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PRO-CHOICE NETWORK OF WESTERN NEW YORK v. PROJECT

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


March 15, 1994

PRO-CHOICE NETWORK OF WESTERN NEW YORK, et al., Plaintiffs, THE CHILDREN'S HOSPITAL OF BUFFALO, Intervenor-Plaintiff,
v.
PROJECT RESCUE WESTERN NEW YORK, et al., Defendants.

ARCARA

The opinion of the court was delivered by: RICHARD J. ARCARA

DECISION AND ORDER

Presently before the Court are defendants' objections to Magistrate Judge Carol E. Heckman's October 1, 1993 Report and Recommendation regarding plaintiffs' applications for attorneys' fees and costs in connection with this Court's prior Decisions and Orders finding these defendants in civil contempt of the Court's September 27, 1990 Temporary Restraining Order ("TRO").

 BACKGROUND

 In a Decision and Order filed July 24, 1992, the Court found defendant Nancy Walker in civil contempt for violating the TRO on November 29 and December 1, 1990. Defendants Bonnie Behn and Carla Rainero Goss were found in civil contempt in a Decision and Order filed August 14, 1992, for violating the TRO on October 20, 1990. Paul Schenck, Robert Schenck and Project Rescue Western New York ("Project Rescue") were found in civil contempt in a Decision and Order filed September 14, 1992, for violating the TRO on December 29, 1990. Defendants Paul Schenck and Daren Drzymala were found in civil contempt in a Decision and Order filed September 28, 1992, for violating the TRO on September 28, 1991.

 In these Decisions and Orders, the Court found that the defendants' violations of the TRO were wilful, that the TRO clearly put them on notice that they could be held liable for attorneys' fees and costs associated with enforcement of the TRO, and therefore, that plaintiffs were entitled to attorneys' fees and costs relative to each of the contempts. The Court set a schedule for plaintiffs to file affidavits of attorneys fees and costs, and for defendants to respond. Thereafter, the Court referred the requests for attorneys' fees and costs to Magistrate Judge Heckman for report and recommendation. See Item No. 248 (Walker); No. 261 (Behn and Rainero); No. 314 (Schenck and Drzymala); No. 315 (Schenck, Schenck and Project Rescue).

 Defendants Walker, Behn and Rainero Goss filed papers in opposition to the applications for attorneys' fees and costs relative to their contempts. See Item Nos. 246, 312. With respect to the Paul Schenck, Robert Schenck and Project Rescue contempt, no opposing papers were filed by the November 6, 1992 deadline set by this Court. See Item No. 250. However, on January 19, 1993, William J. Ostrowski, Esq. wrote a letter to Magistrate Judge Heckman on behalf of Paul and Robert Schenck stating that he had been ill and requesting a hearing on the attorneys' fees petition in order to explore the professional services rendered, as well as the Schencks' financial condition. See Item No. 397, at 5. Magistrate Judge Heckman found that Mr. Ostrowski's general request for a hearing, without substantiation, and without otherwise attacking the fee application, was insufficient to place the issues in dispute, and therefore considered the Schenck, Schenck and Project Rescue fee application to be substantially unopposed. Id. at 21. No opposition to the application for attorneys' fees and costs was filed relative to the Paul Schenck and Daren Drzymala contempt. Id. at 22.

 In a well-reasoned and thorough Report and Recommendation, Magistrate Judge Heckman recommended that attorneys' fees and costs be awarded to plaintiffs as to each contempt: $ 38,931.10 against defendant Walker; $ 25,260.16 against defendants Behn and Rainero Goss, jointly and severally; $ 35,796.00 against defendants Paul Schenck, Robert Schenck and Project Rescue, jointly and severally; and $ 10,980.16 against defendants Paul Schenck and Daren Drzymala, jointly and severally. Id. at 2.

 On October 18, 1993, objections to the Report and Recommendation were filed by Mr. Ostrowski on behalf of Paul and Robert Schenck. Item No. 402. On the same date, objections were filed by James J. Duane, Esq. on behalf of defendants Walker, Behn and Rainero Goss. Item No. 403. No objections were filed on behalf of defendants Paul Schenck and Daren Drzymala. Plaintiff's filed a response to the objections on December 1, 1993, Item No. 415, and the Court heard oral argument on December 20, 1993.

 DISCUSSION

 Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon such de novo review, and after reviewing the submissions of the parties, and hearing argument from counsel, the Court adopts the proposed findings of the Report and Recommendation.

 I. Schenck, Schenck and Project Rescue

 Defendants Paul and Robert Schenck have raised several objections to the Report and Recommendation. They contend that Magistrate Judge Heckman erred: (1) in permitting plaintiffs to recover for services not supported by contemporaneous time records; (2) in permitting plaintiffs to recover for inadequately documented time; (3) in permitting plaintiffs to recover for time spent on matters unrelated to the Paul and Robert Schenck civil contempt, or unjustified by sound billing judgment; and (4) in permitting plaintiffs to recover for witness fees in excess of those permitted under 28 U.S.C. § 1821. *fn1" Item No. 402.

