Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gus Gagasoules, Jan Niblett, Luster Cote, Inc., Rhonda Garner, and Decor v. Mbf Leasing LLC

April 24, 2013

GUS GAGASOULES, JAN NIBLETT, LUSTER COTE, INC., RHONDA GARNER, AND DECOR SPECIALTIES, INC., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
MBF LEASING LLC,
DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

FILED CLERK

4/24/2013 11:37 am

U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE MEMORANDUM OF DECISION AND ORDER

On June 13, 2008, Gus Gagasoules ("Gagasoules"), Jan Niblett ("Niblett"), Niblett's company Luster Cote, Inc. ("Luster Cote"), Rhonda Garner ("Garner") and Garner's company, Decor Specialties, Inc. ("Decor Specialties," and, collectively, "the Plaintiffs"), commenced this action on behalf of themselves and a putative class against MBF Leasing, LLC ("the Defendant"). The Complaint set forth 16 wide-ranging causes of action based on equipment finance leases that the Plaintiffs entered into with the Defendant. On February 2, 2009, the Court dismissed all but one of the Plaintiffs' claims. The remaining claim alleged that the Defendant breached the contracts at issue "[b]y charging and collecting sums in excess of those specified in the first page of the Form Lease, and by imposing undisclosed amounts towards alleged taxes and insurance coverage[.]" (Original Compl., ¶ 166.)

Thereafter, on September 29, 2012, the Court dismissed the Plaintiffs' case without prejudice for lack of subject matter jurisdiction. Also on September 29, 2012, the Court granted the Defendant's motion for sanctions against Niblett and Luster Cote pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 37(d). In this regard, the Court held:

[T]he Defendant is entitled to recover reasonable attorney's fees and costs incurred in connection with time spent scheduling and attending the [December 17, 2010 and February 23, 2011] depositions of Niblett and Luster Cote [as they had failed to attend]. In addition, the Defendant is entitled to recover reasonable attorney's and costs associated with the portion of the motion for sanctions relating to sanctions against Niblett and Luster Cote for failure to appear at their depositions pursuant to Rule 37(d).

Gagasoules v. MBF Leasing LLC, 286 F.R.D. 205, 216 (E.D.N.Y. 2012). The Court directed the Defendant to submit an application for attorneys' fees and costs consistent with the Court's decision. Id. at 220.

Presently before the Court is the Defendant's application for attorneys' fees and costs in accordance to the Court's September 29, 2012 Order. The Defendant requests Niblett and Luster Cote, jointly and severally, pay the Defendant the sum of $23,370.07 as a sanction pursuant to Fed. R. Civ. P. 37(d). (Lilliensen Decl., ¶ 9.) In support of its application, the Defendant has submitted a generated spreadsheet listing all of the time entries it believes to be related, either in whole or in part, to time spent by attorneys at the Defendant's firm, Moses & Singer LLP ("Moses & Singer"), on issues that the Court found to be sanctionable. (Lilliensen Decl., ¶ 4.) The Defendants also included the biographies of each of the attorneys who performed services for the Defendant in this action. (Lilliensen Decl., ¶ 7.)

Niblett and Luster Cote oppose the Defendant's application. According to Niblett and Luster Cote, the "Defendant's request is wildly exaggerated, way beyond what this Court permitted, and unsupported by reliable documentation mandated by Second Circuit Law." (Pl Opp., pg. 1.) The Defendant did not reply to Niblett and Luster Cote's Opposition. For the reasons that follow, the Court denies the Defendant's application without prejudice with leave to file a revised application consistent with this decision.

I. DISCUSSION

A. Legal Standard

When, as here, a party has been sanctioned pursuant to Fed. R. Civ. P. 37(d) for failure to attend its own deposition, "the court must require the party failing to act, 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." Fed. R. Civ. P. 37(d)(3). In this case, the Court sanctioned Niblett and Luster Cote, but not their counsel, for their failure to attend the December 17, 2010 and February 23, 2011 depositions.

"Attorneys' fees are determined in th[e] [Second Circuit] by reference to the 'presumptively reasonable fee,' Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 190 (2d Cir. 2008) [(hereinafter "Arbor Hill"), which 'boils down to what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively,' Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009)[.]" Konits v. Karahalis, 409 F. App'x 418, 422 (2d Cir. 2011). In determining a "presumptively reasonable fee," district courts should "bear in mind all of the case-specific variables that [the Second Circuit] and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate." Arbor Hill, 522 F.3d at 190. Thus, in order to reach the presumptively reasonable fee, the court must assess "case-specific considerations at the outset, factoring them into its determination of a reasonable hourly rate for the attorneys' work," which is then multiplied by a reasonable number of hours expended by counsel. McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 420 (2d Cir. 2010).

Case-specific considerations include, among others, the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717--19 (5th Cir. 1974). See Konits, 409 F. App'x at 422 (citing Arbor Hill, 522 F.3d at 190). Those factors include (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal services properly; (3) the level of skill required to perform the legal services properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation and ability of the attorney; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717--19. However, "[t]he most critical factor in the district ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.