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NIGHT HAWK LIMITED v. BRIARPATCH LIMITED

United States District Court, S.D. New York


June 17, 2004.

NIGHT HAWK LIMITED and D.M. THOMAS, Plaintiffs,
v.
BRIARPATCH LIMITED, L.P. and GERARD F. RUBIN, Defendants.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

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.

  Prior Proceedings

  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 above.*fn6

  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.

  Conclusion

  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 $4,000.

  This action is closed.

  It is so ordered.


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