Opinion
No.: 18-CIV-4250 (JGK)(KHP)
05-24-2019
THE BOARD OF TRUSTEES OF THE AMERICAN FEDERATION OF MUSICIANS AND EMPLOYERS' PENSION FUND, Plaintiff, v. KAREN BANOS d/b/a RITTENHOUSE MUSIC, Defendant.
TO: THE HON. JOHN G. KOELTL, UNITED STATES DISTRICT JUDGE
FROM: KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE REPORT AND RECOMMENDATION
This matter was heard on May 20, 2019 at 11:00 AM in Courtroom 17-D, United States Courthouse, 500 Pearl Street, New York, New York. Present was Zachary N. Leeds, an attorney at Cohen, Weiss and Simon, LLP representing the Board of Trustees of the American Federation of Musicians and Employer's Pension Fund, the Plaintiff. Despite notice, Defendant did not appear. Having heard the evidence and reviewed the relevant documents submitted by the parties, the Court now makes the following findings, conclusions and recommendations: Procedural History
This is an action under Sections 502(a)(3) and 515 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. §§ 1132(a)(3) and 1145, and Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a) brought by fiduciaries of a multiemployer benefit plan against an employer for injunctive and monetary relief. Complaint ¶ 1. (Docket No. 1.) Banos was properly served with the Summons and Complaint. The Affidavit of Service was filed with the Clerk of the Court on July 18, 2018. (Docket No. 6.) The Court entered Banos' default establishing that she is personally liable for all damages awarded by the Court, and referred the matter to the undersigned for an inquest on damages on February 25, 2019. (Docket No. 45.) The Fund
The Fund is an "employee benefit plan" and "multiemployer plan" within the meaning of Sections 3(3) and 3(37) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. §§ 1002(3) and 1002(37). Declaration of William J. Luebking ("Luebking Decl.") ¶ 4. The Fund is jointly administered by a Board of Trustees in accordance with Section 302(c)(5) of the Labor Management Relations Act of 1947, 29 U.S.C. § 186(c)(5). Luebking Decl. ¶ 4. The Fund is governed by an Agreement and Declaration of Trust Establishing the American Federation of Musicians and Employers' Pension Fund ("Trust Agreement"). Luebking Decl. ¶ 5. Defendant's Obligations to the Fund
Rittenhouse, through Banos, is a party to collective bargaining agreements with the Union that govern the terms and conditions of employment of musicians who performed on the Il Volo Tour with Rittenhouse in 2017. Luebking Decl. ¶ 9. Banos executed two separate collective bargaining agreements, on her own behalf, doing business as Rittenhouse, the "Special Letter of Agreement, Il Volo East Coast 2017" dated February 27, 2017 ("Special CBA") and a Form LS-1 collective bargaining agreement ("LS-1 CBA," together with the Special CBA, "CBAs") dated March 30, 2017. Luebking Decl. ¶ 10. The Special CBA sets terms and conditions of employment for musicians employed in six performances scheduled in 2017, which are listed in the Special CBA. Luebking Decl. ¶ 11.
The LS-1 CBA sets the terms and conditions of employment for musicians employed in a single performance scheduled for April 1, 2017. Luebking Decl. ¶ 12. The CBAs bound Banos to the provisions of the Trust Agreement. Luebking Decl. ¶ 13. Pursuant to the CBAs and the Trust Agreement, Banos was required to contribute to the Fund on behalf of the musicians engaged to perform on the Il Volo Tour. Luebking Decl. ¶ 14. Banos was required to submit remittance reports to the Fund that provided information regarding the covered musicians, including the musicians' wages and the applicable contributions due to the Fund. Luebking Decl. ¶ 15.
