United States District Court, S.D. New York
June 17, 2004.
NIGHT HAWK LIMITED and D.M. THOMAS, Plaintiffs,
BRIARPATCH LIMITED, L.P. and GERARD F. RUBIN, Defendants.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
The defendants Briarpatch Limited, L.P. ("Briarpatch") and
Gerard F. Rubin ("Rubin") have moved under Fed.R.Civ.P. 60(b)
to vacate the last decretal paragraph of the judgment dated
January 16, 2003 in this action (the "Judgment").*fn1 The
non-party witness Kathryn J. Donohue ("Donohue") has moved for
sanctions under Fed.R.Civ.P. 11 and for judgment in the amount
of $19,799.16 plus interest, as counsel fees awarded to
her under the last decretal paragraph of the Judgment. For the
reasons set forth below, the motion of Briarpatch and Rubin is
denied, and the motion of Donohue is granted in part.
These motions are the latest and, hopefully, the last
throes of the tentacular litigation that arose out
of the relationship among Rubin, Robert Geisler ("Geisler") and
John Roberdeau ("Roberdeau") and their joint effort to find and
create theatrical productions. These actions include
Briarpatch Ltd., L.P. v. Thomas, 265 F. Supp.2d 219 (S.D.N.Y.
2003); Night Hawk Ltd. v. Briarpatch Ltd., L.P., 263 F. Supp.2d 700
(S.D.N.Y. 2003); Briarpatch Ltd., L.P. v. Geisler
Roberdeau, Inc., No. 99 Civ. 9623 (RWS)
2002 WL 31426207 (S.D.N.Y. Oct. 30, 2002); Briarpatch
Ltd., L.P. v. Geisler Roberdeau, Inc., 194 F. Supp.2d 246 (S.D.N.Y.
2002); Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., No. 99 Civ. 9623 (RWS), 2000 WL 235284 (S.D.N.Y. Mar. 1, 2000);
Briarpatch Ltd., L.P. v. Stage Fright LLC, 86 F. Supp.2d 368
(S.D.N.Y. 2000); Briarpatch Ltd., L.P. v. Pate, 81 F. Supp.2d 509
(S.D.N.Y. 2000). Roberdeau is now deceased.
This most recent action and the pending motions are relatively
straightforward judged against the past complexities as indicated
by the above citations.
This action was commenced on February 28, 2003, after which
time motion practice proceeded. During the pendency of the motion
practice, on or about May 22, 2003, a subpoena was served on
Donohue who, according to the defendants, had some knowledge of
the relationship between Night Hawk Ltd. ("Night Hawk") and
Geisler that was alleged to be relevant to the jurisdictional
issues then being litigated. Donohue failed to comply with the
subpoena and moved to quash it; in the interim, on or about June
25, 2003, Night Hawk was dismissed from this action.
Upon the hearing on September 17, 2003 of the defendants'
motion to dismiss the action and the motion to quash the
subpoena, decision was reserved, the Court noting that the
deposition of Donohue might be appropriate in the event that the
action survived the motion to dismiss. By opinion of December 23, 2003 the "December 23 Opinion"), the
Court denied certain motions by D.M. Thomas ("Thomas"),
the remaining plaintiff, and granted the motion of Briarpatch and
Rubin to dismiss his complaint. Night Hawk Ltd. v. Briarpatch
Ltd., L.P., No. 03 Civ. 1382 (RWS), 2003 WL 23018833 (S.D.N.Y.
Dec. 23, 2003). The December 23 Opinion also granted Donohue's
motion to quash the subpoena and granted attorneys' fees to
Donohue. The Judgment submitted by Briarpatch and Rubin, which
was subsequently signed and entered in January 2004, dismissed
the action and under its last decretal paragraph
quashed the subpoena directed to Donohue.*fn2
On February 9, 2004, Briarpatch and Rubin moved under
Fed.R.Civ.P. 60(b) to vacate the last decretal paragraph of the
judgment, and on February 18, 2004, Donohue cross-moved for
sanctions and for judgment in the amount of $19,799.16
as, inter alia, counsel fees awarded to her under the
Judgment. Oral arguments on both motions were heard on
March 31, 2004, at which time the motions were deemed fully submitted. The Motion to Vacate the Last Decretal Paragraph of the
Judgment Is Denied
Rule 60(b), Fed.R. Civ. P., provides, in pertinent part:
On motion and upon such terms as are just, the court
may relieve a party or a party's legal representative
from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered
evidence . . .; (3) fraud . . ., misrepresentation,
or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been
satisfied, released, or discharged . . . or it is no
longer equitable that the judgment should have
prospective application; or (6) any other reason
justifying relief from the operation of the judgment.
