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Kevin Watkins v. Derek Smith

May 10, 2013

KEVIN WATKINS,
PLAINTIFF,
v.
DEREK SMITH;
ADRIANE EISEN;
BRYAN S. ARCE;
WILLIAM K. PHILLIPS;
ISMAIL S. SEKENDIZ;
LAURIE E. MORRISON;
ZAFER A. AKIN; MARJORIE MESIDOR;
DEREK T. SMITH LAW GROUP, P.C.;
ARCE LAW GROUP, PC; PHILLIPS & PHILLIPS; AND
JESSICA DUGUE,
DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION AND ORDER

An Opinion and Order dated February 22, 2013 ("February 22 Opinion") granted the defendants' motions for sanctions in part and with respect to plaintiff's counsel. In accordance with a separate order of that same day, the two groups of defendants in this case have filed applications concerning the appropriate amount of attorney's fees to be awarded. For the following reasons, the defendants' applications are granted in part.

BACKGROUND

The Court has already issued two Opinions in this case. An Opinion dated November 19, 2012 ("November 19 Opinion") dismissed the plaintiff's federal causes of action for failure to state a claim and declined to exercise supplemental jurisdiction over the plaintiff's state law claims. See Watkins v. Smith, 12 Civ. 4635, 2012 WL 5868395 (S.D.N.Y. Nov. 19, 2012). Subsequently, on February 22, 2013, the defendants' motions for sanctions were granted in part and with respect to plaintiff's counsel. See Watkins v. Smith, 12 Civ. 4635, 2013 WL 655085 (S.D.N.Y. Feb. 22, 2013). Familiarity with the November 19 and February 22 Opinions is assumed and only the facts necessary to explain the present decision are described below.

This case was removed from state court on June 13, 2012. The plaintiff filed an amended complaint on July 27, 2012. The amended complaint asserted federal and state law claims against two groups of defendants -- the Eisen Defendants and the Phillips Defendants. The Eisen Defendants are represented in this action by attorney Bryan S. Arce ("Arce"). The Phillips Defendants are represented principally by attorney Jesse Rose ("Rose"). On August 20, because the defendants had not answered or otherwise responded to the amended complaint, the Clerk of Court executed a certificate of default. Both groups of defendants subsequently moved to vacate the default. Their motions were granted on September 4.

The defendants have repeatedly moved for sanctions against the plaintiff and his counsel in this action. The Eisen Defendants first moved for sanctions on July 30. This motion was denied without prejudice by an Order dated August 2. The Phillips Defendants then filed a motion for sanctions on August 22 ("August 22 Motion"). The Eisen Defendants renewed their motion for sanctions on September 17 ("September 17 Motion"). The plaintiff and his counsel had an opportunity to respond to these motions. One of plaintiff's attorneys -- Anil Taneja ("Taneja") -- submitted affidavits in opposition to the motions. The August 22 and September 17 Motions are discussed at length in the February 22 Opinion.

The February 22 Opinion determined that the plaintiff had frivolously named five individuals and one entity as defendants in the amended complaint. In accordance with that determination, the Court directed plaintiff's counsel -- Taneja and Andre Soleil ("Soleil") -- to pay all of the reasonable attorney's fees and expenses incurred by the Phillips Defendants in opposing the amended complaint and half of those same costs incurred by the Eisen Defendants. Both groups of defendants have submitted applications for attorney's fees. Taneja filed an opposition to both applications on March 9. No opposition was filed by Soleil. These applications were fully submitted on March 13.

The Phillips Defendants' request for fees totals $11,950.00.*fn1 This amount encompasses

(1) 32.2 hours of "Associates Work" billed at a rate of $250 per hour, which included drafting the Rule 11 "Safe Harbor" letter and six memoranda of law.

(2) 13 hours of work performed by a partner of The White Rose Group, LLC billed at a rate of $300 per hour, which included reviewing emails from plaintiff's counsel and drafting responses, preparing the motion for sanctions, reviewing the motion to dismiss, and drafting an affirmation in opposition to the plaintiff's motion for recusal.

The work described above was performed between June 27, 2012 and December 6, 2012.

The Eisen Defendants request fees totaling $6,400. This amount constitutes half of $12,800.00, which represents the fees accrued for 41.5 hours of work performed by Arce of the Arce Law Group at a rate of $300 per hour. This fee encompasses work performed prior to the filing of the amended complaint, as well as legal research, and review and drafting of documents occurring thereafter. Included in the $12,800.00 is a filing fee of $350.00 for the removal of this case from New York State Civil Court.

DISCUSSION

Pursuant to Federal Rule of Civil Procedure 11(c)(4), upon motion of a party, and if "warranted for effective deterrence," a court may issue "an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation." Fed.R.Civ.P. 11(c)(4). An appropriate starting point for the determination of a reasonable fee is the calculation of the lodestar amount. See Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999)(citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). To calculate the lodestar amount, a court multiplies the "number of hours reasonably expended on the litigation" by "a reasonable hourly rate." Hensley, 461 U.S. at 433. A court must therefore consider (1) "what hourly rate would normally be charged in the pertinent legal community for similar cases by attorneys [with comparable] training and experience" and (2) "how many hours were reasonably required for the prosecution of [the] claims." Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d Cir. 1997). A court may also adjust the lodestar based on a variety of factors, ...


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