MPD ACCESSORIES, B.V. Plaintiff,
URBAN OUTFITTERS, INC., GMA ACCESSORIES INC. d/b/a/CAPELLI NEW YORK, and ABC CORPS 1-5, Defendants.
MEMORANDUM AND ORDER
KEVIN NATHANIEL FOX, Magistrate Judge.
On May 24, 2013, the Court denied the plaintiff's motion to compel and directed the plaintiff to address the issue whether any exception exists to awarding mandatory attorney's fees to the defendants, pursuant to Fed.R.Civ.P. 37(a)(5)(B), (Docket Entry No. 93). On May 31, 2013, the plaintiff submitted its memorandum of law contending that awarding attorney's fees to the defendants is not warranted because its motion to compel was substantially justified. The defendants opposed that contention. On July 22, 2013, the Court determined that the plaintiff failed to establish that its motion to compel was substantially justified and directed the defendants to file evidence, via affidavit or other means, of the reasonable attorney's fees and expenses they incurred in responding to the plaintiff's motion to compel (Docket Entry No. 112). Before the Court are the defendants' submissions in response to the July 22, 2013 order and the plaintiff's opposition to the defendants' submissions.
In response to the Court's July 22, 2013 order, the defendants submitted declarations by their attorneys, dated July 30, 2013: (a) Charen Kim ("Kim") (Docket Entry No. 117); and (b) John P. Bostany ("Bostany") (Docket Entry No. 118). Kim states in her declaration that she is a member of "Bostany Law Firm LLC" and her declaration is "submitted in support of Defendants' submission of attorneys' fees pursuant to the Court's Order dated July 24, 2013." Kim contends that she spent 14 hours "to prepare the opposition" to the plaintiff's motion and the "May 31 filing, " following the denial of the plaintiff's motion, which was "replete with Declarations and a 15 page brief seeking to avoid reimbursing defendants' legal fees." Kim contends that "the time spent opposing the May 31 filing... should be included in the reimbursement, " as "the Court noted that much of the May 31 filing was an attempt by Plaintiff to reargue the findings contained in the Court's prior Order." Kim seeks $30, 130 consisting of $4, 900, for her 14 hours of work at a $350 hourly rate, and $25, 230, for Bostany's 43.5 hours of work at a $580 hourly rate. Attached to Kim's declaration "is an itemized timesheet showing the specific legal work performed and the amount of time allocated to legal activities performed in conjunction with opposing Plaintiff's Motion to Compel." According to Kim, "the time entries adjacent to the initials AM are for work that I actually performed to oppose the Plaintiff's motion to compel and the time entries listed therein are true and accurate."
Bostany states in his declaration that he is a member of "Bostany Law Firm, LLC" and his declaration is "submitted in support of Defendants' submission of attorneys' fees pursuant to the Court's Order dated July 24, 2013." Bostany contends that he reviewed the time entries annexed to Kim's declaration and that "the entries adjacent to the initials JPB are for work that I performed on the dates corresponding to the initials JPB." Bostany states that the "descriptions of the work that I performed on those dates is [sic] true and accurate and the time allocations contained therein were prepared by me personally and entered into time slips contemporaneous with the work I performed." According to Bostany, his work includes the "time I spent in April... to oppose the motion to compel, " and "the time I spent on May 31 and in June... to oppose the filing by MPD to reargue the motion and to oppose the claim by MPD that they [sic] deserved and [sic] exception to an award of fees." Bostany contends that the plaintiff "filed voluminous papers and additional arguments, including a brief, three times the size of the brief in support of its original motion to compel, causing defendants to expend more resources addressing the additional arguments than they expended in opposing the motion to compel." Bostany states that he "reviewed the calculations contained in the Declaration of Charen Kim and submit that they are true and accurate, " and "the charges contained in the bills annexed to the Kim Declaration were transmitted to the client during the months of May, June and July and were satisfied."
The plaintiff contends that the defendants failed to meet "their burden of producing satisfactory evidence' of any attorneys' fees incurred by either of them." According to the plaintiff, the defendants "submitted declarations of counsel related to a different law firm, Bostany Law Firm LLC, ' than the firm that has represented them throughout this case, The Bostany Law Firm, PLLC, " and no evidence was presented that The Bostany Law Firm PLLC "issued any invoice to Defendants." Moreover, "[t]he list of times submitted to the Court has no identifying information on it, so it is impossible to know which entity produced it, " and "no bill or invoice has been submitted to the Court from either The Bostany Law Firm PLLC' or Bostany Law Firm LLC' to Urban Outfitters or GMA Accessories." The plaintiff contends that no "charges, " "bills", "invoices, " or "even an Amount'" are attached to counsels' declarations, and Bostany's declaration that "an unidentified amount was satisfied' is not only evasive, but is fatally insufficient in showing that any expenses were incurred' or paid by either of the Defendants." Additionally, the defendants' counsel failed to submit evidence of their experience and expertise, or to show that the requested rates are in line with those prevailing in the community for similar services by attorneys of reasonably comparable skills, experience and reputation. The plaintiff contends that George Altirs, Chief Executive Officer of GMA Accessories Inc., testified at his deposition that Bostany is "the general counsel of GMA Accessories Inc., " which conflicts with the contention that Bostany is an attorney at The Bostany Law Firm PPLC or "a member of Bostany Law Firm, LLC."
