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AUSCAPE INTL. v. NATIONAL GEOGRAPHIC SOCIETY

August 12, 2003

AUSCAPE INTERNATIONAL, ET AL., PLAINTIFFS,
v.
NATIONAL GEOGRAPHIC SOCIETY, ET AL., DEFENDANTS



The opinion of the court was delivered by: Henry Pitman, Magistrate Judge

AMENDED MEMORANDUM*fn1 OPINION AND ORDER*fn2
I. Introduction

By Order dated January 17, 2003, the Honorable Lewis A. Kaplan, United States District Judge, imposed sanctions on plaintiffs' counsel, Surjit P. Soni, Esq., as a result of his failure to comply with a discovery Order issued by Judge Kaplan on October 28, 2002 (the "Order"). Specifically, Judge Kaplan ordered that

Surjit P. Soni, Esq., shall pay to ProQuest the reasonable attorney fees and costs incurred by ProQuest in obtaining the Order and in bringing this motion. If ProQuest and Mr. Soni cannot agree on [ Page 2]
the amount, ProQuest may file a motion, not later than February 17, 2003, before the Magistrate Judge assigned to fix the amount.
Auscape Int'l v. National Geographic Soc'y, 02 Civ. 6441 (LAK), 2003 WL 134989 at *6 (S.D.N.Y. Jan. 17, 2003).

The parties have been unable to agree on the amount of fees ProQuest should recover, and have briefed the motion contemplated by Judge Kaplan. For the reasons set forth below, I conclude that ProQuest is entitled to recover attorneys' fees in the amount of $69,484.00.

II. Facts

The facts underlying both this action and the discovery dispute that led to the instant application have been set forth in several decisions by Judge Kaplan in this action and in several companion cases, familiarity with which is assumed. See Auscape Int'l v. National Geographic Soc'y, supra, 2003 WL 134989; Faulkner v. National Geographic Soc'y, 220 F. Supp.2d 237 (S.D.N.Y. 2002); Ward v. National Geographic Soc'y, 208 F. Supp.2d 429 (S.D.N.Y. 2002). For present purposes it is sufficient to note that plaintiffs are photographers and writers who have contributed photographs or text to National Geographic magazine. In principal part, plaintiffs claim that the publication of their photographs and textual works in archival form as CD-ROMs and on microfilm and microfiche violates their rights under the Copyright Act. Plaintiffs also allege that the [ Page 3]

publication of their photographs and text violates various other common law and statutory rights.

The instant dispute arises out of plaintiffs' failure to comply with the Order. The Order, which was issued orally, required plaintiffs to produce three categories of documents: "(1) documents relating to the licensing of each allegedly infringed work, (2) original versions of each allegedly infringed work submitted to National Geographic, and (3) contingency fee agreements between each plaintiff and The Soni Law Firm or any of its agents or representatives." Auscape Int'l v. National Geographic Soc'y, supra, 2003 WL 134989 at *1. Despite the fact that plaintiffs were ordered to produce these documents by November 7, 2002, they failed to do so. Subsequent deposition testimony from several plaintiffs disclosed that Mr. Soni had never even sent the document requests to plaintiffs and had misrepresented the difficulty of complying with the Order. Indeed, Mr. Soni's conduct in failing to comply with the Order was so disingenuous and evasive, that Judge Kaplan characterized it as "the sort of `rope-a-dope' technique that helped make Muhammad Ali famous." See Auscape Int'l v. National Geographic Soc'y, supra, 2003 WL 134989 at *6. Accordingly, Judge Kaplan entered the Order quoted in part on page 1.

In connection with their present application, ProQuest Company and ProQuest Information and Learning Company ("ProQuest") seek attorneys' fees in the total amount of $86,855. The fees sought by ProQuest represent only its counsels' time [ Page 4]

charges; ProQuest has expressly waived its right to recover any disbursements incurred with respect to the Order and its enforcement.

III. Analysis

Both Mr. Soni and ProQuest agree that the fees to be awarded to ProQuest is appropriately determined using the lodestar method (Memorandum of Law in Support of the ProQuest Defendants' Motion for Attorneys' Fees, dated February 18, 2003 at 6; Plaintiffs' Opposition to ProQuest Defendants' Motion for Attorneys' Fees, dated March 8, 2003 at 14).

