at *3 (granting award of delinquent contributions based on audit findings); Bd. of Trs. of Am. Fed'n of Muscians & Employers' Pension Fund v. Banos, No. 18-CV-4250 (JGK) (KHP), 2019 WL 2477316, at *4 (S.D.N.Y. May 24, 2019); Gesualdi v. Specialty Flooring Systems, Inc., No. CV-11-5937 (JS) (ARL), 2014 WL 2208195, at *3-4 (E.D.N.Y. May 28, 2014) (relying on payroll audit reports to calculate unpaid contributions owed by the employer). Further, Defendant has not introduced any evidence that would suggest that the audit's findings are inaccurate. Plaintiffs have thus adequately supported their claim for $376,801.76 and therefore I recommend that Plaintiffs be awarded $376,801.76 in unpaid contributions.
B. Interest and Liquidated Damages
Employers who make contributions to an employee benefit plan must “make such contributions in accordance with the terms and conditions of such plan.” 29 U.S.C. § 1145. If the employer fails to make contributions in accordance with the plan, 29 U.S.C. § 1132 provides that following a successful action by a plan's trustees to recover unpaid contributions due under a plan, “the court shall award the plan . . . (B) interest on the unpaid contributions, [and] (C) an amount equal to the greater of-(i) interest on the unpaid contributions, or (ii) liquidated damages provided for under the plan.” 29 U.S.C. § 1132(g)(2). ERISA provides that “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.” Id.
Pursuant to the terms of the Trust Agreement governing the funds, Plaintiffs adopted a Policy for Collection of Delinquent Contributions (“Collection Policy”). See Camisa Decl. ¶ 10, ECF No. 36; Camisa Decl. Ex. 3, ECF No. 36-3. The Collection Policy provides that interest on delinquent contributions will be assessed at a rate of “two (2%) percent per month, or such other rate as specified in the CBA.” See Camisa Decl. Ex. 3 at Section 5. The CBA provides for interest on delinquent contributions at the prime rate plus twelve percent (12%) with a minimum of fifteen percent (15%) per year, following a five-day grace period. See Camisa Decl. Ex. 2 at Art. XII, Section 15, ECF No. 36-2.
In their Proposed Findings, Plaintiffs requested interest on the unpaid contributions that “accrued to the date the audit report was issued” in the amount of $128,505.85. Proposed Findings ¶ 29. That amount conflicts with the amount of interest on the unpaid contributions requested in the Amended Complaint. In the Amended Complaint, Plaintiffs also sought an award of interest accrued to the date of the audit report, but the amount requested was $66,895.23. Am. Compl. ¶¶ 16-17, 27, 31, 34. Because Plaintiffs' submissions did not explain how the interest amount was calculated, I requested supplemental submissions specifically to address the interest rate used and how the interest amount was calculated. See ECF No. 48. Subsequently, Plaintiffs submitted an Affidavit from Justin Sargent, which included a worksheet showing the interest calculations, and explaining the interest rate used to calculate the requested amount. See ECF No. 49.
Although Plaintiffs note in their Proposed Findings that the interest amount requested of $128,505.85 represents “interest accrued to the date the audit report was issued” (Proposed Findings ¶ 29), the audit report appears to have been completed by January 15, 2019, and the interest amount in the report that corresponds to that completion date is $66,895.23. See ECF No. 36-4 at p. 7. Moreover, the amount of $66,895.23 is the interest amount requested by Plaintiffs in the Amended Complaint. Cognizant of the fact that “[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings,” Fed.R.Civ.P. 54(c), Plaintiffs should be awarded the amount of interest requested in the Amended Complaint, which also corresponds to their request for “interest accrued to the date the audit report was issued.” Proposed Findings ¶ 29; see Silge v. Merz, 510 F.3d 157, 160 (2d Cir. 2007) (“By limiting damages to what is specified in the ‘demand for judgment,' the rule ensures that a defendant who is considering default can look at the damages clause, satisfy himself that he is willing to suffer judgment in that amount, and then default without the need to hire a lawyer.”). As such, I recommend an award of interest in the amount of $66,895.23.
Pursuant to the CBA and the Collection Policy, Plaintiffs are also entitled to liquidated damages of 20 percent (20%) of unpaid contributions. See Camisa Decl. Exs. 2 (CBA), 3 (Collection Policy). That amount is also consistent with the limit imposed by ERISA, which caps liquidated damages at 20 percent. See 29 U.S.C. 1132(g)(2)(C)(ii). Plaintiffs request liquidated damages in the amount of $75,360.35, which is 20% of the unpaid contribution amount of $376,801.76. See Proposed Findings ¶ 33. This amount is reasonable because it complies with ERISA's limitations on liquidated damages. Accordingly, I recommend an award of liquidated damages in the amount of $75,360.35.
