United States District Court

For the Northern District of California

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OPERATING ENGINEERS' PENSION TRUST

FUND; GIL CROSTHWAITE AND RUSS

BURNS, as Trustees,

Plaintiffs,

v.

CLARK'S WELDING AND MACHINE, a

California partnership, aka 

CLARK'S WELDING, aka CLARK'S

WELDING AND MACHINING; SYLVESTER

HABERMAN, individually, and FRANZ

EDELMAYER, individually,

Defendants.

 

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Case No. 09-0044 SC

ORDER GRANTING IN

PART PLAINTIFFS'

MOTION FOR AWARD OF

INTEREST, ATTORNEYS'

FEES AND COSTS

I. INTRODUCTION

This matter comes before the Court on the Motion for Award of

Interest, Attorneys' Fees and Costs ("Motion") filed by Plaintiffs

Operating Engineers' Pension Trust Fund ("Operating Engineers"),

Gil Crosthwaite ("Crosthwaite"), and Russ Burns ("Burns"), as

Trustees (collectively "Plaintiffs"). Docket No. 121. Defendants

Clark's Welding and Machine ("Clark's Welding"), Sylvester

Haberman ("Haberman"), and Franz Edelmayer ("Edelmayer")

(collectively "Defendants") filed an Opposition, and Plaintiffs

filed a Reply. Docket Nos. 126, 127. For the reasons stated

herein, the Motion is GRANTED IN PART. 

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II. BACKGROUND

On January 7, 2009, Plaintiffs filed their Complaint against

Defendants seeking payment of withdrawal liability in the sum of

$330,921. Docket No. 1 ("Compl.") ¶ 1. On February 10, 2010, the

Court granted in part and denied in part Plaintiffs' Motion for

Summary Judgment. Docket No. 115 ("Feb. 10, 2010 Order"). In

that Order, the Court outlined the facts of this case, and the

Court assumes the parties' familiarity with those facts. The

Court found Clark's Welding liable for withdrawal liability in the

amount of $330,921. Id. at 23. The Court required Plaintiffs to

file a motion for interest, liquidated damages, and reasonable

attorneys' fees and costs, and to explain the basis for entering

judgment against the individual Defendants, Haberman and

Edelmayer. Id. at 24. That motion is presently before the Court.

III. LEGAL STANDARD

Under the Employee Retirement Income Security Act ("ERISA"),

as amended by the Multiemployer Pension Plan Amendments Act

("MPPAA"), an employer who withdraws from an underfunded pension

plan is required to pay "withdrawal liability," an amount equal to

that employer's pro rata share of the plan's unfunded vested

benefits, subject to certain adjustments. 29 U.S.C. §§ 1381,

1391. ERISA provides that "[i]n any action under this section to

compel an employer to pay withdrawal liability, any failure of the

employer to make any withdrawal liability payment within the time

prescribed shall be treated in the same manner as a delinquent

contribution . . . ." 29 U.S.C. § 1451(b). In an action to

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1

 Shaamini A. Babu ("Babu"), an associate at Saltzman &

Johnson Law Corporation, filed a Declaration in Support of

Plaintiffs' Motion for Attorneys' Fees. Docket No. 122.

2 Franz Edelmayer filed a Declaration in Support of

Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees. 

Docket No. 126-2.

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enforce payment of delinquent contributions, "the court shall

award the plan -- (A) the unpaid contributions, (B) interest on

the unpaid contributions, (C) an amount equal to the greater of --

(i) interest on the unpaid contributions, or (ii) liquidated

damages provided for under the plan in an amount not in excess of

20 percent . . . (D) reasonable attorney's fees and costs . . . ." 

