Summary
declining to award legal fees for a task grouped with other tasks not related to the motion to compel
Summary of this case from Learning Care Grp., Inc. v. ArmettaOpinion
06 Civ. 6404 (HB) (KNF).
October 4, 2007
MEMORANDUM ORDER
In a Memorandum and Order dated June 4, 2007, the Court granted the plaintiff RBS Holdings, Inc.'s ("RBS") request to recover the reasonable attorneys' fees and costs it had incurred in making a motion, pursuant to Fed.R.Civ.P. 37, to compel defendant Gordon Ferguson, Inc. ("GFI") to comply with its discovery obligations. The Court directed RBS to serve and file competent evidence setting forth its attorneys' fees and costs. GFI was permitted to respond with a reasonableness challenge to the amount sought by the plaintiff, which it did. In that writing, GFI also contested the propriety of the Court's determination that RBS is entitled to obtain the reasonable attorneys' fees and costs it incurred in bringing the motion to compel, despite the prior resolution of that issue by the June 4, 2007 order.
The only issue before the Court is the reasonableness of the amount the plaintiff seeks to recover from GFI. Consequently, the Court declines to entertain GFI's contentions respecting a matter resolved by the Court previously.
RBS is represented by the law firm Wachtel Masyr, LLP ("Wachtel Masyr"), located in New York, New York. RBS' submissions aver that it is entitled to recover attorneys' fees in varying amounts and costs in the amount of $33.40. In support of its request for legal fees, the plaintiff submitted: (1) a declaration, prepared by Evan Weintraub, Esq. ("Weintraub"), a partner at Wachtel Masyr ("Weintraub Decl."); and (2) billing statements Wachtel Masyr generated for the legal services it rendered to the plaintiff between March 6 and April 26, 2007. The Weintraub Decl. represents that the following personnel rendered legal services to the plaintiff at the following hourly rates: (1) Weintraub, $405; (2) David Yeger, Esq. ("Yeger"), a Wachtel Masyr associate, $235; and (3) Harris Love, Esq. ("Love"), a Wachtel Masyr junior associate, $200. The billing statements detail the various tasks performed, billing rate(s), hours expended, as well as the amount and nature of the charges and dates of services rendered, and include a description of the law firm's expenses related to the plaintiff's motion to compel.
The precise amount of attorneys' fees sought by the plaintiff is unclear. The plaintiff's submissions include requests for attorneys' fees in the following amounts: $7,700, see Weintraub Decl. at ¶ 8; $8,575, see Weintraub Decl. at ¶ 10; and $10,004.50, see Exhibit A to the Weintraub Decl., counsel's invoices for May 8, 2007, and May 31, 2007.
GFI submitted the declaration of Sandeep Chatrath, Esq., counsel to the defendant, in opposition to the plaintiff's submissions. GFI contests the reasonableness of the fees the plaintiff seeks primarily because: (1) RBS did not provide biographical information regarding the skills and experience of the attorneys who prepared the motion to compel; (2) entries in the law firm's time records are allegedly duplicative; and (3) RBS did not identify, with specificity, the nature of the work its attorneys performed in connection with the motion to compel. GFI also contests the plaintiff's claim for $33.40 in related costs because RBS has not delineated the same with any specificity.
When fixing an appropriate amount to be awarded for attorney fees, the Second Circuit Court of Appeals requires that the "presumptively reasonable fee" method be employed. Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110, (2d Cir. 2007). A court must consider "all of the case-specific variables that [the Second Circuit] and other courts have identified as relevant to the reasonableness of attorney's fees," in order to determine what is a presumptively reasonable fee. Id. at 117. These variables include: "(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case 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." Id. at 114 n. 3 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 [5th Cir. 1974]). In the final analysis, a reasonable hourly rate is market-based, or in other words, "the rate a paying client would be willing to pay." Id. at 117.
A party seeking a fee award must support the request with contemporaneous time records detailing, "for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). Fee applications without such supporting data "should normally be disallowed." Id. at 1154.
Counsel's Hourly Rates
Although the plaintiff did not provide the Court with information pertaining to the background and experience of its attorneys, Wachtel Masyr's website provides biographical information about Weintraub, Yeger and Love, including their respective professional credentials. The Court has taken judicial notice of this factual information. See Fed.R.Evid. 201; Sheehy v. Wehlage, et al., No. 02 CV 592A, 2007 WL 148750, at *3 (W.D.N.Y. Jan. 11, 2007). As noted above, Weintraub is a partner with the law firm who possesses sixteen years of litigation experience. Yeger has three years of litigation experience and Love has less than one year of experience. Based upon all of the Arbor Hill factors, each of which the Court has considered, as well as the Court's understanding of hourly rates charged by private law firms in this community and, moreover, the Court's awareness that corporate clients, like the plaintiff, often negotiate with their attorneys to pay the lowest fee necessary to litigate their case effectively, see Arbor Hill, 484 F.3d at 118, the Court finds that the fees RBS incurred, at the hourly rates Weintraub, Yeger and Love billed it for legal services, are presumptively reasonable fees.
