Opinion
21 Civ. 719 (VSB)(GWG)
06-13-2022
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. NORTHE GROUP, INC., Respondent.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Petitioners are multiemployer labor-management trust funds (the “Funds”) established by the New York City District Council of Carpenters (the “Union,” together with the Funds, “petitioners”) under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002 et seq. Petitioners bring this action against Northe Group, Inc. (“Northe”) to confirm and enforce an arbitration award pursuant to Section 301(a) of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), Section 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3), and Section 9 of the Federal Arbitration Act, 9 U.S.C. § 9. See Petition to Confirm Arbitration, filed Jan. 26, 2021 (Docket # 1) (“Pet.”). Petitioners also seek post-judgment interest, attorneys' fees, and costs. See id. ¶ 41. Petitioners have filed a motion for summary judgment, which Northe has not opposed. For the following reasons, petitioners' motion for summary judgment should be granted and judgment should be entered in petitioners' favor in the amount of $10,059.14.
See Motion for Summary Judgment, filed Aug. 16, 2021 (Docket # 20) (“Pet. Mot.”); Rule 56.1 Statement, filed Aug. 16, 2021 (Docket # 21); Declaration of William Davidian in Support, filed Aug. 16, 2021 (Docket # 22) (“Davidian Decl.”); Declaration of Adrianna Grancio in Support, filed Aug. 16, 2021 (Docket # 23) (“Grancio Decl.”); Memorandum of Law in Support, filed Aug. 18, 2021 (Docket # 25) (“Pet. Mem.”); Revised Declaration of William Davidian, filed Aug. 18, 2021 (Docket # 26-1) (“Revised Davidian Decl.”).
I. BACKGROUND
This action arises out of collective bargaining agreements (“CBAs”) between Northe and the Union. See Pet. ¶¶ 1, 9-13; Opinion and Default Award of Arbitrator, dated September 25, 2020, annexed as Ex. 10 to Pet. (Docket # 1-10) (“Arb. Award”), at 1-2. In July 2013, November 2016, and July 2017, Northe executed letters of assent binding Northe “to the 20152018 NYC Agency Renovation & Rehab of City Owned Buildings/Structures Project Labor Agreement Covering Specified Renovation & Rehabilitation of City Owned Buildings and Structures (the ‘PLA').” Revised Davidian Decl. ¶¶ 8-11; Pet. ¶¶ 9-12. Under “Schedule A of the PLA, [Northe] became bound to” the CBAs that applied to the Union. Revised Davidian Decl. ¶ 12 (citing PLA art. II, § 3, annexed as Ex. D to Davidian Decl. (Docket # 22-4)); see also Pet. ¶ 13; CBAs, annexed as Exs. 5-6 to Pet. (Docket ## 1-5, 1-6), arts. I, II. Under the CBAs, Northe was required to make certain contributions to the Funds based on the number of hours worked by its employees. Pet. ¶ 15; CBAs art. XV, §§ 1-2. The CBAs also required Northe to furnish its books and records for an audit at the Funds' request, to ensure compliance with the CBAs. Pet. ¶ 17; CBAs art. XV, § 1; Arb. Award at 2. Northe also assented to the Funds' Collection Policy, which provided that if Northe did not make its books available for an audit, the Funds “shall determine the estimated amount of the employer's delinquent contributions based on the assumption that the employer's weekly hours subject to contributions for each week of the requested audit period are the highest number of average hours reported per week for any period of four consecutive weeks during the audit period.” Revised Statement of Policy for Collection of Employer Contributions, annexed as Ex. 8 to Pet. (Docket # 1-8), § IV(12).
Exhibit 5 is the CBA for July 2011 to June 2015, and Exhibit 6 is the CBA for July 2017 to June 2024. For our purposes, there are no material differences between the two agreements.
The Funds requested an audit for the period of December 14, 2015 through May 5, 2019. See Pet. ¶ 23; Arb. Award at 2. The Funds' audit revealed that Northe was deficient in the principal amount of $9,518.64. Pet. ¶ 24; Arb. Award at 3. Following the audit, Northe failed to remit the required contributions, so the Funds submitted the dispute to arbitration pursuant to the CBAs. See Pet. ¶¶ 25-26; CBAs art. XII; Arb. Award at 1-2; Notice of Hearing, dated July 20, 2020, annexed as Ex. 9 to Pet. (Docket # 1-9) (“Notice of Hearing”). After providing the required notice to both parties, see Notice of Hearing, the arbitrator held a hearing on September 22, 2020, and issued a written decision on September 25, 2020, see Pet. ¶ 27; Arb. Award at 1, 4.
