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Field Day, LLC, F/K/A/New York Music Festival, LLC, Aeg Live LLC F/K/A Aeg Concerts LLC v. County of Suffolk

December 30, 2010

FIELD DAY, LLC, F/K/A/NEW YORK MUSIC FESTIVAL, LLC, AEG LIVE LLC F/K/A AEG CONCERTS LLC, PLAINTIFFS
v.
COUNTY OF SUFFOLK, SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES, SUFFOLK COUNTY EXECUTIVE ROBERT GAFFNEY, COMMISSIONER OF THE SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES BRIAN L. HARPER, COMMISSIONER OF SUFFOLK COUNTY POLICE DEPARTMENT JOHN C. GALLAGHER, DIRECTOR OF SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES ROBERT MAIMONI, CHIEF OF THE BUREAU OF PUBLIC HEALTH PROTECTION BRUCE WILLIAMSON, PRINCIPAL PUBLIC HEALTH SANITARIAN ROBERT GERDTS, DEPUTY SUFFOLK COUNTY ATTORNEY ROBERT CABBLE, DEPUTY SUFFOLK COUNTY EXECUTIVE JOE MICHAELS, SERGEANT PATRICK MAHER OF THE SUFFOLK COUNTY POLICE DEPARTMENT, THE TOWN OF RIVERHEAD, RIVERHEAD CHIEF OF POLICE DAVID HEGERMILLER AND NEW YORK STATE HEALTH COMMISSIONER ANTONIA C. NOVELLO. DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge

ORDER

Presently before the Court are objections by both plaintiffs and the County Defendants.*fn1 to the Report and Recommendation of Magistrate Judge Boyle, dated September 9, 2010 (the "Report"), recommending that plaintiffs be awarded attorneys' fees and costs in the amount of $97,659.51. For the reason set forth below, all objections are denied and the Court adopts the Report in its entirety.

Background

By Memorandum & Order dated March 25, 2010, the Court granted in part and denied in part plaintiffs' motion for sanctions against the County Defendants. Therein the Court determined that (1) plaintiffs had sustained their burden or demonstrating that the County destroyed documents after its duty to preserve arose; (2) while the County acted in an indifferent manner, none of the destruction occurred as the result of willful misconduct or bad faith; and (3) as it was unclear that plaintiffs suffered any prejudice as a result of the County's conduct, sanctions in the form of an adverse inference, the striking of pleadings or orders of preclusion were inappropriate, but an award of monetary sanctions for the amount of reasonable attorneys' fees and costs incurred in connection with the motion was warranted. Plaintiffs were directed to submit affidavits and supporting time records.

On April 30, 2010, plaintiffs filed the Declaration of Charles E. Bachman in support of the award. On May 5, 2010 the County Defendants filed the "Declaration of Christopher A. Jeffreys in Opposition to the Plaintiffs' Request for Cost and Fees." On May 14, 2010, plaintiffs filed reply papers. By Order dated June 7, 2010, the Court referred this matter to Judge Boyle for purposes of determining the amount of reasonable attorneys' fees and costs incurred by plaintiffs in connection with the spoliation motion.

On September 9, 2010 Judge Boyle issued his Report recommending plaintiffs be awarded attorneys' fees and costs in the amount of $97,659.51, decreasing both the billing rate and number of hours claimed by plaintiffs.

County Defendants object to the Report asserting that both the rates and number of hours compensated should be further decreased. They also request that payment of any money should be reduced to the form of an appealable judgment; (2) payment be stayed until final resolution; or (3) payment be held in escrow until final resolution.

Plaintiffs object to the Report asserting that Judge Boyle erroneously (1) applied the "forum rule" in calculating the sanctions award and (2) failed to apply the rates approved by Magistrate Judge Wall in his December 13, 2006 sanctions award which are "law of the case.

Discussion

I. Standard of Review

Rule 72(a) of the Federal Rules of Civil Procedure provides:

Nondispositive Matters. When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.

Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A) (providing for the same deferential standard of review of nondispositive matters). Objections to sanctions awards are reviewed under the "clearly erroneous or contrary to law" standard of review. See Reidy v. Runyon, 169 F.R.D. 486, 489-90 (E.D.N.Y. 1997).

An order is "clearly erroneous" only if a reviewing court, considering the entirety of the evidence, "'is left with the definite and firm conviction that a mistake has been committed'"; an order is "contrary to law" when it "'fails to apply or misapplies relevant statutes, case law, or rules of procedure.'" E.E.O.C. v. First Wireless Group, Inc., 225 F.R.D. 404, 405 (E.D.N.Y. 2004) (quoting Weiss v. La Suisse, 161 F. Supp. 2d 305, 320-21 (S.D.N.Y. 2001)). This standard is "highly deferential," "imposes a heavy burden on the objecting party," and "only ...


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