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Moreno v. Empire City Subway Co.

March 26, 2008

MAX MORENO, PLAINTIFF,
v.
EMPIRE CITY SUBWAY CO., DEFENDANT.



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

OPINION AND ORDER

I. Introduction

Plaintiff moves pursuant to Fed.R.Civ.P. 37(c)(1)(A) for fees and costs incurred in the successful litigation of his motion to preclude defendant from calling an expert witness. Plaintiff requests fees in the amount of $6,154.50. Plaintiff's motion is granted; plaintiff is awarded attorney's fees and costs in the amount of $2,862.88.

II. Facts

A. The Discovery Dispute

The facts giving rise to plaintiff's fee application are undisputed. On April 16, 2007 plaintiff moved to preclude defendant from calling Dr. Edward Weiland and Dr. David Payne as expert witnesses at trial on the grounds that defendant had failed to provide plaintiff a complete list of cases in which each had testified in the last four years and that both of them had failed to sign a disclosure statement as required by Fed.R.Civ.P. 26(a)(2)(B) (Letter from Michael E. Greenspan to the undersigned, dated April 16, 2007). Defendant opposed that application and conferences concerning the matter were held on May 7 and May 23, 2007. During the May 23 conference, I granted plaintiff's motion to preclude defendant from calling Dr. Weiland as an expert witness on the basis of Dr. Weiland's unjustifiable failure to comply with the disclosure requirements of Fed.R.Civ.P. 26(a)(2). I also found that, pursuant to Fed.R.Civ.P. 37(c)(1), plaintiff was entitled to fees in connection with his motion to preclude, and I instructed plaintiff's counsel to submit an affidavit in support of such fees within seven days of that conference (Order dated May 24, 2007, Docket Item 18).

B. The Pending Fee Application

Plaintiff currently seeks attorneys' fees in the amount of $6,120.00 and expenses in the amount of $34.50 in connection with his Rule 37 motion.

Plaintiff's counsel, Michael E. Greenspan, Esq., has been licensed to practice law in the State of New York since 1992. He is a member of the Bar of the United States District Courts for the Southern and Eastern Districts of New York as well as the District of Connecticut and is a member of the Bar of the United States Court of Appeals for the Second and the Eleventh Circuits. He has lectured at continuing legal education seminars on trial advocacy and insurance practice. Mr. Greenspan is also a member of the New York State Bar Association's committee on the Civil Practice Law and Rules. Mr. Greenspan seeks compensation at a rate of $400 per hour, stating that is the rate at which he charges commercial clients for his services. (Declaration of Michael E. Greenspan, Esq. in Support of Plaintiff's Motion for Costs pursuant to Fed.R.Civ.P 37, executed May 29, 2007, ("Greenspan Decl.") at ¶ 2).

Plaintiff's counsel seeks compensation for the following activities related to the discovery dispute:

DateTimeCostCounsel's Description of Activity 11/27/20060.30120.00Review of Dr. Weiland's report 01/15/20070.2080.00Draft letter to Judge Pitman 01/15/20070.70280.00Legal Research re: rule 26 02/09/20070.50200.00Final revision to and completion of discovery demands expert [sic] 02/12/20070.1040.00Review of email from list server re: Dr. Weiland 02/12/20070.1040.00Tel. conf. w/ Beatty firm re: Dr. Weiland 03/25/20070.2080.00Telephone conference w/adversary re: discovery 04/03/20070.2080.00Draft letter to adversary re: discovery 04/13/20070.30120.00Conf. w/ LJG re: tactics and strategy 04/16/20070.40160.00Revision to letter to court seeking preclusion of doctors' te [sic] 04/16/20071.50600.00Draft letter to Judge Pitman Rule 37 05/07/20071.00400.00Preparation for oral argument on Rule 37 motion 05/07/20074.001,600.00Travel for and attendance at oral argument on Rule 37 motion 05/07/20070.2080.00Final revision to and completion of memo to LJG re: outcome of motion 05/11/20070.40160.00Draft to declaration of fees 05/16/20071.00400.00Legal Research re: Weiland 05/23/20073.901,560.00Travel for & attendance at oral argument before Magistrate Judge on Rule 37 motion 05/24/20070.30120.00Draft memo to LJG re; oral argument Total:15.3$6,120 

(Detail Transaction File List, annexed as Exhibit 1 to Greenspan Decl. ("Trans. List")).

In addition to the foregoing fees, counsel also seeks the cost of transportation expenses for the May 7, 2007 and May 23, 2007 conferences ...


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