The arbitrator found that Northe owed the Funds $18,415.40. Arb. Award at 3; Pet. ¶ 28. This was calculated by totaling the amounts owed to the Funds: $9,518.64 in estimated principal contributions; $1,230.14 in interest; $1,903.73 in liquidated damages; $203.82 in non-audit late payment interest; $16.32 in promotional fund contributions; $2,642.75 in audit costs; $400.00 in court costs; $1,500 in attorneys' fees; and $1,000.00 for the arbitrator's fee. Arb. Award at 3; Pet. ¶ 26. The arbitrator also ruled that interest would accrue on the amount owed at an annual rate of 5.25% measured from the date of the award. Arb. Award at 4; Pet. ¶ 29. To date, Northe has submitted a payment of $10,748.78, but an unpaid balance of $7,666.62 remains. Pet. ¶ 30.
On January 26, 2021, petitioners filed this action, seeking confirmation of the award as well as post-judgment interest, attorneys' fees, and costs. See Pet. ¶ 41. Petitioners served the Summons and Petition on Northe on January 29, 2021. See Affidavit of Service, filed Feb. 1, 2021 (Docket # 8). Northe did not respond to the petition, and on August 2, 2021, the Clerk issued a Certificate of Default. See Certificate of Default, filed Aug. 2, 2021 (Docket # 18).
On August 16, 2021, petitioners filed the instant motion for summary judgment. See Pet. Mot. On August 24, 2021, Maximilian Travis, an attorney for Northe, filed a notice of appearance in the case. See Notice of Appearance, filed Aug. 24, 2021 (Docket # 28). A second attorney, Marwan Sehwail, appeared on behalf of Northe soon thereafter. See Notice of Appearance, filed Aug. 27, 2021 (Docket # 31). On January 18, 2022, this Court ordered Northe to file its opposition to petitioners' summary judgment motion by February 1, 2022. Order, dated Jan. 18, 2022 (Docket # 37). February 1 passed without any filing from Northe. On February 8, 2022, Northe requested an extension to March 1, 2022. See Letter from Marwan Sehwail, filed Feb. 8, 2022 (Docket # 38). Petitioners opposed the extension request. See Letter from Adrianna Grancio, filed Feb. 8, 2022 (Docket # 39). On February 9, 2022, we granted the requested extension, explaining that “to deny the request altogether would essentially result in a default against respondent, and would violate the Second Circuit's admonition that a court should attempt ‘to resolve cases on the merits whenever possible.'” Order, dated Feb. 9, 2022 (Docket # 40) (quoting Nen Di Wu v. Holder, 646 F.3d 133, 137 (2d Cir. 2011)). March 1 passed without Northe filing any opposition. On March 9, 2022, we issued an order deeming the motion for summary judgment to be unopposed. Order, dated Mar. 9, 2022 (Docket # 41).
II. APPLICABLE LAW
Where a petition to confirm an arbitration award is unopposed, the Second Circuit has held that “the petition and accompanying record should [be] treated as akin to a motion for summary judgment based on the movant's submissions.” D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 109 (2d Cir. 2006); accord Trs. of N.Y.C. Dist. Council of Carpenters v. Eclipse Const. Servs. Inc., 2021 WL 5567752, at *4 (S.D.N.Y. Nov. 26, 2021) (“Eclipse”); Rotunno v. Laidlaw & Co. (UK) Ltd., 2021 WL 5450369, at *2 (S.D.N.Y. Nov. 19, 2021); Trs. for Mason Tenders Dist. Council v. Super, LLC, 2017 WL 2703572, at *2 (S.D.N.Y. June 22, 2017). Here, the petitioners have filed a separate motion for summary judgment.