C. Attorney's Fees and Costs
Section 502(g)(2)(D) of ERISA, 29 U.S.C. § 1132(g)(2)(D), requires an award of attorneys' fees and costs upon a determination that an employee benefit plan is entitled to judgment for unpaid contributions. See LaBarbera v. Clestra Hauserman, Inc., 369 F.3d 224, 226 (2d Cir. 2004) (noting that an award of attorneys' fees and costs is mandatory under 29 U.S.C. § 1132(g)(2)). To calculate attorneys' fees, courts in this Circuit determine the reasonable hourly rate, defined as “the rate a paying client would be willing to pay,” and multiply that rate by the number of hours reasonably expended in prosecuting an action. Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110, 117-18 (2d Cir. 2007) amended by 522 F.3d 182 (2d Cir. 2008). To be reasonable, the attorney's rate must be “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006) (alteration in original) (internal citation omitted). Additionally, to be awarded attorneys' fees and costs, a plaintiff must present contemporaneous time records that indicate “for each attorney, the date, the hours expended, and the nature of the work done.” N.Y. Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983).
In support of their application for attorneys' fees, Plaintiffs submitted copies of the billing records for their attorneys, which indicate the date the legal services were performed, provide a description of the services performed, and state the amount of time spent in performance of those services accompanied by the initials of the person who completed the work. See Keane Decl. Ex. H, ECF No. 44-8. The records further indicate that the work performed by Plaintiffs' attorneys related specifically to seeking payment of the delinquent contributions from Defendant. More specifically, the attorneys researched and discussed potential claims, prepared default papers, prepared supplemental declarations, and prepared a memorandum of law on personal liability for ERISA contributions. See Keane Decl. ¶ 19, ECF No. 44. And, the billing records were prepared contemporaneously. See id. The billing records thus satisfy the requirement that an award of attorneys' fees be based on contemporaneous time records. See Hollander Glass Texas, Inc. v. Rosen-Paramount Glass Co., Inc., 291 F.Supp.3d 554, 562-63 (S.D.N.Y. 2018).
The declaration submitted by Plaintiffs' counsel details that only three people-two attorneys, Thomas P. Keane and John S. Groarke, and one paralegal, Lilly Piazza-worked on this matter. See Keane Decl. ¶ 18, ECF No. 44. Although the declaration of Plaintiffs' counsel indicates that John S. Groarke worked on this matter, the billing records do not indicate that any work was performed by Mr. Groarke, as none of the entries in those records correspond to his initials, “JSG.” Compare Keane Decl. ¶ 18, ECF No. 44 with Keane Decl. Ex. H, ECF No. 44-8. Moreover, the billing records show that additional individuals, identified by the initials “CPO,” “JAG,” and “KM,” also worked on this case. See, e.g., Keane Decl. Ex. H, ECF No. 44-8, at pp. 3-4. Because Plaintiffs have not provided any information about these individuals, I do not recommend awarding any amount in attorneys' fees with respect to time spent on this matter by the three individuals designated in the billing records as “CPO,” “JAG,” and “KM.”
The billing records identify an individual with the initials “JAG.” See Keane Decl. Ex. H, ECF No. 44-8 at p. 3. But the records also show that JAG's hourly rate is $75 per hour, see id., which is well below the rate of Mr. Groarke, a partner at the firm whose standard hourly rate is $350 per hour, see Keane Decl. ¶ 18, ECF No. 44. As such, I do not believe that the individual identified as JAG is Mr. Groarke.
Thomas Keane, an associate at Colleran, O'Hara & Mills, has specialized in ERISA litigation since 2013, and seeks a rate of $225 per hour. See Keane Decl. ¶ 18, ECF No. 44. His time is indicated in the billing records by his initials “TPK” See Keane Decl. Ex. H, ECF No. 44, at pp. 8-12. Mr. Keane's hourly rate is well within the range of reasonable rates charged by other attorneys performing similar work within the Southern District of New York. See, e.g., N.Y. Dist. Council of Carpenters Pension Fund v. Quantum Constr., No. 06-CV-13150, 2008 WL 5159777, at *13 (S.D.N.Y. Dec. 9, 2008) (awarding $300 per hour for an associate's time in an ERISA delinquent contribution case where default judgment was entered); Sheet Metal Workers' Nat. Pension Fund v. Maximum Metal Manufacturers Inc., No. 13-CV-7741, 2015 WL 4935116, at *10 (S.D.N.Y. Aug. 18, 2015) (noting that “fee rates for experienced attorneys in small firms generally range from $250 to $450” in this District); Air Wise Heating & Cooling, Inc., 2020 WL 2846693, at *6 (approving $225 as a reasonable hourly fee for an associate who primarily litigates cases involving delinquent fringe benefit contributions).
According to the billing records, Mr. Keane performed 40.6 hours of work on this matter. The descriptions associated with the work he performed show that the work included drafting the amended complaint, preparing the motion for default judgment, attending court conferences, discussing the audit of Defendant with the auditors, and preparing the materials for the damages inquest. See Keane Decl. Ex. H., ECF No. 44-8 at ¶ 8-12. The work performed by Mr. Keane was relevant to the litigation and the time spent was reasonable. Moreover, Mr. Keane is the only attorney for whom I recommend an award of fees. At his hourly rate of $225, I therefore recommend awarding $9,135 in attorney's fees for Mr. Keane.
