United States District Court, E.D. New York
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[Copyrighted Material Omitted]
For Gabrielle Douyon, Plaintiff: Peter Thomas Lane, LEAD ATTORNEY, Schlanger & Schlanger LLP, New York, NY; Daniel Adam Schlanger, Schlanger & Schlanger, LLP, Pleasantville, NY.
For Seymour Schneider, also known as Sy Schneider, Defendant: Andrew Citron, Andrew Citron, Esq, New York, NY; Revaz Chachanashvili, Revaz Chachanashvili & Associates, Forest Hills, NY.
MEMORANDUM AND ORDER
A. KATHLEEN TOMLINSON, United States Magistrate Judge.
I. Preliminary Statement
Plaintiff Gabrielle Douyon (" Plaintiff" ) commenced this action against Defendants N.Y. Medical Health Care, P.C., Seymour Schneider, Koroush Golyan, Nathan Khaimov, and Faraidoon Daniel Golyan for violation of the Fair Debt Collection Practices Act (" FDCPA" ) and various New York State laws. Following the close of discovery and summary judgment motion practice, Plaintiff settled her claims against all Defendants except Seymour Schneider, pursuant to a stipulation of discontinuance that was " so ordered" by the Court on April 17, 2013. See DE 97. Plaintiff later settled all her remaining claims against Defendant Schneider pursuant to a separate stipulation endorsed by the Court on October 31, 2013. See DE 103. In the latter stipulation, Plaintiff reserved " the right to seek recovery for all reasonable costs and attorneys' fees in this action, with the Court retaining jurisdiction to determine the same." Id. ¶ 3. The parties further agreed to a briefing schedule to address the issue of fees and costs to be awarded to Plaintiff's counsel in this matter. Id. ¶ 5.
Before the Court is Plaintiff's motion for attorneys' fees and costs solely against Defendant Seymour Schneider. Defendant Schneider opposes the motion, contending that Plaintiff's counsel achieved limited success and objecting to certain aspects of the billing records. Based upon the Court's review of the applicable case law and the arguments advanced by both parties, Plaintiff's motion is hereby GRANTED, in part, and DENIED, in part, to the extent set forth in this Order.
A. Relevant Procedural History
On August 31, 2010, Plaintiff commenced this action against N.Y. Medical Health Care, P.C., Sy Schneider, David Golyan, Nathan " DOE," and Faraidoon Golyan, M.D. See DE 1. In her original Complaint, Plaintiff alleged violations of the FDCPA, 15 U.S.C. § 1692, et. seq., New York usury laws, N.Y. General Obligations Law § 5-501, et seq., and common law claims for intentional infliction of emotional distress, slander, negligence, and negligent hiring and retention based on the " unfair abuse and deceptive practices employed by Defendants in their attempt to collect an alleged medical debt from Plaintiff." Id ¶ ¶ 1-2.
On January 4, 2011, Defendants filed their Answer and Counterclaims to " sustain the debt" which was purportedly owed by Plaintiff. DE 10. In response, Plaintiff moved to strike Defendants' Answer and Counterclaim and for a more definite statement of Defendants' Counterclaim. DE 13. Judge Feuerstein referred the motion to this Court for a Report and Recommendation. See Feb. 24, 2011 Electronic Order.
While Plaintiff's motion remained sub judice, the parties appeared for an Initial Conference before this Court on April 15, 2011. DE 20. The Court brought to the attention of Defendants' counsel at that time that the Answer and Counterclaims filed by Defendants failed to meet the pleading requirements of the Federal Rules of Civil Procedure and Local Civil
Rules of the Eastern District. Id. ¶ 3. The Court noted further that:
Most egregiously, the pleading was not signed, in violation of Rule 11. It appears that very little communication has occurred between Defendants' counsel and Plaintiff's counsel regarding these deficiencies, and that it took motion practice by Plaintiff's counsel to bring Defendants' counsel to the point of action. Defendant has opposed the motion to strike, but has repeatedly stated that it will amend its pleadings. A review of the pleadings begs the question how much work Defendants' counsel has done in federal court given the complete disregard of the rules for pleading. I advised Defendants' counsel that I would be recommending to Judge Feuerstein that the motion to strike be granted, but that Defendant also be permitted to amend its answer and counterclaim. Defendant is directed to file the amended answer and counterclaim within fifteen (15) days of today's conference. A separate Report and Recommendation will be issued in the short term. This also means that Plaintiff's counsel will be required to respond to a second pleading.