Rule 56(a) of the Federal Rules of Civil Procedure states that summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, “[t]he evidence of the non-movant is to be believed” and the court must draw “all justifiable inferences” in favor of the nonmoving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
“[C]onfirmation 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.” D.H. Blair, 462 F.3d at 110 (citations and internal quotation marks omitted). However, even where the motion is unopposed, a court ruling on a summary judgment motion to confirm an arbitration award “may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.” Id. (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004)). “[T]he 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.'” Trs. of the UNITE HERE Nat'l Health Fund v. JY Apparels, Inc., 535 F.Supp.2d 426, 428-29 (S.D.N.Y. 2008) (quoting United States v. 5800 SW 74th Ave., 363 F.3d 1099, 1101 (11th Cir. 2004)); accord Trs of N.Y.C. Dist. Council of Carpenters v. Offsite Const. Sols. LLC, 2022 WL 174514, at *2 (S.D.N.Y. Jan. 18, 2022).
As to the law governing a petition to confirm an arbitration award, the Second Circuit has held that “[t]he court's function in confirming or vacating an arbitration award is severely limited.” Willemijn Houdstermaatschappij, BV v. Standard Microsystems Corp., 103 F.3d 9, 12 (2d Cir. 1997) (punctuation omitted); see also Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509 (2001) (“Judicial review of a labor-arbitration decision pursuant to [a CBA under the LMRA] is very limited.”). A 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. In a case involving a CBA, “the Court evaluates whether the arbitrator ‘acted within the scope of his authority,'” Trs. of the N.Y.C. Dist. Coun[cil] of Carpenters v. Exec. Millwork Corp., 2013 WL 265084, at *3 (S.D.N.Y. Jan. 22, 2013) (quoting Local 1199 v. Brooks Drug Co., 956 F.2d 22, 25 (2d Cir. 1992)), and an award will be confirmed as long as it “draws its essence from the [collective bargaining] agreement,” United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960); accord Exec. Millwork Corp., 2013 WL 265084, at *3.
III. DISCUSSION
A. Confirmation of Arbitration Award
Applying the principles discussed above, petitioners have demonstrated that there is no genuine issue of material fact precluding summary judgment as to all aspects of the arbitrator's award. Although petitioners have not presented the Court with all of the materials on which the arbitrator based the ruling, we have been presented with the arbitrator's decision and there is no indication that the arbitrator misinterpreted the materials before the arbitrator or otherwise acted arbitrarily, in excess of his power, or contrary to law. See, e.g., Trs. of the N.Y.C. Dist. Council of Carpenters v. Dejil Sys., Inc., 2012 WL 3744802, at *3 (S.D.N.Y. Aug. 29, 2012) (“Dejil”) (confirming award although plaintiff had not submitted all materials relied on by the arbitrator). The CBAs provided for arbitration; the dispute was submitted to a duly designated arbitrator; and the arbitrator calculated the award based on the terms of the CBAs. See Arb. Award at 1-4. Nothing in the record suggests that the Court should not confirm the award. See, e.g., Dejil, 2012 WL 3744802, at *3 (“Where, as here, there is no indication that the arbitration decision was made arbitrarily, exceeded the arbitrator's jurisdiction, or otherwise was contrary to law, a court must confirm the award upon the timely application of any party.”).
Therefore, the award of $18,415.40 should be confirmed, less payment already made in the amount of $10,748.78, resulting in a principal amount due of $7,666.62.
Petitioners have not sought prejudgment interest.
B. Attorneys' Fees and Costs
Under ERISA, a court “shall” award “reasonable attorney's fees and costs” in any action “by a fiduciary for or on behalf of a plan to enforce [delinquent contributions required under a CBA] . . . in which a judgment in favor of the plan is awarded.” 29 U.S.C. §§ 1132(g)(2)(D), 1145; see Labarbera v. Clestra Hauserman, Inc., 369 F.3d 224, 226 (2d Cir. 2004) (award of fees and costs is “mandatory” under 29 U.S.C. § 1132(g)(2)).
The Court agrees with petitioners that an award of attorneys' fees is merited here. As previously noted, a litigant enforcing an arbitration award is entitled to an award of attorneys' fees. See 29 U.S.C. § 1132(g)(2)(D); see also CBAs art. XV, § 6(a), XVII, § 19(c) (permitting award of attorneys' fees).
In determining a statutory fee award, “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 186 (2d Cir. 2008) (punctuation omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); accord Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014). This calculation yields a “presumptively reasonable fee,” Arbor Hill, 522 F.3d at 183, and is commonly referred to as the “lodestar,” id.; see also Ergin v. 8th Hill Inc., 2022 WL 1037655, at *6 (S.D.N.Y. Apr. 6, 2022), adopted, 2022 WL 1256996 (S.D.N.Y. Apr. 26, 2022). Using the “lodestar” method, petitioners request $2,876.50 in attorneys' fees. See Pet Mem. at 8-9.