29 U.S.C. § 1132(g)(2).

IV. DISCUSSION

A. Defendants Haberman and Edelmayer

Clark's Welding was a partnership. Babu Fees Decl. Ex. C

("Edelmayer Dep.") at 22:24-23:3.1

 Edelmayer and Haberman were

partners in the partnership. Id. at 22:24-23:12. Edelmayer and

Haberman purchased Clark's Welding in 1975, and they were the

owners of Clark's Welding until they closed their business in

2003. Edelmayer Decl. ¶¶ 2-4.2

 Their wives also had ownership

interests in Clark's Welding. Id. at 23:13-22. Defendants

concede that Clark's Welding was a partnership. See Opp'n at 6. 

29 U.S.C. § 1381 provides that when an employer withdraws

from a multiemployer plan, "then the employer is liable to the

plan in the amount determined under this part to be the withdrawal

liability." Section 1381 is silent as to whether partners are

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 29 U.S.C. § 1405(c) suggests "a member of a partnership"

may have to pay withdrawal liability, and the legislative history

of 29 U.S.C. § 1451(c) states that "[t]he Committees recognize that

some employers that are obligated to contribute to multiemployer

plans are individuals, i.e. sole proprietors or partners." 126

Cong. Rec. S20195 (daily ed. July 29, 1980).

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liable for withdrawal payments of the partnership. However, based

on the text of 29 U.S.C. § 1405(c), and the legislative history of

29 U.S.C. § 1451(c), the Ninth Circuit determined that the MPPAA

"contemplates individual withdrawal liability where the employer

is a . . . partnership [even though it] does not expressly create

such liability." Bd. of Trs. of W. Conference of Teamsters

Pension Trust Fund v. H.F. Johnson, 830 F.2d 1009, 1014-15 (9th

Cir. 1987).3 As noted by the Ninth Circuit, "[a]bsent any

limitation in the partnership agreement, partners are personally

liable for obligations of the partnership." Id. at 1015 (citing

Uniform Partnership Act § 17). Relying on these principles, and

treating joint venturers as similar to partners in a partnership,

the Ninth Circuit held joint venturers personally liable for the

withdrawal liability of their joint venture. Id. It follows that

the Ninth Circuit would hold partners personally liable for the

withdrawal liability of their partnership. 

A number of other federal courts have so held. See Connors

v. Ryan's Coal Co., 923 F.2d 1461, 1466 (11th Cir. 1991)

(affirming district court's determination of individual liability

based on spouse's interest as partner or joint venturer in cattle

farm operation); Teamsters Pension Trust Fund of Philadelphia and

Vicinity v. Domenic Cristinzio, Inc., 994 F. Supp. 617, 623-24

(E.D. Pa. 1998) (finding general partner personally liable for

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4 Cassandra M. Ferrannini, partner at Downey Brand LLP, filed

a Declaration in Support of Defendants' Opposition to Plaintiffs'

Motion for Attorneys' Fees. Docket No. 126-4.

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withdrawal liability of two partnerships in control group); United

Food & Commercial Workers Union v. Progressive Supermarkets, 644

F. Supp. 633, 642 (D.N.J. 1986) (personal liability for partners).

California's Corporations Code provides that "all partners

are liable jointly and severally for all obligations of the

partnership unless otherwise agreed by the claimant or provided by

law." Cal. Corp. Code § 16306(a). Defendants acknowledge this

code provision, but suggest that the claimant did "otherwise

agree," and that the Trust Agreement released Edelmayer and

Haberman from liability. Opp'n at 4. Defendants rely on Article

II, Section 7 of the Trust Agreement, which provides:

Neither the Employer or any Signatory

Association, nor any officer, agent, employee or

committee member of the Employer or Signatory

Association shall be liable to the Fund or with

respect to this Pension Plan, except to the

extent that he or it may be an Individual

Employer required to make Contributions to the

Fund with respect to his or its own individual

or joint venture operations, or to the extent he

may incur liability as a Trustee as hereinafter

provided. 