Pursuant to the Trust Agreement, an employer is required to submit to audit of the employer's books and records to allow the Fund to determine if the employer has reported the work of musicians and paid contributions on their behalf properly. Luebking Decl. ¶ 16. In addition, pursuant to the Trust Agreement, an employer that is delinquent in paying contributions to the Fund is liable for interest, liquidated damages, and all costs in collecting the contributions. Luebking Decl. ¶ 17. The Trust Agreement further authorizes the Trustees to initiate an action to enforce an employer's obligations to pay contributions to the Fund and submit to an audit. Luebking Decl. ¶ 18. Banos' Failure to Pay Contributions and Submit to Audit
Banos submitted a single remittance report to the Fund with a check in the amount of $699.26 for contributions due pursuant to the LS-1 CBA for the April 1, 2017 engagement. However, the Fund was unable to process the check due to insufficient funds in Banos' account. Luebking Decl. ¶ 19. By letters dated August 29, 2017 and August 30, 2017, the Fund notified Banos that her payment for the April 2017 engagement had bounced and demanded payment for that performance and for the other performances on the Il Volo Tour. Luebking Decl. ¶ 20.
On September 6, September 20, November 28, and December 4, 2017, the Fund sent emails and left voicemail messages for Banos regarding the outstanding balances. The Fund received no response from Banos until December 4, 2017 when she responded by email that she "submitted that list and sent in the form with names/information [and] until the other issues [ ] are resolved, I will not respond to the Pension Dept."
On December 5, 2018, the Fund responded to Banos reminding her that she sent one form for the Miami performance on April 1, 2017, listed in the LS-1 CBA, and had not submitted remittance forms for the six other performances in the Il Volo Tour, listed in the Special CBA. The Fund received no response from Banos. Luebking Decl. ¶ 21. Banos failed to provide any payment to the Fund or otherwise respond to these communications. Luebking Decl. ¶ 22.
By letter dated December 6, 2017, the Fund demanded an audit of Rittenhouse. Luebking Decl. ¶ 23. Banos failed to submit to audit. Luebking Decl. ¶ 24. Counsel's Communications with Banos
Prior to the filing of the lawsuit, the Fund's Counsel ("Counsel") had numerous email exchanges and telephone calls with Banos and with an attorney who represented her for a short time, before withdrawing from representation, to try to resolve the matter without the need for litigation, which was not ultimately possible. Leeds Decl. ¶ 8. One month after service of the Summons and Complaint, on July 27, 2018, Banos responded to an e-mail from the Fund's Counsel attaching the Summons and Complaint in this matter. In the e-mail, Banos requested a settlement and reinstatement in the Union and provided a spreadsheet with employee names and payment amounts. Leeds Decl. ¶ 9. The same day, July 27, 2018, Counsel for the Fund requested documents to substantiate the information contained in the spreadsheet, including the documents and information that had been previously requested and is sought in this lawsuit. Leeds Decl. ¶ 10.
On June 30, 2018, the Fund's Counsel spoke with Banos regarding the lawsuit and the Fund's requests for information and documents. Leeds Decl. ¶ 11. On July 31, 2018, Banos provided event dates and locations, but no additional substantiating records. In response, on August 2, 2018, the Fund's Counsel explained the need for bank statements to substantiate payments to musicians. Leeds Decl. ¶ 12.
On August 6, 2018, Banos provided a list that she appeared to have created of check numbers for musicians paid. Banos failed to provide the check copies or bank statements. Leeds Decl. ¶ 13. On August 14, 2018, the Fund's Counsel sent an e-mail with a spreadsheet prepared by the Fund that listed musicians and performance dates covered by the CBAs. In the e-mail, the Fund's Counsel asked Banos to confirm the musicians who performed and to provide documents that substantiate payments, including, but not limited to cancelled checks, bank statements, and correspondence. Leeds Decl. ¶ 14. On August 15, 2018, Banos responded to the Fund's Counsel's email stating that she was not responsible for the musicians listed in the spreadsheet. The Fund's Counsel replied and asked for more information. But, Banos did not respond. Leeds Decl. ¶ 15.
On September 11, 2018, Banos confirmed she had requested copies of the checks and would forward the same in several weeks, once received. The Fund's Counsel responded, again requesting information and documentation. Leeds Decl. ¶ 16. On September 24, 2018, Banos again reported she had requested copies of cancelled checks and would forward them upon receipt. Leeds Decl. ¶ 17. On October 4, 2018, Banos forwarded bank statements from March 2017 to June 2017 from Sun Bank for an account held in the name of Karen Banos d/b/a Rittenhouse Music. The statements did not show payments to musicians.