Time Expended on Motion to Compel
The Court analyzed the time expended by the plaintiff's counsel in connection with the motion to compel GFI to comply with its discovery obligations, in order to determine their reasonableness, and excluded any "excessive, redundant, or otherwise unnecessary" hours. Heng Chan v. Sung Yue Tung Corp., No. 03 Civ. 6048, 2007 WL 1373118, at *5 (S.D.N.Y. May 8, 2007) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434,103 S. Ct. 1933, 1939 [1983]). The above-referenced invoices dated respectively May 8, 2007, and May 31, 2007, indicate that the plaintiff's request for fees is premised on the work its counsel performed, at the applicable hourly rates, for the number of hours specified below: Attorney Hours Rate Total
Weintraub 17.4 $405 $7,047 Yeger 0.5 $235 $117.50 Love 14.2 $200 $2,840 TOTAL 32.1 $10,004.50 However, the Weintraub Decl. contains inconsistent data with respect to hours expended and fees incurred in connection with the motion to compel at issue here. For example, paragraph 8 of the Weintraub Decl. represents that, "Plaintiff incurred $7,700 in attorney's [sic] fees . . . in bringing the motion to compel disclosure," while paragraph 10 of the same declaration indicates that $8,575 in attorneys' fees were incurred by the plaintiff in connection with the same motion. The representation in the Weintraub Decl. regarding hours expended by counsel in preparing the motion also conflicts with the data delineating the total hours expended by counsel as documented in the invoices that comprise Exhibit A to the declaration: 29.2 hours versus 32.1 hours.No explanation was offered by the plaintiff for these discrepancies. Therefore, the Court finds that this inconsistency undermines the plaintiff's claim that the requested attorneys' fees are reasonable and makes suspect the amount(s) sought to be recovered by the plaintiff for the legal fees it allegedly incurred in connection with the motion to compel the defendant to comply with its discovery obligations.
The invoices that comprise Exhibit A to the Weintraub Decl. also contain entries that, upon close scrutiny, appear to be unrelated to the motion to compel, including the following: (1) March 13, 2007 — Weintraub prepared the plaintiff's Fed.R.Civ.P. 26 disclosures, reviewed documents produced by GFI and conferred with D. Rubin (1.5 hr. × $405 = $607.50); (2) March 30, 2007 — (second entry) Weintraub reviewed correspondence from GFI, sent an e-mail message to his client and reviewed APA (1 hr. × $405 = $405); (3) April 19, 2007 — Weintraub and Yeger worked on a motion for consolidation and a motion to intervene and sent an e-mail message to their client [(1.2 hr. × $405) + (.20 hr. × $235) = $533]; (4) April 20, 2007 — Weintraub prepared the plaintiff's reply to the defendant's opposition to the motion to compel, reviewed documents produced by GFI and sent an e-mail message to his client (1.5 hr. × $405 = $607.50); (5) April 23, 2007 — Weintraub prepared a letter to his client and a letter to Judge Harold Baer and reviewed documents disclosed by GFI, and Love dispatched a courtesy copy of a letter [(1.20 hr. × $405) + (1 hr. × $200) = $686]; (6) April 24, 2007 — Weintraub sent an e-mail message to his client regarding discovery (.3 hr. × $405 = $121.50); (7) April 25, 2007 — Weintraub and Yeger reviewed documents disclosed by GFI [(.50 hr. × $405) + (.10 hr. × 235) = $226]; and (8) April 26, 2007 — Weintraub reviewed documents disclosed by GFI and had a teleconference with M. Weinberg (.50 hr. × $405 = $202.50). In addition to the above-noted entries, the Court finds the following entry for March 22, 2007, "o/c with EW" (.20 hr. × $235 = $47), so vague that it cannot be reasonably included in the calculus of an appropriate fee award.
Weintraub's preparation of the plaintiff's reply to the defendant's opposition to the motion to compel is work related to the motion. However, since this task is grouped with tasks that are not related to the motion to compel, the Court declines to award legal fees for work associated with this entry.
The letter to Judge Baer relates to the motion to compel. However, for the same reason expressed in footnote 3, the Court declines to award RBS legal fees for work associated with this entry.
The invoice entries reveal that RBS was billed $3,436 for work that appears to be unrelated to the motion to compel. When that amount is subtracted from the total amount represented in the invoices ($10,004.50), an amount of $6,568.50 remains.
In a circumstance where a court determines to make an award of fees and expenses pursuant to Fed.R.Civ.P. 37, it is for the court to decide what amount is proper. See 8A Charles Alan Wright, et al., Federal Practice and Procedure, § 2288 (2d ed. 1994). Here, due to the discrepancies in the plaintiff's submissions pertaining to the amount of fees it incurred for legal services in connection with the motion to compel, and the inclusion of irrelevant and vague entries in the exhibit, the Court finds that a 25% reduction in the amount of relevant invoiced legal fees ($6,568.50) is appropriate. See ACE Ltd. v. CIGNA Corp., No. 00 Civ. 9423, 2001 WL 1286247, at *5 (S.D.N.Y. Oct. 22, 2001). Accordingly, RBS shall recover $4,926.38 from GFI, the reasonable attorneys' fees it incurred in connection with the motion to compel GFI to comply with its discovery obligations.
The Court declines to award RBS attorneys' fees in the amount of $875 it allegedly incurred in preparing the instant submissions, since the plaintiff did not submit its counsel's contemporaneous time records in support of this aspect of its request.
RBS' Expenses
As discussed above, RBS seeks an award of $33.40 for the expenses it alleges were incurred in connection with making the subject motion to compel. However, the May 8, 2007 invoice RBS submitted to the Court to support its request for an award of its reasonable expenses does not establish that expenses totaling $33.40 were incurred in connection with the motion to compel. Therefore, the Court declines to award RBS the $33.40 it seeks for its expenses.
CONCLUSION
For the reasons set forth above, the defendant is directed to pay the plaintiff $4,926.38, the reasonable attorneys' fees the plaintiff incurred in preparing and filing a motion to compel the defendant to comply with its discovery obligations.
SO ORDERED: