Opinion
With the parties' consent, this case has been referred and reassigned to the undersigned for all purposes, including trial and the entry of judgment, pursuant to 28 U.S.C. § 636(c).
February 27, 2001.
dft represented by John A. Donovan, Jr., Kevin G. Kenneally, Boston, Ma.
ip represented by Daniel P. Gibson, Elisabet C. Hayes, Boston, Ma.
pla represented by Paul Nyer, Framingham, Ma., Janet H. Pumphrey, Lenox, Ma.
FINAL ORDER ON WINTERTHUR'S MOTION FOR FEES, COSTS, AND SANCTIONS (#268)
Reference is made to the Memorandum and First Order on Winterthur's Motion for Fees, Costs, and Sanctions, entered December 26, 2000.
I have determined the amount which Attorney Nyer must pay to Winterthur to compensate it for the attorneys' fees and costs incurred in defending against the motion to amend and prosecuting the motion for sanctions is eight thousand six hundred and ninety dollars ($8,690.00). I find that this amount, together with the $1,000 to be paid into the Registry of the Court, to be ". . . sufficient to deter repetition of [the] conduct or comparable conduct by others similarly situated." Rule 11(c)(2), Fed.R.Civ.P. I also find these sanctions are ". . . warranted for effective deterrence." Id.
I find that at least eight thousand six hundred and ninety dollars ($8,690.00) represents "some . . . of the reasonable attorneys' fees . . . incurred as a direct result of the violation. Id. The Memorandum and First Order on Winterthur's Motion for Fees, Costs, and Sanctions, entered December 26, 2000 "describe[s] that conduct determined to be a violation of [Rule 11]" and the foregoing "explain[s] the basis for the sanction imposed." Rule 11(c)(3), Fed.R.Civ.P.
I came to the figure of eight thousand six hundred and ninety dollars ($8,690.00) as follows:
Winterthur has submitted copies of all the legal charges, including attorneys' fees and costs, incurred in connection with defending against the motion to amend and prosecuting the motion for sanctions. (Affidavit of Daniel P. Gibson #295 ¶ 1) These invoices total sixty-two thousand six hundred eighty-two dollars and ninety-nine cents ($62,682.99). (#295 ¶ 2) of that amount, Winterthur's counsel has highlighted (in yellow) charges sought to be recouped via the motion for sanctions amounting to twenty-three thousand four hundred twelve dollars and seventy-five cents ($23,412.75). (#295 ¶ 3)
Nyer has raised both general and specific objections to Winterthur's invoices. Subtracting all of the specific time/task entries with which issue is taken, attorneys' fees are reduced to eleven thousand forty-six dollars ($11,046.00). Further, I have deleted specific time/task entries on the grounds that they do not specifically relate to the defense or prosecution of the subject motions, leaving a total of ten thousand two hundred eighty-eight dollars ($10,288.00) in attorneys' fees.
For example, Nyer contends that he has endured financial hardship as a consequence of this litigation and that he should be sanctioned no further. (#296) There is no claim of inability to pay any penalty imposed.
Finally, the rate charged by the three primary attorneys who worked on the motions is uniform, to wit, one hundred twenty dollars ($120.00) an hour. These attorneys remain unidentified in Winterthur's papers and no explanation as to the lack of differentiation in the rates charged based on legal experience has been proffered. It is incumbent upon the party seeking an award of attorneys' fees to support their request with such particulars; Winterthur has failed to meet that burden. Nyer does not object to the one hundred twenty dollar ($120.00) rate for Attorney Daniel P. Gibson; it will be accepted as the benchmark charged by Attorney Gibson as the named partner on the case. The rates for the less experienced attorneys shall be proportionally reduced to one hundred dollars ($100.00) and eighty dollars ($80.00) respectively for Elizabet Hayes, Esquire, and Christopher P. Cifra, Esquire. Recalculating the bill applying these rates, the total attorneys' fee to be awarded is eight thousand six hundred and ninety dollars ($8,690.00).
There are a few time/task entries for work completed by someone with the initials ELG which were billed out at a rate of one hundred dollars ($100.00) an hour.
It is only in the text of Nyer's response (#296 at 4) that Winterthur's attorneys are named and their educational backgrounds and positions with the firm of Gibson and Behman, P.C., minimally sketched.
Judgment shall enter accordingly.