Ferrannini Decl. Ex. N ("Trust Agreement") at 8-9.4

Defendants' contention that this section of the Trust

Agreement released Edelmayer and Haberman from liability is

without merit. The Trust Agreement defines "Employer" as the

"Associated General Contractors of California, Inc." and

"Signatory Association" as "any association of Contributing

Employers." Id. at 2, 5-6. An "Individual Employer" is a person

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5 Having found Haberman and Edelmayer liable as partners, the

Court does not need to address Plaintiffs' argument that Haberman

and Edelmayer are liable as alleged owners of a leasing business. 

Mot. at 4-7.

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or entity required to make payments to the pension trust fund. 

Id. at 3-4. While Article II, Section 7 of the Trust Agreement

provides that the Associated General Contractors of California,

Inc., and Signatory Associations, are not required to make pension

fund contributions, it does require Individual Employers -- like

Clark's Welding -- to do so. 

In its 2004 Stipulation, Clark's Welding acknowledged its

requirement to make pension fund contributions. See Feb. 10, 2010

Order at 3. While the 2004 Stipulation focused on delinquent

contributions, this Court previously found Clark's Welding liable

for the later assessment of withdrawal liability. Id. at 22-23. 

The question now before the Court is whether the partners in this

partnership can also be held liable for that obligation. Article

II, Section 7 of the Trust Agreement has no bearing on this

question, and provides no support for Defendants' contention that

Operating Engineer's "otherwise agreed" that Edelmayer and

Haberman could not be held liable for the obligations of Clark's

Welding. Since partners are liable for all obligations of the

partnership, and since Operating Engineer's did not otherwise

agree, the Court finds that Edelmayer and Haberman are liable for

the withdrawal liability of Clark's Welding.5 

B. Delinquency Collection Procedures

In their motion for summary judgment, Plaintiffs filed a

declaration stating that the Delinquency Collection Procedures

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6 Shaamini A. Babu, associate at Saltzman & Johnson Law

Corporation, filed a Declaration in Support of Plaintiffs' Motion

for Summary Judgment. Docket No. 51. 

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specify liquidated damages of 15%, and an interest rate of 12% on

delinquent contributions. Babu Decl. in Support of Mot. for

Summary Judgment ¶ 6.6 The Delinquency Collection Procedures were

not attached to the declaration. Defendants objected that

Plaintiffs never identified the Delinquency Collection Procedures

with their Initial Disclosures. Docket No. 77-7 ("Evidentiary

Objections") at 8-10. Plaintiffs responded by filing excerpts of

the Delinquency Collection Procedures, and a declaration

authenticating the document. Docket No. 80 ("Supplemental

Declaration of Michael Schumacher in Support of Motion for Summary

Judgment") ¶ 5, Ex. G ("DCP"). 

Federal Rule of Civil Procedure 37(c) provides that "[i]f a

party fails to provide information . . . as required by Rule 26(a)

or (e), the party is not allowed to use that information . . . to

supply evidence on a motion . . . unless the failure was

substantially justified or is harmless." Fed. R. Civ. P. 37(c). 

The Court ruled that the Delinquency Collection Procedures were

inadmissible because of Plaintiffs' failure to disclose them. 

Feb. 10, 2010 Order at 7. After finding Plaintiffs' liable for

withdrawal liability, the Court required Plaintiffs to address the

assessment of liquidated damages, interest, and attorneys' fees in

a separate motion, in part to give the parties an opportunity to

address whether the failure to disclose was substantially

justified or harmless. See id. at 24.

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Having considered the parties' arguments, the Court now finds

that the failure to disclose the Delinquency Collection Procedures

was harmless. Plaintiffs' counsel concedes that the failure to

disclose was an error, but states there was no intention to

conceal relevant information. Babu Fees Decl. ¶ 5. Defendants

contend they were harmed because "Plaintiffs' conduct effectively

denied Defendants an opportunity to depose individuals who

possessed knowledge of the DCP [Delinquency Collection Procedures]

and applicable interest rates and fully examine the DCP." Opp'n

at 16. 

