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Robbins & Myers, Inc v. J.M. Huber Corporation and

April 27, 2011

ROBBINS & MYERS, INC., PLAINTIFF/ ANDCOUNTERCLAIM 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 attorneys' fees and costs awarded pursuant to Fed.R.Civ.P. 37 (Docs. Nos. 329 and 330), filed March 31, 2011.*fn1

BACKGROUND and FACTS*fn2

Plaintiff Robins & Myers, Inc. ("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 a wholly-owned subsidiary of Defendant J.M. Huber Corporation ("Huber"), of which Defendant H. Milton Hoff ("Hoff"), was president (together, "Defendants"). This action has been replete with discovery disputes with several motions to compel discovery filed by the parties including, most recently, a motion to compel and for sanctions filed by Defendants on October 6, 2010 (Doc. No. 304) ("the sanctions motion"). In a Decision and Order filed March 21, 2011 (Doc. No. 325) ("March 21, 2011 D&O"), the undersigned granted the sanctions motion, and Defendants were given ten days within receipt of the D&O to file affidavits of costs and attorneys' fees incurred in connection with the sanctions motion.

Accordingly, on March 31, 2011, July 6, 2010, Defendants filed the Declaration of David S. Sager, Esq. ("Sager") (Doc. No. 329) ("Sager Declaration"), and the Affidavit of Edward S. Bloomberg, Esq. ("Bloomberg") (Doc. No. 330) ("Bloomberg Affidavit"), seeking a total award of $48, 467.90 for costs and attorneys' fees incurred with regard to the sanctions motion ("the fee application"). On April 10, 2011, Plaintiff filed the Opposition to Defendants' Application for Fees and Costs (Doc. No. 334) ("Plaintiff's Response"), opposing Defendants' submissions as seeking unreasonable hourly rates and claiming unreasonable amounts of time were expended on the relevant motion to compel. On April 21, 2011, Defendants filed Defendants' Reply Memorandum in Further Support of Application for Fees and Costs (Doc. No. 335) ("Defendants' Reply"). In total, Defendants seek $47,708.50 in attorneys' fees, and $759.40 in costs, for a total award of $48,467.90. Oral argument was deemed unnecessary.

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

DISCUSSION

As stated, as a sanction pursuant to Fed.R.Civ.P. 37(a)(5)(A) ("Rule 37"), on March 21, 2011, Defendants were awarded attorneys fees and costs incurred in preparing and arguing the sanctions motion, and Defendants were directed to file affidavits of costs and attorneys' fees relevant to the determination of the sanctions award. D&O at 94-95. Defendants submitted affidavits seeking attorneys' fees for four attorneys who worked on the sanctions motion, including three attorneys from Defendant's lead counsel Day Pitney LLP ("Day Pitney"), including David S. Sager ("Sager"), a Day Pitney partner since 2000, Paul R. Marino ("Marino"), of counsel at Day Pitney, and Erika Duelks ("Duelks"), a Day Pitney associate, and local counsel Edward S. Bloomberg ("Bloomberg"), a partner since 1980 at the Buffalo law firm Phillips Lytle LLP ("Phillips Lytle").

Traditionally, "in determining a fee award, the typical starting point is the so-called lodestar amount, that is 'the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'" Healey v. Leavitt, 485 F.3d 63, 71 (2d Cir. 2007) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Recently, the Supreme Court considered the issue of attorneys' fees, approving the traditional lodestar method over the more subjective method set forth in Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974) ("the Johnson method"), explaining that "[a]lthough the lodestar method is not perfect, it has several important virtues" including that "the lodestar method is readily administrable, and unlike the Johnson approach, the lodestar calculation is "objective," and thus cabins the discretion of trial judges, permits meaningful judicial review, and produces reasonably predictable results." Perdue v. Kenny A., __ U.S. __, 130 S.Ct. 1662, 1672 (2010) (citations omitted). Nevertheless, the "strong presumption" that the lodestar figure is reasonable " may be overcome in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee." Id. at 1673.

In calculating the lodestar amount, the initial burden is on the requesting party to submit evidence supporting the number of hours worked and the hourly rate claimed. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The "lodestar" calculation should exclude fees for work that is "excessive, redundant or otherwise unnecessary," as well as hours dedicated to severable unsuccessful claims. Quarantino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999) (citing Hensley, 461 U.S. at 433-35).

The following schedule lists the hours Defendants claim each attorney and the paralegal worked at the various hourly rates.

Attorney: Sager Marino Duelks Bloomberg Hourly Rate: $530 365 275 355 Hours: 33.2 66.3 10.4 8.6 Total: $17,596.00 $24,199.50 $2,860.00 $3,053.00 GRAND TOTAL: $47,708.50 Plaintiff challenges as unreasonable both Defendants' claimed hourly attorney rates and the number of hours spent on the sanctions motion. Plaintiff's Response at 1- 2. In opposing the hourly rates stated in Defendants' fee application, Plaintiff asserts it is relying on the same reasons asserted in its memorandum of law (Doc. No. 303) ("Plaintiff's Prior Response"), filed September 20, 2010, in opposition to Defendants' earlier fee application made pursuant to this court's June 24, 2010 Decision and Order (Doc. No. 292) ("June 24, 2010 D&O), awarding Defendants costs, including attorneys' fees, of two earlier sanctions motions (Docs. Nos. 247 and 275). Plaintiff's Response at 1. In particular, Plaintiff argued in connection with the earlier fee application that the hourly attorney rate used to calculate the fees to be awarded should be the prevailing rate in the Buffalo, New York area, rather than in New Jersey, where Defendants' lead counsel Day Pitney LLP is located ("Day Pitney"). Plaintiff's Prior Response at 1. Despite Plaintiff's arguments, the undersigned calculated the award of Defendants' attorneys' fees using the out-of-district hourly rates provided by Defendants. See October 12, 2010 Decision and Order (Doc. No. 305) ("October 12, 2010 D&O"), at 13-18.*fn3

Applying the hourly rates and number of hours Plaintiff maintains are justified, Plaintiffs assert Defendants are entitled to attorneys' fees as follows: Attorney: Sager Marino Duelks Bloomberg Hourly Rate: $200 175 150 240 Hours: 14.6 13.0 20.0 5.25 Total: $2,920.00 $2,275.00 $3,000.00 $1,260.00 GRAND TOTAL: $9,455.00 Plaintiff also opposes the airfare and cab fare Defendants seek for traveling to Buffalo for oral argument on the sanctions motion. Id. at 8-9. Disallowing for the undocumented $78 cab fare, Plaintiff maintains Defendants are entitled to only $10,136.40 in costs and attorneys' fees. Plaintiff's Response at 7-8. Alternatively, Plaintiff ...


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