United States District Court, S.D. New York
DR. EUBULUS J. KERR III, Plaintiff/Petitioner,
JOHN THOMAS FINANCIAL et al., Defendants/Respondents.
MEMORANDUM OPINION & ORDER
KATHERINE B. FORREST United States District Judge.
Memorandum Opinion & Order resolves two motions in this
unnecessarily long-fought case. On September 19, 2016,
plaintiff moved to hold defendants in contempt of court. (ECF
No. 119.) On November 16, 2016, plaintiff moved for summary
judgment on his request for attorneys' fees and costs.
(ECF No. 212.) This Court referred these motions to the
Honorable Henry B. Pitman, who submitted Reports and
Recommendations on these motions on January 31, 2017, and
February 3, 2017, respectively. (ECF Nos. 235 (the
“Summary Judgment R&R”) and 239 (the
“Contempt R&R”).) Neither party objected to
the Contempt R&R; however, both parties objected to the
Summary Judgment R&R. (ECF Nos. 240, 241.)
reasons set forth below, the Court adopts the Contempt
R&R in full, adopts the Summary Judgment R&R with
slight modification, and enters judgment for the plaintiff in
the amount of $200, 297.02, to be satisfied by defendants in
full not later than Friday, May 5, 2017, at 5:00 p.m.
reviewing a Report and Recommendation, a district court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C). When specific
objections are made, “[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3); see also United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir.1997).
The Reports and Recommendations
Pitman issued the Contempt R&R on February 3, 2017. (ECF
No. 239.) Neither party has objected. Therefore, the Court
adopts the Contempt R&R in full and enters judgment for
defendants on plaintiff's motion at ECF No. 119.
See Fed.R.Civ.P. 72(b)(2).
January 31, 2017, Judge Pitman issued the Summary Judgment
R&R on plaintiff's motion for $241, 683.02 in
attorneys' fees and costs. (ECF No. 235.) Judge Pitman
agreed with plaintiff that the language of the parties'
release agreement unambiguously provides for the shifting of
costs and fees “[i]n the event of any judicial or
arbitral proceeding to enforce or collect upon the Award
or any judgment thereupon” without
qualification, and that this provision was not waived.
(Id. at 16-18.)
the Summary Judgment R&R concluded that due to inadequate
record-keeping and the inclusion of time spent seeking
attorneys' fees, the amount requested by plaintiff was
unreasonable. Judge Pitman applied New York law to determine
the proper award, explaining that the reasonableness of a
request for attorneys' fees and costs arising under a
contract “can be measured by the standards that are
used to evaluate fee awards under statutory provisions
directing the court to award a ‘reasonable'
attorney's fee.” Sidley Holding Corp. v.
Ruderman, No. 08-cv-2513, 2009 WL 6047187, at *16
(S.D.N.Y. Dec. 30, 2009) (citing fee-shifting provisions
under 42 U.S.C. § 1988(b) and 11 U.S.C. § 330). To
determine a presumptively reasonable fee award, Judge Pitman
applied the lodestar method, in which a court multiplies the
hours reasonably spent by counsel on the matter by an hourly
rate appropriate in the relevant community. See Blum v.
Stenson, 465 U.S. 886, 895 n.11 (1984); McDaniel v.
Cnty. of Schenectady, 595 F.3d 411, 414 (2d Cir. 2010).
To enable a court to determine the lodestar
multipliers-first, the amount of time spent and how much of
that time was reasonable, and second, what rate is
appropriate for the relevant attorney-New York law requires
that a “fee application . . . be supported by
contemporaneous time records that ‘specify, for each
attorney, the date, the hours expended, and the nature of the
work done.'” Watson v. E.S. Sutton, Inc.,
No. 02-cv-2739, 2006 WL 6570643, at *3 (S.D.N.Y. Aug. 11,
2006) (quoting N.Y. State Ass'n for Retarded Children
v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)),
adopted as modified, 2007 WL 2245432 (S.D.N.Y. Aug.
