Opinion
Case No. 3:02-0309
December 23, 2003
MEMORANDUM
Presently pending before the Court is Plaintiffs' Motion for Attorney Fees (Docket Entry No. 48).
I. PROCEDURAL HISTORY
Plaintiffs filed their Complaint in this Court on March 2, 2002, under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1145. The Complaint alleges that Defendant is a party to a pre-hire collective bargaining agreement which imposes an obligation on it to pay contributions to the Plaintiff Funds on behalf of covered employees, as well as to deduct Union dues and assessments from those employees' paychecks. Plaintiffs brought suit against Defendant alleging that it is delinquent in its contributions to Plaintiffs.
On May 6, 2002, Plaintiffs moved for Entry of Default (Docket Entry No. 4) pursuant to Fed.R.Civ.P. 55(a), as Defendant failed to file an answer to the Complaint or otherwise file a response. Plaintiffs moved for a temporary injunction against Defendant on May 10, 2002 (Docket Entry No. 5), requesting that Defendant submit contribution reports so Plaintiffs could ascertain the correct amount owed by Defendant. On May 30, 2002, the Clerk entered default as to Defendant (Docket Entry No. 9). On June 5, 2002, the Court granted Plaintiffs' Motion for Temporary Injunction (Docket Entry No. 10). Subsequently, Magistrate Judge Griffin entered an order stating that "[i]t is clear that the defendant does not intend to enter an appearance in this case or defend this action . . . the defendant has not otherwise filed anything in this case or otherwise communicated with the Court." (Docket Entry No. 11).
On August 14, 2002, Plaintiffs moved for an Order to Show Cause why Defendant should not be held in contempt for not complying with the temporary injunction (Docket Entry No. 12). Plaintiffs' Motion was granted, and Defendant was ordered to appear before the Court on November 18, 2002, through its Executive Director Steve Wood, to show cause as to why Defendant should not be held in contempt. (Docket Entry No. 13). At the request of Plaintiffs, the hearing was rescheduled for December 20, 2002. (Docket Entry No. 15).
On December 13, 2002, Defendant made its first acknowledgment of this lawsuit in the form of a motion that the show cause hearing be postponed to a later date (Docket Entry No. 19). The Court granted the motion. (Docket Entry No. 27). Defendant then filed a motion to set aside the prior entry of default and to transfer venue of this case to the Western District of North Carolina (Docket Entry No. 21). Defendant simultaneously filed a complaint against Local 238 in the United States District Court for the Western District of North Carolina, seeking a declaratory judgment as to whether it is bound to any previous or current pre-hire agreements with Local 238 or other International Brotherhood of Electrical Workers "IBEW" local unions. Plaintiffs opposed Defendant's Motion, and filed a Motion for Permanent Injunction on January 23, 2003. (Docket Entry No. 30). Defendant's Motion was denied, and Plaintiffs' Motion was granted and the temporary injunction was converted to a permanent injunction and Defendant was directed to pay contributions and submit monthly reports as previously instructed under the injunction. (Docket Entry No. 47). On August 21, 2003, Plaintiffs filed their Motion for Attorney Fees claiming that they are entitled to reasonable attorney fees pursuant to 29 U.S.C. § 1132(g) of the ERISA. Defendant filed a timely notice of appeal to the Sixth Circuit on August 22, 2003.
II. PLAINTIFFS ARE ENTITLED TO ATTORNEY FEES
Plaintiffs, as the prevailing parties, have requested an attorney fee award in the amount of $6,825.00 (27.3 hours at $250.00 per hour). Plaintiffs' attorney is R. Jan Jennings, who has represented Plaintiffs since the inception of this case. Mr. Jennings billed 27.3 hours to the case, of which over half were spent drafting and reviewing pleadings and motions. Mr. Jennings stated in his Affidavit that the prevailing rate in the community for similar services is between $250.00 and $280.00 per hour. (Docket Entry No. 50). However, in consideration of a monthly retainer Mr. Jennings billed Plaintiffs at a reduced rate of $150.00 per hour.
Defendant asserts that Plaintiffs' motion should be denied because Defendant has appealed this Court's decision not to transfer this case to the Sixth Circuit court of Appeals. Defendant does not cite any case law in support of this proposition. However, filing a notice of appeal does not divest the Court of jurisdiction "as to matters collateral to the main cause of action . . . [and] [t]he Supreme Court has held that attorneys' fees are always collateral to the main cause of action."Reed v. Country Miss. Inc., 57 F.3d 1070, 1995 WL 348041 at *2 (6th Cir. 1995) (citing Budinich v. Becton Dickenson Co., 486 U.S. 196, 202-03 (1988)). Should Defendant wish to appeal the award of attorney fees, Defendant's appeal may be consolidated with its appeal on the merits. See Morgan v. Union Metal Mfg., 757 F.2d 792, 795-6 (6th Cir. 1985).
