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Joza v. WW JFK

October 13, 2009


The opinion of the court was delivered by: James Orenstein, Magistrate Judge


On February 24, 2009, I ordered the defendants "to reimburse the plaintiff's reasonable costs, including attorneys' fees, in seeking to vindicate her legitimate discovery rights through litigation made necessary by the defendants' unjustifiably incorrect discovery responses." Docket Entry ("DE") 41 at 7 (the "Order"). I assume the reader's familiarity with the proceedings that resulted in that order. On March 10, 2009, the defendants asked the court to review that order pursuant to Federal Rule of Civil Procedure 72. DE 42 ("Objections") at 2 & n.2. On June 25, 2009, the Honorable Eric N. Vitaliano, United States District Judge, affirmed the Order in its entirety. DE 46. Plaintiff Jenny Joza ("Joza") thereafter served a bill of costs dated July 14, 2009, on opposing counsel, specifying a total request for $34,055.20. DE 55-2 (the "Bill of Costs"). The defendants filed their objections to that bill on October 9, 2009. DE 70. For the reasons set forth below, I overrule most of the defendants' objections and direct them to pay Joza $30,059.51 forthwith.*fn1

A. Objections Directed To The Underlying Order

The question of whether the defendants must reimburse Joza for her costs, as specified in the Order, has long since been put to rest in this court. The only question now in dispute is the amount of costs that should be reimbursed. Litigating that question neither requires nor permits the defendants to rehearse their earlier objections to the Order as a whole, and indeed the defendants' counsel appeared to recognize that fact during a telephone conference on October 8, 2009. At that conference, when I directed the defendants to submit the objections to the Bill of Costs that they had already formulated, the defendants' counsel made clear that while his clients' did object to some of the amount claimed in the Bill of Costs, there was some amount to which they had no objections (at least none other than those subsumed within their objections to the Order as a whole). I therefore ordered that when the defendants filed their objections, they must "specify the amount not in dispute that will be paid forthwith pending my resolution of such objections." DE 67. Continuing a troubling approach to the litigation of pretrial matters in this case, the defendants did not comply with that order. Instead, they improperly devoted the first two points in their Objections to an attack on the validity of the Order itself. See Objections at 3-4. I overrule those objections as procedurally barred and also on the merits for the same reasons that I and Judge Vitaliano have previously explained.*fn2

B. Procedural Objections To The Bill Of Costs

The defendants next object that Joza's Bill of Costs does not comply with the requirement of an affidavit as required under 28 U.S.C. § 1924 and Local Civil Rule 54.1(a), and that it is insufficiently detailed. Those objection are specious. First, Joza's counsel included on the very first page of the Bill of Costs a declaration under penalty of perjury verifying the costs. Bill of Costs at 1.*fn3 In doing so, counsel used the form prescribed by the Administrative Office of United States Courts for just such purposes. See Administrative Office of U.S. Courts, Form AO133, (last visited October 13, 2009). Second, the 14 pages of billing records appended to that declaration unquestionably contain sufficient detail to allow the defendants to form objections -- as indeed they have done. I therefore overrule the defendants procedural objections to the sufficiency of the Bill of Costs.

C. Objections To Specific Components Of The Bill Of Costs

Joza has organized her Bill of Costs into four components corresponding to different aspects of the litigation arising from the dispute giving rise to the Order. The four components are labeled, respectively, "Pre-Motion to Compel," "Motion to Compel," "Spoliation," and "Cost Computation and Appeal Briefing." Bill of Costs at 2-14.*fn4 The defendants object to each such component, Objections at 5-12, and I address those objections in turn below. In doing so, I accept as reasonable the hourly rates at which Joza seeks to reimburse the various professionals who have worked on her behalf: those rates appear reasonable on their face and the defendants have not made any objection to that aspect of the Bill of Costs. Accordingly, I focus on the defendants' objections to the hours of work for which Joza seeks reimbursement.

1. The "Pre-Motion to Compel" Component

The defendants object to the first component of the Bill of Costs, relating to the period prior to Joza's motion to compel the production of reservation faxes, on the ground that the costs listed relate to disputes other than the one arising from the request for the faxes. Objections at 5-6. They assert -- but provide no supporting affidavit or declaration in support of their assertion -- that their objection to the faxes had not been in dispute prior to October 2008. I reject the latter assertion as a basis for objection: especially in light of their demonstrably false objection about Joza's failure to include sufficient evidence supporting the Bill of Costs, I am reluctant to rely on a factual assertion that the defendants make only in a memorandum of law. Moreover, whether or not the production of the faxes was in dispute prior to October 2008 is largely irrelevant: the burden that the defendants imposed on Joza and her counsel arose from their creation of a false impression that the faxes existed to be produced. Given the fact that the defendants concede that the defendants' objections to producing the faxes was at least "briefly discussed" during the pre- motion period, see Objections at 6, there can be no dispute that the defendants' failure to provide accurate information to Joza about the status of the faxes caused Joza's counsel to incur burdens during this period that they should not have borne.

Nevertheless, Joza does not assert, and I do not have any reason to believe, that all of the counsel fees she incurred during this period related to the request for the reservation faxes. Rather than impose on the parties and the court the burden of further hearings on the precise extent to which the billing records for this period reflect work done as a result of the defendants' misleading conduct regarding the faxes, I exercise my discretion to trim the fat from this part of the application by applying an across-the-board percentage cut. See In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 226, 237-38 (2d Cir. 1987); Levy v. Powell, 2005 WL 1719972, at *8-9 (E.D.N.Y. July 22, 2005); Murray ex rel. Murray v. Mills, 354 F. Supp. 2d 231, 238-41 (E.D.N.Y. 2005). In light of the other matters in dispute during the same period, I reduce this component of Joza's request for reimbursement by 75%. Joza claims a total of $3,004.20 for this period, and I therefore award instead a total of $751.05.

2. The "Motion to Compel" Component

The defendants object to all of the entries in this component of Joza's Bill of Costs that do not explicitly refer to the dispute about the faxes, and object in particular to all of the entries that predate October 13, 2008, when one of Joza's attorneys referred to "counsel's sudden refusal to provide reservation faxes." Bill of Costs at 6; see Objections 6-9. These objections have the same shortcomings as those directed to the pre-motion period: a reliance on facts not in the record that are at odds with the declaration by Joza's counsel that all of the claimed costs were necessary, and an insistent refusal to acknowledge that the Order to reimburse costs arises not simply from the defendants' refusal to provide faxes, but from their misleading conduct in failing for months to reveal that there were no faxes for them to produce.*fn5

Recognizing that the dispute as to whether, and to what extent, the defendants should produce the faxes was one of several matters raised in the motion to compel, I conclude that some reduction of this component of the Bill of Costs is appropriate. However, in light of the primacy of that issue within the motion that Joza filed, I conclude that the reduction should be relatively small. I reduce the hours claimed in this part of the Bill of Costs ...

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