1998 U.S. Dist. LEXIS 5565, *
MASON TENDERS DISTRICT COUNCIL WELFARE FUND,
et al., Plaintiffs, -against- MACKROYCE CONSTRUCTION CORP. and PETER D'AGOSTINO,
Defendants. MACKROYCE CONSTRUCTION CORP. and PETER D'AGOSTINO, Third-Party
Plaintiffs, -against- HOUSEWRECKERS UNION LOCAL 95 INSURANCE, PENSION &
ANNUITY FUND, Third-Party Defendants.
96 Civ. 4693 (SAS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK
1998 U.S. Dist. LEXIS 5565
April 20, 1998, Decided
April 22, 1998, Filed
CORE TERMS: unpaid, unremitted, checkoffs, summary
judgment, fringe benefit, notice, admit, rate charged, calculated, depositions,
accrue, prime, liquidated damages, sworn
COUNSEL: [*1] For Plaintiffs:
Lawrence A. Kravitz, Esq, Gorlick, Kravitz & Listhaus, P.C., New York, NY.
For Defendants: Edwin L. Smith, Esq., Smith & Laquercia,
P.C., New York, NY.
JUDGES:
Shira A. Scheindlin, U.S.D.J.
OPINIONBY: Shira A. Scheindlin
OPINION: OPINION
SHIRA A. SCHEINDLIN, U.S.D.J.
Plaintiffs Mason
Tenders District Council Welfare Fund, Pension Fund, Annuity Fund,
Asbestos Training Program Fund, Industry Fund, Legal Services Fund, Vacation
Fund, New York State Laborers-Employers Cooperation and Education Trust Fund,
New York Laborers' Health and Safety Trust Fund, Building Contractors
Association Industry Advancement Program, John J. Virga, in his fiduciary
capacity as Director, (the "Funds"), and Steve Hammond as Trustees of the
Mason Tenders District Council of Greater New York, (the
"Union"), (referred to collectively as "Plaintiffs"), bring this action pursuant
to section 502(a)(3) and 515 of the Employee Retirement Income Security Act of
1974 ("ERISA"), 29
U.S.C. §§ 1132(a)(3) and 1145, and section 301 of the Labor-Management
Relations Act of 1947 ("LMRA"), 29
U.S.C. § 185, for unpaid fringe benefit contributions, unremitted union dues
checkoffs, and unremitted New York Laborers' [*2] Political Action
Committed ("NYLPAC") contributions. In addition, Plaintiffs seek to recover
interest, statutory damages, and attorneys' fees pursuant to section 502(g)(2)
of ERISA, 29
U.S.C. § 1132(g)(2). Plaintiffs have moved for summary judgment which
defendants oppose only to the extent of the date on which interest begins to
accrue and the amount of attorneys' fees.
BACKGROUND
Defendant Mackroyce Construction Corporation ("Mackroyce") is a
for-profit corporation doing business in the City and State of New York as an
employer within the meaning of sections 3(5) and 515 of ERISA, 29
U.S.C. §§ 1002(5) and 1145, and is an employer in an industry affecting
commerce with the meaning of section 301 of the LMRA, 29
U.S.C. § 185. Defendant Peter D'Agostino ("D'Agostino") is the president of
Mackroyce. D'Agostino executed a collective bargaining agreement for the period
June 1, 1993 through May 31, 1996 (the "Agreement") on behalf of Mackroyce and
himself with the Union wherein, pursuant to section 515 of ERISA, 29
U.S.C. § 1145, Defendants became obligated to pay and/or submit the required
monetary contributions and/or reports to the Funds and to deduct and remit dues
checkoffs [*3] and NYLPAC contributions from the wages paid to those
employees who authorized such deductions.
Plaintiffs served a Notice to
Admit pursuant to Federal Rule of Civil Procedure 36. See Affidavit in
Support of Plaintiffs' Motion for Summary Judgment, sworn to by Lawrence A.
Kravitz, Plaintiffs' Attorney, on January 29, 1998, Exhibit A ("Kravitz Aff.").
In response ("Response") (Kravitz Aff., Exhibit B), Mackroyce admitted that it
was bound by the Agreement. Response, P 1. D'Agostino similarly admitted that he
became a party to the Agreement, id. at P 3, and that he signed the
agreement, id. at P 7.
Defendants conceded that they are liable
for $ 35,652.36 in unpaid fringe benefit contributions (id. at PP
8-10), $ 3,697.25 in unremitted dues checkoffs (id. at PP 15-17), and $
184.86 in unremitted NYLPAC contributions (id. at PP 20-22), all for
the period February 14, 1995 through June 27, 1995. During a pretrial conference
held on December 9, 1997, Plaintiffs agreed that $ 39,534.47 is the principal
amount due. n1 See Declaration in Opposition, sworn to by Edwin L.
Smith, Defendants' Attorney, on February 27, 1998 ("Smith Decl.").
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
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n1 Plaintiffs originally demanded $ 63,968.13 in unpaid fringe
benefit contributions, $ 5,219.75 in unremitted dues checkoffs, and $ 224.97 in
unremitted NYLPAC contributions, totalling $ 69,412.85. See Complaint
at PP 17, 46 and 55.
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Footnotes- - - - - - - - - - - - - - - - - [*4]
DISCUSSION
Rule 56 of the Federal Rules of
Civil Procedure provides that a party seeking to recover upon a claim is, upon
motion, entitled to a grant of summary judgment if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with any
affidavits, 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. Rule 56(c),
Fed.R.Civ.P. See also Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 89 L.
