United States District Court, W.D. New York
W. POLAK, ESQ. Attorney for Plaintiffs
ELSER MOSKOWITZ EDELMAN & DICKER LLP Attorneys for
FELDMAN KIEFFER, LLP Attorney for Third-Party Defendant
DECISION AND ORDER
G. FOSCHIO UNITED STATES MAGISTRATE JUDGE
Order filed October 17, 2016 (Dkt. 35), the court granted
Defendants' request, pursuant to Fed.R.Civ.P. 37(a)(5),
for expenses incurred in prosecuting Defendants' motion
to compel discovery (Dkt. 17) granted by the court on
February 3, 2016 (Dkt. 24) (“the February 3, 2016
D&O”) based on Plaintiff's failure to show
cause why such expenses should not be awarded and finding
that Plaintiff's failure to provide the requested
discovery was not substantially justified and that an award
of expenses would not, in the circumstances, be unjust.
Defendants' affidavit in support of such award was filed
in accordance with the court's direction on October 31,
2016 (Dkt. 38) (“Defendants' Request”).
Plaintiff filed Plaintiff's opposition on November 10,
2016 (Dkt. 41). Oral argument was deemed unnecessary. Based
on the following, Defendants' Request is GRANTED in part
and DENIED in part.
case, Defendants seek $8, 605 in expenses incurred in
connection with the filing of Defendants' December 20,
2015 motion granted by the court in the February 3, 2016
D&O. Defendants' request includes time for three
attorneys, including Beata Shapiro, a partner in Wilson
Elser, Defendants' attorneys, and a paralegal with Wilson
Elser's office located in Boston, Massachusetts who
worked on Defendants' motion. Dkt. 38 ¶¶ 2-4.
Specifically, Defendants claim 36 hours of work which
includes 33.5 hours for communications with Plaintiff's
attorney beginning in July 2015 to resolve the discovery
dispute, drafting Defendants' motion and supporting
memorandum of law with exhibits, a review of Plaintiff's
opposition papers, and 10.5 hours for Ms. Shapiro's
travel time and participation in oral argument on January 26,
2016 on Defendants' motion. Defendants' counsel's
billable hourly rate is $280; the paralegal rate is
$130/hour. Plaintiff's opposition argues Ms.
Shapiro's time to participate in oral argument on January
26, 2016 is unreasonable as Ms. Shapiro's presence was
required in Buffalo for Plaintiff's deposition the next
day. Dkt. 41 ¶ 53. Plaintiff also asserts the time,
19.9, for three attorneys in preparing Defendants' motion
which, according to Plaintiff, was not complex, is also
excessive. Id. ¶ 54. Plaintiff does not contest
the Defendants' claimed attorney hourly rate of
$280/hr. Instead, Plaintiff suggests a
reasonable time required to prepare Defendants' motion is
2-3 hours. Dkt. 41 ¶ 59.
basic in awarding expenses pursuant to Fed.R.Civ.P.
37(a)(5)(c) that courts shall determine a lodestar amount
consisting of the product of a reasonable hourly rate and a
reasonable amount of time expended on litigation of the
motion, plus reasonable expenses in producing the motion.
Scott-Iverson v. Independent Health Association,
Inc., 2016 WL 1457881, at *2 (W.D.N.Y. Apr. 14, 2016)
(citing Robbins & Myers, Inc. v. J.M. Huber
Corp., 2011 WL 5326259, at *2 (W.D.N.Y. Nov. 3, 2011)
(citing Millea v. Metro-North R. Co., 658 F.3d 154,
166 (2d Cir. 2011), and Hensley v. Eckerhart, 461
U.S. 424, 433 (1983))). Additionally, to avoid unnecessary
time and potential redundancy of work, courts may use a
“general across-the-board percentage reduction as a
‘practical means of trimming fat from the fee
application.'” Scott-Iverson, 2016 WL
1457881, at *2 (citing Romeo and Juliette Laser Hair
Removal, Inc. v. Assara, 2013 WL 3322249, at *3
(S.D.N.Y. July 3, 2012) (quoting Quarantino v. Tiffany
& Co., 166 F.3d 422, 425 (2d Cir. 1999))). Here, the
court finds Defendants' motion was not complex. Rather,
it primarily involved comparing Plaintiff's responses to
Defendants' outstanding interrogatories and document
requests. However, Plaintiff opposed the motion, inter
alia, on the ground that Defendants' request for
Plaintiff's medical records must be limited to
Plaintiff's body parts allegedly injured in the accident
which necessitated reply briefing by Defendants. See
Dkt. 21 at 4. Additionally, as Defendants do not dispute that
Ms. Shapiro was required to travel to Buffalo at that time to
conduct Plaintiffs' depositions the day following oral
argument, the court finds it would be unreasonable to award
Defendants the cost of Ms. Shapiro's travel time as
attributable to Defendants' motion and, as such, to avoid
a windfall to Defendants, Defendants' expenses should be
limited to 4.5 hours including the 1 ½ hours Mr.
Shapiro devoted to the oral argument. See Dkt. 22.
To avoid possible duplication and redundancy given that three
attorneys worked on Defendants' motions, the court
further reduces Defendants' Request for Defendants'
attorneys' time by 15% to 3.825 for Shapiro and 16.15 for
Jones and Zarriello. As noted, as Plaintiff does not dispute
the Wilson Elser attorney billing rate of $280/hour it is
unnecessary to address this issue except to note that such a
rate, while associated with the Boston legal market, is also
consistent with similar rates for experienced attorneys such
as Ms. Shapiro, a 2004 law school graduate and Wilson Elser
partner. See Scott-Iverson, 2016 WL 1457881, at *4
(approving $210/hr. billing rate for defendant's attorney
with 15 years experience as below market rate (citing
Langhorne v. Takhar Grp. Collection Services, Ltd.,
2016 WL 1177980, at *2 (W.D.N.Y. Mar. 24, 2016) ($300 per
hour reasonable for experienced attorney, $175 reasonable for
newer attorney))); Rich Products Corp. v. Bluemke,
2014 WL 860364, at *5 (W.D.N.Y. Mar. 4, 2014) ($245/hr.
billing rate for attorney with 15 years experience
reasonable). Plaintiff also does not contest Defendants'
request for one hour of legal research service in the amount
of $130 nor the 2.5 hours of paralegal time related to
preparation of exhibits. Thus, Defendants' Request in the
amount of $4, 785.50 (3.85 hours (for Shapiro) x $280 and
16.15 hours (for Jones and Zarriello) x $230) for
Defendants' reasonable attorneys fees, plus $455 for 3.5
hours of C. Brown paralegal assistance plus $135 for legal
research service equals $5, 375.50 should be granted. As
there is no indication in the record that Plaintiff's
failure to comply with the Defendants' outstanding
discovery requests upon which Defendants' motion was
based results from Plaintiff's conduct, the court finds
such failure, and thus the award of Defendants' Request,
should be assessed solely to Plaintiff's counsel.
See Rule 37(a)(5)(A).
on the foregoing, Defendants' Request is GRANTED in part,
and DENIED in part. Plaintiff's counsel shall pay
Defendants $5, 375.50 within 30 days of this
Decision and Order.
The court has determined based
on Defendants' Request the billable rate for the other
two attorneys who worked on this matter is $230 per hour and
will calculate the proper amount for ...