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Orthopedic Associates of 65 v. Robert M. Sedor

September 12, 2011

ORTHOPEDIC ASSOCIATES OF 65 PENNSYLVANIA AVENUE, BINGHAMTON, NEW YORK, P.C., AS PLAN ADMINISTRATOR OF THE ORTHOPEDIC ASSOCIATES DEFINED CONTRIBUTION PENSION PLAN, PLAINTIFF,
v.
ROBERT M. SEDOR, JR., CFP, RFC; UPSTATE MANAGEMENT ASSOCIATES, INC. D/B/A THE BAY RIDGE GROUP; AND NORAH A. BREEN, DEFENDANTS.
ROBERT W. MILGRAM, M.D., PLAINTIFF,
v.
ORTHOPEDIC ASSOCIATES OF 65 PENNSYLVANIA AVENUE, BINGHAMTON, NEW YORK, P.C., AS PLAN ADMINISTRATOR OF THE ORTHOPEDIC ASSOCIATES DEFINED CONTRIBUTION PENSION PLAN; ROBERT M. SEDOR, JR., CFP, RFC; UPSTATE MANAGEMENT ASSOCIATES, INC. D/B/A THE BAY RIDGE GROUP; AND NORAH A. BREEN, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

On March 30, 2010, following a non-jury ERISA*fn1 trial, the court issued a Memorandum-Decision and Order finding, among other things, Dr. Robert Milgram entitled to recover a money judgment in the amount of $1,571,723.73 against the Orthopedic Associates Defined Contribution Pension Plan (the Plan). (See Mar. 30, 2010 Order at 12-13, 63-64, 02-cv-255, Dkt. No. 12.) The court subsequently denied the Plan's motion to stay the enforcement of the judgment and issuance of a writ of execution. (02-cv-255, Dkt. Nos. 51, 52.) Pending are: (1) Norah Breen's motion to alter and remove certain language from the March 30, 2010 Order, (00-cv-238, Dkt. No. 278); (2) the Plan's motions to amend the costs awarded to Milgram, (02-cv-255, Dkt. No. 54), and to Sedor and Upstate, (00-cv-238, Dkt. No. 291); (3) Milgram's motion for attorneys' fees and costs against the Plan, (02-cv-255, Dkt. No. 28; see also Letter Mot., 00-cv-238, Dkt. No. 273); (4) the Plan's motion for attorneys' fees against Breen, (00-cv-238, Dkt. No. 271); and (5) Robert Sedor and Upstate Management's motion for attorneys' fees and costs against Breen, (02-cv-255, Dkt. No. 34; 00-cv-238, Dkt. No. 267).*fn2 For the reasons that follow, Breen's motion to alter is denied; the Plan's motions to amend costs are granted in part and denied in part with leave to renew; Milgram's motion for attorneys' fees and costs is granted; and the Plan and Sedor and Upstate's motions for attorneys' fees and costs are granted with reductions.

II. Discussion

A. Motion to Alter the Language of the Order

Upon review of its March 30, 2010 Order, the court discerns no factually unsupported statement or conclusion regarding Breen's past actions and present legal obligations, and therefore denies Breen's June 22, 2010 letter motion seeking alteration and removal of certain language from the Order. (See 00-cv-238, Dkt. No. 278.)

B. Motions to Retax Costs

On April 29, 2010, Milgram filed a bill of costs to be taxed, (02-cv-255, Dkt. No. 22), which the court awarded against the Plan on August 10, 2010, (02-cv-255, Dkt. No. 53). Likewise, Sedor and Upstate submitted a bill of costs on May 4, 2010, (00-cv-238, Dkt. No. 262; 02-cv-255, Dkt. No. 27), which were also awarded on August 10, (00-cv-238, Dkt. No. 287). On August 17, 2010, the Plan moved to amend certain costs awarded to Milgram, (02-cv-255, Dkt. No. 54), and to Sedor and Upstate, (00-cv-238, Dkt. No. 291).