In response, the Fund's Counsel requested copies of the checks for the musicians paid from the Sun Bank account. Banos noted it would be "tedious" to obtain the records. Leeds Decl. ¶ 18. On October 15, 2018, on behalf of the Trustees, the Fund's Counsel served requests to admit and document requests on Banos. Leeds Decl. ¶ 19. On October 16, 2018, Banos sent an e-mail with the same information she had previously provided. Leeds Decl. ¶ 20.
After having served all of the court filings and orders, including the default motion and related scheduling orders, Counsel sent a reminder about the January 25, 2019 default hearing to defendant. An individual identifying himself as Banos' husband responded, and requested an adjournment of the hearing. The Fund's Counsel agreed, and this Court granted the adjournment until February 1, 2019. Leeds Decl. ¶ 21. On January 31, 2019, Counsel was contacted by an attorney, Gerald Schoelzel, an attorney representing Defendant, who again requested that the conference be adjourned. The Fund's Counsel advised the Court (Docket No. 41), and the hearing was adjourned to February 21, 2019. (Docket No. 42). Leeds Decl. ¶ 22. On February 4, 2019, Defendant herself submitted a letter to the Court. The Fund's Counsel emailed and spoke with Mr. Schoelzel several times in early February. He did not appear in this action. Finally, shortly before the February 21 conference, he told the Fund's Counsel that Banos did not intend to oppose Plaintiff's default motion or otherwise defend the action, which the Fund's Counsel reported to the Court on February 14, 2019. (Docket No. 41.) Leeds Decl. ¶ 23. To date, Banos has failed to provide any additional documents and failed to respond to the discovery requests. Leeds Decl. ¶ 24. Banos also failed to defend this action or submit any documents in response to the Fund's request for contributions and other amounts discussed herein. The Audit
Banos provided some documentation regarding musicians' work on the Il Volo Tour and her personal bank statements, but the information was incomplete and the Fund was unable to complete the audit. Luebking Decl. ¶¶ 26-27. In light of Banos' failure to provide complete information, the Fund contacted musicians who performed on the Il Volo Tour to try to complete the audit. Luebking Decl. ¶ 28. The musicians provided the Fund detailed contemporaneous documentation related to each performance, including the musicians who performed, the work involved on each engagement, and the compensation paid to the musicians. Luebking Decl. ¶ 29. The Fund used the information obtained from musicians to determine the contributions due from Banos to the Fund on the musicians' behalf ("Audit"). Luebking Decl. ¶ 30.
Pursuant to the Special CBA, Banos was required to remit contributions equal to 10% of salary for the following performances: (1) March 2, 2017, Easton, PA; (2) March 4, 2017, New York, NY; (3) March 7, 2017, Philadelphia, PA; (4) March 9, 2017, Washington, DC; (5) March 11, 2017, Mashantucket, CT; and (6) March 14, 2017, Boston, MA. Luebking Decl. ¶ 31. For the work performed by the musicians at each of the above locations, Banos was required to pay each musician the amounts set out in the Special CBA on page 1, under "Minimum Salary," including a minimum wage of $350 per half-hour, beyond the first hour of sound check; $70.00 per hour for rehearsals; and a doubling rate for musicians required to "double" on other instruments, as follows: 1st double, 20% of minimum salary; 2nd double, 15% of minimum salary, and 3rd double, 10% of minimum salary. Luebking Decl. ¶ 32. Pursuant to the LS-1 CBA, Banos was required to remit contributions to the Funds equal to 8.72% of wages for Rittenhouse Musicians for a performance at the American Airlines Arena, Miami, Florida on April 1, 2017. Luebking Decl. ¶ 33. For the work performed by the musicians at the American Airlines Arena in Miami Florida, Banos was required to pay each musician $297.00. Luebking Decl. ¶ 34.
