UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
October 28, 1998
INDEPENDENT LIVING AIDS, INC., and MARVIN SANDLER, Plaintiffs,
MAXI-AIDS, INC., HAROLD ZARETSKY, MITCHEL ZARETSKY, ELLIOT ZARETSKY and PAMELA ZARETSKY STEIN, Defendants.
Hon. Arthur D. Spatt, United States District Judge.
The opinion of the court was delivered by: SPATT
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge :
The facts underlying this case are set forth in the Court's earlier decisions and the trial transcript, and will not be repeated here. Presently before the Court is the renewed motion for attorneys' fees by the plaintiffs, Marvin Sandler and Independent Living Aids (collectively the "plaintiffs" or "ILA").
The plaintiffs previously moved for attorneys' fees in the amount of $ 399,467.50, plus interest, as the prevailing party following a jury trial on their trademark (15 U.S.C. §§ 1117[a] and [b]), copyright (17 U.S.C. § 505) and New York General Business Law ("GBL") (GBL §§ 349 and 350) claims. The remaining defendants, Maxi-Aids, Inc., Mitchel Zaretsky, Elliot Zaretsky and Pamela Zaretsky Stein (collectively, the "defendants" or "Maxi-Aids") opposed this motion. In a decision dated July 25, 1998, the Court found it impossible to adequately determine the amount of attorneys' fees to be awarded, if any. The Court emphasized three deficiencies in the earlier fee request. First, the attorneys' time sheets did not indicate which hours were devoted to unsuccessful claims and actions, including: (1) a federal trade dress claim regarding their "Slimline Lo-Vision watches"; (2) federal trademark/service-mark claims regarding the terms "Independent Living," "ILA," "Do More Products," "Maxi-Aids and Appliances for Independent Living" and "Maxi-Aids Products for Independent Living"; and (3) a state law claim for intentional interference with economic benefits relating to bidding procedures. For this reason, the Court afforded the plaintiffs' counsel a "final" opportunity to review their records and determine the number of hours spent on the successful claims and actions. The Court advised the plaintiffs that in the event they are unable to do so, the Court intended to "substantially" reduce the fee application, to reflect that the claims on which the plaintiffs lost and their defense of the libel counterclaim were a major part of their theory of this case.
Second, the Court directed the plaintiffs' attorneys to recalculate their fee request, by reducing their hourly rates for a partner, Jack S. Dweck, and an associate, Richard A. Hubell from $ 350.00 and $ 175.00 an hour, to $ 225 and $ 135 per hour, respectively.
Third, the Court directed counsel to delete those portions of the request related to subjects which, on their face, had no relation to this case. Such extraneous matters included ILA's subsequently filed RICO lawsuit against the defendants and "estate planning" for the plaintiff Sandler.
Following this decision, the plaintiffs submitted a supplemental motion, allegedly in compliance with the Court's instructions concerning the elimination of certain fees. The following is the revised fee request ( in bold), as compared to the initial request (in italics):
Attorney Original Revised Original Revised Original Revised
Hours Hours Rate Rate Total Total
J. Dweck 721.3 735.45 $ 325 $ 225 $ 234,422.50 $ 165,476.25
R. Hubell 1,098.1 1,066.9 $ 175 $ 135 $ 164,715.00 $ 144,031.50
H.P. Dweck .7 8 $ 135 $ 135 $ 105 $ 1080.00
Paralegal 4.5 0 $ 50 N/A $ 225 $ 0
TOTAL 1824.6 1810.35 -- -- $ 399,467.50 $ 310,587.75
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