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.
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.
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.