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Friedman v. Self Helf Community Services, Inc.

United States District Court, E.D. New York

February 7, 2017




         On February 25, 2011, Plaintiff Robert Friedman, then acting with the assistance of attorney Robert D. Borzouye ("Borzouye"), filed a complaint in the Supreme Court of the State of New York, Kings County, containing numerous claims stemming from Plaintiffs March 17, 2010, removal from his father's apartment and involuntary commitment to the Coney Island Hospital. (Not. of Removal (Dkt. 1).) Defendants[1] removed the action to this court on July 5, 2011. (Id.) Plaintiff subsequently amended the complaint multiple times to include numerous additional claims and defendants, including United Jewish Appeal, Inc.; United Jewish Appeal-Federation of Jewish Philanthropies of New York; United Jewish Appeal Federation of New York Charitable Fund LLC; and Self Help Community Services, Inc. and its employees (collectively, the "Self Help Defendants"). (See Revised Second Am. Compl. (Dkt. 49).)

         The Self Help Defendants moved to dismiss the Complaint (Self Help Defs.' Mot. to Dismiss (Dkt. 59)) and, separately, moved for sanctions against Borzouye pursuant to Rule 11 of the Federal Rules of Civil Procedure (Self Help Defs.' Mot. for Sanctions (Dkt. 68)). On March 17, 2015, the court granted the Motion to Dismiss, ordered sanctions in the form of reasonable attorneys' fees against Borzouye and, pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure, referred determination of the sanctions amount to Magistrate Judge James Orenstein for a report and recommendation ("R&R"). (See Order Adopting R&R (Dkt. 121) at 9-11.)

         On August 31, 2016, Judge Orenstein issued an R&R recommending sanctions in the amount of $38, 906.45, comprised of $38, 743.50 in attorneys' fees and $162.95 in costs. (See R&R (Dkt. 138) at 1.) No party has objected to Judge Orenstein's R&R, and the time to do so has passed. See Fed.R.Civ.P. 72(b)(2). (See also R&R at 5-6 ("Any objections to this Report and Recommendation must be filed no later than September 19, 2016.").)

         A district court reviewing an R&R "may accept, reject, or modify, in whole or in part, the recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c). Where there is no objection to the R&R, the court "need only satisfy itself that there is no clear error on the face of the record." See Gesualdi v. Mack Excavation & Trailer Serv.. Inc., No. 09-CV-2502 (KAM) (JO), 2010 WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010) (quoting Urena v. New York. 160 F.Supp.2d 606, 609-10 (S.D.N.Y. 2001); see also Porter v. Potter, 219 F.App'x 112 (2d Cir. 2007) (summary order).

         I. DISCUSSION

         Where a party violates Rule 11 's requirements, courts may impose a sanction against the offending party including, inter alia, "an order directing payment... of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation." Fed.R.Civ.P. 11(c)(4). "When a court determines that attorneys' fees and costs should be used as sanctions under Rule 11, the award should be based both on the total amount of reasonable attorneys' fees and costs attributable to the sanctioned party's misconduct and the amount needed to serve the deterrent purposes of Rule 11." See Eastway Const. Corp. v. City of New York, 821 F.2d 121, 122-23 (2d Cir. 1987). The court will address the total amount of attorneys' fees and costs and the amount needed to serve Rule 11 's deterrent purposes below.

         A. Calculation of Reasonable Fees and Costs

         1. Attorneys' Fees

         In calculating reasonable attorneys' fees "the lodestar-the product of a reasonable hourly rate and the reasonable number of hours required by the case-creates a 'presumptively reasonable fee.'" Millea v. Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Assoc, v. Cry. Of Albany, 522 F.3d 182, 183 (2d Cir. 2008)). "[T]he party seeking [attorneys' fees]... bears the burden of proving the reasonableness and necessity of hours spent and rates charged.... supported by contemporaneous time records that describe with specificity, by attorney, the nature of the work done, the hours expended, and the dates." Tr. of the Sheet Metal Workers Local Union No. 28 Ben. Fund, v. K&K Const, of Queens Cty., Inc., No. 10-CV-392 (ADS) (ARL), 2011 WL 4530145, at *2 (E.D.N.Y.May 11, 2011) (citing New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983)). Courts calculating the lodestar should base their determination on "what a reasonable, paying client would be willing to pay, " including consideration of

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 (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation.

Arbor Hill, 522 F.3d at 184. Courts in this district have generally "found reasonable hourly rates to be approximately $300-$450 for partners, $200-$325 for senior associates, and $100-$200 for junior associates." See Sass v. MTA Bus Co., 6 F.Supp.3d 238, 261 (E.D.N.Y. 2014).

         While Judge Orenstein's R&R does not specifically address the noted considerations, the court agrees with his conclusion that both the amount of time expended and the hourly fees charged are reasonable. The Self Help Defendants submitted detailed contemporaneous records of their attorney's time spent in responding to Borzouye's frivolous Complaint and motions.[2] These records list an hourly rate of $195 for partner Thomas A. Catalano and $75 for paralegal assistant Yassed Baez. Examining these records in light of the factors articulated in Arbor Hill, the court finds particularly relevant the "complexity and difficulty of the case" and "the resources required to prosecute the case effectively." Even a cursory review of Plaintiffs' nearly 150 page Complaint and myriad other filings reveals the numerous, complex, and often confusing issues presented by Borzouye's frivolous submissions. Catalano's contemporaneous billing reports do not demonstrate any inappropriate, wasteful, or needless work, and the hourly rate sought falls well below the rates viewed as reasonable within this district. Borzouye offers no challenge to the reasonableness of either the time expended or the rate charged, and the court finds none itself. Accordingly, the court adopts Judge Orenstein's finding that both the number of hours expended and hourly rate are reasonable and that the Self Help Defendants' compensable attorneys' fees total $38, 743.50.[3]

         2. Other ...

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