Based on the information the Fund obtained from Banos and the musicians, the Fund was able to complete a calculation of the contributions due from Banos under the CBAs ("Audit"). As reflected in the Audit, Banos owes the Fund $14,960.31 in unpaid contributions, consisting of the following:
| Location | Contributions Due |
|---|---|
| Easton, PA | $3,241.00 |
| NYC | $2,296.00 |
| Philadelphia | $2,331.00 |
| Foxwoods | $1,837.50 |
| Washington, DC | $1,837.50 |
| Boston | $1,890.00 |
| Miami FL | $1,450.31 |
| Unidentified Location | $77.00 |
| Total | $14,960.31 |
In evaluating the damages in a default case, "[w]here 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." Lenard v. Design Studio, 889 F. Supp. 2d 518, 527 (S.D.N.Y. 2012). Furthermore, Plaintiffs served requests to admit on Defendant, asking her to admit or deny the accuracy of the Audit. Leeds Decl. ¶ 19. Defendant failed to respond to the requests to admit. Pursuant to Federal Rule of Civil Procedure 36(a)(3), a matter is admitted unless, within 30 days after being served the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. See Virga v. Big Apple Const. & Restoration Inc., 590 F.Supp.2d 467, (S.D.N.Y. 2008). An employer is obligated under ERISA and the terms of the CBA and Trust Agreement to submit to periodic audits and pay delinquencies identified by the audits.
Banos, acting as Rittenhouse, is obligated under the terms of the CBAs and the Trust Agreement, and pursuant to ERISA, to submit to periodic audits and pay any delinquencies identified by the audits. See Jaspen v. Glover Gas Corp., 80 F.3d 38, 41 (2d Cir.1996) ("Fund trustees have a fundamental duty to locate and take control of fund property—a duty for which the right to audit is crucial." (internal citations omitted)). Banos is also obligated under the terms of the CBAs and Trust Agreement, and pursuant to ERISA Section 515, 29 U.S.C. §1145, to remit contributions found due to the Fund pursuant to such audit. Comp. ¶¶ 11, 12, 24; Req. Adm. ¶ 33.
The Trustees have a fiduciary obligation under ERISA to collect delinquent contributions owed to the Fund by employers. See Central States, Southeast and Southwest Areas Pension Fund v. Central Transp., Inc., 472 U.S. 559, 571-72 (1985) ("ERISA clearly assumes that trustees will act to ensure that a plan receives all funds to which it is entitled, so that those funds can be used on behalf of participants and beneficiaries, and that trustees will take steps to identify all participants and beneficiaries, so that the trustees can make them aware of their status rights under the trust's terms."); New York Teamsters Conf. Pension and Retirement Fund v. Boening Bros. Inc., 92 F.3d 127, 130-32 (2d Cir. 1996) (audits of signatory companies fall "well within the scope of a trustee's common law fiduciary duties and powers."). The audit report is entitled to a presumption of correctness, which allows the Fund to determine the work covered by the CBA when the employer has failed to maintain records that would have allowed the Fund to precisely calculate the damages.
Courts award ERISA benefit plans contributions based on their audit unless the employer can raise a genuine issue of material fact as to the accuracy of the calculations made by the plan, and if there are inaccuracies in an audit due to the employer's records, the plan's audit is accepted. See Duffy v. E. Port Excavation & Utils. Contractors, Inc., 07-CV-217 (DRH) (ARL), 2013 WL 5309758, at *4 (E.D.N.Y. Sept. 19, 2013); Grabois v. Action Acoustics, Inc., 94-CIV-7386 (NRB), 1995 WL 662127, at *3 (S.D.N.Y. Nov. 9, 1995) (finding that if the employer fails to produce such evidence, the court may award damages to the trustee even where the damages are an approximate amount); Sheet Metal Workers' Nat. Pension Fund v. Accra Sheetmetal, LLC, 993 F.Supp.2d 245, 249 (E.D.N.Y. 2014) (finding that once the plan establishes a prima facie case demonstrating the inaccuracy of the employer's contributions, the burden then shifts to the employer to produce evidence that the assumptions underlying the audit are incorrect); see also Laborer's Pension Fund v. A & C Envtl., Inc., 301 F.3d 768 (7th Cir. 2002).
