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Kandey Company, Inc v. Leo Barbera

September 4, 2012


The opinion of the court was delivered by: Hon. Hugh B. Scott


Plaintiff initially filed its motion to compel (Docket No. 19), which was granted (Docket No. 24). Plaintiff then filed a motion for discovery sanctions and preclusion (Docket No. 27) which this Court (Docket No. 33, Report & Recommendation) recommended be granted in part; relevant to the application considered herein, recommending the award of the costs of plaintiff's second motion (id. at 7, 8). The Report also recommended denying much of plaintiff's substantive relief and awarding statutory interest on an earlier award of motion costs of 0.18% (id. at 6-8). Objections to this Report were due by August 24, 2012 (id. at 8, 10), but none were filed.

Now before the Court is plaintiff's second fee application for recovery of its reasonable motion costs (Docket No. 34). Responses to this application were due by August 15, 2012 (or 5 days from entry of the Report), and any response was due by August 20, 2012 (or 10 days of entry of that Report) (Docket No. 33, Report at 7, 8). The application was submitted (without oral argument) on August 24, 2012, after the deadline for Objections to the Report passed. Familiarity with the earlier Order (Docket No. 24) and Report (Docket No. 33) compelling discovery is presumed.


In its application, plaintiff presented a statement of the expenses related to making this motion, totaling $8,238.14, for the work of three attorneys, at rates of $240 per hour (for associate Andrew Miller), $285 per hour (for senior partner Joseph Manna), and $125 per hour (for associate Kenneth Webster), as well as disbursements (of $295.94) for electronic research (Docket No. 34, Pl. Atty. Decl. ¶¶ 2, 3, Ex. A). This Court calculated the time invoiced by each attorney, which totaled 36.5 hours*fn1 and find the amount claimed for attorney's time totals $7,942.20.

Defendants object only on the ground that plaintiff did not confer with them prior to filing this motion (Docket No. 35, Defs. Atty. Aff. ¶ 2), arguing that substantial documentation was produced to plaintiff (id. ¶ 1; see also Docket No. 31, Defs. Atty. Aff. ¶¶ 2-5) and concluding that this motion was unnecessary (Docket No. 35, Defs. Atty. Aff. ¶ 3). They do not dispute either the time asserted or the reasonableness of the rates charged for that time.

Previously, plaintiff denied receiving the production defendants claimed were provided (see Docket No. 32, Pl. Atty. Reply Decl. ¶ 9; letter of Kenneth Webster, Esq., to Chambers, July 11, 2012; see also Docket No. 33, Report & Recommendation of Aug. 10, 2012, at 4).


I. Standard

As previously stated in this case (Docket No. 26, Order at 2-4), Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an Order compelling discovery, with that motion including a certification that the movant in good faith conferred or attempted to confer with the party not making the disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A). The imposition of this initial sanction may not occur if movant filed the motion before attempting in good faith to resolve this without Court intervention; if the non-disclosure was substantially justified; or other circumstances made an award of expenses unjust. Imposition of sanctions for failure to comply with discovery demands must be weighed in light of the full record. Johanson v. County of Erie, No. 11CV228, 2012 U.S. Dist. LEXIS 6772, at *3 (W.D.N.Y. Jan. 20, 2012) (Scott, Mag. J.); see Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures, 602 F.2d 1063, 1068 (2d Cir. 1979). The key here is that the movant is entitled only to reasonable costs and attorneys' fees, if entitled to recover anything at all. "If the court determines to award expenses and fees, it is for the court to decide what amount is proper." 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 666-67 (Civil 2d ed. 1994); see also Addington v. Mid-American Lines, 77 F.R.D. 750, 751 (W.D. Mo. 1978) (three hours at $50 per hour held excessive where opponent merely failed to make timely response to interrogatories, reducing time to one hour). The rate or amount an attorney bills his or her client (especially where, as here, the client may never be billed due to the fee arrangement counsel has with the client) related to discovery or a motion to compel does not make that rate or time expended reasonable under Rule 37 as reasonable motion expenses.

See Kahn v. General Motors Corp., No. 88 Civ. 2982, 1993 U.S. Dist. LEXIS 5196, at *4 (S.D.N.Y. Apr. 19, 1993).

Using the lodestar (or the "presumptively reasonable fee," see Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110, 111(2d Cir. 2007)) method for calculating the reasonable attorney's fee, Johnson v. the Bon-Ton Stores, No. 05CV170, Docket No. 39, 2006 U.S. Dist. LEXIS 20019, at *8 (W.D.N.Y. Apr. 17, 2006) (Scott, Mag. J.); see Hensley v. Eckerhart, 461 U.S. 424, 429-30, 430 n.3 (1983) (applying for fees under 42 U.S.C. § 1988), the components for determining the reasonable attorneys' fee are the moving attorney's time spent on the motion and the reasonable billing rate for that attorney. The last component for determining the reasonable motion expenses are the other motion expenses incurred. In calculating the "presumptively reasonable fee," this Court "should generally use the prevailing hourly rate in the district where it sits to calculate what has been called the 'lodestar,'" Arbor Hill, supra, 493 F.3d at 111. The movant seeking reimbursement bears the burden of proving the hours spent and the prevailing rates. 7 Moore's Federal Practice--Civil § 37.23[8] (2005); see Johnson, supra, 2006 U.S. Dist. LEXIS 20019, at *11.

Here, the sanctions are sought under Rule 37(b) for defendants' failure to comply with this Court's discovery Order (Docket No. 27, Pl. Notice of Motion). If a party fails to obey an Order to provide or permit discovery under Rule 37(b), this Court may "issue further just orders" including taking facts as established, prohibiting the disobedient party from supporting or opposing claims or defenses or from introducing designated matters in evidence, striking pleadings, dismissing the action, rendering a default judgment, or treating as contempt of Court the failure to obey an Order, Fed. R. Civ. P. 37(b)(2)(A). These forms of relief were considered in the Report (Docket No. 33). Additionally, the Court "must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust," id. R. 37(b)(2)(C) (emphasis added), see Robbins & Myers, Inc. v. J.M. Huber Corp., No. 01CV201, 2010 U.S. Dist. LEXIS 108562, at *13-14 (W.D.N.Y. Oct. 12, 2010) (Foschio, Mag. J.). This sanction is mandatory regardless of whatever other sanctions are imposed, 8A Wright, Miller & Marcus, Federal Practice and Procedure, supra, ยง 2289 (3d ed ...

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