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Watkins v. Smith

United States District Court, S.D. New York

February 5, 2015

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

Anil Taneja, Esq., New York, New York, for Plaintiff.

Bryan S. Arce, Esq., W. Gordon Kaupp, Arce Law Group, New York, New York, for Arce Defendants.

OPINION AND ORDER

DENISE COTE, District Judge.

Plaintiff Kevin Watkins ("Watkins") represents claimants with discrimination claims. He sued the defendants in 2012, claiming principally that the defendants had used unfair tactics against his business. This Court dismissed the lawsuit and granted the defendants' applications for sanctions against the plaintiff's attorneys Anil Taneja ("Taneja") and Andre Ramon Soleil. Watkins and Taneja appealed and on April 1, 2014, the Court of Appeals for the Second Circuit summarily dismissed the appeal and awarded sanctions jointly and severally against the plaintiff and Taneja in the amount of the attorneys' fees and costs incurred by the defendants represented by Bryan S. Arce ("Arce Defendants")[1] in litigating the appeal. On August 7, the Second Circuit remanded to this Court the determination of reasonable attorneys' fees to compensate the Arce Defendants for work performed in litigating the appeal. In accordance with the August 7 remand, the Arce Defendants are awarded $10, 000 in fees.

BACKGROUND

This lawsuit was removed from state court on June 13, 2012. The Court issued three Opinions in this case, familiarity with which is assumed. See Watkins v. Smith, 12cv4635 (DLC), 2012 WL 5868395 (S.D.N.Y. Nov. 19, 2012); 2013 WL 655085 (S.D.N.Y. Feb. 22, 2013); 2013 WL 1935329 (S.D.N.Y. May 10, 2013). In the last of these Opinions, the Court awarded defendants $14, 990 in attorneys' fees against Taneja and Soleil as sanctions. 2013 WL 1935379, at *6. In calculating the award, the Court adopted an hourly rate of $250 for an associate and $300 for other counsel. Id. at *2. These were the rates requested by defense counsel. Plaintiff's counsel did not object to these rates. Id . Following the remand from the Court of Appeals, the Arce Defendants submitted the instant application for attorneys' fees. The application was accompanied by an affidavit and time log from the attorney who handled the appeal, W. Gordon Kaupp ("Kaupp"), although his name did not appear on the brief. Kaupp is a litigator with ten years' experience, primarily in the field of civil rights. For four years, he worked for a solo practitioner, bringing Section 1983 cases and representing criminal defendants and prisoners. Kaupp spent one year as a contract attorney for a law firm engaged in employment litigation. For three years, Kaupp worked as an associate at two other law practices. All of the firms and attorneys with whom he has previously worked were located in California.

Kaupp's time log includes three columns: Date, Task, and Hours. The "Date" column lists only the day on which work was performed, and does not include the time of day. The "Task" column includes a short description of the work performed. The "Hours" column includes a single number for each day, and is rounded to the tenth of an hour. One entry in the log is specifically described as having been performed by a paralegal, and is excluded from the final calculation of attorney time. In his declaration, Kaupp stated that he "kept contemporaneous notes of all the hours recorded" in the time log.

Watkins and Taneja objected to the fee application on several grounds, including the absence of contemporaneous time records. In its reply, the Arce Defendants did not directly respond to this objection except to incorporate by reference its reply brief at the appellate level. In that reply, the Arce Defendants stated that the time log "contains counsel's contemporaneous time records" and that the objection was based on "mere speculation." The Arce Defendants did not supply any additional information regarding Kaupp's time keeping practices.

On January 13, the Court issued an order directing Kaupp to produce contemporaneous time records. Kaupp filed a second declaration on January 23, clarifying that he kept an hours log on his desk in which he wrote the case name, nature of the work performed, and the start and end times of the work. When a task was completed, Kaupp added together the total time, rounded to the tenth of an hour. These figures were then copied into the time log that was submitted in connection with this application. The contemporaneously-recorded handwritten notes have since been discarded.

The request for fees and costs totals $33, 515.93. This amount encompasses:

(1) 70.9 hours[2] of attorney time, billed at a rate of $450 per hour, which includes drafting the motion to correct the appendix, drafting the answering brief, drafting the attorneys' fee motion, preparing for oral argument, and attendance at oral argument;
(2) 5.6 hours of work performed by a paralegal, billed at a rate of $150 per hour, which included drafting the tables for the brief and reformatting; and
(3) $770.93 in costs, including the costs of printing the appendix and printing the brief.

The work described above was performed between November 16, 2013 ...


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