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

November 3, 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' application filed August 17, 2011 (Doc. No. 377), for attorneys' fees and costs awarded pursuant to this court's Decision and Order filed August 3, 2011 (Doc. No. 375).*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, most recently and relevant to the instant motion, a motion to compel and for sanctions filed by Defendants on June 21, 2011 (Doc. No. 362) ("the sanctions motion"). In a Decision and Order filed August 3, 2011 (Doc. No. 375) ("August 3, 2011 D&O"), the undersigned granted the sanctions motions, including Defendants' request for costs and attorneys' fees incurred in connection with the motion, and also Thompson Hine LLP ("Thompson Hine"), Plaintiff's lead counsel in this action, to pay to the Clerk of the Court $1,000 as a penalty for improperly interfering with Defendants' attempts to obtain discovery by directing Plaintiff's auditor, a non-party, not to comply with a subpoena seeking certain documents relating to a so-called Public Service Announcement ("PSA"), within the auditor's possession pertaining to Plaintiff's reserves for warranty or product liability claims relating to the closures at issue in this action. In the court's March 21, 2011 Decision and Order (Doc. No. 325) ("March 21, 2011 D&O"). Throughout this litigation, Defendants have been represented by lead counsel Day Pitney LLP ("Day Pitney"), and local counsel Phillips Lytle LLP ("Phillips Lytle").

As directed in the August 3, 2011 D&O, Defendants filed on August 17, 2011, a fee application ("the fee application"), including the Declaration of David S. Sager, Esq., Pursuant to the Court's Decision and Order Dated August 3, 2011 (Doc. No. 377) ("Sager Declaration"), attached to which as exhibits A and B ("Sager Declaration Exh(s). __"), are redacted copies of the relevant portions of Day Pitney's invoices to Huber for time billed in connection with the sanctions motion. In total, Defendants seeks attorneys' fees of $10, 857.50 for preparation of sanctions motion, including the motion, supporting papers, and reply papers. Also filed on August 17, 2011 were Plaintiff's objections to the D&O (Doc. No. 378) ("August 3, 2011 D&O Objections"), arguing, inter alia, the undersigned was without authority to reopen discovery to permit Defendants' service of the subpoena for documents on Plaintiff's auditor, and challenging as improper and unjustified the award of sanctions against Thompson Hine.

Filed on August 31, 2011, was Plaintiff's Opposition to Defendants' Application for Fees Pursuant to the Magistrate Judge's August 3, 2011 D&O (Doc. No. 381) ("Plaintiff's Response"). On September 6, 2011, Defendants filed Defendants' Reply Memorandum in Further Support of Application for Attorney's Fees (Doc. No. 384) ("Defendants' Reply"). Oral argument was deemed unnecessary.

Based on the following, Defendants' fee application is GRANTED in part and DENIED in part.

DISCUSSION

Parties have been permitted 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, may be recovered. See Metrokane, Inc. v. Built, NY, Inc., 2009 WL 637111, at * 3 (S.D.N.Y. Mar. 6, 2009) (granting defendant's application for attorneys' fees incurred in connection with 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 attorneys' fees incurred in successfully opposing plaintiff's motion to compel discovery).

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)). Although the Second Circuit recently attempted 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"), describing "a one-step inquiry that considered twelve specific factors to establish a reasonable fee." Simmons v. New York City Transit Authority, 575 F.3d 170, 174 (2d Cir. 2009), the Supreme Court has since considered the issue of attorneys' fees, approving the traditional lodestar method over the more subjective Johnson method. Perdue v. Kenny A., __ U.S. __, 130 S.Ct. 1662, 1672 (2010). Nevertheless, the Court further explained there is a "strong presumption" that the lodestar figure is reasonable, but that such presumption "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. See also Millea v. Metro-North Railroad Company, __ F.3d __, 2011 WL 3437513, at *8 (2d Cir. Aug. 8, 2011) ("Both this Court and the Supreme Court have held that the lodestar -- the product of a reasonable hourly rate and the reasonable number of hour required y the case -- creates a 'presumptively reasonable fee.'" (citing Perdue, 120 S.Ct. at 1673, and Arbor Hill Concerned Citizens Neighborhood Assoc. v. County of Albany, 522 F.3d 182, 183 (2d Cir. 2008)). The court thus first applies the lodestar method to determine the amount of attorneys' fees to award and then, if necessary, adjusts the resulting lodestar figure to reflect consideration of any special circumstances.

In the instant case, Defendants seek reimbursement of attorneys' fees according to the following schedule listing the hours each attorney worked at their respective hourly rates in connection with the pending fee application.

Attorney: Marino Sager Total Fee Application Hourly Rate: $350 550 Hours: 20.3 5.9 Sub-Total: $7,612.50 $3,245.00 $10,857.50 Sager Declaration ¶ 4 at 3-4; Sager Declaration Exhs. A and B.

Defendants also advise that although local counsel Edward Bloomberg, Esq. ("Bloomberg"), of Phillips Lytle assisted with this matter, Defendants are not seeking reimbursement for Bloomberg's fees. Id. ΒΆ 5. Nor are Defendants seeking reimbursement for nine hours of time incurred in connection with the sanctions motion, totaling $3,900 in fees, for legal services related to Defendants' asserted good faith efforts to resolve the ...


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