29 U.S.C. § 1132(g) provides that "[i]n any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan . . . (D) reasonable attorney's fees and costs of the action, to be paid by the defendant." 29 U.S.C. § 1132(g)(2) (emphasis added). Plaintiffs claims are based on violations of 29 U.S.C. § 1145, which governs delinquent contributions. Accordingly, an award of fees and costs is mandatory.Building Service Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1400-1401 (6th Cir. 1995).
Therefore, the Court finds Plaintiff is entitled to attorney fees even pending appeal.
III. THE AMOUNT OF PLAINTIFFS' AWARD IS RESERVED
In ERISA cases, "there is no requirement that the amount of an award of attorneys' fees be proportional to the amount of the underlying award of damages. However, the award of attorneys' fees must be reasonable as determined under the "lodestar" approach." Id. at 1401. The `lodestar' amount is calculated by multiplying the attorney's reasonable hourly rate by the number of hours reasonably expended. Coulter v. Tennessee, 805 F.2d 146, 148 n. 1 (6th Cir. 1986). Plaintiffs have requested a lodestar calculation of 27.3 hours at $250.00 per hour, for a total amount of $6,825.00. Defendant objects to the hourly rate of $250.00, alleging that this rate is excessive by Plaintiffs' own admission. Because Plaintiffs attorney admits that he normally bills Plaintiffs at $150.00 per hour in consideration of their monthly retainer paid to him, Defendant avers that Mr. Jennings would receive the retainer in the absence of this lawsuit and Defendant should pay no more than $150.00 per hour.
Defendant also objects to two of the entries on Mr. Jennings' billing records. First, on January 21, 2003, Mr. Jennings entered "Finalize Wilson pleadings; correspondence" for 1.10 hours. Defendant avers that this entry was incorrectly included and has nothing to do with this case. Second, Defendant asserts that the entries on February 12 and February 13, 2003 for 2.30 hours and 3.10 hours for research and writing Plaintiffs' brief on the "venue change" motion are excessive. Defendant believes that the time should be reduced to 4.0 hours total to more accurately reflect the work involved.
The Court cannot perform a `lodestar' calculation unless the fee applicant has provided adequate documentation of his or her time and hourly rate. United Slate, Tile, Composition Roofers, Damp and Waterproof Workers Ass'n v. GM Roofing Sheet Metal Co. 732 F.2d 495, 502 n. 2 (6th Cir. 1984). To that end, the fee applicant is required
to justify the reasonableness of the requested rate or rates. To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984). Further, the fee applicant must show that "a reasonable attorney would have believed the work to be reasonably expended in pursuit of success at the point in time when the work was performed." Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir. 1986). Attorneys must maintain billing records "that are sufficiently detailed to enable the courts to review the reasonableness of the hours expended. `Plaintiff's counsel, of course, is not required to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his time expenditures.'" Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 n. 12 (1983)).
In the instant case, the Court finds that Plaintiffs are not entitled to recover $250.00 per hour. Although $250.00 may be the prevailing rate in the community, the Court has only been presented with evidence that Mr. Jennings bills Plaintiffs at $150.00 per hour. Plaintiffs have not provided the Court with evidence of the amount and use of the monthly retainer. Accordingly, Plaintiffs shall recover $150.00 per hour in attorney fees. The Court also finds that Plaintiffs are not entitled to the 1.1 hours billed on January 21 for the "Wilson pleadings." There is no "Wilson" in this case, and no pleadings were filed on or shortly after January 21, 2003. However, the Court finds that the 3.8 hours billed on January 3 for "Additional work on motion to transfer and reply" and the 3.10 hours billed on February 13 to "Finalize opposition to renew change" are reasonable. The Woodridge filings standard does not require description of the attorney's work in minute detail. These hours appear to comport with Plaintiffs' motions and filings with the Court shortly after these hours were billed. The Court is satisfied that the hours billed in this case, with the exception of the entry of 1.1 hours on January 21, are reasonable.
V. CONCLUSION
Based on the foregoing reasons, Plaintiff's Motion for Attorney Fees is hereby GRANTED IN PART and DENIED IN PART. Specifically, the Court finds that Plaintiffs are entitled to an attorney fee award, but that Plaintiffs are not entitled to the full amount requested. The Court shall award Plaintiffs 26.2 hours at a rate of $150.00 per hour for a total of $2,930.00.
An appropriate Order shall be entered.
ORDER
Presently pending before the Court is Plaintiffs' Motion for Attorney Fees (Docket Entry No. 48), to which Defendant responds in opposition. For the reasons explained in the Memorandum entered contemporaneously herewith, Plaintiffs' Motion is hereby GRANTED in PART and DENIED IN PART. Specifically, the Court finds that Plaintiffs are entitled to an attorney fee award, but not in the full amount requested. The Court awards Plaintiffs $3,930.00, based on a lodestar calculation of $150.00 per hour for 26.2 hours expended on this case.It is so ORDERED.