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Romeo and Juliette Laser Hair Removal, Inc. v. Assara I, LLC

United States District Court, Second Circuit

July 2, 2013

ASSARA I, LLC, et al., Defendants.


FRANK MAAS, Magistrate Judge.

I. Introduction

This suit pits two competing laser hair-removal businesses against each other in a dispute involving claims of false advertising, unfair competition, and defamation. In November 2012, the plaintiff, Romeo & Juliette Laser Hair Removal, Inc. ("Romeo"), moved to compel the defendants (collectively "Assara") to respond to several allegedly outstanding discovery requests and to remedy certain of their existing responses that Romeo believed were insufficient. Assara responded with its own motion to compel, seeking certain documents that Romeo allegedly had failed to produce. Following a discovery conference in which I granted Romeo's motion and denied Assara's requests in substantial part, Romeo filed an application for attorneys' fees pursuant to Rule 37 of the Federal Rules of Civil Procedure. In that application, Romeo, which is represented by the law firm Butler, Fitzgerald, Fiveson & McCarthy, seeks reimbursement for $24, 562.50 in fees that it allegedly accrued in connection with the discovery dispute. For the reasons set forth below, Romeo's fee application is granted, but the amount of the award is reduced to $6, 945.

II. Background

On November 28, 2012, Romeo's counsel, Claudia G. Jaffe, Esq., wrote to the Court requesting a conference to address a number of discovery issues. (Aff. of Claudia G. Jaffe, Esq., sworn to on Jan. 18, 2013 ("Jaffe Aff.") (ECF No. 114), ¶ 3). Ms. Jaffe's principal grievance concerned Assara's responses to Romeo's Requests to Admit, which she alleged were deficient and did not comply with Rule 36 of the Federal Rules of Civil Procedure. (Id. ¶¶ 16-18). Ms. Jaffe also complained that Assara had failed to produce certain corporate documents identifying Assara's principals that Assara previously had been ordered to provide. (Id. ¶¶ 4-10). Finally, Ms. Jaffe claimed that Maxine Tayar, a third-party witness (and the wife of one of the individual defendants), had been unresponsive to her requests to schedule a deposition, despite having been served with a Court-ordered subpoena to appear. (Id. ¶¶ 11-15). The letter requested an order (a) deeming admitted all matters in the Requests for Admission as to which Assara's responses were inadequate, (b) compelling Assara to produce corporate documentation sufficient to identify its members, and (c) directing Ms. Tayar to appear for a deposition. (Id. ¶ 3).

On December 4, 2012, Assara's counsel, Will Shuman, Esq., himself a defendant in this action, responded to Romeo's letter. In that response, Assara raised a number of its own complaints regarding discovery responses allegedly due from Romeo. Among other things, Assara's letter sought an order compelling Romeo to produce documents relating to its sales records and its Google Analytics and other website tracking records. Because neither side had complied with my Individual Practices or the Local Civil Rules, I directed the parties to submit revised letters itemizing their concerns in a manner consistent with Local Civil Rule 37.1. (ECF No. 57). I also scheduled an in-person conference for December 27, 2012. (Id.). On December 12, Romeo and Assara each submitted revised letters. Romeo submitted a further response to Assara's letter-motion on December 17.

The discovery conference was adjourned twice - once at Ms. Jaffe's request and once at the request of Mr. Shuman, who represented that he was unavailable because he needed to "appear" in an unrelated trial taking place in another city. (Jaffe Aff. ¶¶ 21-22). The conference ultimately was rescheduled for January 10, 2013.

Although the Court had accommodated his alleged trial schedule, Mr. Shuman inexplicably was absent on the day of the conference. After waiting for over thirty minutes for him to arrive, my Chambers staff reached him by telephone, only to learn that he was still in Washington, D.C., where he resides. Instead of sending Ms. Jaffe home and rescheduling the conference yet again, I permitted Mr. Shuman to participate by telephone. (ECF No. 121 ("Transcript" or "Tr.") at 2). Mr. Shuman sought at first to explain his absence by claiming that he had been under the impression that the conference was to occur the following week. (Id. at 3). In response to further inquiries, he then confirmed that he had served as "co-counsel" in the trial that was the basis for his letter requesting an adjournment. (Id. at 3-5). Upon further questioning, however, Mr. Shuman modified his story, stating instead that he had not appeared for a trial at all, but, rather, had merely needed to be available by telephone so that he could correspond with his colleague (his brother) who was handling the case. (Id. at 4-5). Troubled by Mr. Shuman's obviously untruthful representations, both in his letter requesting an adjournment and at the January 10 conference, I ordered Mr. Shuman to show cause why he should not be sanctioned for intentionally misleading the Court. (See ECF No. 109).[1] I then turned to the parties' discovery motions.