On this basis and because of the manner in which Defendant's pleading was filed and the noncompliance with Rule 11, I am also recommending that Defendant be required to reimburse plaintiff for the reasonable costs and attorney's fees incurred for the time it takes Plaintiff's counsel to reply to an appropriately filed counterclaim.
Id. ¶ 3. Following the conference, Defendants served a First Amended Answer with Counterclaims against Plaintiff for breach of contract and unjust enrichment. See DE 21.
On May 4, 2011, this Court recommended to Judge Feuerstein that Plaintiff's motion to strike be granted and that Defendants be permitted to amend their Answer and Counterclaims in compliance with the Federal Rules of Civil Procedure. See DE 23. Further, the Court recommended that " because Plaintiff will now have to respond to a second pleading, I respectfully recommend to Judge Feuerstein that Plaintiff be awarded the reasonable costs and attorney's fees associated with responding to Defendants' amended counterclaim." Id. at 23. Pursuant to a stipulation entered into by the parties on May 13, 2011, Defendants consented to withdraw their First Amended Answer with Counterclaims and to extend Defendants' time to file an Amended Answer with Counterclaims in accordance with the Report and Recommendation. DE 26. The Court " so ordered" the stipulation on May 16, 2011 and directed Defendants to file their First Amended Answer with Counterclaims within fourteen days. See May 16, 2011 Electronic Order.
Having received no objections to this Court's May 4, 2011 Report and Recommendation, Judge Feuerstein entered an Order adopting the Report in its entirety on May 27, 2011. See DE 27. Defendants
filed their Second Amended Answer and Counterclaims on the same date. See DE 28. Plaintiff moved to dismiss Defendants' amended counterclaims pursuant to Rule 12(b)(1) and (b)(6). See DE 44. The motion, however, was terminated as moot in light of the acceptance of a Rule 68 Offer of Judgment in the favor of N.Y. Medical Health Care, P.C. against Plaintiff in the amount of $5,378. See DE 66; see also Nov. 29, 2011 Electronic Order.
By Notice of Motion dated August 26, 2011, Plaintiff sought leave to amend the Complaint, without any opposition from Defendants' counsel. See DE 49. Plaintiff requested permission to withdraw all usury claims asserted against the Defendants and all FDCPA claims except for those asserted against Defendant Schneider. See DE 49. That motion was granted by the Court on October 4, 2011. See DE 50. In doing so, the Court stated that " the changes Plaintiff proposes are either the withdrawal of claims or minor changes to the facts asserted based on new information Plaintiff learned during the course of conducting depositions." Id. at 2. Plaintiff filed her Amended Complaint on October 6, 2011. See DE 53. Defendants filed their Answer with Counterclaims to the Amended Complaint on October 19, 2011. See DE 56.
The parties then proceeded to summary judgment motion practice. Both the Plaintiff and Defendants filed partial motions for summary judgment. See DE 68; DE 72. Subsequently, the parties consented to this Court's jurisdiction for all purposes, pursuant to 28 U.S.C. § 636(c)(1). See DE 78. The Consent was " so ordered" by Judge Feuerstein on January 4, 2012. See DE 81.
