The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
I will assume that the reader is familiar with my opinion
signed on April 26, 2005. RBFC One, LLC v. Zeeks, Inc.,
367 F.Supp.2d 604 (S.D.N.Y. 2005). It set forth the factual and
procedural background, and granted summary judgment dismissing
Plaintiff's remaining claims. The Defendants were still pursuing
counterclaims for equitable relief, and I refused to dismiss
On May 2, 2005, I held a telephone conference with the
attorneys (Farhad Novian for Plaintiff, Bruce Ewing and Helene
Freeman for Defendants). They advised me that they were drafting
a stipulation for consent judgment on the counterclaims. Mr.
Ewing said that Defendants would soon submit an application for
attorneys' fees. Mr. Novian said that he would prefer to have the
fee application wait until after a decision by the Court of
Appeals. I agreed with Mr. Ewing that Defendants could make the
application now and supplement it later if the judgment were
The imminent fee application was also mentioned in the Final
Judgment signed by me on May 20, 2005 and filed on May 23, 2005.
On June 6, 2005, the Defendants served and filed two voluminous
motions. The first motion (Docket Items 77-79) cites Rule 54(d)
(2), F.R. Civ. P. and seeks an order requiring Plaintiff to pay
to Defendants the attorneys' fees and costs. The second motion
(Docket Items 80-82) cites Rule 7 of the Federal Rules of Appellate Procedure and seeks an order requiring
Plaintiff to furnish a bond or equivalent security for costs,
including attorneys' fees, that may be incurred by Defendants on
On June 29, 2005, Plaintiff faxed, to me and to defense
counsel, a 4-page opposition to the first motion and a 7-page
opposition to the second motion. It appears that Plaintiff never
filed these two oppositions with the Clerk; it should do so as
soon as possible.
On July 8, 2005, the Defendants served and filed reply papers
(Docket Items 84-87).
I will rule on these motions in two separate opinions. This
opinion will rule on defendants' motion for attorneys' fees and
This was a diversity action; Plaintiff is based in California
and Nevada, and the Defendants are based in Delaware and Florida.
The Second Amended Complaint's first count sought $49,834,000 for
alleged breach of contract, namely the Amended Agreement dated as
of November 30, 2000 and signed by the parties on or about
February 6, 2001.
A copy of the Amended Agreement is Exhibit 1 to Docket Item 79.
Paragraph 21 said that the agreement "has been entered into in
the State of New York" and "shall be governed by the laws of the
State of New York," and that any lawsuit regarding it "will be
brought in the courts located within the State of New York and
not elsewhere." Paragraph 23(n) said:
(n) Attorneys' Fees
In the event of an action, including court
proceeding, arbitration or other forums for alternate
dispute resolution, between the parties to this
Agreement concerning the terms of this Agreement, its
meaning or application, the prevailing party shall be
entitled to receive its costs and reasonable
attorneys' fees regarding such action from the
Plaintiff filed this lawsuit on April 26, 2002. Exhibit 3 to
Docket Item 79 is a set of detailed timesheets that were
submitted to the corporate defendant (generally on a monthly
basis) by the New York office of Dorsey & Whitney LLP for
services rendered in this lawsuit from May 1, 2002 through April 30, 2005. Ms. Freeman's declaration noted: "The bills, as annexed
hereto, have been redacted to eliminate references to time
expended for which the client was not charged or for which no
payment was expected or for which no recovery [from Plaintiff] is
sought. In a few instances, the bill has been redacted to conceal
privileged attorney work product. . . . The client [the corporate
defendant] has paid these charges or is obligated to pay them."
(Docket Item 79, ¶ 7, ¶ 32.) Her declaration also gave a detailed
explanation of the hourly rates charged by her and the other
attorneys at Dorsey & Whitney, and of the other costs of this
litigation. She noted that her firm made a partially successful
motion for judgment on the pleadings, then worked on 17
depositions, 14 of which took place out of New York, and then
made the successful motion for summary judgment, and also did
some preparation for trial since I had set a firm trial date of
May 9, 2005.
Defendants' reply papers annex a timesheet and costs for May
2005, seeking an additional $3,787.42. (Docket Item 87, ¶ 25,
Exh. 5.) They elect not to seek anything for the time expended in
making the pending motions. (Docket Item 85, p. 5, n. 1.) In
total, Defendants seek to recover attorneys' fees in the amount
of $481,748.00 and costs in the amount of $103,367.88. (Id., p.
Plaintiff does not object to the costs or to the hourly rates.
In any event, I find them to be reasonable. See Auscape Intern.
v. National Geographic Society, 2003 WL 21976400, at *3-5
(S.D.N.Y. Aug. 19, 2003) (Pitman, M.J.) (approving hourly rates
of $450-$495 for partners, $215-$320 for junior associates and
$130 for a paralegal), aff'd, 2003 WL 22244953 (S.D.N.Y. Sept.
29, 2003) (Kaplan, J.); National Distillers Products Co., LLC v.
Refreshment Brands, Inc., 2002 WL 1766548, at *2 (S.D.N.Y. July
30, 2002) (Buchwald, J.) (approving Dorsey & Whitney's
then-existing hourly rates of $350-$405 for partners, $215-$295
for associates, and $170 for paralegals). The Westlaw charges are
recoverable as well. See id. at n. 6; see also Davis v. New
York City Housing Authority, 2002 WL 31748586, at *13 (S.D.N.Y.
Dec. 6, 2002) (Sweet, J.) (discussing two Second Circuit cases).
Plaintiff's 4-page opposition makes only two arguments. First,
Defendants Cannot Recover Fees, Because They Did Not
Counter Claim for Fees, Thus Plaintiff Was Not on
Notice of the Claim for Attorneys' Fees. . . . .
Plaintiff . . . was deprived of the opportunity to determine whether it would have
undertaken a different strategy given this
demand. . . . .
At no time prior to the entry of judgment did
defendants move to amend their counterclaim to
include a claim for attorneys fees.
This argument has no merit. It is undisputed that the parties
were on actual notice of their contract's clause about attorneys'
fees. If Plaintiff had been the prevailing party, it would have
claimed its fees. Yet its Second Amended Complaint did not list
such a claim as a separate count. Instead, it included the
following language in its demand for judgment:
4. Upon all Counts hereinabove, the costs and taxable
disbursements of this action, including reasonable
attorneys' fees where permitted by law,. . . .
The Defendants proceeded in the same fashion in their Answer.
They did not list such a claim as a separate counterclaim.
Instead, they said:
WHEREFORE, defendants demand judgment against
* * *
B. Awarding defendants the attorneys fees and costs
incurred in the defense of this action;
* * *
F. Awarding defendants their costs and expenses
incurred in prosecuting their counterclaims.
I find it telling that, on November 3, 2004, Plaintiff wrote to
Finally, Rule 26(a) (1) (C) requires a "computation
of any category of damages claimed by the disclosing
party." With respect to that, defendants simply state
that "defendants seek to recover its attorneys fees
and costs in connection with this action . . . and on
its counterclaims to the full extent authorized by
the agreements or as allowed by law or by court
rules." There is absolutely no "computation" of those
damages (as required by the Rule), nor is there any
statement as to the amount of ...