Opinion
Case No. 3:18-cv-01270-SB
06-18-2019
TRUSTEES OF THE OREGON-WASHINGTON CARPENTERS-EMPLOYERS HEALTH AND WELFARE TRUST FUND, TRUSTEES OF THE OREGON-WASHINGTON CARPENTERS-EMPLOYERS PENSION TRUST FUND, TRUSTEES OF THE OREGON-WASHINGTON CARPENTERS-EMPLOYERS VACATION-SAVINGS TRUST FUND, TRUSTEES OF THE OREGON-WASHINGTON CARPENTERS-EMPLOYERS APPRENTICESHIP AND TRAINING TRUST FUND, TRUSTEES OF THE WALLS AND CEILINGS INDUSTRY PROMOTION FUND, TRUSTEES OF THE CARPENTERS INTERNATIONAL TRAINING FUND and THE PACIFIC NORTHWEST REGIONAL COUNCIL OF CARPENTERS, Plaintiffs, v. PROFESSIONAL LATH AND PLASTER LLC, an Oregon limited liability company, Defendant.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Plaintiffs have moved for entry of default judgment against Defendant Professional Lath and Plaster, LLC ("Professional Lath"). For the reasons stated below, this Court recommends that the district judge grant Plaintiffs' motion.
BACKGROUND
On July 7, 2018, Plaintiffs filed a complaint against Professional Lath alleging breach of a Collective Bargaining Agreement ("CBA") in violation of the Employee Retirement Income Security Act ("ERISA"). (ECF No. 1.) Professional Lath was duly served but has not appeared. (ECF No. 4.) On September 4, 2018, Plaintiffs filed a motion for Entry of Default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure ("FRCP"). (ECF No. 5.) On September 20, 2018, the Clerk of the Court entered default against Professional Lath.
Pending before the Court is Plaintiffs' Motion for Default Judgment. (ECF No. 10.) Plaintiffs seek entry of judgment as follows:
1) Unpaid fringe benefit contributions and union dues due January 2011 through December 2014 ($4,734.27), plus liquidated damages ($878.42), audit fees ($3,335.00), and interest ($3,070.90 as of March 31, 2019);(Mot. at 8.) /// ///
2) Liquidated damages ($781.22) and interest ($67.76), for delinquent payments made February 2014 to July 2017; and
3) Attorney's fees in the amount of $2,043, and costs of $480.
Plaintiffs have withdrawn their request for attorney referral fees. (Pls.' Resp. to Order at 4.)
DISCUSSION
I. LEGAL STANDARD
Upon entry of default, "the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). The district court has discretion to grant a motion for default judgment, and may consider several factors to determine whether default judgment is appropriate. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth the relevant factors, including possible prejudice to plaintiff, merits of the claim, sufficiency of the complaint, the sum of money at stake, the possibility of a dispute concerning material facts, whether the default was due to excusable neglect, and the strong policy favoring decisions on the merits).
II. ANALYSIS
The Court finds that the Eitel factors, on balance, support entry of default judgment here, because Plaintiffs have presented sufficient allegations in their complaint for the Court to determine that their claims have merit, the material facts do not appear to be disputable, and the amount of money at stake is reasonable.
A. DAMAGES
1. Unpaid Contributions
Plaintiffs allege that Professional Lath is bound by the terms of the CBA to pay fringe benefit contributions on behalf of its employees to Plaintiffs, as trustees of several trust funds subject to trust agreements (the "Trust Agreements"), by the twentieth day of the month following the month in which the work was performed. (Compl. ¶ 12; Hannah Sutton Decl. ("Sutton Decl."), at 3 and Exs. C-F, Section 3.1.) The Trust Agreements provide that in the event an employer fails to make a timely payment, the employer is liable for the delinquent contributions, interest, and liquidated damages. (Compl. ¶ 13; see also Sutton Decl., Exs. C-F, Section 3.4.)
Plaintiffs allege that Professional Lath breached the CBA and the Trust Agreements by failing to make required contributions between January 2011 and December 2014, in the amount of $4,734.27. (Pls.' Comp. ¶ 21.) Plaintiffs submitted an audit of those payments, and the Court finds that the audit supports Plaintiffs' request for $4,734.27 in under payments during this time period. (Sutton Decl., Ex. I.)