The Court can discern no harm to Defendants due to their

inability to question deponents about the applicable interest rate

and amount of liquidated damages. The purpose of early

disclosures is "to prepare for trial or make an informed decision

about settlement." Advisory Committee Notes to 1993 Amendments to

Fed. R. Civ. P. 26(a). While the Court does not condone

Plaintiffs' failure to disclose the document at issue, this

failure did not hamper Defendants' ability to develop their case,

or impede their ability to make an informed decision about

settlement. Since before this lawsuit was filed, Defendants knew

that if the Court found them liable for withdrawal payments, then

-- by statute -- the Court would be required to award Plaintiffs

interest and liquidated damages. See Babu Fees Decl. Ex. A ("Oct.

10, 2008 Letter"). At issue here is a failure to disclose the

rate and amount of payment, not the fact of payment. Indeed, the

statute requiring liquidated damages put Defendants on notice that

the amount could be as high as twenty percent of withdrawal

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liability. See 29 U.S.C. § 1132(g)(2)(C). Under these

circumstances, the Court will admit the Delinquency Collection

Procedures for the limited purpose of calculating the appropriate

interest and liquidated damages. 

C. Interest

The Court is required to award Plaintiffs interest on the

unpaid withdrawal liability. 29 U.S.C. §§ 1451(b), 1132(g)(2). 

The Delinquency Collection Procedures specify that 12% interest

accrues. Supplemental Declaration of Michael Schumacher in

Support of Mot. for Summary Judgment ¶ 5; Ex. G ("DCP"). 

Plaintiffs contend that interest accrues on the withdrawal

liability from July 1, 2008, the due date of the first payment. 

Mot. at 7-8. Plaintiffs seek to recover $68,979.20 as 12%

interest on the withdrawal liability of $330,921 from July 1, 2008

until March 26, 2010. Babu Fees Decl. Ex. F ("Interest

Calculation"). This amount is based on a daily interest rate of

$108.80. Id.

In their Opposition, Defendants do not contest these

calculations. However, the Court will limit Plaintiffs' award to

the period from July 1, 2008, to February 10, 2010, the date on

which the Court could have entered judgment if it did not require

extra briefing on the admissibility of the document necessary to

perform the calculation. To allow interest to continue accruing

after that date would reward Plaintiffs for their failure to

disclose the Delinquency Collection Procedures. Based on the

daily interest rate of $108.80, interest from July 1, 2008, to

February 10, 2010, results in an award of $64,192.

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D. Liquidated Damages

The Delinquency Collection Procedures specify that liquidated

damages are assessed at 15% of delinquent contributions. 

Supplemental Declaration of Michael Schumacher in Support of Mot.

for Summary Judgment ¶ 5; Ex. G ("DCP"). 15% of the withdrawal

liability of $330,921 is $49,638.15. Mot. at 13. The Court is

required to award an amount equal to the greater of the interest

or the liquidated damages. 29 U.S.C. § 1132(g)(2)(C). Here, the

interest is greater than the liquidated damages. Hence, the Court

awards Plaintiffs an extra $64,192.

E. Attorneys' Fees

When the Court awards withdrawal liability, an award of

reasonable attorneys' fees is mandatory. Trs. of Amalgamated Ins.

Fund v. Geltman Indus., Inc., 784 F.2d 926, 931-32 (9th Cir.

1986). Defendants concede that Plaintiffs are entitled to fees,

but contest the amount requested. Opp'n at 17.

When awarding fees under ERISA, "the court must determine a

'lodestar' amount by multiplying the number of hours reasonably

expended on the litigation by a reasonable hourly rate." Credit

Managers Ass'n of S. Cal. v. Kennesaw Life and Accident Ins. Co.,

25 F.3d 743, 750 (9th Cir. 1994)("Kennesaw")(quoting D'Emanuele v.

Montgomery Ward & Co., 904 F.2d 1379, 1383 (9th Cir. 1990).

Reasonable rates are determined by reference to the marketplace. 

Missouri v. Jenkins, 491 U.S. 274, 285 (1989). The determination

of a reasonable hourly rate "should be established by reference to

the fees that private attorneys of an ability and reputation

comparable to that of prevailing counsel charge their paying

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clients for legal work of similar complexity." Welch v.