This Court finds that the Audit is based on substantial evidence and Defendant has failed to present any evidence contracting its findings. Accordingly, the Fund is entitled to, and this Court recommends that the Fund be awarded, $14,960.31 in contributions identified by the Audit. The Fund Is Entitled to the Documents It Sought to Complete the Audit
Although the Fund was able to conduct an audit of Rittenhouse based on other information it obtained, it is entitled to the documents it sought and that were not provided by Banos. See Jaspan, 80 F.3d 38, 41 (2d Cir. 1996) ("Fund trustees have a fundamental duty to locate and take control of fund property—a duty for which the right to audit is crucial." (internal citations omitted)); Boening Bros., 92 F.3d at 130-32 (affirming district court order requiring employer submit to audit). Accordingly, this Court recommends that Defendant be ordered to, within 30 days of a final Order in this matter, produce the documents sought or that Banos state that the documents do not exist. The Trustees Are Entitled to Interest and Liquidated Damages Pursuant to Section 502(g)(2)(B) and (C) of ERISA and the Trust Agreement
Pursuant to the terms of the Trust Agreement, Banos is required to pay the Fund interest and liquidated damages. Luebking Decl. ¶ 36. Iron Workers Dist. Council of W. N.Y. and Vicinity Welfare Pension Funds v. Hudson Steel Fabricators & Erectors, Inc., 68 F.3d 1502, 1506 (2d Cir. 1995); Benson v. Brower's Moving & Storage, Inc., 726 F.Supp. 31, 36 (E.D.N.Y. 1989), aff'd 907 F.2d 310 (2d Cir. 1990) (noting that "[t]here is no question that Section 502(g)'s remedies are mandatory"). Pursuant to the Trust Agreement and ERISA Section 502(g)(2)(B), 29 U.S.C. § 1132(g)(2)(B), Banos is required to pay interest on the delinquent contributions. See LaBarbera v. David Liepper & Sons, Inc., 06-CV-1371 (DLI)(JMA), 2006 WL 2423420, at *3 (E.D.N.Y. July 6, 2006). The current interest rate of the Fund is 7.5 percent per annum.
The Trustees seek interest on the unpaid contributions from the date the contributions were due through December 19, 2018. The total amount of interest due through May 24, 2019 is $2,306.44 ($1,829.04 through December 19, 2018 plus $3.08 a day ($14,960.31 x 7.5% x 1/365)). Additional interest accrues on the total contributions due from May 21, 2018 through the date of payment at a daily rate of 3.08. Luebking Decl. ¶ 37.
Pursuant to the Trust Agreement and Section 502(g)(2)(C) of ERISA, 29 U.S.C. § 1132(g)(2)(C), the Fund is entitled to liquidated damages in an amount equal to the greater of interest on the unpaid contributions or twenty percent of unpaid contributions. See Liepper, 2006 WL 2423420, at *4. The total liquidated damages due is $2,992.07, equal to 20 percent of $14,960.31 in unpaid contributions. Luebking Decl. ¶ 38.
Accordingly, I respectfully recommend that the Fund be awarded $2,306.44 in interest and $2,294.12 in liquidated damages, as well as additional interest on the total contributions due from the date of this Report and Recommendation through the date of payment at a daily rate of $3.08. The Trustees Are Entitled to Their Attorney's Fees and Costs Pursuant to Section 502(g)(2)(D) of ERISA and the Trust Agreement
Section 502(g)(2)(D) of ERISA, 29 U.S.C. §1132(g)(2)(D), requires an award of attorney's fees and costs upon a determination that an employee benefit plan is entitled to judgment for unpaid contributions. See, e.g., LaBarbera v. Clestra Hauserman, Inc., 369 F.3d 224, 226 (2d Cir. 2004) (noting that award of attorney's fees and costs is mandatory under 29 U.S.C. § 1132(g)(2)); Mason Tenders Dist. Council v. Envirowaste & Transcontractors, Inc., 98-CV-4040 (DC), 1999 WL 370667, at *2 (S.D.N.Y. June 7, 1999) ("Although the amount of any such award rests within the Court's discretion, the award itself is mandatory" in an action to collect delinquent contributions under ERISA Section 515). To calculate attorney's fees, courts in the Second 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. See 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) (same).
