Opinion
98 Civ. 3558 (RMB) (HBP)
April 29, 2002
MEMORANDUM OPINION AND ORDER
Currently before me is a dispute between plaintiffs and their former counsel, Akabas Cohen ("AC"), concerning AC's fees. The Court has jurisdiction pursuant to 28 U.S.C. § 1367. Russian Kurrier, Inc. v. Itar-Tass Russian News Agency, 140 F.3d 442, 448 (2d Cir. 1998). AC moves for reargument of my Memorandum Opinion and Order dated February 26, 2002 which held that, although plaintiffs' misconduct concerning discovery gave rise to a right to recovery attorney's fees pursuant to Fed.R.Civ.p. 37, AC was not entitled to recover attorney's fees because it is proceeding pro Se.
Reargument is appropriate in only in a small number of situations. To be entitled to reargument pursuant to Local Civil Rule 6.3, a movant "must demonstrate that the Court overlooked controlling decisions or factual matters that were put before the Court on the underlying motion[,]" Monaghan v. SZS 33 Assoc., 153 F.R.D. 60, 65 (S.D.N.Y. 1994), and which "might materially have influenced its earlier decision." Morser v. ATT Info. Sys., 715 F. Supp. 516, 517 (S.D.N.Y. 1989). See Horsehead Resource D.V. Co. v. B.U.S. Envtl. Services, Inc., 928 F. Supp. 287, 289 (S.D.N.Y. 1996); Anglo American Ins. Co. v. Calfed Inc., 940 F. Supp. 554, 557 (S.D.N.Y. 1996); Morse/Diesel Inc. v. Fidelity Deposit Co., 768 F. Supp. 115, 116 (S.D.N.Y. 1991); Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990).
"Reargument is not a forum for new theories[,]" CMNY Capital v. Deloitte Touche, 821 F. Supp. 152, 162 (S.D.N Y 1993), and the Local Rule permitting reargument should be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been fully considered by the court." Bonnie Co. Fashions, Inc. v. Bankers Trust Co., 170 F.R.D. 111, 113 (S.D.N.Y. 1997) (citations omitted). A party making a motion for reargument may not advance new facts, issues, or arguments not previously presented to the Court. Weissman v. Fruchtman, 124 F.R.D. 559, 560 (S.D.N.Y. 1989). Finally, the decision to grant or deny a motion to reargue is "within the sound discretion of the district court." In re Payroll Express Corp., 216 B.R. 713, 716 (S.D.N.Y. 1997).
AC could not and does not claim that I overlooked any controlling decisions or factual matters. Rather, it claims that I misinterpreted Judge Wexler's decision in Walker v. Tri-Tech Planning Consultants, Inc., 149 F.R.D. 22 (E.D.N.Y. 1993). Although Walker permitted a pro se litigant to recover expenses pursuant to Fed.R.Civ.P. 37, there is not the slightest suggestion in the decision that a pro se litigant can recover attorney's fees. In this case, AC is not attempting to recover expenses, such as copying or travel costs. Rather it is trying to recover the time charges for the attorney who worked on the discovery dispute, at ordinary billable rates. Even under AC's theory that plaintiffs' failure to comply with their discovery obligations diverted AC's attorneys from billable work, thereby giving rise to a "lost opportunity" cost, AC would have to show that billable work went undone because of plaintiffs' misconduct. AC has made no such showing.
In this regard I cannot ignore the professional reality that if an attorney has 60 hours of work to be done between a particular Monday and a particular Friday, most times, the attorney will simply work late rather than ignore his or her obligations to his or her clients. Thus, I believe it would be improper to assume that any portion of AC's billable work went undone as a result of the discovery dispute.
To the extent that AC attempts to distinguish the bulk of the authorities cited in my prior decision on the ground that they dealt with fee awards under substantive federal statutes and not with fee awards under the Federal Rules of Civil Procedure, AC's argument is interesting but unconvincing. First, no case has ever recognized the distinction AC is drawing. Second, Rule 37 authorizes a wide array of sanctions, some of which are punitive and intended to deter, some of which are compensatory only. To the extent that a Rule 37 sanction is compensatory (as was the case here), it is almost identical to the attorney's fees provisions in federal substantive law. Finally, recognizing the distinction suggested by AC would lead to bizarre distinctions. For example, under AC's theory, an attorney bringing a pro se Title VII action, could recover attorney's fees time charges for the time spent enforcing discovery requests but could not recover attorney's fees for the time spent litigating other aspects of the case. In addition, under AC's theory, a non-attorney, bringing the same hypothetical action, would never receive any compensation for any of the time he or she spent litigating the matter, even if he or she took substantial time away from lucrative professional pursuits to litigate the matter. Nothing in law or logic can support these distinctions.
Finally, to the extent AC claims that my February 26 decision contains certain inaccuracies, see AC Memorandum dated March 8, 2002 at 8, AC is incorrect. My reference to "plaintiff" in my February 26 decision referred to Warren Publishing Company and James Warren, the entity and the person who were and still are the plaintiffs in this matter. My statement that AC did not incur attorney's fees was clearly correct as that expression is commonly used.
Accordingly, for all the foregoing reasons, AC's motion is denied, and I adhere to my February 26, 2002 Memorandum Opinion and Order.