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Margel v. E.G.L. Gem Lab Ltd.

February 6, 2009


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


I. Introduction

Defendants move for an award of attorney's fees in the amount of $19,731.00, pursuant to Fed.R.Civ.P. 37(a)(5)(A). Plaintiffs, in turn, have filed a letter application seeking the imposition of sanctions on defendants pursuant to Fed.R.Civ.P. 37(b)(2), as a result of defendants' failure to comply with a Court Order. For the reasons set forth below, I grant defendants' motion to the extent that defendants are awarded $13,512.30 in attorney's fees, and I deny plaintiffs' letter application for sanctions without prejudice to plaintiffs' renewal of their application by formal motion.

II. Facts

This is an action among gem grading laboratories and their principals concerning the right to use certain trademarks in the United States and the right to issue grading certificates that bear those marks. During the course of discovery, I invited defendants to make an application for the attorney's fees that they had incurred in connection with obtaining certain discovery from plaintiffs.

The events that led to my finding that an award of attorney's fees would be appropriate are as follows. On November 30, 2005, I held a hearing to resolve outstanding discovery disputes. At that hearing, plaintiffs' counsel made conflicting representations concerning whether his clients' document production was complete; I therefore ordered plaintiffs to submit declarations confirming that they had reviewed defendants' document requests and produced all responsive requested documents (Transcript of Hearing, dated Nov. 30, 2005, 73-80, 86). Plaintiffs submitted such declarations from two principals and an unresponsive declaration from a third principal (Declaration of Alan Lowe, dated May 11, 2005; Declaration of Guy Margel, dated Dec. 4, 2005; and Declaration of Guy Benhamou, dated Dec. 2, 2005, annexed as Exhibits B and C to EGL USA's Reply to Plaintiffs' Response to Defendants' Showing at the January 30, 2006 Hearing, dated Feb. 22, 2006). However, after retaining new counsel who appeared at a January 30, 2006 conference concerning the adequacy of their production, plaintiffs supplemented their responses to defendants' discovery requests and produced additional responsive documents (Plaintiffs' Response to Defendants' Showing at the January 30, 2006 Hearing, dated Feb. 15, 2006). Following the completion of plaintiffs' supplemental production, I found that it would be appropriate to make an award of atttorney's fees to defendants pursuant to Fed.R.Civ.P. 37(a)(5)(A) for the fees they incurred in connection with their efforts to obtain plaintiffs' documents through January 30, 2006 (Opinon & Order, dated May 29, 2008 (the "May 29 Order"), at 9).

On June 11, 2008, defendants submitted their motion for $19,731.00 in fees. On or about June 24, 2008, plaintiffs submitted a letter in opposition to defendants' motion. Plaintiffs' June 24 letter also requested that defendants be sanctioned pursuant to Rule 37(b)(2) for their failure to comply with the May 29 Order (Letter from Paul H. Schafhauser, Esq., dated June 24, 2008 ("Pls.' Resp.") 3-4). Plaintiffs subsequently submitted a more detailed letter application for sanctions (Letter from Paul H. Schafhauser, Esq., dated June 27, 2008).

III. Analysis

Plaintiffs do not challenge the propriety of an award of attorney's fees to defendants in this case, but they argue that at least some of the sums sought by defendants were not reasonably expended and should, therefore, be excluded from the fee award (Pls.' Resp. 1-2).

A. Applicable Legal Principles

In determining a "presumptively reasonable fee," the "essential calculation" is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hnot v. Willis Group Holdings Ltd., 01 Civ. 6558 (GEL), 2008 WL 1166309 at *1 (S.D.N.Y. Apr. 7, 2008), quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).*fn1 The hours actually expended and the rates actually charged are, of course, not dispositive.

1. Hours Reasonably Expended

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

It is well established that "any attorney . . . who applies for court-ordered compensation in this Circuit . . . must document the application with contemporaneous time records . . . specify[ing], for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). . . . The Court's task is to make "a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended." Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994). The critical inquiry is "whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures." Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992) (citation omitted), cert. denied, 506 U.S. 1053 (1993); accord Nike, Inc. v. Top Brand Co., [00 Civ. 8179 (KMW)(RLE),] 2006 WL 2946472, at *5 (S.D.N.Y. Feb. 27, 2006), adopted by 2006 WL 2884437 (S.D.N.Y. Oct. 6, 2006).

Additionally, if a court finds that claimed hours are "excessive, redundant, or otherwise unnecessary," it should exclude those hours from its . . . calculation. Hensley [v. Eckerhart, supra], 461 U.S. at 434; accord Quaratino v. Tiffany & Co., 166 F.3d 422, 426 n.6 (2d Cir. 1999); Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998); Luciano v. Olsten Corp., 109 F.3d 111, 116-17 (2d Cir. 1997); In re Stock Exch. Options Trading Antitrust Litig., [99 Civ. 0962 (RCC),] 2006 WL 3498590, at *11 (S.D.N.Y. Dec. 4, 2006). However, the Supreme Court noted in Hensley that "[t]here is no precise rule or formula for making these determinations." 461 U.S. at 436. And, because "it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application," Carey, 711 F.2d at 1146, "the court has discretion simply to deduct a reasonable percentage of the number of hours claimed 'as a practical means of trimming fat from a fee application,'" Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (quoting Carey, 711 F.2d at 1146).

Yea Kim v. 167 Nail Plaza, Inc., 05 CV 8560 (GBD)(GWG), 2009 WL 77876 at *4 (S.D.N.Y. Jan. 12, 2009); accord McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96-97 (2d Cir. 2006); see also Malletier v. Dooney & Bourke, Inc., 04 Civ. 5316 (RMB)(MHD), 2007 WL 1284013 at *1-*2 (S.D.N.Y. Apr. 24, 2007).

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; Patrolmen's Benevolent Ass'n of New York v. City of New York, 97 Civ. 7895 (SAS), 98 Civ. 8202 (SAS), 2003 WL 21782675 at *2 (S.D.N.Y. July 31, 2003), citing Blum v. Stenson, 465 U.S. 886, 897 (1984).

2. Reasonable Hourly Rate

The reasonable hourly rate is "the rate a paying client would be willing to pay," bearing in mind "all of the case-specific variables that [the Second Circuit] and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, supra, 522 F.3d at 190 (emphasis in original). The hourly rates used in making a fee award should be market rates "in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum ...

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