The fees charged in this matter ($325 in 2018 and $335 in 2019 per hour for partner time, $300 in 2018 and $309 in 2019 per hour for senior associate time, and $125 in 2018 and $129 in 2019 per hour for paralegal and law clerk time) are in line with or less than those charged by other firms performing similar work within the Southern District of New York, are the rates that the Trustees have agreed to pay their counsel, and are there-fore reasonable. See, e.g., Ferrara v. BD Haulers Inc., 11-CV-0940 (ADS)(WDW), 2012 WL 13075783 (E.D.N.Y. Feb. 24, 2012) (Docket No. 18) (default judgment awarding $375/hour for senior associate time, $275/hour for junior associate time and $110/hour for paralegal time); King v. Unique Rigging Corp., 01-CV-03797 (DLI)(VVP), 2006 WL 3335011 (E.D.N.Y. Oct. 27, 2006) (Docket No. 69) Report and Recommendation (Amended) (citing as reasonable $320/hr mid-level associate and $370/hr partner rates in an ERISA delinquent contribution case), adopted on Oct. 27, 2006; Trs. of the Mason Tenders Dist. Council Welfare Fund v. Stevenson Contracting Corp., 05-CV-5546, 2008 WL 3155122, at *11 (S.D.N.Y. June 19, 2008) (awarding rates of $350/hr for partners' time in an ERISA delinquent contribution case wherein default judgment was entered); NYC Dist. Council of Carpenters Pension Fund v. Quantum Constr., 06-CV-13150 (GEL)(JCF), 2008 WL 5159777, at *13 (S.D.N.Y. Dec. 9, 2008) (awarding $425 per hour for partner time and $300 per hour for associate time in an ERISA delinquent contribution case wherein de-fault judgment was entered); NYC Dist. Council of Carpenters Pension Fund v. Perimeter Interiors, Inc., 657 F.Supp.2d 410, 423 (S.D.N.Y. 2009) (awarding $425 per hour for partner time and $300 per hour for associate time an ERISA delinquent contribution case).
To be awarded attorney's fees and costs, plaintiffs 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). Attorneys and paralegals at the Firm maintain contemporaneous time records which are entered into a computer-based time record and billing program. At the end of each month, billing records are compiled, reviewed for typographical errors, and reduced, if appropriate. The bills are then submitted to the client for payment. The bills provide the date legal services were performed, and the contemporaneously-kept record of legal services performed (using the initials to identify the attorney or paralegal who performed the services), along with the amount of time spent (in six minute increments) in performance of these services and a statement of the actual amount of fees and expenses billed to the Funds each month in the instant matter. Leeds Decl. ¶ 26. As courts have held, if the time spent is reasonable, fees should not be reduced because of their size compared to the principal amount sought. See Quaratino v. Tiffany & Co., 166 F.3d 422 (2d Cir. 1998) (court rejected the argument that attorney fees should be reduced because they were higher than the principal amount recovered); Fairbaugh v. Life Ins. Co. of N. Am., 872 F.Supp.2d 174, 192 (D. Conn. 2012) ("Limiting the attorney's fees of successful ERISA plaintiffs to a portion of the amount recovered could encourage companies to think that the lower the amount at stake, the more outrageous their conduct can be without the risk of being held accountable at law."); King, 2006 WL 3335011, at *3-4 (finding that 339.50 billable hours was a reasonable amount "given the protracted nature of the litigation."); Perimeter Interiors, 657 F.Supp.2d at 424 (finding that the amount of hours spent was reasonable after examining the "contemporaneous time records of each attorney"); Gesualdi v. Stallone Testing Labs., Inc., 10 CV 0646 ENV LB, 2010 WL 7066679, at *8 (E.D.N.Y. Dec. 17, 2010), report and recommendation adopted, 10-CV-646 ENV LB, 2011 WL 2940606 (E.D.N.Y. July 19, 2011) (explaining the Second Circuit has held that a district court must look to the value of the attorney's work to the client's case when determining whether the attorney has expended a reasonable number of hours).
Although significant attorney time was expended on this matter, this Court finds that it was reasonable and attributable to Banos' failure to provide documents and information prior to the lawsuit, and since then. Specifically, the attorney's fees relate to time spent prior to the lawsuit trying to obtain an audit and collect amounts due without the need for litigation; preparing and drafting the complaint and arranging for service of process when that was not possible; communicating extensively with Banos after the complaint was served to try to complete the audit; working with the Fund Office to obtain information from musicians in order to complete the audit; calculating the amounts owed; conducting discovery to determine whether Banos had any objections to the Audit findings; preparing and filing the motion for default judgment; communicating with Banos' attorney; attending the default motion hearing; and preparing these inquest filings. Without this substantial work, the Fund would not have been able to determine the amount due from Banos. Perhaps more importantly, the Fund would not have been able to determine the amount of pension benefits to which the musicians are entitled. Banos' failure to report musicians' work properly threatens their entitlement to pension credit based on that work. In all, the Fund was not able to seek judgment without this additional information, since the information Banos provided was incomplete. And the Fund was forced to file suit not only to obtain this information, but also because Banos has not even paid the amounts she admits are due. Leeds Decl. ¶ 29.