Metropolitan Life Ins. Co., 480 F.3d 942, 946 (9th Cir.

2007)(quoting Davis v. City and County of San Francisco, 976 F.2d

1536, 1545 (9th Cir. 1992), vacated in part on other grounds, 984

F.2d 345 (1993)). The Court should exclude from the fee

calculation hours that were not reasonably expended. Hensley v.

Eckerhart, 461 U.S. 424, 434 (1983).

After calculating the lodestar, the district court must

assess whether it is necessary to adjust the presumptively

reasonable lodestar figure on the basis of the Kerr factors that

are not already subsumed in the initial lodestar calculation. 

Morales v. City of San Rafael, 96 F.3d 359, 363-64 nn. 8-10 (9th

Cir. 1996). The factors courts must consider are: (1) the time

and labor required, (2) the novelty and difficulty of the

questions involved, (3) the skill requisite to perform the legal

service properly, (4) the preclusion of other employment by the

attorney due to acceptance of the case, (5) the customary fee, (6)

whether the fee is fixed or contingent, (7) time limitations

imposed by the client or the circumstances, (8) the amount

involved and the results obtained, (9) the experience, reputation,

and ability of the attorneys, (10) the undesirability of the case,

(11) the nature and length of the professional relationship with

the client, and (12) awards in similar cases. Kerr v. Screen

Extras Guild, 526 F.2d 67, 70 (9th Cir. 1975). While the Court

must consider all of the Kerr factors, when issuing an order, the

Court need only discuss those factors relevant to the Court's

decision. Kennesaw, 25 F.3d at 750.

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7 Richard C. Johnson, a shareholder at Saltzman & Johnson Law

Corporation, and Michelle Sicula, an associate at Saltzman &

Johnson Law Corporation, filed Declarations in Support of

Plaintiffs' Motion for Attorneys' Fees. Docket Nos. 123, 124.

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Here, Saltzman & Johnson billed Plaintiffs at the following

rates: paralegals at $110 per hour; associates at $180-185 per

hour; and shareholders at $255 per hour. Babu Fees Decl. ¶ 18,

Exs. L, M, N. Opp'n at 17. Plaintiffs submitted evidence showing

that these rates are in line with those prevailing in the

marketplace. Mot. at 14-16; Babu Decl. ¶ 12, Exs. H, I, J, K. In

Board of Trustees of the Boilermaker Vacation Trust v. Skelly,

Inc., the court, in an ERISA action seeking payment of delinquent

contributions, found attorney rates of $210 per hour, and $345 per

hour, to be reasonable. 389 F. Supp. 2d 1222, 1227-28 (N.D. Cal.

2005). In ERISA long term disability cases, courts in this

district have awarded fees based on partner hourly rates as high

as $450 per hour. See May v. Metropolitan Life Ins. Co., No.

03-5056, 2005 WL 839291, at *3-4 (N.D. Cal. Apr. 7, 2005). 

Defendants do not dispute that Plaintiffs' hourly rates are

reasonable. Opp'n at 17. The Court finds the rates are

reasonable. 

Plaintiffs' attorneys submitted billing records showing that

its attorneys and paralegals expended a total of 583.45 hours on

this case, and billed a total of $100,030.25 for services

provided. Babu Fees Decl. ¶¶ 16-19, Exs. L, M, N; Johnson Decl.

¶¶ 5-6; Sicula Decl. ¶ 2.7 Saltzman & Johnson have provided the

Court with detailed documentation showing how much time each

attorney worked on this case, and showing how much time its

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attorneys and paralegals expended on each phase of this

litigation, including the complaint, case management conference,

mediation, written discovery, depositions, working on motions, and

responding to Defendants' motions. Babu Fees Decl. Exs. L, M, N. 

