United States District Court, N.D. Indiana
TRUSTEES OF THE MICHIANA AREA ELECTRICAL WORKERS HEALTH & WELFARE FUND, TRUSTEES OF THE MICHIANA AREA ELECTRICAL WORKERS PENSION FUND and TRUSTEES OF THE MICHIANA AREA ELECTRICAL WORKERS MONEY PURCHASE PLAN, Plaintiffs,
TGB UNLIMITED, INC. d/b/a S/T BANCROFT ELECTRIC and WEST BEND MUTUAL INSURANCE COMPANY, Defendants.
AMENDED OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
matter comes before the Court on the Plaintiffs' Motion
for Damages [ECF No. 45]. On September 28, 2017, the Court
issued an Opinion and Order [ECF No. 48] granting the
Plaintiffs' Motion for Summary Judgment [ECF No. 35], but
ordering the Clerk to withhold entry of judgment until the
issues of damages, costs, a contractor's bond, and
attorney fees were briefed by the parties and resolved by the
Court. The parties have briefed the issues, which are now
ripe for review.
instant case began when the Plaintiff Funds sought unpaid
contributions from Defendant TGB Unlimited d/b/a S/T Bancroft
Electric and a judgment against West Bend Mutual Insurance
Company as a surety of Bancroft Electric's
contractor's bond (the “Contractor's
Bond”) under the Employment Retirement Income Security
Act (“ERISA”). On September 28, 2017, the Court
issued an Opinion and Order granting the Plaintiffs'
Motion for Summary Judgment and found that there was no
genuine issue of material fact concerning TGB's liability
for the unpaid contributions. The Court further found that
there was no genuine issue of material fact concerning West
Bend's liability for the Contractor's Bond ($6, 500).
The Court, however, ordered the Clerk to withhold judgment
until the parties had briefed the issues related to damages,
costs, contractor's bond, and attorney fees.
Plaintiffs have produced evidence that the unpaid
contributions total $36, 164.40 (ECF No. 36-18), and that the
accompanying payroll audit (the “Payroll Audit”)
cost $514.30, (ECF No. 36-17). The Plaintiffs further
provided an affidavit of itemized attorney fees ($32, 501.25)
and costs ($2, 277.39). (See ECF No. 46, Exs. 2,
2-A.) The Plaintiffs further contend they continue to incur
additional attorney fees totaling $1, 215.00 in reviewing
recent filings by Defendants and in preparation of its Reply
brief to the Motion for Damages. (See ECF No. 54,
Defendants object to the Motion for Damages on multiple
grounds. First, the Defendants attempt to re-litigate whether
the Plaintiffs' noncompliance with the parties'
Collective Bargaining Agreement Collection Policy affects
damages. Second, the Defendants raise a defense based on
ERISA's de minimus rule, which applies to withdrawal
liability rather than unpaid contributions. Third, the
Defendants assert that, despite liability on the entirety of
the Payroll Audit, they should be required to pay only the
unpaid contributions to the funds present in the current
litigation. Fourth, the Defendants argue that they should not
have to pay past contributions to the Plaintiffs' Health
and Welfare Fund. Finally, the Defendants assert that the
Plaintiffs' attorney fees are unreasonable, and attack
both the billing rate and specific itemized entries provided
by Plaintiffs' counsel.
Opinion and Order, the Court found Defendant TGB liable for
its unpaid contributions, which the Plaintiffs have shown to
total $36, 164.40. Delinquent contributions are enforceable
under 29 U.S.C. § 1132. When the Court enters judgment
on behalf of a plan in an action brought by a fiduciary, such
as the Trustee-Plaintiffs, for or on behalf of a plan to
enforce contribution obligations, “the court
shall award the plan” unpaid contributions,
interest on the unpaid contributions, double interest or
liquidated damages, reasonable attorney fees and costs, and
any other relief the Court deems appropriate. 29 U.S.C.
§ 1132(g)(2) (emphasis added). A multiemployer plan may
recover audit costs under § 1132(g)(2)(E). Moriarty
ex rel. Local Union No. 727 v. Svec, 429 F.3d 710, 721
(7th Cir. 2005). Here, the Plaintiffs submitted evidence that
the audit cost is $514.30.
“double interest” provision provides that, on top
of an initial interest award, the prevailing plan is entitled
to either a second award of interest on the unpaid
contributions or 20% of the unpaid contributions, whichever
is greater. 29 U.S.C. § 1132(g)(2)(C)(i)-(ii). The
interest penalty provision applies to contributions that are
unpaid at the date of suit. See Operating Eng'rs
Local 139 Health Benefit Fund v. Gustafson Constr.
Corp., 258 F.3d 645, 654 (7th Cir. 2001). These
statutory remedies are mandatory. See Moriarty, 429
F.3d at 720-21. In the instant case, the liquidated damages
for the withdrawal liability total $7, 232.88.
Plaintiffs have submitted evidence that their attorney fees
total $33, 716.25,  with an additional $2, 277.39 in costs.
The Court has wide discretion to determine whether attorney
fees are reasonable. Hensley v. Eckerhart, 461 U.S.
424, 437 (1983). In the Seventh Circuit, district courts must
examine whether attorney fees represent a large multiple of
the damages claimed or recovered, and also explain the
claimed hourly rate. Moriarty, 233 F.3d at 965, 968.
However, attorney fees are not required to be calculated
proportionally to damages. Anderson v. AB Painting &
Sandblasting, Inc., 578 F.3d 542, 545 (7th Cir. 2009)
(reversing district court that held $50, 000 in attorney fees
could not be justified to collect $5, 000 in damages). Here,
attorney fees are slightly below, but nearly equal to, the
unpaid contribution amount.
date, Attorney Teresa A. Massa has worked 149.85 hours on the
case. The case has spanned nearly two years, and the number
of hours worked involved discovery, briefing for a summary
judgment motion, and briefing for damages. Further,
Plaintiffs have submitted a detailed time schedule and
affidavit to support the attorney fees and cost calculation.
Attorney Massa billed at $225.00 per hour, which is in line
with rates for similar cases. See, e.g., Local
1546 Welfare Fund v. BBHM Mgmt. Co., No. 08 C 6133, 2011
WL 1740034, at *2 (N.D. Ill. May 5, 2011); Misch v.
Piping Techs. N., Inc., No. 2:06-CV-425, 2010 WL 535713,
at *1 (N.D. Ind. Feb. 4, 2010). The total time spent on the
case is also in line with similar ERISA collection cases.
See Chi. Reg'l Council of Carpenters Pension Fund v.
Rink Sys., Inc., No. 13 C 4886, 2014 WL 5863156, at *2
(N.D. Ill. Nov. 12, 2014). Given the Plaintiffs' highly
detailed submission, the Court can make the finding that the
requested fees and costs are reasonable. The Defendants
object on multiple grounds, and the Court will address each
objection in turn.
Defendants' Damages Objections
Court does not find the Defendants' objections to damages
persuasive, but ...