Opinion
01 Civ. 12742 (LAK)
June 19, 2003
ORDER
Plaintiff has moved pursuant to Rule 59(e) to amend the judgment by replacing the prior award of $5,000 with an award of $2,849 to the Tartamella firm and an award of $27,672.84 to the Fisher Zucker firm. It suggests that the Court overlooked the Zucker affidavit in ruling on the initial application for attorney's fees.
According to the present motion, plaintiff originally filed suit against defendants in the Eastern District in a case entitled Mister Softee, Inc. v. Valdez, 01-CV-4584 (LDW) (the "Original Action"). As a result of the court's determination that venue was improper in that action, it voluntarily discontinued the Original Action and then sued each defendant in the district in which it resided. Motion ¶ 4. According to the present motion, "[t]he result was the filing of the complaint in [this] action." Id. The Zucker affidavit repeats these assertions and goes on to say that the Zucker firm "continued to bill Mister Softee for both the Eastern District and Southern District actions on one invoice." Zucker Aff. ¶¶ 6-7. Plaintiff contends that it should be reimbursed for everything it paid the Zucker firm — which appeared in the Original Action but not in this action — because its efforts in investigating the defendants and in "the research and writing of the complaint, motion and brief for preliminary injunction were incurred in the Original Action." Id. ¶ 13.
Having reviewed the docket sheets in the Eastern District, it appears that the situation is more complex than plaintiff reveals in the present motion. The Original Action was discontinued by plaintiff on November 1, 2001. In fact, however, plaintiff thereafter filed not only this case, but a second action in the Eastern District entitled Mister Softee, Inc. v. Valdez, 01-CV-8420 (ADS) (the "Second Action"). That case was litigated actively for a time and then settled on April 4, 2002.
Moreover, the only defendant in the Second Action, Valdez, was a defendant also in this Court.
A necessary condition for an award of attorney's fees under the statute on which plaintiff relies, 15 U.S.C. § 1117(a), is that plaintiff have established "a violation under section 1125(a) of this title." Plaintiff did not establish such a violation in either the Original or the Second Action, the first of which it voluntarily dismissed and the latter of which it settled. Even putting aside the fact that this Court probably could not award fees with respect to either of those actions in any event, plaintiff therefore is entitled to recover nothing more than its fees and costs in this action.
The problem then becomes the determination of a reasonable attorney's fee for this action, which is very difficult to do given the failure of the Zucker firm to keep separate records with respect to each of the three cases.
The Zucker firm attributes fees and costs of $3,487.13 solely to this action. It attributes fees and costs to the Original Action for the period through September 30, 2001 of $24,185.71. Moreover, some of the fees and costs to the Original Action quite plainly were unique to that case, even granting the proposition that some of the work done in connection with that case then was used to pursue this case. For example, time was spent and, in some cases, expenses incurred on matters such as a pro hac vice application, service of process, and communicating with the court in the Original Action.
In all the circumstances, the motion to amend the judgment is granted to the extent, and only to the extent, that plaintiff shall recover of defendants an attorney fee and disbursements in the aggregate amount of $18,500, which reflects the Court's estimate of the sums reasonably expended that contributed to plaintiff's having prevailed in this action.
SO ORDERED.