1. Milgram's Bill of Costs

The Plan challenges the appropriateness of Milgram's $7,110.11 expert witness fee and the adequacy of Milgram's itemization of photocopying costs and "other costs." (See Plan Mem. of Law at 2-4, 02-cv-255, Dkt. No. 54:1.) In response, Milgram, without addressing the merits of his costs, simply argues that the Plan's bill of costs is substantially similar to Milgram's and that the Plan should consequently be estopped from challenging his claimed costs. (See Milgram Resp. Mem. of Law at 3-6, 00-cv-238, Dkt. No. 301.) By a supplemental letter, Milgram offers a more specific breakdown of costs and also seeks additional costs in the amount of $10,407.83 for computer legal research and online searches. (See 00-cv-238, Dkt. No. 273.)

At the threshold, the court rejects Milgram's estoppel arguments for several reasons, not least of which are (1) that the Plan's itemizations are sufficiently distinct from and more specific and defined than Milgram's, (compare Plan Bill of Costs, 00-cv-238, Dkt. No. 264, with Milgram Bill of Costs, 02-cv-255, Dkt. No. 22); and (2) that such arguments are irrelevant*fn3 and misperceive the applicability of estoppel, particularly since there is nothing patently inconsistent between the positions taken by the Plan in seeking costs and in challenging Milgram's costs.

Moving on to the merits of the Plan's challenge, Milgram concedes, and the court finds, that "the Plan is correct that expert witness fees are not ordinarily recoverable as taxable costs." (Milgram Resp. Mem. of Law at 5 n.1, 00-cv-238, Dkt. No. 301.) Furthermore, the court concurs with the Plan insofar as Milgram has failed to sufficiently itemize and delineate the "other costs" he claims. Therefore, the court grants the Plan's motion insofar as Milgram is ordered to supplement and/or amend his bill of costs as it relates to "fees for witnesses" and "other costs." However, because Milgram's photocopying costs and other categorized costs are reasonable and sufficiently supported and itemized, the court denies the Plan's motion as to the remaining costs identified in Milgram's bill of costs.

2. Sedor and Upstate's Bill of Costs

The Plan further challenges several aspects of Sedor and Upstate's bill of costs, including the filing of identical bills of costs against both the Plan and Breen; the appropriateness of the $6,648.75 expert witness fee; the reasonableness of photocopying costs; the availability of research, travel, and conference call costs; and the general adequacy of Sedor and Upstate's itemization of costs. (See Plan Mem. of Law at 2-4, 00-cv-238, Dkt. No. 291:1.) In response, Sedor and Upstate first acknowledge that they are not entitled to the expert witness fees set forth in their bill of costs and accordingly agree to a $6,648.75 reduction. (See Ferrera Aff. ¶ 6, 02-cv-255, Dkt. No. 58.) However, Sedor and Upstate otherwise contend that their bill of costs is accurate, reasonable, and sufficiently specific, and that they "are not attempting to recover duplicate amounts" and that the Plan and Breen are jointly responsible for all costs incurred. (Id. at ¶¶ 8-21.)

Putting aside Sedor and Upstate's conceded reduction based on the unavailability of expert witness fees, the court discerns no problems regarding the recoverability or reasonableness of the remainder of Sedor and Upstate's claimed costs.*fn4 However, the court is not presently in a position to evaluate the extent of Sedor and Upstate's entitlement to costs due to the stipulation of partial discontinuance between them and the Plan. (See 00-cv-238, Dkt. No. 357.) Thus, while the court credits Sedor and Upstate's asserted good faith in filing duplicate bills of costs and rejects as unfounded and unwarranted the Plan's suggestion that Sedor and Upstate are attempting to "recover[] twice for the same expenses,"*fn5 (Plan Mem. of Law at 2, 00-cv-238, Dkt. No. 291:1), the overlapping nature of the evidence and resultant overlapping nature of costs arising from the ERISA and state-law actions render premature any conclusive resolution of what costs each party is liable for and whether and how such costs should be apportioned consistent with both the court's March 30, 2010 Order and ...

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