By Order dated September 28, 2012, the Court granted, in part, and denied, in part, both parties' motions for partial summary judgment. See DE 84. Specifically, the Court held as follows:
o Plaintiff's motion for summary judgment is denied on her claim that [Schneider] violated 15 U.S.C. § § 1692c(b), 1692e, 1692e(1), 1692e(4), 1692e(5), 1692e(7), 1692e(9), 1692e(10), 1692e(11) (with respect to Schneider's business card and documents left at Plaintiff's workplace), and 1692f;
o Plaintiff's motion for summary judgment on her N.Y. GBL § 349 claim is denied. Defendants' motion with respect to that claim is also denied, with the exception of Plaintiff's claim based on the allegedly false assertions set forth in the January 19, 2010 and March 15, 2010 letters. That claim is dismissed;
o Defendants' motion for summary judgment on Plaintiff's intentional infliction of emotional distress claim is granted and the claim is dismissed;
o Defendant's motion for summary judgment on Plaintiff's negligence and negligent hiring/supervision claim is granted, with the exception of the claims based on Schneider's visit to Plaintiff's office that allegedly caused her to fear for her physical safety;
o Defendants' motion regarding N.Y. Medical's vicarious liability for Schneider's acts is denied; and
o Defendant's motion regarding a purported civil conspiracy claim is denied as moot.
Id. at 44.
On November 29, 2012, Plaintiff filed a motion for reconsideration of the Court's
September 28, 2012 Order. See DE 89. Plaintiff moved to reconsider the Court's rulings, pursuant to Rule 59(e) and Local Civil Rule 6.3, insofar as the Court ordered: (1) denial of summary judgment to Plaintiff regarding violations of the FDCPA § § 1692e(4) AND (5); (2) Plaintiff's negligence and negligent hiring/supervision claims will proceed only to the extent that Plaintiff's fear of injury is based on Schneider's visit to Plaintiff's office; and (3) dismissal of claims related to Intentional Infliction of Emotional Distress. See DE 89-1. Defendants opposed the motion. See DE 89-2.
While Plaintiff's motion for reconsideration remained pending, Plaintiff and all Defendants - - except for Seymour Schneider - - filed a settlement agreement on March 25, 2013 in which the action was discontinued in consideration for (1) $37,500 and (2) an agreement by Defendant N.Y. Medical Health Care, P.C. to vacate and dismiss the judgment previously filed in its favor in state court against Plaintiff on November 29, 2011. DE 95 ¶ ¶ 1-2. On April 17, 2013, the Court " so ordered" the stipulation of discontinuance filed by these parties, dismissing all Defendants except for Seymour Schneider from this case. See DE 97.
On September 25, 2013, the Court granted Plaintiff's motion for reconsideration to the following extent: (1) Plaintiff's motion for summary judgment on claims brought under the FDCPA, 15 U.S.C. § § 1692e(4) and e(5), was granted; (2) Plaintiff's claims for negligent hiring, retention, training and supervision were deemed moot, making reconsideration unnecessary; and (3) Section III(C) of the Court's September 28, 2012 Order discussing and ruling on the claim for Intentional Infliction of Emotional Distress was stricken. DE 98 at 20.
Thereafter, Plaintiff entered into a stipulation with the lone remaining Defendant, Seymour Schneider, to discontinue this action. See DE 103. In relevant part, the parties agreed on the following terms:
1. Defendant agrees to have judgment entered against him for violations of the Fair Debt Collection Practices Act (FDCPA) 15 U.S.C. § 1692, et seq. and New York General Business Law (GBL) § 349, in the amount of $1050 (ONE THOUSAND FIFTY DOLLARS) denominated as statutory damages.
2. Plaintiff waives recovery of any damages in this action that could be characterized as actual damages, with prejudice.
3. Plaintiff reserves the right to seek recovery for all reasonable costs and attorneys' fees in this action, with the Court retaining jurisdiction to determine same.
Id. ¶ ¶ 1-3 (emphasis in original). The parties further agreed upon a briefing scheduled for Plaintiff's anticipated motion for attorneys' fees and costs. Id. ¶ 5. The stipulation was " so ordered" by the ...