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Legends Are Forever, Inc. v. Nike, Inc.

United States District Court, Second Circuit

November 18, 2013

LEGENDS ARE FOREVER, INC., Plaintiff,
v.
NIKE, INC., Defendant.

TIMOTHY A. BENEDICT, ESQ., BENEDICT LAW OFFICE, Rome, NY, for plaintiff.

CHRISTIAN C. CASINI, ESQ., OSBORN, REED & BURKE, LLP, One Exchange Boulevard Rochester, NY, JENNIFER B. FUREY, ESQ., MATTHEW P. HORVITZ, ESQ, GOULSTON & STORRS, Boston, MA, for defendant.

DECISION AND ORDER

DAVID E. PEEBLES, Magistrate Judge.

Currently pending before the court in connection with this action is an application by defendant Nike, Inc., ("Nike") for quantification of the costs and attorney's fees to be awarded against plaintiff Legends Are Forever, Inc., ("Legends") in connection with a discovery-related motion. For the reasons set forth below, costs and attorney's fees are awarded in the amount of $12, 332.82.

I. BACKGROUND

On September 27, 2012, plaintiff Legends commenced this action against defendant Nike, asserting various claims including trademark infringement, unfair competition, false designation of origin, and trademark dilution under the Lanham Act, 15 U.S.C. § 1051, et seq. Legends' claims arise out of Nike's alleged use of the LEGENDS ARE FOREVER mark, which is registered federally by the plaintiff.

Since inception of the case, discovery has progressed at a disturbingly slow pace, and has required both formal and informal court intervention on several occasions. Most recently, Nike filed a motion to compel, complaining of Legends' failure to proved requested discovery. On September 12, 2013, I issued an order in connection with that motion in which, inter alia, I ordered Legends to produce various information and documents sought by Nike through discovery, and to produce a witness pursuant to the Federal Rule of Civil Procedure 30(b)(6), as well as two named witnesses, for deposition. Dkt. No. 26. In that order I awarded Nike the costs, including a reasonable attorney's fee, incurred in bringing and arguing the motion, pursuant to Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure.[1] Id., at ¶ 6.

In accordance with that order, Nike has submitted an application requesting an award of costs and attorney's fees in the total amount of $25, 186.91. Dkt. Nos. 27, 28. That fee application is supported by exhibits reflecting the amounts of time spent by the three attorneys who performed the relevant services in filing and litigating the motion to compel. More specifically, the exhibits detail the tasks undertaken, the dates of service, the attorneys performing the work, the times expended, and narratives describing the work performed. Nike seeks recovery of attorney's fees, calculated at rates ranging from $250 to $450 per hour, as well as out-of-pocket costs limited to those incurred by two attorneys in traveling to Syracuse, New York, for the hearing conducted by the court on September 11, 2013, to address defendants' motion to compel discovery.

In response to the fee application, Legends argues that fees should not be awarded, and to the extent fees are awarded, defendant should recover only a minimal amount. See generally Dkt. No. 29. Plaintiff also challenges the number of hours claimed as being excessive, and the rates at which the fee application is calculated as exceeding those applicable in the Northern District of New York.[2] See id.

II. DISCUSSION

A. Calculation of Attorney's Fees Generally

Having already determined that an award of costs and attorney's fees is warranted under Rule 37(a)(5)(A), the task of the court now shifts to determining the appropriate amount to award. In this circuit, fee awards are governed by the Second Circuit's instructive decision in Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 183-84 (2d Cir. 2008). Under the protocol announced in Arbor Hill, a court must first consider whether the rates at which compensation is sought are those that a "reasonable, paying client would be willing to pay" before multiplying that figure by the number of hours expended. Arbor Hill, 522 F.3d at 190-91; see also Lewis v. City of Albany Police Dep't, No. 04-CV-0152, 2008 WL 2103565, at *1 (N.D.N.Y. May 20, 2008) (Hurd, J.) ("Attorney's fees are awarded by determining a presumptively reasonable fee, reached by multiplying a reasonable hourly rate by the number of reasonably expended hours."). Determination of the rate at which a reasonable client would be willing to compensate for the services rendered is informed by several factors of varying degrees of relevance,

including, but not limited to, the complexity and difficulty of the case, the available expertise and capacity of the client=s other counsel (if any), the resources required to prosecute the case effectively... the timing demands of the case, [and] whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation....

Arbor Hill, 522 F.3d at 184. Arbor Hill also reinforced the appropriateness of considering the so-called " Johnson factors" when ...


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