United States District Court, S.D. New York
MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK, MASON TENDERS DISTRICT COUNCIL WELFARE FUND, PENSION FUND, ANNUITY FUND, TRAINING FUND, HEALTH AND SAFETY FUND, and JOHN VIRGA, Plaintiffs,
PHASE CONSTRUCTION SERVICES, INC., and SL CONSTRUCTION GROUP, INC., Defendants.
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
the Court is an application for attorneys' fees and costs
submitted by Plaintiffs Mason Tenders District Council of
Greater New York, Mason Tenders District Council Welfare
Fund, Pension Fund, Annuity Fund, Training Fund, Health and
Safety Fund and John Virga. Doc. 90.
November 30, 2016, the Court issued an Opinion and Order
granting Plaintiff's motions to amend the Complaint and
to compel discovery. Doc. 77. With respect to the motion to
compel, the Court noted that it had extended multiple
discovery deadlines, settled several discovery disputes, and
ordered Defendants to comply with discovery orders on
numerous occasions. See e.g., Docs. 21, 22, 27, 36,
40, 49. Plaintiffs had also made repeated requests for
discovery, which Defendants had disregarded. The Court found
that Plaintiffs' counsel had made a good faith effort to
obtain the information in its discovery requests prior to
filing the motion to compel and that Defendants'
objections - which the Court had previously denied - and
their nondisclosure was not justified. Doc. 77, at 26.
Consequently, the Court granted Plaintiffs' motion for
attorneys' fees and costs. Id.
January 9, 2017, Plaintiffs submitted their application for
attorneys' fees and costs, along with billing records
detailing the time spent by each biller and the amount of
fees requested. Docs. 91, 92. On January 18, 2017, Defendants
filed their opposition to the application, arguing that the
amount sought was not adequately supported or explained by
Plaintiffs' supporting documents. Doc. 93.
seek to recover a total of $15, 092.50, comprised of $14,
552.50 in attorneys' fees for 85.7 hours of work and
$540.00 in paralegal fees for 9 hours of work. In support of
their application, Plaintiffs attach the affirmation of
Barbara S. Mehlsack, a partner at the law firm of Gorlick,
Kravitz & Listhaus, P.C. (“Gorlick”). Doc.
91. Mehlsack has forty years of experience as an attorney in
the private sector, including approximately twenty-six years
representing employee benefit funds and labor organizations
in ERISA and labor-related litigation. Id. at ¶
13. Mehlsack's hourly billing rate is $225 and she
expended a total of 38.4 hours. Clark A. Binkley, a junior
associate at Gorlick with one year of experience, worked for
a total of 47.3 hours at an hourly billing rate of $125. The
Court finds that given the experience level of the attorneys,
and the hourly rates charged by comparable attorneys who
practice in New York, these hourly rates are reasonable.
Counsel attaches billing invoices for the period from April
through August 2016. Id. at Ex. A.
make three objections to Plaintiffs' application: (1)
that Plaintiffs' counsel failed to differentiate between
their fees for the motion to amend and the motion to compel
and that counsel improperly seeks fees for pre-motion
efforts, “including regular discovery;” (2) that
the attorneys' fees should be reduced because the billing
records show duplicative work and excessive motion
preparation; and (3) that the billing records included
“block” entries and were too vague to adequately
describe the work performed. Rex Whitehorn's Affirmation
in Opposition to Plaintiffs' Fee Application
(“Whitehorn Aff.”) (Doc. 93).
Court finds that Mehlsack's affirmation and the attached
billing records properly pertain to counsel's efforts
related to discovery, not the filing of the motion to amend.
With few exceptions, the entries in the invoices all contain
an explicit reference to discovery or the motion to compel.
The entries without an explicit reference, provide that work
was done for a “motion” or
“memorandum.” These entries - all with August
dates-can be assumed to refer to the motion to compel filed
in August because the motion to amend was filed on June 2,
2016 and fully briefed by early July. Moreover, Defendants do
not cite to - and the Court cannot find - any authority for
the proposition that Plaintiffs were required to attach the
billing records for the motion to amend.
are nevertheless correct that Plaintiffs are entitled only to
the reasonable expenses “incurred in making the
motion.” Fed.R.Civ.P. 37(a)(5)(A); see also Spirit
Realty, L.P. v. GH&H Mableton, LLC, No. 15 Civ. 5304
(GWG), 2017 WL 36364, at *3 (S.D.N.Y. Jan. 2, 2017)
(“The Court notes further that plaintiff is entitled
only to its reasonable expenses “in making the motion,
” Rule 37(a)(5)-not for expenses relating to its
communications with defendant regarding the discovery dispute
before the motion was made.”). This is especially true
here, where the Court already considered Defendants'
failure to comply with the Court's discovery orders and
found that sanctions pursuant to Rule 37(b)(2)(C) - which
would allow for broader recovery - were not appropriate.
Accordingly, Plaintiffs are only entitled to the fees and
costs incurred for work on the pre-motion letter and filing
the motion to compel, completed between June and August 2016.
See generally, Luciano v. Olsten Corp., 109
F.3d 111, 117 (2d Cir. 1997) (“[A] district court can
exclude excessive and unreasonable hours from its fee
computation by making an across-the-board reduction in the
amount of hours.”).
Court also finds that Plaintiffs' billing records do not
reflect duplicative efforts or excessive motion preparation.
“If a court finds that the fee applicant's claim is
excessive, or that time spent was wasteful or duplicative, it
may decrease or disallow certain hours.” Auscape
Int'l v. Nat'l Geographic Soc'y, No. 02 Civ.
6441 (LAK) (HBP), 2003 WL 21976400, at *2 (S.D.N.Y. Aug. 19,
2003), aff'd sub nom. Auscape Int'l v. Nat.
Geographic Soc'y, No. 02 Civ. 6441 (LAK), 2003 WL
22244953 (S.D.N.Y. Sept. 29, 2003). Here, only two attorneys
worked on the pre-motion letter, the motion, and responses:
one partner and one first-year associate. Plaintiffs'
pre-motion letter in anticipation of its motion to compel
consisted of a four-page letter motion and over 100 pages of
relevant exhibits. Doc. 67, Exs. A-G. The actual motion to
compel (and for sanctions for Defendants' failure to
comply with the discovery order and requests) was accompanied
by a twenty-eight page memorandum and fourteen exhibits
totaling 155 pages. Plaintiffs' reply memorandum -which
the billing records indicate was drafted by Mehlsack -
consisted of a total fourteen pages (ten substantive pages as
required by this Court's Individual Rules). The Court
finds that the time expended by Mehlsack, Binkley, and the
paralegals - as reflected by the billing records-o draft and
prepare these documents was reasonable.
the entries in Plaintiffs' billing records are not block
entries and are not improperly vague. Each entry describes
one general task and sufficiently characterizes the work
undertaken by the attorney or paralegal.
the Court finds an appropriate award of attorneys' fees
and expenses is $13, 194.50-which deducts the $1, 898 billed
for work completed prior to Plaintiffs filing of the
pre-motion letter in anticipation of the motion to compel.
The Court, therefore, GRANTS Plaintiffs' request for
attorneys' fees and expenses in the amount of $13,
Clerk of the Court is respectfully directed to terminate the
motion, Doc. 90.