Ed. 2d 538, 106 S. Ct. 1348 (1986). Here, Defendants have made Rule 36
admissions which may be used as a basis to grant summary judgment. See
Donovan
v. Carls Drug Co., Inc., 703 F.2d 650, 651 (2d Cir. 1983) (citations
omitted). Hence, there is no dispute as to either liability or the amount of
principal damages, both of which have been admitted by Defendants. n2 The only
remaining issues for the Court are interest and attorneys' fees.
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n2 Defendants argue that it was not appropriate for Plaintiffs to
file an omnibus motion for summary judgment "when the issues had already been
stipulated in open court." Smith Decl., P 4. Plaintiffs claim that the motion
was both necessary and appropriate as Defendants "have not filed or offered to
file a stipulation acknowledging liability." Whether Defendants were asked, and
refused to file, such a stipulation is not known.
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Section 502(g) of ERISA provides for interest on unpaid contributions at
the rate provided under the plan. In this case, the applicable plan provides for
interest at the prime rate charged by Citibank plus two percent. Kravitz Aff., P
28. As of the return date of Plaintiffs' motion, the prime rate charged by
Citibank was 8.5%. Id. Thus, the rate to be charged, 10.5%, is not in
controversy. What is disputed is the date that interest should begin accruing.
Defendants argue, without supporting authority, that interest should only be
awarded from December 9, 1997, the date Plaintiffs agreed to the amounts owed by
Defendants. Smith Decl., P 7. Plaintiffs argue that interest should accrue from
the date the amounts originally became due, July 1, 1995. Kravitz Aff., P 28.
Plaintiffs are correct in requiring that interest be calculated from the date
the payments first became due. See ILGWA
Nat'l Retirement Fund v. Distinctive Coate Co., Inc., 642 F. Supp. 411
(S.D.N.Y. 1986) (citing 29
U.S.C. § 1399(c)(5)). See also DeVito
v. Hempstead China Shop, Inc., 831 F. Supp. 1037, 1041 (E.D.N.Y. 1983),
rev'd on other grounds, 38
F.3d 651 (2d Cir. 1994) (because interest is available [*6] on
unpaid or delinquent contributions, the date they are due to the Fund is the
applicable commencement date for the accrual of interest).
Interest on $
35,652.36 in unpaid contributions from July 1, 1995 to April 20, 1998 amounts to
$ 10,492. Interest on the $ 3,697.25 in dues checkoffs and $ 184.86 in NYLPAC
contributions shall similarly be computed from July 1, 1995 but at a rate of 9%.
See Mason
Tenders Dist. Council Welfare Fund v. Pistone, 1992 U.S. Dist.
LEXIS 12270, No. 90-3852, 1992 WL 204377, at *5 (S.D.N.Y. Aug. 13, 1992)
(citing N.Y.C.P.L.R. § 5001, et seq.) This interest amounts to $ 280.
Thus, Plaintiffs are entitled to $ 10,772 in interest under 29
U.S.C. § 1132(g)(2)(B) and $ 10,492 in statutory damages under 29
U.S.C. § 1132 (g)(2)(C). n3
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-Footnotes- - - - - - - - - - - - - - - - - -
n3 That subsection
provides for statutory damages in an amount equal to the greater of interest on
the unpaid contributions or liquidated damages provided for under the plan.
Given the absence of a liquidated damages clause in the instant Agreement, these
damages amount to the interest calculated on the unpaid fringe benefit
contributions only.
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Footnotes- - - - - - - - - - - - - - - - - [*7]
This leaves
the determination of reasonable attorneys' fees which "lies within the sound
discretion of the district judge." DeVito,
831 F. Supp. at 1043. See also NYSA-ILA
Medical and Clinical Services Fund v. Salco Trucking Corp., 1995 U.S. Dist.
LEXIS 9321, No. 90-5949, 1995 WL 404863, at *2 (S.D.N.Y. July 6, 1995).
Plaintiffs' counsel submit a total fee of $ 29,773.50 and costs of $ 160 for
this litigation which consisted of service of a summons and complaint, service
of a document demand and a notice to admit, defendants' service of a response to
the notice to admit, and several court appearances. No depositions were held and
no dispositive motions were made except for this largely uncontested summary
judgment motion. The hourly rates used in computing this amount are as follows:
$ 200 per hour for the partner in charge; $ 140 per hour for associates; and $
60 per hour for paralegals. I find these rates to be reasonable. However, upon
review of the timesheets relating to these fees, I find that there were
duplicative and/or unnecessary time charges. For example, there are numerous
entries for correspondence, telephone calls, and intraoffice conferences in
which several attorneys participated. In [*8] addition, there
appears to be repetitive charges for document review. Performing wasteful or
superfluous work or spending excessive time on a given task does not generally
give rise to compensable fees. Salco
Trucking, 1995 U.S. Dist. LEXIS 9321, 1995 WL 404863 at *4. Overall,
the relatively straightforward nature of this lawsuit does not support an award
of close to $ 30,000 in attorneys' fees. Accordingly, the amount of attorneys'
fees is reduced by $ 9,889.50, or approximately 33%, resulting in a fee and cost
award of $ 20,044.
In sum, Defendants are liable to Plaintiffs for $
39,534.47 in unpaid fringe benefit contributions, unremitted dues checkoffs, and
unremitted NYLPAC contributions, $ 10,772 in interest, $ 10,492 in statutory
damages, and $ 20,044 in attorneys' fees and costs. A separate Judgment in the
total amount of $ 80,842.47 is being entered reflecting these amounts.
SO ORDERED:
Shira A. Scheindlin
U.S.D.J.
Dated: New York, New York
April 20, 1998