This complex case, which hinged on the question of whether a

2004 Stipulation released Defendants from the requirement to pay

withdrawal liability, raised a host of novel and difficult

questions. The Court ruled on a motion to dismiss, a motion to

strike, and a motion for summary judgment, and a number of

discovery motions were pending when the Court ruled on the summary

judgment motion. The Court granted in part summary judgment in

favor of Plaintiffs, finding that the Stipulation did not release

Defendants. See February 10, 2010 Order. Attorneys representing

both Plaintiffs and Defendants proved themselves to be skillful

advocates, and it took fifteen months for the issues in this case

to be resolved. Plaintiffs' attorneys successfully defended their

clients' interests despite the assertion of numerous affirmative

defenses, and they convinced the Court that the pension fund is

entitled to $330,921 in withdrawal liability. As such, and having

closely reviewed the billing records of Plaintiffs' attorneys, the

Court finds that Plaintiffs' request for $100,030.25 in attorneys'

fees is reasonable. As explained below when addressing

Defendants' objections, the Court finds that a minor adjustment to

this lodestar calculation is warranted. 

F. Defendants' Objections to Fees Requested 

Defendants contend that Plaintiffs are not entitled to $7218

in fees associated with four depositions, and $14,166.50 in fees

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associated with Defendants' two motions to compel and motions for

sanctions. Opp'n at 18. Defendants accuse Plaintiffs' counsel of

engaging in "bad faith discovery games." Id. Neither this Court,

nor the Magistrate Judge dealing with discovery disputes, made

such a determination. The number of depositions conducted in this

case was not excessive, and Plaintiffs' attorneys had no choice

but to respond to discovery motions filed by Defendants' counsel. 

The Court finds that the time expended on depositions and

discovery motions was reasonable. 

Defendants challenge Plaintiffs' effort to recover $10,670 in

fees for the work of three paralegals on the basis that most of

their work was purely clerical or secretarial. Opp'n at 19-20. 

In Missouri v. Jenkins, the Supreme Court noted that "purely

clerical or secretarial tasks should not be billed at a paralegal

rate . . . ." 491 U.S. 274, 288 n. 10 (1989). Clerical or

secretarial tasks include filing, updating the calendar, and

faxing. See Feezor v. Del Taco, Inc., No. 04-0097, 2005 WL

3619388, at *2 (S.D. Cal. June 23, 2005). 

The Court does not agree with Defendants that the paralegals

spent most of their time engaging in purely clerical or

secretarial work. Vikashni Pooni ("Pooni") spent most of her time

checking cites, drafting documents and correspondence, researching

relevant rules, and coordinating meetings necessary to this

litigation and in anticipation of court deadlines. See Babu Fees

Decl. Ex. N ("Pooni Billing Records"). Elizabeth Skeels

("Skeels") spent much of her time engaged in research,

coordinating depositions, cite checking, reviewing deposition

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transcripts, and drafting appropriate documents. See id. ("Skeels

Billing Records"). Pamela Soto ("Soto") spent time preparing

hearing binders, performing interest calculations, and checking

cites. See id. ("Soto Billing Records"). These are not clerical

or secretarial tasks, and so the Court denies Defendants' request

to reduce the paralegal fees. 

Defendants point out that there is a discrepancy of $229

between the records submitted, and Plaintiffs' speadsheets showing

how much time each attorney and paralegal spent on discrete phases

of the litigation. Opp'n at 22. Plaintiffs attribute the

discrepancy to an error in data entry. Mot. at 18 n.6. 

Defendants contend there is inadequate documentation to support

this fee of $229. Opp'n at 22. In their Reply, Plaintiffs do not

address this contention. The Court will reduce the fee award by

the disputed amount of $229.

Defendants contend the attorney fees requested by Michelle

Sicula ("Sicula") should be excluded because her work on the

defense of laches was duplicative of the work performed by

Shaamini Babu ("Babu") and Richard Johnson ("Johnson"). Opp'n at

22. The Court disagrees. While this Court ultimately determined

that the defense of laches was waived due to a failure to initiate

arbitration, see February 10, 2010 Order at 11, that point was

vigorously contested in this litigation, and it makes sense to the

Court that more than one attorney would be working on the issue. 