2. Liquidated damages
Plaintiffs request $878.42 in liquidated damages for unpaid contributions from January 2011 to December 2014, as well as $781.22 in liquidated damages for paid but delinquent contributions made from February 2014 to December 2017. (Mot. at 7.) The Trust Agreements generally provide that "1% of the amount of all delinquent Contributions from the due date of the Contribution until paid for each month such Contributions are delinquent" is due and payable as liquidated damages. (Sutton Decl. ¶ 15; see also Sutton Decl., Exs. C-F, Section 3.4.) Plaintiffs have submitted adequate documentation to support the liquidated damages they seek. (Sutton Decl., Ex. H.; Pls.' Resp. to Order at 3-4.)
3. Interest
Plaintiffs initially requested $2,049.40 in interest on the unpaid contributions and $67.76 in interest on the delinquent payments. The interest on the unpaid contributions has continued to accrue because the underpaid contributions remain outstanding. The amount of interest owed on the unpaid contributions was $3,070.90 as of March 31, 2019. (Decl. of Peggy Freedman ¶ 4.) The Trust Agreements provide for the assessment of interest. (Sutton Decl., Exs. C-F, Section 3.4.) Plaintiffs' interest calculations support their request, and the default judgment should include a payment of interest of $67.76 in interest on the delinquent payments and a payment of $3,070.90 in interest on the unpaid contributions. (Pls.' Resp. to Order at 4-5.)
Plaintiffs may submit an updated interest calculation prior to entry of default judgment.
4. Audit Fees
Plaintiffs request $3,335 for reimbursement of audit fees. The Trust Agreements provide for payment of "audit fees" if an employer fails to make required contributions. (Sutton Decl., Exs. C-F. Section 3.5.) Accordingly, the Court recommends that the default judgment include an award for audit fees in the documented amount of $3,335.
B. ATTORNEY'S FEES
1. Legal Standard
The calculation of a reasonable fee award begins with calculating the lodestar figure, by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). "The fee applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked." Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1993). In determining the lodestar figure, the court may consider the factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). These factors include the novelty or difficulty of the case, preclusion of other employment, time limitations, amount at stake, results obtained, and the undesirability of the case. Id.
The court must review the requested fee award for reasonableness, even if no objection has been raised to the number of hours billed or the hourly rate applied. Gates, 987 F.2d at 1401 (finding that the "district court [is] required to independently review plaintiffs' fee request even absent defense objections"). The court possesses "considerable discretion" in determining the reasonableness of a fee award. Webb v. Ada Cty., Idaho, 195 F.3d 524, 526 (9th Cir. 1999).
2. Analysis
Plaintiffs are entitled to reasonable attorney's fees and costs pursuant to the terms of the Trust Agreements and ERISA. See 29 U.S.C. § 1132(g)(2)(D) (mandating an award of reasonable attorney's fees and costs in an action to enforce Section 1145). Specifically, the Trust Agreements provide that "[i]n case of failure of an Individual Employer to make required Contributions, the Trustees may take necessary legal action to collect such Contributions, interest, liquidated damages, reasonable audit fees, reasonable paralegal and attorney fees collected prior to trial, at trial or on appeal." (Sutton Decl., Exs. C-F, Section 3.5.)
Plaintiffs seek attorney's fees in the amount of $2,043:
| Timekeeper | Position | Hourly Rate | Hours | Fees |
|---|---|---|---|---|
| 16 -Noelle E. Dwarzski | Attorney | $205 | 6.6 | $1,353 |
| 14 - Unnamed | Legal assistant | $100 | 6.7 | $670 |
| 11 - Unnamed | Legal assistant | $100 | .2 | $20 |
Total Amount Requested: $2,043 (Decl. of Noelle E. Dwarzski ("Dwarzski Decl."), at 2.)
3. Reasonableness of Requested Hours
Plaintiffs request compensation for 6.6 hours of attorney Noelle Dwarzski's ("Dwarzski") time and 6.9 hours of "legal assistant" time. (Dwarzski Decl. ¶ 7.) In support, Plaintiffs submitted billing records listing the time spent on specific tasks by each individual. (Dwarzski Decl., Ex. A; Pls.' Resp. to Order, Ex. C.) After a careful review of the billing invoices, the Court finds that the requested hours are reasonable.
Many of the legal assistants' entries reflect clerical work, which is not generally compensable as attorney's fees. However, the CBA specifically provides for reasonable "paralegal" costs in the event of breach, and thus the Court does not exclude those tasks typically viewed as clerical in nature. (See Trust Agreements, Section 3.5, authorizing reimbursement for paralegal fees.)