 The Court will not address these objections, however, because it finds that Paul and Robert Schenck and Project Rescue have waived any right to raise objections to the Report and Recommendation before this Court due to their failure to raise such arguments below. None of these defendants filed responses to plaintiffs' fee application by the November 6, 1992 deadline set by the Court. Nor did they seek an extension of time to so respond. It was not until January 1993 that a letter was received from defendants' counsel seeking an opportunity for a hearing. Magistrate Judge Heckman considered the letter untimely and found that the general request for a hearing, without substantiation, and without otherwise attacking the fee application, was insufficient to place the issues in dispute. Item No. 397, at 21.

 These defendants now seek to raise substantive objections to the Report and Recommendation before this Court. However:

 

the rule [regarding objections to reports and recommendations] does not permit a litigant to present new initiatives to the district judge. We hold categorically that an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.

 Paterson-Leitch v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988) (citing Borden v. Secretary of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987)). This rule applies with even greater force to a party who has failed to raise any timely argument before the magistrate judge. To allow otherwise would render the procedure for reports and recommendations ineffective, and the Court's deadlines meaningless. In addition, the defendants have not set forth any reason why their response to plaintiffs' fee application should not have been rejected below as untimely.

 Thus, because defendants Paul and Robert Schenck and Project Rescue have waived the right to file objections, *fn2" the Court adopts Magistrate Judge Heckman's recommendation that plaintiffs be awarded attorneys' fees and costs of $ 35,796.00 relative to this contempt.

 II. Walker, Behn and Rainero Goss

 Defendants Walker, Behn and Rainero Goss have raised three objections to the Report and Recommendation. They assert that Magistrate Judge Heckman erred: (1) in refusing to consider their limited financial resources and the relative wealth of the parties; (2) in refusing to limit plaintiffs' award of attorneys' fees to the amount plaintiffs actually paid their attorneys; and (3) in allowing plaintiffs to recover for time spent by two attorneys doing the same work. *fn3" Item No. 403.

 With respect to defendants' first objection, the Court adopts Magistrate Judge Heckman's proposed finding that defendants' financial circumstances and their ability to pay are not relevant to the determination of attorneys' fees in this case. The cases cited by defendants, as Magistrate Judge Heckman noted, are inapposite. The purposes behind the award of attorneys' fees under Title VII, Fed. R. Civ. P. 11, or the inherent power of the court to sanction bad faith conduct are different from the purpose behind the award of attorneys' fees in these civil contempt proceedings. As noted by the Court in its Decisions and Orders finding these defendants in civil contempt, a successful complainant in a contempt proceeding is entitled to the reasonable costs of prosecuting the contempt, including attorneys' fees, if the violation of the court's order is found to have been wilful. Canterbury Belts, Ltd. v. Lane Walker Rudkin, Ltd., 869 F.2d 34, 39 (2d Cir. 1989); Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126, 130 (2d Cir. 1979). As previously noted, the Court found that defendants' violations of the TRO were wilful. Thus, plaintiffs are entitled to be compensated for the cost of bringing and prosecuting these contempts. While the Court is cognizant that an award of attorneys' fees against defendants Walker, Behn and Rainero Goss will strain their finances, these defendants were specifically put on notice that a violation of the TRO would result in attorneys' fees and costs being imposed. Defendants' conduct was egregious; it was their intentional violation of the Court's TRO that resulted in the instant award of attorneys' fees.

 Even if a finding of financial ability to pay were necessary to determine an appropriate award of attorneys' fees, the Court has implicitly made that finding in its Decisions and Orders finding these defendants in civil contempt. The Court specifically considered the financial resources of the defendants before imposing a fine. In determining that an award of attorneys' fees and costs was also warranted, the Court made the implicit finding that defendants were able to pay such fees and costs. Moreover, to the extent defendants' ability to pay the attorneys' fees was not specifically considered, the Court now finds, based on the record presented, that defendants Walker, Behn and Rainero Goss are able to pay the fee award ultimately imposed on such reasonable terms as might be arranged. In addition, the Court notes that the award of attorneys' fees and costs recommended by Magistrate Judge Heckman represents a significant reduction from the amount requested. *fn4" Thus, defendants' financial resources do not require a finding different from that recommended by Magistrate Judge Heckman.