1. Reasonable Number of Hours Expended
It is well-established that “any attorney . . . who applies for court-ordered compensation in this Circuit . . . must document the application with contemporaneous time records .... specify[ing], for each attorney, the date, the hours expended, and the nature of the work done.” N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). The requirements of Carey apply to applications under 29 U.S.C. § 1132(g)(2)(D). See, e.g., Carney v. Prompt Maint. Servs., Inc., 2002 WL 122934, at *7 (S.D.N.Y. Jan. 30, 2002) (citing Plumbers Local No. 371 v. Frank Liquori Plumbing & Heating, Inc., 1996 WL 445065, at *5 (E.D.N.Y. June 26, 1996)). A court may accept a “typed listing of [attorneys'] hours from computer records,” in lieu of contemporaneous records, where the record shows that the attorneys “made contemporaneous entries as the work was completed, and that their billing was based on these contemporaneous records.” Cruz v. Local Union No. 3, 34 F.3d 1148, 1160 (2d Cir. 1994).
In support of their application for attorneys' fees, petitioners have submitted an invoice from Virginia & Ambinder, LLP (“V&A”) detailing the date on which services were performed, the individual performing the services, the hours expended, and a description of the work done. See Invoice, annexed as Ex. 1 to Grancio Decl. (Docket # 23-1) (“Invoice”); Grancio Decl. ¶ 3. These records were prepared contemporaneously, see Grancio Decl. ¶ 3, and they therefore satisfy the contemporaneous time records requirement. See, e.g., Cruz, 34 F.3d at 1160-61; Hollander Glass Tex., Inc. v. Rosen-Paramount Glass Co., 291 F.Supp.3d 554, 562-63 (S.D.N.Y. 2018).
In evaluating whether claimed hours are reasonable, a court considers “not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992).
The invoice reflects that V&A expended a total of 13.8 hours on this case. See Invoice at *3; Grancio Decl ¶ 8. Having examined the time records, we find the total hours expended and associated tasks to be reasonable with the exception of billing entries for clerical tasks. Case law holds that “tasks that are ‘purely clerical,' such as downloading, scanning, or copying documents and organizing files, [are] generally not compensable, whether performed by an attorney or a paralegal.” Siegel v. Bloomberg L.P., 2016 WL 1211849, at *7 (S.D.N.Y. Mar. 22, 2016); accord H.W. v. N.Y.C. Dep't of Educ., 2022 WL 541347, at *4 (S.D.N.Y. Feb. 23, 2022); Diaz v. AJE Mgmt. Corp., 2017 WL 746439, at *6 (S.D.N.Y. Jan. 10, 2017).
On August 3, 2021, Adrianna Grancio expended 0.2 hours on such tasks. See Invoice at *2. Grancio also spent some time “sav[ing] a copy of [a] declaration to [a] file” on August 13, 2021. Id. at *3. We reduce Grancio's hours by 0.2 hours. A legal assistant identified as “JB” spent 0.3 hours on purely administrative tasks, and made entries totaling 1.0 hours which reflected billing of both purely administrative and compensable tasks. See id. at *1-3 (1/26/21, 1/28/21, and 2/1/21 entries). We therefore reduce JB's hours by 0.8 hours. MB spent 0.8 hours on this matter, all of which included purely administrative tasks. See id. at *3 (8/2/21 entry). We therefore reduce MB's requested hours to 0. EC spent 0.9 hours on this case, 0.1 of which included purely administrative tasks, and 0.7 of which block-billed purely administrative tasks with other, compensable tasks. See id. at *2 (7/27/21 and 7/28/21 entries). We therefore reduce EC's requested hours to 0.5. In total, we award the legal assistants 4.9 hours.
2. Reasonable Hourly Rates
The rate to be set for an attorney is “what a reasonable, paying client would be willing to pay.” Arbor Hill, 522 F.3d at 184. The rate must be “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006) (alteration in original) (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). Importantly, under Arbor Hill, a court must “step[] into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively.” 522 F.3d at 184 (emphasis added). In other words, a court is called upon to “determine the cheapest hourly rate an effective attorney would have charged.” O.R. v. N.Y.C. Dep't of Educ., 340 F.Supp.3d 357, 364 (S.D.N.Y. 2018) (emphasis in original).
