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Robbins & Myers, Inc. v. J.M. Huber Corp.

October 12, 2010

ROBBINS & MYERS, INC., PLAINTIFF/ AND COUNTERCLAIM DEFENDANT,
v.
J.M. HUBER CORPORATION AND H. MILTON HOFF, DEFENDANTS/COUNTERCLAIMANTS/THIRD-PARTY PLAINTIFFS,
v.
ROBBINS & MEYERS ENERGY SYSTEMS, INC., BERKELEY FORGE & TOOL, INC., AND THOMPSON HINE LLP, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION ORDER

JURISDICTION

This action was referred to the undersigned by Honorable William M. Skretny on December 5, 2007, for determination of non-dispositive motions. The matter is presently before the court on Defendants' application for attorney's fees and costs awarded pursuant to Fed.R.Civ.P. 37 (Doc. No. 297).*fn1

BACKGROUND and FACTS*fn2

Plaintiff Robins & Myers, Inc. ("R&M" or "Plaintiff"), commenced this fraud action on March 22, 2001, seeking to recover monetary damages allegedly incurred by R&M in connection with its 1997 purchase of Flow Control Equipment, Inc. ("FCE"), a wholly-owned subsidiary of Defendant J.M. Huber Corporation ("Huber"), of which Defendant H. Milton Hoff ("Hoff"), was president (together, "Defendants"). Following its purchase, R&M changed FCE's name to Robbins & Meyers Energy Systems, Inc. ("R&MES"). On October 26, 2001, Defendants commenced a third-party action against R&MES, R&M legal counsel Thompson Hine, and Berkely Forge and Tool, Inc. ("Berkeley Forge") (together, Third Party Defendants").

In a Decision and Order filed June 24, 2010 (Doc. No. 292) ("D&O"), the undersigned granted Defendants' motions for sanctions filed September 18, 2009 (Doc. No. 247) ("first sanctions motion"), and February 24, 2010 (Doc. No. 275) ("second sanctions motion") (together, "the sanctions motions"), and Defendants were given ten days within receipt of the D&O to file affidavits of costs and attorneys' fees incurred in connection with both the sanctions motions, as well as for the February 18, 2010 deposition of Gary R. Owens, Esq. ("Owens"), and to redepose Owens. Accordingly, on July 6, 2010, Defendants filed the Affidavit of Edward S. Bloomberg, Esq. ("Bloomberg") (Doc. No. 293) ("Bloomberg Affidavit"), and the Declaration of David S. Sager, Esq. ("Sager") (Doc. No. 294) ("Sager Declaration"), seeking a total award of $34,555 for both sanctions motions.

In opposition, Plaintiff filed on July 16, 2010 a response (Doc. No. 296) ("Plaintiff's Response"), opposing Defendants' submissions as unaccompanied by any documentation supporting the claimed hours or establishing the hourly rates charged are reasonable and consistent within the local, i.e., Buffalo area, legal community. Plaintiff also requested clarification whether the costs awarded for redeposing Owens includes attorney fees. In a Decision and Order filed August 31, 2010 (Doc. No. 298), the undersigned held the affidavits Defendants filed in support of the attorney fees application were insufficient, directed Defendants to file supplemental affidavits within ten days, and clarified the costs awarded for redeposing Owens includes attorney fees.

On September 10, 2010, Defendants filed the Supplemental Declaration of Edward Bloomberg Submitted Pursuant to the Court's Decision and Order Dated August 31, 2010 (Doc. No. 299) ("Bloomberg Supplemental Declaration"), attached to which as exhibit A are redacted copies of invoices to Defendants for services rendered by local counsel Phillips Lytle LLP with regard to the action (Doc. No. 299-2) ("Phillips Lytle Invoices"), Defendants' Memorandum in Support of Application for Fees and Costs (Doc. No. 300) ("Defendants' Memorandum"), attached to which as exhibit 1 is the Supplemental Declaration of David S. Sager Pursuant to the Court's Decision and Order Dated August 31, 2010 (Doc. No. 300-2) ("Sager Supplemental Declaration"), with attached exhibits A through D ("Defendants' Exh(s). __"). On September 20, 2010, Plaintiff filed the Opposition to Defendants' (Second) Application for Fees and Costs (Doc. No. 303) ("Plaintiff's Memorandum"), with attached exhibits 1 through 7 ("Plaintiff's Exh(s). __"). In total, Defendants seek $37,882,70 in attorney's fees, and $2,658.83 in costs, for a total award of $40, 541.53.*fn3 Oral argument was deemed unnecessary.

Based on the following, Defendants' application for attorneys' fees is GRANTED.

DISCUSSION

As stated, Defendants were awarded attorneys fees and costs incurred in preparing the sanctions motions, and in connection with the February 18, 2010 deposition of Owens, and a re-deposition of Owens, as a sanction pursuant to Fed.R.Civ.P. 37(b)(2)(C) ("Rule 37"), and Defendants were directed to file affidavits of costs and attorney's fees relevant to the determination of the sanctions award. D&O at 31-32. Defendants submitted affidavits seeking attorney's fees for four attorneys who worked on the sanctions motions and participated in the February 18, 2010 deposition of Owens, seeking a total of $37, 882.70 in attorney's fees, and $2,658.83 in costs.

The hourly rates for each of the four attorneys increased between 2009, when the first sanctions motion was filed, and 2010 when Owens was deposed, the second sanctions motion was filed, and objections filed with regard to the D&O in 2010 were resolved. The following schedule lists the hours each attorney worked at the various hourly rates.

Attorney: Bloomberg*fn4 Sager*fn5 Marino*fn6 Duelks*fn7 Hourly

Rate: $345 500 330 245

Hours: 3.1 4.9 15.7 6.7

Sub-Total: $1,069.50 $2,450.00 ...


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