 With respect to defendants' second objection--that Magistrate Judge Heckman erred in refusing to limit plaintiffs' award of attorneys' fees to the amount plaintiffs actually paid their attorneys--the Court finds that there is no basis for imposing such a limitation on plaintiffs' award of attorneys' fees. As noted by Magistrate Judge Heckman, the cases that calculate fee awards in civil contempt cases use the same criteria as fee awards under 42 U.S.C. § 1988 generally. See Item No. 397, at 9. Attorneys' fees are calculated by multiplying the reasonable number of hours expended, by the prevailing local market rate for attorneys of similar skill and experience. See Missouri v. Jenkins, 491 U.S. 274, 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989); Blum v. Stenson, 465 U.S. 886, 897, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). The Supreme Court has held that the calculation of attorneys' fees should not vary depending on whether the successful party was represented by private counsel, an attorney serving pro bono or a nonprofit legal services organization. Blum, 465 U.S. at 894-95. Thus, the Court is unpersuaded by defendants' argument that the fee award should be calculated according to the cost of providing the services rather than the prevailing market rate.

 Finally, defendants object to the recommended fee award on the ground that Magistrate Judge Heckman erred in allowing plaintiffs to recover for time spent by two attorneys doing the same work. The basis for this objection is Magistrate Judge Heckman's recommended finding that the hours claimed by Lucinda Finley, Esq. and Isabel Marcus, Esq. on the Walker and Behn and Rainero Goss contempts are reasonable. Specifically, Magistrate Judge Heckman recommends compensating Ms. Finley for 150.5 hours on the Walker contempt proceeding and 105.3 hours on the Behn and Rainero Goss contempt. She recommends compensating Ms. Marcus for 98 hours on the Walker contempt and 56.5 hours on the Behn and Rainero Goss contempt. Item No. 397, at 13-14.

 Defendants assert that to allow attorneys' fees as to both attorneys constitutes double billing. Initially, the Court notes that defendants do not specifically challenge the reasonableness of the hours spent by either attorney on any particular task. Nor do they assert that there was a duplication of work. Their argument appears to be simply that it was not necessary for two attorneys to be on the case and therefore only the work of one should be compensated.

 Magistrate Judge Heckman addressed this issue below and found that plaintiffs' use of two counsel at the two contempt proceedings was reasonable. She stated that the use of two attorneys was warranted "given the number of violations of the court's orders, the complexity of the issues involved, the number of counsel in and out of the case for various defendants, the fact that discovery had not taken place, and in general the vigorous litigation posture adopted by the defendants." Item No. 397, at 15 (citations omitted).

 In their objections, defendants address each of the factors relied on by Magistrate Judge Heckman in an effort to establish why none of them justify the use of two attorneys. Having carefully reviewed defendants' objection in this regard as well as plaintiffs' response, the Court finds that while several of the factors relied on by Magistrate Judge Heckman in allowing compensation for the work of both Ms. Finley and Ms. Marcus may not have been relevant or determinative with respect to these particular contempt proceedings, plaintiffs have nevertheless demonstrated that the use of two attorneys on these contempts was completely reasonable and necessary.

 The nature and complexity of these contempt proceedings made it reasonable for plaintiffs to utilize more than one attorney. However, while two attorneys worked on these contempts, there is no indication that there was any duplication of work. The record establishes, and the Court's recollection from presiding over the contempt proceedings confirms, that Ms. Finley and Ms. Marcus did different work; that they split up the responsibility for various tasks including preparing and examining witnesses. Defendants have presented no evidence to establish that this is not so. Thus, whether plaintiffs used two attorneys splitting up the work, or one attorney doing all the work, the result in terms of the number of hours expended is the same. Indeed, the use of two attorneys may actually have increased the efficiency of the litigation. See Wzorek v. City of Chicago, 739 F. Supp. 400, 403 (N.D. Ill. 1990) (noting in a civil contempt fee case that "consultations [between lawyers] often improve the efficiency of lawyers on a team, preventing duplication of tasks and resulting in a more efficient allocation of work").

 In the absence of specific objections as to the number of hours expended by plaintiffs' attorneys, the Court adopts the recommendation of Magistrate Judge Heckman that all hours cited by Ms. Finley and Ms. Marcus be compensated.

 III. Schenck and Drzymala

 As to the $ 10,980.16 in attorneys' fees and costs awarded against Paul Schenck and Daren Drzymala, based on the Court's review of the Report and Recommendation and the submission of plaintiffs, and no objections having been timely filed, the Court adopts Magistrate Judge Heckman's recommendation as to this award.

 CONCLUSION

 Accordingly, for the reasons set forth above as well as in Magistrate Judge Heckman's Report and Recommendation, plaintiffs are awarded attorneys' fees and costs in the following amounts: $ 38,931.10 against defendant Walker; $ 25,260.16 against defendants Behn and Rainero Goss, jointly and severally; $ 35,796.00 against defendants Paul Schenck, Robert Schenck and Project Rescue, jointly and severally; and $ 10,980.16 against defendants Paul Schenck and Daren Drzymala, jointly and severally.

 IT IS SO ORDERED.

 HONORABLE RICHARD J. ARCARA

 UNITED STATES DISTRICT COURT

 Dated: March 15, 1994


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