Lilly Piazza, a senior paralegal who has been a paralegal since 1994, seeks a rate of $165 per hour, and her time is indicated in the billing records by her initials, “LTP.” See Keane Decl. ¶ 18, ECF No. 44. According to the billing records, Ms. Piazza expended 6.1 hours of time on this matter, performing such tasks as corresponding to schedule the audit, recording and updating deadlines for filings and conferences in this matter, and searching emails for employee paystub information. See Keane Decl. Ex H, ECF No. 44-8. Although I recommend awarding Plaintiffs an award for the 6.1 hours of time expended by Ms. Piazza working on this matter, I recommend reducing her rate to $150 per hour, which is consistent with the hourly rate other courts in this District have deemed reasonable for work performed by paralegals in similar ERISA actions. See, e.g., Trs. of Sheet Metal Workers' Local Union No. 28 Funds and Plans v. Bo Guards Mechanicals LLC, No. 21-CV-1868 (PAE) (KHP), 2021 WL 6497935, at * 6 (S.D.N.Y. Dec. 27, 2021), report and recommendation adopted as modified, 2022 WL 138053 (S.D.N.Y. Jan. 14, 2022) (reducing requested hourly rate for Ms. Piazza to $150 per hour); Trs. of the Mason Tenders Dist. Council Welfare Fund v. Stevenson Contracting Corp., No. 05-CV-5546 (GBD) (DF), 2008 WL 3155122, at *11 (S.D.N.Y. June 19, 2008), report and recommendation adopted, 2008 WL 2940517 (S.D.N.Y. July 29, 2008) (concluding that rates of $140 to $150 for litigation support staff was reasonable). I thus recommend that Plaintiffs' be awarded $915.00 for the work performed by Ms. Piazza.
Additionally, Plaintiffs seek reimbursement of costs that have been incurred in this action. See Keane Decl., Ex. H, ECF No. 44-8. As noted, 29 U.S.C. § 1132(g)(2)(D) directs a court to award reasonable costs when “a judgment in favor of the plan is awarded.” See also LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (noting that an award of attorney's fees “include[s] those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients”); Tri-Star Pictures, Inc. v. Unger, 42 F.Supp.2d 296, 306 (S.D.N.Y. 1999) (“Out-of-pocket litigation costs are [ ] recoverable if they are necessary for the representation of the client.”). Plaintiffs have proffered records detailing the costs incurred in connection with this action, which include disbursements for: $400 for “Court Filing Fee”; $115.00 and $116.80 for “Process Services Fee”; $17.77 in “Postage Expense”; $62.70 in Photocopies”; and $56.14 in “Legal Research Fee.” See Keane Decl. Ex. H, ECF No. 44-8.
The records detail the amount of the expense and the date on which it was incurred, and the costs include a filing fee, fees for process servers, photocopy fees, and postage-all of which are the types of costs that are compensable. See, e.g., Trustees of the N.Y. City Dist. Council of Carpenters Pension Fund, No. 20-CV-6894 (LJL) (KHP), 2021 WL 2556130, at *5 (S.D.N.Y. May 13, 2021), report and recommendation adopted, 2021 WL 2555840 (S.D.N.Y. June 22, 2021); Gesualdi v. Magnolia Pro Trucking Inc., No. 11-CV-4082 (ADS) (AKT), 2012 WL 4036119, at *11 (E.D.N.Y. Aug. 20, 2012), report and recommendation adopted, 2012 WL 4035779 (E.D.N.Y. Sept. 11, 2012); U.S.A. Famous Original Ray's Licensing Corp. v. Famous Ray's Pizza Buffet Inc., No. 12-CV-8753 (JGK) (GWG), 2013 WL 5363777, at *8 (S.D.N.Y. Sept. 26, 2013), report and recommendation adopted, 2013 WL 5664058 (awarding costs for filing fees, copies, research, and service of process). Thus, I recommend that Plaintiffs be awarded $768.41 in costs.
Although Plaintiffs' declaration seeks $768.84 in costs (see Keane Decl. ¶ 20, ECF No. 44), the costs outlined in the billing records add up to $768.41.
In sum, I recommend a total award of attorneys' fees in the amount of $10,050, and an award of costs in the amount of $768.41.
CONCLUSION
For all of the foregoing reasons, I recommend that, on the default judgment against
Defendant, Plaintiffs be awarded: $376,801.76 in principal damages for delinquent fringe benefits contributions; $66,895.23 in prejudgment interest; $75,360.35 in liquidated damages; $10,050 in attorneys' fees; and $768.41 in other costs.
SO ORDERED.
PROCEDURE FOR FILING 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 have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the Honorable George B. Daniels. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).