Marimon requests a rate of $350.00 per hour. Pet. Mem. at 8; Grancio Decl. ¶ 5. Marimon, who graduated law school in 2014, is a partner at V&A with experience “handl[ing] the prosecution of several ERISA collection actions.” Grancio Decl. ¶ 5. Marimon's requested rate has been previously upheld in this District, and we view it as reasonable. See Eclipse, 2021 WL 5567752, at *5; Trs. of N.Y.C. Dist. Council of Carpenters v. 1st Choice Const. LLC, 2021 WL 4482278, at *3 (S.D.N.Y. Sept. 30, 2021); Trs. of N.Y.C. Dist. Council of Carpenters v. Furniture Bus. Sols., LLC, 2020 WL 6525466, at *5 (S.D.N.Y. Nov. 5, 2020).
Grancio requests an hourly rate of $275.00. Pet. Mem. at 8; Grancio Decl. ¶ 4. Grancio graduated law school in 2016, and she has less than six years' experience litigating ERISA collection actions. See Grancio Decl. ¶ 4. Petitioners cite no case wherein a V&A associate - much less an associate as junior as Grancio - was awarded such a high hourly rate. See Pet. Mem. at 9. Concurring with Judge Woods' recent decision in Eclipse, we likewise reduce Grancio's rate to $225.00. See Eclipse, 2021 WL 5567752, at *6 (citing, inter alia, Trs. of N.Y.C. Dist. Council of Carpenters v. Triangle Ent. N.Y.C., Inc., 2020 WL 2306484, at *6 (S.D.N.Y. May 8, 2020)).
Finally, the requested hourly rates are $120.00 for JB, MB, and EC. Pet. Mem. at 8; Grancio Decl. ¶ 6. Although petitioners cite no case in which a legal assistant at their firm or elsewhere was awarded a rate in excess of $100.00, see Pet. Mem. at 9 (citing cases awarding rates of $90.00 and $100.00 to V&A legal assistants), the requested rates have in fact been awarded to V&A legal assistants in recent years, and we view them as reasonable in this case. See Eclipse, 2021 WL 5567752, at *5 (S.D.N.Y. Nov. 26, 2021); Trs. of N.Y.C. Dist. Council of Carpenters v. Concrete Bros. Const. LLC, 2020 WL 3578200, at *4 (S.D.N.Y. July 1, 2020).
Accordingly, we award the requested rate of $120.00 for all three legal assistants.
3. Award for Attorney's Fees
Accordingly, as reflected on the chart below, petitioners should be awarded $2,316.50 in attorneys' fees.
PERSON
TITLE
HOURS REQUESTED
HOURS AWARDED
RATE REQUESTED
RATE AWARDED
AWARD
Marimon
Partner
1.6
1.6
$350.00
$350.00
$560.00
Grancio
Associate
5.5
5.3
$275.00
$225.00
$1,192.50
JB
Legal Assistant
5.0
4.2
$120.00
$120.00
$504.00
MB
Legal Assistant
0.8
0.0
$120.00
$120.00
$0.00
EC
Legal Assistant
0.9
0.5
$120.00
$120.00
$60.00
TOTAL
13.8
11.6
$2,316.50
4. Costs
Petitioners also seek repayment for “service and court fees” in the amount of $76.02. Pet. Mem. at 9 (citing Gracio Decl. ¶ 9 (“V&A also incurred $76.02 in connection with this proceeding, an amount which excludes the $400 in com! costs already awarded in the arbitration award.”)); see also Invoice at *3 (showing $402.00 filing fee, $73.00 service fee, and two $0.51 postage costs). Costs are specifically permitted by statute, which provides that “[a] bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.” 28 U.S.C. § 1920. Accordingly, the Com! accepts petitioners' costs as reasonable and the petitioners' request for reimbirrsement of $76.02 in costs should be granted.
IV. CONCLUSION
For the foregoing reasons, petitioners' motion for summary judgment (Docket # 20) should be granted. Judgment should be entered against the defendants in the amount of $10,059.14. Post-judgment interest shall accrue pursuant to 28 U.S.C. § 1961.
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 serve and file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Vernon S. Broderick, at 40 Foley Square, New York, New York 10007, and to the undersigned, at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Broderick. 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 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).