With respect to Romeo's motion, I concluded that Assara's responses to Romeo's Requests for Admission were insufficient and directed Assara to provide amended responses. I further ordered Assara to produce its original operating agreement, as well as documents reflecting the identities of its members. Turning to the issue of Ms. Tayar's outstanding deposition, I indicated that the Court would issue an arrest warrant based upon her failure to comply with the Court-ordered subpoena if she did not contact Ms. Jaffe by January 16 to schedule the deposition. I then denied Assara's motion to compel production of Romeo's sales records and its Google Analytics reports. These rulings were incorporated into a Discovery Order dated January 10, 2013. (ECF No. 108).

On January 24, 2013, Assara filed a motion for reconsideration of my ruling rejecting its request for production of the Google Analytics and other website tracking records. (ECF No. 116). Because Ms. Jaffe continued to represent that there were no such documents, I denied the motion, but directed Romeo to certify that it had performed a diligent search that had not unearthed any responsive documents. (ECF No. 155). Romeo's principal, Christian Karavolas, executed that certification on March 29, 2013. (ECF No. 156).

On January 18, 2013, Ms. Jaffe filed an affidavit in support of Romeo's application for reimbursement of the attorneys' fees that it claims to have accrued in connection with this dispute. (Jaffe Aff.). On February 5, Ms. Jaffe filed a supplemental affidavit, in which she annexed her firm's redacted time records.[2] (Supp. Aff. of Claudia G. Jaffe, Esq., sworn to on Feb. 5, 2013 ("Jaffe Supp. Aff.") (ECF No. 137)). Assara filed opposition papers on March 3. (Def.'s Mem. of Law in Opp. to Pl.'s App. for Atty.'s Fees ("Def.'s Opp. Mem.") (ECF No. 151)).

III. Legal Standard

"The great operative principle of [Rule 37] is that the loser pays" the expenses incurred in making or opposing a motion to compel. JSC Foreign Econ. Ass'n Technostroyexport v. Int'l Dev. and Trade Servs. Inc., No. 03 Civ. 5562 (JGK) (AJD), 2005 WL 1958361, at *14 (S.D.N.Y. Aug. 16, 2005) (quoting 8A Charles Allan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure: Civil 2d § 2288, at 657-58). Accordingly, after granting a motion to compel, the Court "must, after giving an opportunity to be heard, require the party... whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." Fed.R.Civ.P. 37(a)(5)(A). A moving party, however, is not permitted to recover fees where the moving party failed to attempt in good faith to obtain the requested discovery before filing the motion, the opposing party's nondisclosure was "substantially justified, or "other circumstances [would] make an award of expenses unjust." Fed.R.Civ.P. 37(a)(5)(A)(i)-(iii). Similarly, Rule 37(a)(5)(B) requires payment of a nonmovant's reasonable fees associated with responding to an unsuccessful motion to compel, unless "the motion was substantially justified or other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(a)(5)(B). As the Supreme Court has explained, a party is entitled only to the "costs that [the party] would not have incurred but for" the other party's conduct. Fox v. Vice , 131 S.Ct. 2205, 2211 (2011). Thus, "the dispositive question is... whether the costs would have been incurred in the absence" of the other's conduct. Id. at 2216.

"As a concession to the mortality of judges, the law does not require a line-item review of fee applications." O'Toole v. Allied Interstate, LLC, No. 12 Civ. 4942 (WHP), 2012 WL 6197086, at *1 (S.D.N.Y. Dec. 12, 2012). Accordingly, in evaluating an application for attorneys' fees, district courts "need not, and indeed should not, become green-eyeshade accountants." Fox , 131 S.Ct. at 2216. Because "the essential goal in shifting fees (to either party) is to do rough justice, not to achieve ...

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