3, 2007). “[W]here adequate contemporaneous records
have not been kept, the court should not award the full
amount requested.” F.H. Krear & Co. v. Nineteen
Named Trustees, 810 F.2d 1250, 1265 (2d Cir. 1987)
(citing decisions of New York courts in which fee requests
were reduced due to inadequate records of work performed).
Additionally, Judge Pitman explained that, under New York
law, “a general contract provision for the shifting of
attorneys' fees does not authorize an award of fees for
time spent in seeking the fees themselves.”
Id. at 1266.
this framework, Judge Pitman reviewed plaintiff's
counsel's submissions in support of the fee request and
found the amount unreasonable due to duplicative staffing,
vague time entries, block billing, and the inclusion of time
spent on collection of the fees themselves. Judge Pitman
observed that there were significant instances of duplication
or excessive staffing, such as three attorneys attending a
deposition or a conference; that under New York precedents,
plaintiff's counsel's time entries for activities
such as “calls, ” “filing, ” and
“[r]esearch, prep work” were sufficiently vague
to justify a reduction in fees; and that block billing by
plaintiff's counsel made it difficult to evaluate the
reasonableness of time spent on individual tasks. (ECF No.
325 at 20-25; see also, e.g., Kirsch v. Fleet
Street, Ltd., 148 F.3d 149, 179 (2d Cir. 1998)
(“[W]e see no abuse of discretion in . . . the 20%
reduction for vagueness, inconsistencies, and other
deficiencies in the billing records.”); Ng. v. King
Henry Realty, Inc., 16-cv-13, 2016 WL 6084074, at *7
(S.D.N.Y. Oct. 7, 2016) (“[C]ourts in this district
have generally frowned upon awarding fees to more than two
attorneys for court appearances unless the case is uniquely
complex.”); LV v. N.Y.C. Dep't of Educ.,
700 F.Supp.2d 510, 525 (S.D.N.Y. 2010)
(“[B]lock-billing . . . can make it exceedingly
difficult for courts to assess the reasonableness of the
Pitman subtracted the amount of fees attributable to the
collection of fees themselves ($9, 645) from the $216, 575
sought. (ECF No. 325 at 26-27; F.H. Krear, 810 F.2d
at 1266 (“[A] general contract provision for the
shifting of attorney's fees does not authorize an award
of fees for time spent in seeking the fees
themselves.”). Judge Pitman then reduced the remainder
by 20%: by 15% to account for redundant staffing, and by 5%
to account for block billing and vague time entries. The
Summary Judgment R&R therefore recommends the award of
$165, 544 in attorneys' fees and $41, 386 in costs for a
total of $190, 652.02.
objected to the Summary Judgment R&R on February 14,
2017, arguing that the Summary Judgment R&R “failed
to consider the fact that [the fees sought] are in addition
to the contingency fees” earned by plaintiff's
counsel and “the excessive, redundant and otherwise
unnecessary billing” by plaintiff's counsel; and
that plaintiff waived claims to costs. (ECF No. 240.) These
objections simply restate the same arguments defendants made
in their original opposition to the motion; indeed,
defendants' objection specifically “refers to the
Memorandum of Law submitted to the Magistrate in support of
these objections.” (ECF No. 240 at 1.) The Court finds
that defendants' pro forma objection letter
“simply reiterate[s] arguments considered and
rejected” in the Summary Judgment R&R and therefore
will be reviewed only for “clear error.” See
Jones v. Smith, No. 09-cv-6497, 2012 WL 1592190, at *1
(S.D.N.Y. Ma 7, 2012).
General Release Agreement unambiguously provided for recovery
of attorneys' fees “[i]ncurred in the event of any
judicial or arbitral proceeding . . . to enforce or collect
upon the [Arbitration] Award or any judgment
thereupon.” (ECF No. 151, Ex. G ¶ 4.) This is in
addition to any contingency fee earned by plaintiff's
counsel for representing plaintiff in the award proceeding.
The plain text of the agreement therefore provides for
granting of attorneys' fees incurred during all
post-award collection efforts, including the extensive
litigation before this ...