The plaintiff contends that the time entries from April 15, April 16, May 31, June 3, June 4, June 5 and June 6, 2013, must be excluded. According to the plaintiff, the April 15 and 16, 2013 time entries are the "time entries before plaintiff's motion to compel was even filed, " and the May 31, June 3, June 4, June 5 and June 6, 2013 time entries are "related to activities other than replying to (or opposing) Plaintiff's motion to compel." The plaintiff maintains that the defendants "improperly appear to incorporate a request for sanctions of a purported additional 31.25 hours of work that the Court did not authorize, around 125% additional hours than the time allegedly relating to responding to the Plaintiff's motion to compel." Furthermore, "the date for the 4/15/2013 entry is handwritten in after the fact, and thus this entry was not kept contemporaneously."
The plaintiff contends that the remaining time entries in the defendants' application are not reasonable because the hourly rates are excessive. Bostany's $580 hourly rate is "significantly inflated and not reasonable, " in light of the vagueness of his role, the lack of office overhead and the contract arrangement with the defendants, and the Court "should only allow a maximum of 25% of this rate, and find a rate of a maximum of $145.00/hr reasonable" for his time, if any. Moreover, Kim "signed all the papers submitted by Defendants, including the memorandum of law in opposition to Plaintiff's motion to compel, even though according to the time records she did not do any work on this document." Although Kim claimed in her declaration that the time of "AM" is her time, she "does not clarify whether the hourly rate for AM' is her hourly rate, " and she is not the proper person to attest to hourly rate charged by "Bostany Law Firm, LLC, " any other business entity, or Bostany.
In support of its opposition to the defendants' request for fees, the plaintiff submitted a declaration by its attorney with exhibits, including a copy of Kim's "Linkedin profile" on the Internet, which indicates that Kim "lists herself as Managing Partner at Law Offices of Kim & Lim' from July 2012 to present." The plaintiff contends it appears that Kim is engaged in this action "on a contract basis." Moreover, she is a 2009 law school graduate, and the memorandum of law in opposition to the plaintiff's motion, signed by her, "is 6 pages long, consisting of 12 paragraphs, " in which she "cites 7 cases for the proposition that parties must meet and confer' before filing a motion to compel and 1 case for the position that the Court has the inherent power to sanction parties when they act in bad faith." The plaintiff contends that the Court should allow Kim a maximum of 30% of the listed rate for "AM" and find that an hourly rate of $105 is the maximum reasonable rate for Kim's legal services, if any.
The plaintiff asserts that the time entries for April 19, 22, 23 and 24, 2013, should be reduced 50%, "due to improper lumping' of activities." For example, the April 18, 2013 time entry, "Researching caselaw that allows GMA to get fees for MPD's false representations improper motion practice, " is inadequate and unsubstantiated because no caselaw in the defendants' memorandum of law "arguably relates to a description of research of this nature, " which was not necessary. The April 19, 2013 time entry does not specify the amount and contains the handwritten words "Research Local Rules cases for, " which was added later to the description "Court to deny request for Urban UK documents additional depositions, " which makes the time entry not contemporaneous with the work performed and vague. The April 22, 2013 time entry has two sub-entries, one with the initials JPB and one with the initials AM, and neither entry contains an amount for the legal services provided, which calls into question the accuracy of each and makes these entries vague and redundant. Similarly, the April 23, 2013 time entry, "Revise declaration, revise brief, " is vague and contains no amount for the legal services provided. According to the plaintiff, the April 24, 2013 time entry "Finalizing file brief declaration exhibits" is excessive and unnecessary, because the documents submitted by the defendants in opposition to the motion were executed by Kim on April 23, 2013, leaving "nothing to do on April 24, 2013 but file the two documents through ECF, " which is clerical work and should not be compensated at an attorney's rate. The plaintiff contends that the April 25, 2013 time entry, identified under the initials "AM, " "File exhibits under seal, " is unreasonable, since it appears to be "an order of Judge Sullivan, which has no relevance to this action or Plaintiff's motion to compel." The plaintiff maintains that the defendants' efforts did not achieve "much, if any, of the result of Plaintiff's motion to compel, " since the denial of the plaintiff's motion "was not based on Defendants' argumentation or efforts, " given that 90% of the declaration submitted by defendants' counsel in opposition to the motion to compel as well as the memorandum of law, "was aimed at convincing the Court that Plaintiff was somehow trying to pull a fast one on the Court and them, alleging the Plaintiff failed to meet and confer'... while reciting all the ways that the Plaintiff had met and conferred."
In reply, the defendants submitted Kim's and Bostany's declarations, dated August 20, 2013, and a reply memorandum of law. The defendants contend that the hours billed are reasonable, and the "Plaintiff was not prejudiced by the Defendants' failure to outline the reasonableness of the fee prong in its opening Declarations as the Plaintiff has illustrated it took the opportunity to review the Defendants' attorneys resumes and backgrounds" on the Internet. The defendants maintain that the customary rate for Bostany, a partner "with close to 25 years litigation experience predominantly in intellectual property matters, and an associate with approximately 4 years experience are well documented and readily available in recent precedents by this Court." According to the defendants, "PLLC and LLC are interchangeable symbols allowed to be used to identify a Professional Limited Liability Company, " by "Limited Liability Company Law § 1212(b)." Moreover, ...