United States District Court, S.D. New York
DR. EUBULUS J. KERR, III, Plaintiff,
JOHN THOMAS FINANCIAL, et al ., Defendants.
HONORABLE KATHERINE B. FORREST, United States District Judge.
REPORT AND RECOMMENDATION
PITMAN United States Magistrate Judge.
notice of motion dated November 15, 2016, plaintiff moves for
summary judgment on his application for attorneys' fees
and costs pursuant to Fed.R.Civ.P. 56 (D.I. 211). For the
reasons set forth below, I respectfully recommend that
plaintiff's motion be granted in part and denied in part.
facts that give rise to this action are set forth in detail
in the Opinion and Order of the Honorable Katherine B.
Forrest, United States District Judge, dated July 16, 2015
(D.I. 88), granting plaintiff's motion to confirm a
Financial Industry Regulatory Authority ("FINRA")
arbitration award against the defendants. Familiarity with
that opinion is assumed. I recite the facts here only to the
extent necessary for an understanding of the dispute before
August 5, 2014, a FINRA arbitration resulted in an award of
$920, 107.96 in favor of plaintiff and against the defendants
(the "Award") (Amended Petition to Confirm
Arbitration Award and Entry of Judgment thereon, dated Jan.
8, 2015 (D.I. 12) ("Petition") ¶ 13).
Defendant Anastasios Belesis and two other defendants were
found to be liable, jointly and severally, for $915, 107.96
of the Award; defendant Joseph Castellano was found to be
liable for $5, 000.00 of the Award (Petition ¶ 13). On
October 20, 2014, plaintiff commenced an action in Supreme
Court, New York County, seeking to confirm the Award (Notice
of Removal, filed Nov. 18, 2014 (D.I. 1) ("Notice of
Removal") ¶ 1). The defendants removed the action
to this court on November 18, 2014 (Notice of Removal).
16, 2015, Judge Forrest granted plaintiff's motion to
confirm the Award (Opinion and Order, dated July 16, 2015
(D.I. 88)), and judgment confirming the Award was entered on
July 22, 2015 (the "Judgment") (Judgment, dated
July 22, 2015 (D.I. 89)).
approximately a year of unsuccessful efforts to collect the
Judgment, plaintiff and defendant entered into a General
Release Agreement on June 10, 2016 (Motion for Sanctions and
Contempt, filed Oct. 12, 2016 (D.I. 151) ("Motion for
Sanctions"), Ex. G, at 1). The agreement provided that
defendant was to pay plaintiff $1 million -- an amount
slightly smaller than the Judgment plus accrued interest --
by June 30, 2016 (Motion for Sanctions, Ex. G ¶ 1). In
exchange, plaintiff agreed to release all claims against
defendant (Motion for Sanctions, Ex. G ¶ 2). The
agreement also contained the following provision regarding
attorneys' fees and costs:
In the event of any judicial or arbitral proceeding to
construe or enforce any provision of this Agreement or
resulting from an alleged breach, default or
misrepresentation in connection with any of the provisions of
this Agreement, or to enforce or collect upon the Award or
any judgment thereupon or any award or judgment resulting
from any judicial or arbitral proceeding to construe or
enforce any provision of this Agreement, the prevailing party
shall recover from the non-prevailing party reasonable
attorneys' fees and other costs in addition to all other
amounts and relief the prevailing party is entitled to
recover. To the extent that this provision imposes upon the
non-prevailing party an obligation to pay the attorneys'
fees of the prevailing party in a dispute arising from the
enforcement and collection of the Award or any judgment
thereupon, the Parties acknowledge that this is a
post-dispute attorneys' fee provision and agree to be
for Sanctions, Ex. G ¶ 4). The agreement also provided
that it "shall be in all respects interpreted, enforced
and governed by and under the laws of the State of New
York" (Motion for Sanctions, Ex. G ¶ 9).
did not pay $1 million to plaintiff by June 30, 2016.
Following that breach, plaintiff moved for an amended
judgment stating a sum certain on July 1, 2016 (Letter from
Brian J. Neville, Esq., to Judge Forrest, dated July 1, 2016
(D.I. 99)). On July 6, 2016, Judge Forrest granted
plaintiff's motion (Order, dated July 6, 2016 (D.I.
102)), and the Clerk of the Court subsequently entered an
amended judgment in the amount of $1, 017, 140.75 (Amended
Judgment, dated July 7, 2016 (D.I. 103)). Defendant finally
paid the full amount owed, plus interest, in November 2016
(Order, dated Nov. 14, 2016 (D.I. 209)).
now seeks his attorneys' fees and costs incurred since
the start of this action, pursuant to the General Release
Agreement. Specifically, plaintiff seeks a total of
$216, 575 in fees and $25, 108.02 in costs and has submitted
an "invoice listing the fees charged daily by each
attorney and firm member, as well as each individual
cost" (Lax Aff. ¶ 5).
standards applicable to a motion for summary judgment are
well-settled and require only brief review.