4. Reasonableness of Hourly Rate
Plaintiffs seek an hourly rate of $205 for attorney Dwarzski and $100 for the "legal assistants." (Dwarzski Decl. at 2.) The law is well established that a reasonable hourly rate is determined by looking at the prevailing rate in the relevant community for similar work performed by attorneys of comparable skill, experience, and reputation. See Barjon v. Dalton, 132 F.3d 496, 502 (9th Cir. 1997).
The best evidence of the prevailing billing rates in Portland, Oregon, is the Economic Survey conducted by the Oregon State Bar ("OSB"). See McElmurry v. U.S. Bank Nat'l Assoc., No. 04-cv-00642-HA, 2008 WL 1925119, at *3 (D. Or. Apr. 30, 2008) (finding that the Oregon State Bar's Economic Survey "is a bellwether for the market price of attorney services in Portland, and the court affords it significant weight in at least establishing a starting point for reasonable rates"); see also Copeland-Turner v. Wells Fargo Bank, N.A., No. 11-cv-00037-HZ, 2012 WL 92957, at *2 (D. Or. Jan. 11, 2012) ("Judges in the District of Oregon use the Oregon State Bar Economic Survey . . . as a benchmark for assessing the reasonableness of hourly billing rates."). The Economic Survey sets forth rates charged by Oregon attorneys, including rates specific to communities such as Portland. See, e.g., Roberts v. Interstate Distrib. Co., 242 F. Supp. 2d 850, 857 (D. Or. 2002) (referencing the 2002 Economic Survey).
The 2017 Economic Survey sets forth compensation data collected in 2017. See https://www.osbar.org/_docs/resources/Econsurveys/17EconomicSurvey.pdf (last visited June 18, 2019).
Dwarzski has practiced law for over ten years, and her requested billing rate of $205 is less than the 25th percentile for Portland area attorneys with 10-12 years of experience, Accordingly, the Court finds that Dwarzski's billing rate of $205 is reasonable.
Plaintiffs request a paralegal billable rate of $100 per hour. Plaintiffs submit no information regarding the relevant paralegals' experience, training, or expertise. However, case law supports a conclusion that a paralegal billable rate of $100/hour is less than the prevailing rate in the Portland area, and therefore the Court finds that it is reasonable here. See Goldingay v. Progressive Cas. Ins., No. 17-cv-1491-SI, 2019 WL 852992, at *6 (D. Or. Feb. 22, 2019) (holding that "a rate of $175 per hour is reasonable for law clerks and paralegals"); Prison Legal News v. Columbia Cty., No. 12-cv-00071-SI, 2014 WL 1225100, at *8-9 (D. Or. Mar. 24, 2014) (finding that a paralegal's hourly billing rate of $175 is reasonable in light of the paralegal's "expertise and experience"); but see Aichele v. Blue Elephant Holdings, LLC, No. 3:16-cv-2204-BR, 2018 WL 2357533, at *5 (D. Or. May 24, 2018) ("On this record the Court concludes Plaintiff has not supported the hourly rate requested for work performed by [the legal assistant], and the Court, therefore, does not award any fees for his work.").
D. COSTS
1. Legal Standard
FRCP 54(d)(1) provides, in part: "Unless a federal statute, these rules or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party." In addition, the terms of the Trust Agreements authorize the Plaintiffs to recover the costs of this litigation. (See Sutton Decl., Exs. C-F, Section 3.5.) Taxable costs are set forth at 28 U.S.C. § 1920. Although the court has discretion to deny costs, FRCP 54(d)(1) "creates a presumption in favor of awarding costs to the prevailing party." See Goldberg v. Pac. Indem. Co., 627 F.3d 752, 758 (9th Cir. 2010).
2. Analysis
Plaintiffs seek reimbursement for $480 in documented filing and service fees. (Dwarzski Decl. ¶ 4; Pls.' Resp. to Order, Exs. A-B.) The Court finds that Plaintiffs' requested costs are permissible and reasonable under 28 U.S.C. § 1920 and the terms of the Trust Agreements.
CONCLUSION
For the reasons stated, the district judge should GRANT Plaintiffs' Motion for Default Judgment (ECF No. 10), and enter default judgment to include a money award in the amount of $15,390.57, as follows: (1) unpaid fringe benefit contributions and union dues due January 2011 through December 2014 ($4,734.27), plus liquidated damages ($878.42), audit fees ($3,335), and interest ($3,070.90); (2) liquidated damages ($781.22) and interest ($67.76), for delinquent payments made February 2014 to July 2017; and (3) attorney's fees ($2,043) and costs ($480).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 18th day of June, 2019.
/s/_________
STACIE F. BECKERMAN
United States Magistrate Judge