Under the lodestar method, "`an attorney fee award is derived "by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate."'" I.B. v. New York City Dep't of Educ., Docket Nos. 02-7990, 02-7993, 2003 WL 21639069 at *1 (2d Cir. July 14, 2003), quoting G.M. v. New Britain Bd. of Educ., 173 F.3d 77, 84 (2d Cir. 1999), which, in turn, quotes Blanchard v. Bergeron, 489 U.S. 87, 94 (1989). See also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 96-99 (2d Cir. 1997); Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992).

The hours actually expended and the rates actually charged are, of course, not dispositive. Foster v. Kings Park Cent. Sch. Dist., 174 F.R.D. 19, 27 (E.D.N.Y. 1997). An award of fees must be limited to the number of hours reasonably expended and limited to reasonable hourly rates. [ Page 5]

The Honorable Loretta A. Preska, United States District Judge, has summarized the factors to be considered in assessing the reasonableness of the hours claimed in a fee application:

To assess the reasonableness of the time expended by an attorney, the court must look first to the time and work as they are documented by the attorney's records. See Forschner Group, Inc. v. Arrow Trading Co., Inc., No. 92 Civ. 6953 (LAP), 1998 WL 879710, at super* 2 (S.D.N.Y. Dec. 15, 1998). Next the court looks to "its own familiarity with the case and its experience generally. . . . Because attorneys' fees are dependent on the unique facts of each case, the resolution of the issue is committed to the discretion of the district court." AFP Imaging Corp. v. Phillips Medizin Sys., No. 92 Civ. 6211 (LMM), 1994 WL 698322, at super* 1 (S.D.N.Y. Dec. 13, 1994) (quoting Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992) (quoting DiFilippo v. Morizio, 759 F.2d 231, 236 (2d Cir. 1985))).
Finally, billing judgment must be factored into the equation. Hensley, 461 U.S. at 434; DiFilippo, 759 F.2d at 235-36. If a court finds that the fee applicant's claim is excessive, or that time spent was wasteful or duplicative, it may decrease or disallow certain hours or, where the application for fees is voluminous, order an across-the-board percentage reduction in compensable hours. In re "Agent Orange" Products Liab. Litig., 818 F.2d 226, 237 (2d Cir. 1987) (stating that "in cases in which substantial numbers of voluminous fee petitions are filed, the district court has the authority to make across-the-board percentage cuts in hours `as a practical means of trimming fat from a fee application'" (quoting Carey, 711 F.2d at 1146)); see also United States Football League v. National Football League, 887 F.2d 408, 415 (2d Cir. 1989) (approving a percentage reduction of total fee award to account for vagueness in documentation of certain time entries). [ Page 6]
Santa Fe Natural Tobacco Co. v. Spitzer, 00 Civ. 7274 (LAP), 00 Civ. 7750 (LAP), 2002 WL 498631 at *3 (S.D.N.Y. Mar. 29, 2002). See also Hensley v. Eckerhart, supra, 461 U.S. at 434. Accord Orchano v. Advanced Recovery, Inc., supra, 107 F.3d at 98. The party seeking fees bears the burden of establishing that the number of hours for which compensation is sought is reasonable. Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers. 34 F.3d 1148, 1160 (2d Cir. 1994), citing Hensley v. Eckerhart, supra, 461 U.S. at 437.

Reasonable hourly rates are determined by reference to fees in the community in which the action is pending and to the skill and experience of the attorneys who worked on the matter. Luciano v. Olsten Corp., 109 F.3d 111, 115-16 (2d Cir. 1997).

As Judge Motley has noted, "The Second Circuit has warned that attorney's fees are to be awarded `with an "eye to moderation," seeking to avoid either the reality or the appearance of awarding "wind falls."'" Evans v. State of Connecticut, 967 F. Supp. 673, 691 (D. Conn. 1997), aff'd without opinion, No. 97-7688, 2001 WL 1486543 (2d Cir. Nov. 15, 2001), quoting Beazer v. New York City Transit Auth., 558 F.2d 97, 101 (2d Cir. 1977). [ Page 7]

A. Hours Reasonably Expended

ProQuest staffed the discovery dispute in this matter with seven attorneys and one paralegal. Their positions, rates*fn3 and number of hours each worked on the ...


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