For all these reasons, the fees charged in this matter are reasonable insofar as they reflect the expertise of the attorneys representing the Funds and necessary expenditure of time. The Court notes that the Firm is engaged almost exclusively in the representation of labor unions and employee benefit plans. Partner Zachary N. Leeds is a 2004 graduate of Harvard Law School, and has been engaged in employee benefits practice since 2005. Erika M. Medina is a 2008 graduate of Rutgers Law School and has been practicing employee benefits law since 2009. The fees charged in this matter are comparable to the rates charged by other firms for similar work and reflect the unique expertise of the attorneys representing the Funds, and are therefore reasonable. Leeds Decl. ¶ 30.
Plaintiffs have incurred expenses totaling $1,072.23, including a filing fee of $400.00, $402.50 for service of process upon Banos, $142.22 for postage, telephone calls, and photocopies, $121.51 for computer research, and $6.00 for transportation. Postage, telephone calls, photocopies, research, and ground transportation are accounted for in the "Professional Charges" section of the bills and pre-bills. Leeds Decl. ¶ 31. The Trustees are entitled to an award of the $1,072.23 costs that have been necessarily made or incurred in the prosecution of this action. Leeds Decl. ¶¶ 29-33 and Ex. E (bills). LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (expenses such as "duplicating, postage, telephone, computerized legal research and other office expenses" are ordinarily recoverable and not absorbed into an attorney fee as overhead); LaBarbera v. Cent. Design Sys. Inc., 06-CV-2709 (ARR)(RML), 2006 WL 3422645, at *4 (E.D.N.Y. Nov. 28, 2001) (citations and internal quotations omitted) ("A prevailing party may be reimbursed for expenditures which add to the proceeding and are not part of the attorney's ordinary overhead."); and Finkel v. Triple A Group, Inc., 708 F.Supp.2d. 277, 290 (awarding $818.53 in costs for filing fees, service, postage, and photocopying).
For the above reasons, and after reviewing the time records submitted, I respectfully recommend that the Fund be awarded attorneys' fees in the amount of $38,212.40 and costs in the amount of $1,072.23. Recommendation of Award
For the foregoing reasons, I respectfully recommend that a Judgment be entered in favor of Plaintiffs and that Plaintiffs be awarded entitled to judgment in the total amount of $59,531.13, consisting of (a) delinquent contributions identified by the audit totaling $14,960.31, (b) interest on the contributions of $2,306.44 through May 24, 2019 and $3.08 per diem thereafter, (c) liquidated damages of $2,992.07, and (d) the Fund's attorney's fees and costs in the amount of $39,284.63. I also recommend that Banos be ordered to submit the documents sought in the Fund's original audit demand dated December 6, 2017. Dated: May 24, 2019
New York, New York
Respectfully submitted,
/s/_________
KATHARINE H. PARKER
United States Magistrate Judge
NOTICE
The Defendant shall have seventeen days from the 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 (i.e., until February 5, 2017). See also Fed. R. Civ. P. 6(a) , (d) (adding three additional days only when service is made under Fed. R. Civ. P. 5(b)(2)(C) (mail) , (D) (leaving with the clerk), or (F) (other means consented to by the parties)). Plaintiff shall have fourteen days from the 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 (i.e., until February 2, 2017). If the Defendant files written objections to this Report and Recommendation, the Plaintiff may respond to the Petitioner's objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Alternatively, if Plaintiff files written objections, the Defendant may respond to such objections within seventeen days after being served with a copy. Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) , (d). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John G. Koeltl at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a) , 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Koeltl. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a) , 6(d), 72(b); Thomas v. Arn , 474 U.S. 140 (1985).