Fed.R.Civ.P. 60(b). The defendants argue that the last
decretal paragraph of the Judgment should be vacated as a
"mistake" under Rule 60(b)(1), or, alternatively, under either
sub-section (5) or sub-section (6).*fn3
"A motion under Rule 60(b) is addressed to the sound discretion
of the trial court." Velez v. Vassallo, 203 F. Supp.2d 312,
333 (S.D.N.Y. 2002) (citing Mendell in Behalf of Viacom, Inc. v.
Gollust, 909 F.2d 724, 731 (2d Cir. 1990)). "While Rule 60(b)
was designed to strike a balance between the interests of
fairness and the finality of judgments, `final judgments should
not be lightly reopened.'" Broadway v. City of New York, No. 96 Civ.
2798 (RPP), 2003 WL 21209635, at *3 (S.D.N.Y. May 21, 2003)
(quoting Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986)).
Moreover, a Rule 60(b) motion may not be used to relitigate the
merits of a case or as a substitute for appeal. See, e.g.,
Competex, S.A. v. Labow, 783 F.2d 333, 335 (2d Cir. 1986);
Bennett v. Watson Wyatt & Co., 156 F. Supp.2d 270, 273
(S.D.N.Y. 2001). Indeed, the Second Circuit has instructed that
Rule 60(b) provides "extraordinary judicial relief" that can be
granted "only upon a showing of exceptional circumstances."
Nemaizer, 793 F.2d at 61; see also Employers Mut. Cas. Co.
v. Key Pharm., 75 F.3d 815, 824-25 (2d Cir. 1996) ("A movant
under Rule 60(b) must demonstrate `exceptional circumstances'
justifying the extraordinary relief requested."). In evaluating a
Rule 60(b) motion, the courts of this circuit also require that
the evidence in support of the motion be highly convincing, that
the movant show good cause for the failure to act sooner, and that
no undue hardship be imposed on the other parties as a result.
See, e.g., Kotlicky v. United States Fidelity & Guar. Co., 817 F.2d 6, 9 (2d
Cir. 1987); Williams v. New York City Dep't of Corrections,
219 F.R.D. 78, 84 (S.D.N.Y. 2003).
The defendants have failed to set forth the
requisite "exceptional" grounds under Rule 60(b)
for striking the last decretal paragraph of the
Judgment. Similarly, they have failed to show
that the conclusions with regard to the subpoena
contained in the December 23 Opinion were
reached as the result of a mistake of law or fact. As noted in the December 23 Opinion, in view of the
posture of this action, the testimony of Donohue was relevant
only to the remaining state court action, Night Hawk, 2003 WL
23018833, at *8. Moreover, the December 23 Opinion further set
forth that failure to withdraw the subpoena might result in the
imposition of a sanction, including an award of reasonable
attorneys' fees, and that such a sanction was appropriate here.
Id. at *8-9. Although the subpoena in question may well have
been properly issued initially, failure to withdraw it after the
dismissal of the Night Hawk action, to which the testimony
related, gave rise to sanctions and an award of attorneys' fees.
As the defendants' motion rehashes many of the same arguments
that were disposed of in the December 23 Opinion and does not
make the requisite showing under Rule 60(b), no adequate basis
for vacating that decision has been set forth.
The Motion for Attorneys' Fees Is Granted in Part
Although the December 23 Opinion quashed the subpoena and
awarded attorneys' fees to Donohue, no submission was made with
respect to the amount of such fees at that time, and consequently
the Judgment made no determination in that regard.
Donohue now seeks $19,799.16, based upon her attorneys' fees
and costs incurred from June through September, 2003, contained
in her attorneys' time records and totaling $16,299.16, is well as additional sanctions in the amount of $3,500 in
connection with the defense of the instant motion. Briarpatch and
Rubin argue that Donohue's counsel's fees are excessive.*fn4
According to counsel for Donohue, the remaining purpose for the
subpoena, as set forth in the hearing of September 17, 2003 by
counsel for Briarpatch and Rubin, was to obtain testimony for use
in another proceeding. Under such circumstances, Night Hawk's
action having been dismissed, the defendants' failure to withdraw
the subpoena gave rise to a sanction pursuant to Rule 45(c)(1),
Fed.R. Civ. P., as explained in the December 23 Opinion. Night
Hawk, 2003 WL 23018833, at *8-9.
