Jacobson v. Empire Electrical Contractors, Inc.

339 F. App'x 51
CourtCourt of Appeals for the Second Circuit
DecidedJuly 30, 2009
DocketNo. 08-2869-cv
StatusPublished

This text of 339 F. App'x 51 (Jacobson v. Empire Electrical Contractors, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jacobson v. Empire Electrical Contractors, Inc., 339 F. App'x 51 (2d Cir. 2009).

Opinion

SUMMARY ORDER

Plaintiff-Appellant, as Chairman of the Joint Industry Board of the Electrical Industry (“Joint Board”), appeals from the March 25, 2008 decision of the United States District Court for the Eastern District of New York (Dora Irizarry, J.), granting the Joint Board default judgment against Empire Electrical Contractors, Inc. (“Empire”) but awarding the Joint Board less than the full damages that it requested. The district court order adopted in full the September 13, 2007 Report and Recommendation of Magistrate Judge Viktor V. Pohorelsky, which refused on evidentiary grounds to award the Joint Board damages for Empire’s unpaid 401(k) contributions and for lost interest income on Empire’s late-paid 401 (k) contributions. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.

As described in the declaration of Joint Board administrator Kevin Duffy, the 401(k) contributions still owed by Empire are made up of two components. First, there are Employer Contributions: “[E]m-ployers are ... required to remit contributions to the 401 (k) Plan on behalf of all covered employees ... in an amount equal to each employees’ [sic] FICA tax.” App. 284. Second, there are Employee Elective Contributions: “[EJmployers are required to deduct an employee-specified percentage from the weekly wages of each eligible employee covered by the collective bargaining agreement with the Union and to remit such amounts ... to the 401 (k) Plan.” Id. Before the district court, the Joint Board attempted to prove the amount owed for Employer Contributions and Employee Elective Contributions during weeks 39-50 by extrapolating from a payroll report for week 38. The Joint Board has previously used this valuation [53]*53method successfully based on similar evidence, see, e.g., Jacobson v. Decora Elec., Co., No. 05-CV-4812, 2007 WL 2071563, at *3 (E.D.N.Y. June 5, 2007), but the district court rejected the Joint Board’s evidence in this case, see Jacobson v. Empire Elec. Contractors, Inc., No. 05-cv-1713, 2008 WL 819948, at *3-*4 (E.D.N.Y. Mar.25, 2008).

We believe that the district court gave an unduly strict assessment of the evidence concerning the unpaid 401 (k) contributions, given that the court determined that an evidentiary hearing was not necessary in this case to reasonably assess damages, see Fed.R.Civ.P. 55(b)(2); Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir.1989), and because the court credited the Joint Board’s allegations that Empire’s payroll records were inadequate, see Empire, 2008 WL 819948, at *3, thus entitling the Joint Board to damages reasonably inferred from the evidence it presented, see, e.g., Combs v. King, 764 F.2d 818, 826-27 (11th Cir.1985).1 On review, the evidence presented by the Joint Board appears sufficient to allow the district court to calculate the damages for unpaid 401 (k) contributions “with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.1999).

With respect to the Employer Contributions owed by Empire, we note that these damages are entirely ascertainable based on the payroll records for weeks 39-50, records credited by the Magistrate Judge when determining damages for unpaid ERISA contributions. Specifically, the Employer Contributions may be calculated by multiplying the total gross wages for weeks 39-50 by the Federal Insurance Contributions Act (FICA) and Medicare tax rate of 7.65%, see 26 U.S.C. § 3111(a)-(b).2 Given that the district court credited the records for weeks 39-50 by adopting in full the Magistrate Judge’s Report and Recommendation, this evidence should provide a sufficient basis for calculating the damages for unpaid Employer Contributions. We therefore vacate the district court’s judgment with respect to damages for unpaid Employer Contributions and remand for reconsideration of these damages.

While calculating the damages for unpaid Employee Elective Contributions is a more complicated endeavor, the record evidence also appears sufficient to reasonably ascertain this measure of damages. As an initial matter, we cannot agree with the district court’s assertion that it had “no way of verifying the week 38 contribution figures” for the purpose of extrapolating the unpaid Employee Elective Contributions from those figures. See Jacobson, 2008 WL 819948, at *4. While the Magistrate Judge faulted the Joint Board for [54]*54failing to submit an affidavit by a bookkeeper or other custodian of records, the Joint Board responded to this concern before the district court by submitting the declaration of Kevin Duffy, a Joint Board administrator whose department “monitors contributions remitted to the Joint Board by contributing employers, including Empire.” App. 282-83. The district court acknowledged the Duffy Declaration and the court’s ability to consider such additional evidence, but it did not directly address why the Duffy Declaration was not adequate to address the Magistrate Judge’s concerns.

The reason for the district court’s hesitation regarding the Duffy Declaration is not immediately apparent. “The bar for authentication of evidence is not particularly high.” United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir.2007). “Generally, a document is properly authenticated if a reasonable juror could find in favor of authenticity,” a standard “of ‘reasonable likelihood,’” that we have described as “ ‘minimal.’ ” Id (quoting United States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir.2004)). The district court does criticize the Joint Board for failing to provide documentation from Putnam Investments (“Putnam”), the third-party record-keeper and investment manager to which Empire was bound to submit its 401(k) plan reports. But Putnam is not the only entity that may properly lay a foundation for the week 38 report. Rather,

[documents may properly be admitted ... as business records even though they are the records of a business entity other than one of the parties, and even though the foundation for their receipt is laid by a witness who is not an employee of the entity that owns and prepared them. Further, there is no requirement that the person whose first-hand knowledge was the basis of the entry be identified, so long as it was the business entity’s regular practice to get information from such a person.

Saks Int’l, Inc. v. M/V Export Champion, 817 F.2d 1011, 1013 (2d Cir.1987) (citations omitted); see also United States v. Grayson, 166 F.2d 863, 869 (2d Cir.1948) (Learned Hand, ,/.). The Duffy Declaration indicates that it was the Joint Board’s regular practice to rely on the 401(k) report information submitted to Putnam. Thus, an affidavit from Putnam itself is not obviously necessary to demonstrate the admissibility of the week 38 report. See Saks Int’l, Inc.,

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