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Ralph P. Capone v. Patchogue-Medford Union Free School District

February 23, 2011

RALPH P. CAPONE, PLAINTIFF,
v.
PATCHOGUE-MEDFORD UNION FREE SCHOOL DISTRICT, ET AL., DEFENDANTS.



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

MEMORANDUM & ORDER

By its July 13, 2010 Memorandum and Order (the "July Order"), the Court sanctioned Plaintiff Ralph Capone‟s former counsel, Ruth M. Pollack ("Pollack"), and ruled that Defendant Tina Weeks ("Weeks") may recover attorneys‟ fees directly from Pollack pursuant to Federal Rule of Civil Procedure 11 and Section 1927 of Title 28 of the United States Code ("Section 1927"). The Court directed Weeks to submit an accounting of legal fees and expenses incurred in defending this suit (the "Fee Application"). On July 28, 2010, Pollack filed a document titled "Motion to Appeal and Vacate Court "M&O‟" (the "Motion to Reconsider") (Docket Entry 359). Pending before the Court is Pollack‟s motion and Weeks‟ Fee Application. For the reasons that follow, Pollack‟s Motion is DENIED, and the Clerk of the Court is directed to enter judgment against Pollack in favor of Weeks in the amount of $136,742.92, which represents Weeks‟ reasonable legal fees and costs.

DISCUSSION

The Court first addresses Pollack‟s motion and then considers Weeks‟ Fee Application.

I. Pollack‟s Motion to Reconsider

The Court construes Pollack‟s motion as a motion to

reconsider the July Order pursuant to Local Civil Rule 6.3. That rule provides that requests for reconsideration "of a court order determining a motion shall be served within ten (10) days after the entry of the court‟s determination of the original motion" and shall be accompanied by a concise explanation of "the matters or controlling decisions which counsel believes the court has overlooked." The present motion was filed more than ten days after Pollack received a copy of the July Order, (Docket Entry 359 at 4); accordingly, it is DENIED as untimely.

II. The Fee Application

The Second Circuit calculates attorneys‟ fees by a

"presumptively reasonable fee" test. See Arbor Hill Concerned Citizens Neighborhood Ass‟n v. County of Albany, 522 F.3d 182, 183 (2d Cir. 2008). Under this method, the "presumptively reasonable fee" is the product of: (1) the hours reasonably expended at (2) a reasonably hourly rate. Arbor Hill, 522 F.3d at 183. A reasonable hourly rate is determined by considering "all of the case specific variables that we and other courts have identified as relevant to the reasonableness of attorneys‟ fees . . . ." Id. at 190 (emphasis in original). Essentially, the inquiry is "what a reasonable, paying client would be willing to pay," keeping in mind that a party usually seeks "to spend the minimum necessary to litigate the case effectively." Simmons v. New York City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (quoting Arbor Hill, 522 F.3d at 190). The Johnson factors*fn1 should be considered, along with the possibility that a client may be able to negotiate with her attorneys, using their desire to obtain the reputational benefits from being associated with the case. Arbor Hill, 522 F.3d at 190.

Courts will also consider (1) the complexity and difficulty involved in the case, (2) the available expertise and

capacity of the client‟s other counsel (if any), (3) the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), (4) the timing demands of the case, (5) whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and (6) other returns (such as reputation, etc.) that an attorney might expect from the representation.*fn2 Id. at 184. Perhaps the most important factor in the reasonableness inquiry is the nature of the litigation. See Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., No. 07-CV-3208, 2010 WL 3925195, at *3 (E.D.N.Y. Sept. 9, 2010) (awarding attorneys‟ fees where attorneys submitted proof that their fees were in line with other intellectual property firms).

A. The Hourly Rates were Reasonable

The Court finds that Weeks‟ ...


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