The time sheets submitted do not indicate that Sicula's work on

the issue was duplicative or unnecessary, especially in light of

the fact that Plaintiffs prevailed on the issue. 

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Defendants contend that the fees requested by Johnson should

be reduced or eliminated because his time entries are too vague

and because Defendants' counsel interacted with Johnson on only

one occasion, at the parties' mediation. Opp'n at 23-24. In

light of Johnson's role as a shareholder at Saltzman & Johnson,

his time entries reflect the fact that he oversaw and reviewed the

work product of associates billing at lower rates who performed

the bulk of the work on this case. The Court does not find his

time entries to be vague. Nor was it unreasonable for Johnson to

bill 27.25 hours in a case that lasted over fifteen months. Also,

the Court does not find that the time Plaintiffs' counsel spent

substantiating their claim for interest to be unreasonable. In

light of the foregoing, the Court awards Plaintiffs $99,801.25 in

attorneys' fees. 

G. Costs

The Court is required to award Plaintiffs their reasonable

costs. 29 U.S.C. §§ 1451(b), 1132(g)(2). Plaintiffs seek to

recover $11,521.31 in costs for filing fees, fees for service of

process, deposition transcript costs, fees for online research,

investigation costs, and delivery costs. Mot. at 21-24. 

Defendants object to recovery of $1529.10 in costs associated

with four of the nine depositions based on Plaintiffs' alleged

"unjustified discovery games." Opp'n at 24. As noted earlier,

there has been no finding of unjustified discovery behavior in

this case, and therefore the Court will not reduce costs on that

basis. 

Defendants object to costs of $3000 for financial

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8 Michael Schumacher, Executive Vice-President of Associated

Third Party Administers, filed a Declaration in Support of

Plaintiffs' Motion for Summary Judgment. Docket No. 69. 

Plaintiffs requested the Court to take judicial notice of this

declaration filed earlier in this case. Docket No. 125. The Court

does not need to take judicial notice of documents filed earlier in

this case, but the Court will take judicial notice of the fact that

Plaintiffs sought information concerning trades or businesses under

Defendants' common control on June 26, 2008. 

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investigations of Edelmayer and Haberman incurred to ascertain

control group members. Opp'n at 24. Defendants contend that the

investigations were unnecessary because Defendants produced

information concerning Edelmayer's and Haberman's properties in

response to discovery requests. Id; Ferrannini Decl. ¶¶ 8-10,

Exs. D, E, F. However, that information was produced on September

14, 2009. See Ferrannini Decl. ¶ 10. Plaintiffs have been

seeking information concerning Defendants' control group members

since before this litigation began in January 2009. See

Schumacher Decl. in Support of Plaintiffs' Mot. for Summary

Judgment Ex. D ("June 26, 2008").8 Since Defendants did not

produce financial information until September 2009, the

investigation costs incurred in July 2009 appear to have been

necessary. The Court will not reduce Plaintiffs' requested

investigation costs by $3000.

Plaintiffs seek delivery costs of $139.02. Babu Fees Decl. 

¶ 26. Plaintiffs provided no documentation supporting this

request. Where the documentation is inadequate, the district

court may reduce the award. Hensley, 461 U.S. at 433. The Court

reduces Plaintiffs' requested costs by $139.02. 

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V. CONCLUSION

For the reasons stated above, the Court finds that Defendants

Franz Edelmayer and Sylvester Haberman are jointly and severally

liable for the withdrawal liability of Clark's Welding. The Court

awards Plaintiffs Operating Engineers' Pension Trust Fund, Gil

Crosthwaite, and Russ Burns, as Trustees, a double interest

payment of $128,384, attorneys' fees of $99,801.25, and costs of

$11,382.29.

IT IS SO ORDERED.

Dated: April 27, 2010

 

UNITED STATES DISTRICT JUDGE

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