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WEITZMAN v. STEIN

December 19, 1995

CAROLE HELLER WEITZMAN, as assignee of SAUL WEITZMAN, Plaintiff, against SIDNEY STEIN, ALBERT FEIFFER, and NORMAN RUBINSON, Defendants, BARRY SCHWARTZ, ESQ., Respondent.

David N. Edelstein, U.S.D.J.


The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge:

 Pursuant to Federal Rule of Civil Procedure 60(b) ("Rule 60(b)"), plaintiff moves this Court to reconsider the amount of attorneys' fees that this Court awarded to plaintiff in this Court's June 29, 1995, Opinion and Order. In that Opinion and Order, this Court awarded plaintiff the reasonable costs that she incurred in prosecuting the contempt of defense counsel, Barry Schwartz, for his violation of this Court's May 16, 1988, Order. Plaintiff contends that this Court improperly calculated plaintiff's attorneys' fees at an hourly rate of $ 150 per hour, arguing that this Court should have calculated attorneys' fees at the rate of $ 275 per hour. Moreover, plaintiff contends that this Court improperly failed to award plaintiff the costs she incurred in appealing this Court's August 10, 1994, Memorandum and Order.

 BACKGROUND

 On May 16, 1988, this Court issued an Order ("the May 16 Order") directing, inter alia, the seizure and sale of a 1983 Lincoln Towne Car ("the Lincoln") by the Sheriff of the City of New York ("the Sheriff"). The May 16 Order reads, in relevant part:

 
[It is hereby] ORDERED, that Garage Management Corp. shall release to the plaintiff or plaintiff's representatives, the 1983 Lincoln Towne car bearing Florida license plate number IPE 075 . . . and it is further
 
ORDERED, that Sidney Stein, Gail Rohme and their representatives are prohibited from interfering with any part of this Order, and it is further
 
ORDERED, that the plaintiff or plaintiff's representative shall take possession of said motor vehicle and shall arrange for the sale of said motor vehicle by the Sheriff of the City of New York. .

 On June 15, 1989, plaintiff moved, by order to show cause, to hold defendant Sidney Stein's attorney, Barry Schwartz ("Schwartz"), in contempt of court for violating the May 16 Order. Plaintiff alleged that Schwartz violated the May 16 Order by deliberately interfering with the Court-ordered sale of the Lincoln. Plaintiff contended that Schwartz delivered a letter to the Sheriff on May 30, 1989, that caused the Sheriff to cancel the sale of the Lincoln, which was scheduled to occur on the following day.

 On August 10, 1994, this Court issued a Memorandum and Order, reiterating that Barry Schwartz was in contempt of this Court for violating this Court's May 16, 1989, Order. This Memorandum and Order further stated, however, that Mr. Schwartz's conduct was not deliberate and willful. Moreover, this Court rejected plaintiff's claim for reimbursement of expenses and attorneys' fees.

 On appeal, the Second Circuit reversed this Court's finding that Schwartz did not act wilfully. The Second Circuit also vacated the part of this Court's Order that denied plaintiff damages, and the case was remanded for a specific finding with respect to the amount of damages. The Second Circuit noted that a "'district court is not free to exercise its discretion and withhold an order in civil contempt awarding damages, to the extent they are established.'" Weitzman v. Stein, 57 F.3d 1063 (2d Cir. 1995) (quoting Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126, 130 (2d Cir. 1979)). The appellate court further explained that, although plaintiff had "inflated" her claim for damages, plaintiff had suffered some damages as a result of Schwartz's contempt. Id. at 3. The Second Circuit directed this Court either to determine the amount of damages that plaintiff suffered or to explain why plaintiff, nevertheless, was not entitled to damages. Id. After this case was remanded to this Court, plaintiff moved this Court to include in the damage award her costs of pursuing this case on appeal.

 The parties submitted three sets of papers that were relevant to this Court's determination of the costs that plaintiff incurred in prosecuting Schwartz's contempt. Each party made a submission on November 19, 1993, regarding the damages that plaintiff incurred in prosecuting Schwartz's contempt in this Court. Because these submissions failed adequately to address the issue of whether plaintiff's attorney's hourly rate of $ 275 was reasonable, each party submitted supplemental papers, at this Court's direction, that addressed the issue of whether this claimed hourly rate was reasonable. In addition, each party briefed the issue of whether plaintiff was entitled to recover the costs she incurred in appealing this Court's August 10, 1994, Memorandum and Order.

 In a June 29, 1995, Opinion and Order, this Court ordered that Schwartz pay $ 9,329.25 to plaintiff. Weitzman v. Stein, 891 F. Supp. 927, 935 (S.D.N.Y. 1995). This Court calculated this award by adding the expenses that plaintiff incurred in prosecuting Schwartz's contempt to the reasonable attorneys' fees that plaintiff incurred in prosecuting this contempt. Id. at 934. Pursuant to the case-law in this circuit, this Court calculated plaintiff's reasonable attorneys' fees by multiplying "'the number of hours reasonably expended on the litigation . . . by a reasonable hourly rate.'" Id. at 930 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983)) (citing Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 145 (2d Cir. 1993), cert. denied, 127 L. Ed. 2d 539, 114 S. Ct. 1189 (1994)).

 In order to determine plaintiff's counsel's reasonable hourly rate, this Court examined the parties' respective submissions regarding whether plaintiff's attorney's claimed rate of $ 275 per hour was reasonable, and this Court relied, in part, upon this Court's knowledge of attorneys' hourly rates in the community. Although plaintiff's attorney submitted an affidavit that explained his professional experience, this affidavit entirely failed to address the issue of what is "the rate prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." 891 F. Supp. at 933 (quotation and internal quotation marks omitted).

 Instead, plaintiff's counsel argued that this Court should award attorneys' fees at a rate of $ 275 per hour because this Court previously had approved that hourly rate. On two occasions, plaintiff's counsel represented to this Court: "Plaintiff's counsel has established a billing rate of $ 275.00 per hour in relation to this case. This hourly rate has previously been discussed before this Honorable Court. . . ." (Letter from Louis Venezia to the Honorable David N. Edelstein, September 16, 1993, Ex. at 5); (Plaintiff's Letter Brief, November 19, 1993, Ex. at 2.) Moreover, in the affidavit that plaintiff's counsel submitted regarding whether the $ 275 per hour rate was reasonable, plaintiff's counsel stated that this rate was reasonable in ...


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