Summary judgment may be granted only where there is no
genuine issue as to any material fact and the moving party .
. . is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). In ruling on a motion for summary
judgment, a court must resolve all ambiguities and draw all
factual inferences in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986-). To grant the motion,
the court must determine that there is no genuine issue of
material fact to be tried. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
A genuine factual issue derives from the "evidence
[being] such that a reasonable jury could return a verdict
for the nonmoving party." Anderson, 477 U.S. at
248, 106 S.Ct. 2505. The nonmoving party cannot defeat
summary judgment by "simply show[ing] that there is some
metaphysical doubt as to the material facts, "
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), or
by a factual argument based on "conjecture or surmise,
" Bryant v. Maffucci, 923 F.2d 979, 982 (2d
Cir. 1991). The Supreme Court teaches that "all that is
required [from a nonmoving party] is that sufficient evidence
supporting the claimed factual dispute be shown to require a
jury or judge to resolve the parties' differing versions
of the truth at trial." First Nat'l Bank of
Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88
S.Ct. 1575, 20 L.Ed.2d 569 (1968); see also Hunt v.
Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143
L.Ed.2d 731 (1999). It is a settled rule that
"[c]redibility assessments, choices between conflicting
versions of the events, and the weighing of evidence are
matters for the jury, not for the court on a motion for
summary judgment." Fischl v. Armitage, 128 F.3d
50, 55 (2d Cir. 1997).
McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006)
(ellipsis added; brackets in original); accord Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150-51 (2000); Estate of Gustafson ex rel.
Reginella v. Target Corp., 819 F.3d 673, 675 (2d Cir.
2016); Cortes v. MTA N.Y.C. Transit, 802 F.3d 226,
230 (2d Cir. 2015); Deep Woods Holdings, L.L.C. v.
Savings Deposit Ins. Fund of Republic of Turk.,
745 F.3d 619, 622-23 (2d Cir. 2014); Hill v.
Curcione, 657 F.3d 116, 124 (2d Cir. 2011).
facts are those which 'might affect the outcome of the
suit under the governing law' . . . ." Coppola
v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir.
2007), quoting Anderson v. Liberty Lobby, Inc.,
supra, 477 U.S. at 248. "'[I]n ruling on a
motion for summary judgment, a judge must ask himself not
whether he thinks the evidence unmistakably favors one side
or the other but whether a fair-minded jury could return a
verdict for the [non-movant] on the evidence
presented[.]'" Cine SK8, Inc. v. Town of
Henrietta, 507 F.3d 778, 788 (2d Cir. 2007) (second
alteration in original), quoting Readco, Inc. v. Marine
Midland Bank, 81 F.3d 295, 298 (2d Cir. 1996).
the prevailing party in litigation is not ordinarily entitled
to recover its attorneys' fees under the "American
Rule, " it may do so when there is a contractual
provision authorizing such recovery. United States Fid.
& Guar. Co. v. Braspetro Oil Servs. Co., 369 F.3d
34, 75 (2d Cir. 2004).
In federal practice the general rule -- known as the
"American Rule" -- is that each party bears its own
attorneys' fees. See, e.g.,
Chambers v. NASCO, Inc., 501 U.S. 32, ___, 111 S.Ct.
2123, 2133, 115 L.Ed.2d 27 (1991); Hensley v.
Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76
L.Ed.2d 40 (1983); Alyeska Pipeline Service Co. v.
Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612,
1616, 44 L.Ed.2d 141 (1975); 6 James W. Moore et
al., Moore's Federal Practice ¶ 54.78 (2d
ed. 1993). However, parties may agree by contract to permit
recovery of attorneys' fees, and a federal court will
enforce contractual rights to attorneys' fees if the
contract is valid under applicable state law. See Alland
v. Consumers Credit Corp., 476 F.2d 951, 956 (2d Cir.
1973); United States v. Carter, 217 U.S. 286, 322,
30 S.Ct. 515, 526, 54 L.Ed. 769 (1910). Although a district
court has broad discretion in awarding attorneys' fees,
and an award of such fees may be set aside only for abuse of
discretion, see, e.g., ARP
Films, Inc. v. Marvel Entertainment Group, Inc., 952
F.2d 643, 651 (2d Cir. 1991); Lerman v. Flynt
Distributing Co., 789 F.2d 164, 166 (2d Cir.),
cert. denied, 479 U.S. 932, 107 S.Ct. 404,
93 L.Ed.2d 357 (1986), where a contract authorizes an award
of attorneys' fees, such an award becomes the rule rather
than the exception. See Engel v. Teleprompter Corp.,
732 F.2d 1238, 1241 (5th Cir. 1984) (reversing district
court's denial of attorneys' fees with instructions
to determine an appropriate award).
McGuire v. Russell Miller, Inc., 1 F.3d 1306,
1312-13 (2d Cir. 1993); see also Baker Botts L.L.P. v.
ASARCO LLC, 135 S.Ct. 2158, 2164 (2015); Zurich Am.
Ins. Co. v. Team Tankers A.S., 81 ...