Courts imposing a sanction of attorneys' fees under
Rule 45(c)(1) have often granted sanctions equaling
most if not all of the attorneys' fees sought.
See, e.g., American Int'l Life Insurance Co. v. Vasquez,
No. 02 Civ. 141 HB), 2003 WL 548736, at *3 (S.D.N.Y. Feb. 25, 2003)
(concluding that a sanction in the amount of $4,436.00, representing "much
of" the subpoenaed individual's fees and costs, was appropriate
where the subpoena was properly issued and the issuing party
refused to withdraw it); Liberty Mutual Ins. Co. v. Diamante, 194 F.R.D. 20, 23 (D.
Mass. 2000) (granting a motion to quash third-party subpoenas and
imposing a sanction for counsel's violation of Fed.R.Civ.P.
45(c)(1) in the amount of $3,240.00); Batture Fleet, Inc. v.
Browner, No. 00 Civ. 205, 2000 WL 748093, at *2 (E.D. La. Jan.
8, 2000) (upholding a magistrate judge's award of sanctions to
each of two subpoenaed non-parties where the subpoenas violated
Rule 45(c)(1) and each of the non-parties had presented evidence
of costs "far exceeding the awards of $1,370 to each"); In re
Edgewood Gen. P'ship, 166 B.R. 188, 190 (Bankr. M.D. Fla. 1994)
(imposing a sanction of $507.50, representing attorneys' fees
incurred as the result of opposing a subpoena found to be in
violation of Fed.R.Civ.P. 45(c)(1)). Here, a reasonable
sanction for the preparation of Donohue's motion to quash the
subpoena, the defendants not having consented to withdraw the
subpoena, as well as for the defense of the instant
motion*fn5 is $4,000 at accepted hourly rates.
This figure represents a significant reduction from the amount
sought by Donohue. Such an adjustment is appropriate, however, as
the amount of the sanction relates not to the initial
representation of Donohue after the service of the subpoena but
to the motion to quash the subpoena submitted on August 27, 2003, after Night Hawk was dismissed from the case in June of 2003.
Donohue's application for a sanction of attorneys' fees and costs
in the amount of $16,299.16 relating to the total fees and
costs incurred by her counsel between June and September, 2003,
and representing, inter alia, some 55 hours of attorney time
appears excessive in relation to the single motion brought by
Donohue in late August, 2003, particularly in light of the
relative lack of complexity of the motion to quash.
In determining the reasonable hourly rate for attorneys'
services, district courts should look to the prevailing market
rates "for comparable attorneys of comparable skill and standing
in the pertinent legal community." Kirsch v. Fleet Street,
Ltd., 148 F.3d 149, 172 (2d Cir. 1998). While the rates charged
by Donohue's counsel, ranging from $230 to $350 for attorneys and
$100 for a paralegal, appear within the acceptable range of
hourly rates approved for attorneys of certain credentials within
this District, see Auscape Int'l v. Nat'l Geographic Soc'y,
No. 02 Civ. 6441 (LAK) (HBP), 2003 WL 21976400, at *5 (S.D.N.Y.
Aug. 19, 2003) (collecting cases), where no information is
provided concerning the credentials or experience of counsel
applying for fees, it is appropriate to reduce the
amount of a fee award sought. See, e.g., S.W. ex rel. N.W. v. Bd. of Educ.
of the City of New York (Dist. Two), 257 F. Supp.2d 600, 607-08 (S.D.N.Y.
2003); General Motors Corp. v. Villa Marin Chevrolet,
Inc., 240 F. Supp.2d 182, 188 (E.D.N.Y. 2002). Accordingly, the sanction imposed here is
reduced from the amount sought by Donohue as set forth
As the sanction imposed here pursuant to Fed.R.Civ.P. 45(c)
(1) includes the fees incurred in connection with the defense of
the instant motion, that portion of Donohue's cross-motion
seeking additional sanctions pursuant to Fed.R.Civ.P. 11 with
regard to the instant motion is denied as moot.
The motion of Briarpatch and Rubin to vacate the last decretal
paragraph of the Judgment is denied. The motion of Donohue for a
sanction of attorneys' fees is granted in the amount of $4,000,
and the defendants shall, within thirty (30) days of the date of
this opinion and order, pay to counsel for Donohue the sum of
This action is closed.
It is so ordered.