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Abraham Leser v. U.S. Bank National Association

February 21, 2012

ABRAHAM LESER
PLAINTIFF,
v.
U.S. BANK NATIONAL ASSOCIATION, DEFENDANT.
U.S. BANK NATIONAL ASSOCIATION, COUNTERCLAIM PLAINTIFF,
v.
ABRAHAM LESER, COUNTERCLAIM DEFENDANT.



The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge:

NOT FOR PRINT OR ELECTRONIC PUBLICATION

MEMORANDUM & ORDER

By Memorandum and Order dated March 18, 2011, this court held non-party witness Robert Lovy ("Mr. Lovy") in civil contempt of court for failing to comply with court orders. (See ECF No. 99, Order Granting Motion for Order to Show Cause, dated 3/18/2011 ("Contempt Order"), at 37.) The court imposed coercive monetary sanctions on Mr. Lovy and awarded defendant/counterclaim plaintiff U.S. Bank National Association ("USB") reasonable attorney's fees and costs, in an amount to be determined by the court, in order to compensate USB for damages suffered while attempting to procure Mr. Lovy's compliance with the court's orders. (Id.) Presently before the court is USB's application for attorney's fees and costs. As described more fully below, USB is awarded $13,711.50 in attorney's fees and $1,680.36 in costs.

BACKGROUND

I.Underlying Action and Civil Contempt Motion

The relevant factual and procedural history of this case is set forth in full in the court's March 18, 2011 Memorandum and Order and will not be repeated herein. As relevant to the instant application, on March 18, 2011, the court held Mr. Lovy in contempt of court for his failure to comply with the court's November 12, 2010 Order that he comply with USB's subpoena seeking documents and testimony, served on Mr. Lovy on September 7, 2010, as well as the court's January 27, 2011 Order to Show Cause, served on Mr. Lovy on January 31, 2011.*fn1 (See ECF No. 99, Contempt Order at 1, 27, 37.)

Specifically, the court found that (1) the court's Order was clear and unambiguous; (2) the evidence of Mr. Lovy's noncompliance was clear and convincing; and (3) Mr. Lovy did not diligently attempt to comply with the court's Order in a reasonable manner. (See id. at 22, 25, 26, 27.) See also Paramedics Electromedicina Commercial, Ltd. v. GE Med. Sys. Info. Tech., Inc., 369 F.3d 645, 655 (2d Cir. 2004).

The court imposed on Mr. Lovy (1) a coercive sanction of $500 per day to begin on March 26, 2011, unless Mr. Lovy fully purged his contempt by producing documents on or before March 18, 2011, and appeared and testified at a deposition on or before March 25, 2011; and (2) a compensatory sanction of attorney's fees and costs payable to USB, in an amount to be determined, in order to compensate USB for damages suffered while attempting to procure Mr. Lovy's compliance with its September 7, 2010 subpoena and with the court's January 27, 2011 Order to Show Cause. (ECF No. 99, Contempt Order at 1, 27, 37.) The court directed USB to submit further documentation so the appropriate amount of fees and costs could be determined.*fn2 (Id. at 37.)

Beare, 2010 U.S. Dist. LEXIS 2501, at *7 (citing David D. Siegel, Fed. R. Civ. P. 45, Practice Commentaries, C45-26).

On April 12, 2011, USB confirmed that Mr. Lovy had produced documents responsive to the subpoena and had appeared for his deposition. (ECF No. 102, Letter by USB, dated 4/12/2011 ("USB 4/12/2011 Ltr."), at 1.) USB also provided information regarding the hourly rates and experience of its counsel. (Id. at 2.) Further, USB withdrew its claim for $2,799.60 in expenses from September 2010. (Id.)

By letter dated April 13, 2011, counsel for Mr. Lovy stated that Mr. Lovy was in a "dire financial predicament" and asked the court not to impose a monetary sanction that Mr. Lovy would be unable to satisfy. (ECF No. 103, Letter in Response to Letter from Counsel for USB, dated 4/13/2011 ("Lovy 4/13/2011 Ltr.") at 2.)

On June 15, 2011, USB's counsel responded to Mr. Lovy's claim of poverty and submitted a revised application for attorney's fees and costs. (See ECF No. 113, Letter by USB, dated 6/15/2011 ("USB 6/15/2011 Ltr."); ECF No. 114, Affidavit of Michael DiCanio, dated 6/15/2011 ("DiCanio Aff.").)

On June 24, 2011, Mr. Lovy's counsel provided additional support for his argument that Mr. Lovy would be unable to satisfy any significant monetary sanctions imposed by the court. (See ECF No. 117, Letter in Response to June 15, 2011 Letter by USB, dated 6/24/2011 ("Lovy 6/24/2011 Ltr.").)

DISCUSSION

A.Reasonable Attorney's Fees and Costs

USB seeks attorney's fees and costs in the amount of $24,840.28 and $3,360.71, respectively, for the time and money spent between September 2010 and February 2011 attempting to secure Mr. Lovy's compliance with the ...


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