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

June 13, 2011

ROBBINS & MYERS, INC., PLAINTIFF/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 and 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' applications filed October 21, 2010 (Docs. Nos. 308 and 309), and on May 6, 2011 (Doc. No. 340), for attorneys' fees and costs awarded pursuant to this court's Decisions and Orders respectively filed October 12, 2010 (Doc. No. 305), and March 21, 2011 (Doc. No. 325).*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"). In connection with this action, the court has resolved numerous discovery disputes and motions to compel discovery including, relevant to the instant motions, motions to compel and for sanctions filed by Defendants on September 18, 2009 (Doc. No. 247) ("the first sanctions motion"), February 24, 2010 (Doc. No. 275) ("the second sanctions motion"), and October 6, 2010 (Doc. No. 304) ("the third sanctions motion"). In a Decision and Order filed June 24, 2010 (Doc. No. 292) ("June 24, 2010 D&O"), the undersigned granted the first and second sanctions motions, including Defendants' request for costs and attorneys' fees incurred in connection with the motions.

As directed in the June 24, 2010 D&O, Defendants filed affidavits in support of the award of costs and attorneys' fees incurred preparing the first and second sanctions motion ("first fee application") and Plaintiff filed opposing affidavits. In a Decision and Order filed October 12, 2010 (Doc. No. 305) ("October 12, 2010 D&O"), the undersigned granted the first fee application and awarded Defendants a total of $34,858.53 in attorneys' fees and costs relative to the first and second sanctions motions, advising that Plaintiff was also responsible for the costs and attorneys' fees Defendants incurred preparing and defending the first fee application.

Accordingly, on October 21, 2010, Defendants filed papers seeking attorneys' fees totaling $8,771.94 for preparing and defending the first fee application, ("second fee application"), including the Declaration of Edward Bloomberg, Esq. Pursuant to the Court's Decision and Order Dated October 12, 2010 (Doc. No. 308) ("Bloomberg Declaration"), seeking attorneys' fees of $595.44, and the Declaration of David S. Sager, Esq. Pursuant to the Court's Decision and Order Dated October 12, 2010 (Doc. No. 309) (First Sager Declaration"), seeking attorneys' fees of $8,716.50, for total fees of $9,311.94 for the second fee application. On October 22, 2010, Plaintiff filed objections to the October 12, 2010 D&O (Doc. No. 310) ("October 12, 2010 D&O Objections"), arguing, inter alia, the attorneys' fees and costs awarded by the October 12, 2010 D&O was excessive and contrary to law. In opposition to the first fee application, Plaintiff filed on October 28, 2010, the Opposition to Defendants' Third Attorney's Fees Application (Doc. No. 314) ("Plaintiff's Second Fee Application Response").

In a Decision and Order filed March 21, 2011 (Doc. No. 325) ("March 21, 2011 D&O"), the undersigned granted the third sanctions motion, including Defendants' request for costs and attorneys' fees incurred in connection with the sanctions motion. In accordance with the March 21, 2011 D&O, Defendants filed affidavits in support of the award of costs and attorneys' fees for the third sanctions motion ("third fee application"), which were opposed by Plaintiff. In a Decision and Order filed April 27, 2011 (Doc. No. 337) ("April 27, 2011 D&O"), the undersigned granted the third fee application and awarded Defendants a total of $38,821.40 in attorneys' fees and costs. The undersigned further reminded the parties that Plaintiff was responsible for and costs, including attorneys' fees, Defendants incurred preparing and defending the third fee application, and granted Defendant ten days to file affidavits in support of such costs and fees, with Plaintiff given an additional ten days to file any response. April 27, 2011 D&O at 15 n. 5. On May 11, 2011, Plaintiff filed objections to the April 27, 2011 D&O (Doc. No. 343) ("April 27, 2011 D&O Objections"), challenging as clearly erroneous the undersigned's April 27, 2011 D&O granting Defendants third fee application, thereby awarding Defendants costs and attorneys' fees incurred in connection with the third sanctions motion.

Accordingly, on May 6, 2011, Defendants filed the Declaration of David S. Sager, Esq. Pursuant to the Court's Decision and Order Dated April 27, 2011 (Doc. No. 340) ("Second Sager Declaration"), seeking attorneys' fees of $5,422.50 for preparing and defending the third fee application pertaining to the third sanctions motion ("fourth fee application"). In opposition, Plaintiff, by letter dated May 26, 2011 (Doc. No. 348) ("May 26, 2011 Letter"), advised that Plaintiff would rely on the arguments presented in Plaintiff's Objections to the April 27, 2011 D&O in opposing the fourth fee application. In reply, Defendants, by letter dated May 27, 2011 (Doc. No. 357) ("May 27, 2011 Letter"), advised that Plaintiff's May 26, 2011 Letter was untimely as it was not filed within 10 days of the Sager Declaration, as the April 27, 2011 D&O directed.

Pending before the court are Defendants' second and fourth fee applications seeking attorneys fees incurred preparing and defending, respectively, the first and third fee applications. Oral argument was deemed unnecessary.

Based on the following, Defendants' second and fourth fee applications are GRANTED.

DISCUSSION

Courts have permitted parties to recover attorneys' fees incurred in connection with preparing and defending applications for the expenses, including costs and attorneys' fees associated with either successfully making or opposing a motion to compel discovery. See Metrokane, Inc. v. Built, NY, Inc., 2009 WL 637111, at * 3 (S.D.N.Y. Mar. 6, 2009) (granting defendant's fee application seeking attorneys' fees incurred preparing and defending fee application for expenses related to defendant's discovery motions); Rahman v. Smith & Wollensky Restaurant Group, Inc., 2009 WL 72441, at * 7 (S.D.N.Y. Jan. 7, 2009) (awarding defendants 41.2 hours of attorneys' fees incurred in connection with fee application for successfully opposing plaintiff's motion to compel discovery). Similarly, in the instant case, the undersigned has permitted Defendants to recover attorneys' fees incurred in connection with preparing and defending their fee applications for the costs incurred in connection with the first, second, and third sanctions motions.

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)). The Second Circuit recently "undertook to simplify the complexities surrounding the attorney's fees awards that had accumulated over time" in the district and circuit courts. Simmons v. New York City Transit Authority, 575 F.3d 170, 174 (2d Cir. 2009). In particular, the Second Circuit sought to reconcile the lodestar method with the method, set forth in Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974) ("the Johnson method"), and describing "a one-step inquiry that considered twelve specific factors to establish a reasonable fee." Simmons, 575 F.3d at 174 (citing Arbor Hill Concerned Citizens Neighborhood Ass'n ...


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