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Vaigasi v. Solow Management Corp.

United States District Court, S.D. New York

September 5, 2017

PEDIO VAIGASI, Plaintiff,
v.
SOLOW MANAGEMENT CORP., et al., Defendants.

          OPINION AND ORDER

          HENRY PITMAN, United States Magistrate Judge

         I. Introduction

         By Opinion and Order dated February 16, 2016 (D.I. 302 ("Opinion and Order")), I imposed sanctions on plaintiff as a result of his misconduct during discovery and his failure to comply with at least two discovery orders. I ordered, in part, that plaintiff was required to pay the reasonable attorneys' fees defendants incurred in addressing the motions resolved in the Opinion and Order; those motions were plaintiff's motion to compel and defendants' motions for a protective order and for sanctions. I ordered defendants to submit an affidavit or affirmation, accompanied by contemporaneous time records, establishing the legal fees they incurred in addressing the motions resolved by the Opinion and Order and in opposing plaintiff's motion to compel. Defendants have made the required submissions. For the reasons set forth below, defendants are entitled to recover attorneys' fees in the amount of $61, 605.25.

         II. Facts

         The facts that give rise to this action and the discovery dispute that led to the instant application are set forth in detail in the Opinion and Order. I recite the facts here only to the extent necessary for an understanding of the dispute before me.

         In 2015, the parties filed three pertinent discovery motions. First, plaintiff moved to compel defendants to produce documents and electronically stored information in response to his second request for the production of documents ("Second Request for Documents"). Second, defendants moved for a protective order relieving defendants of the obligation of responding to plaintiff's Second Request for Documents and notice of depositions. Third, defendants moved for sanctions.

         In my Opinion and Order, I denied plaintiff's motion to compel. The motion suffered from numerous procedural defects, including a failure to meet and confer with defendants in good faith (Opinion and Order, at 25-30). Additionally, the underlying document requests were irrelevant, disproportionate to the claims remaining in the case, overbroad and unduly burdensome (Opinion and Order, at 30-44). Moreover, plaintiff offered nothing to support his contention that defendants' document production was incomplete other than his personal opinion that there had to be additional non-privileged documents (Opinion and Order, at 44-45). Relatedly, I granted defendants' motion for a protective order relieving them of the obligation of responding to plaintiffs' Second Request for Documents (Opinion and Order, at 45).

         I also granted in part defendants' motion for a protective order with respect to a notice of depositions that plaintiff served, seeking the depositions of ten individuals on the same day. Balancing plaintiff's conduct, on the one hand, and defendants' factual showing and the policy in this Circuit of resolving litigation on the merits, on the other hand, I ordered that within 30 days of the date of the Opinion and Order, plaintiff could conduct the depositions of two witnesses of his choice (other than Sheldon or Stefan Solow), each deposition to be limited to a maximum of four hours (Opinion and Order, at 45-50). I also conditionally granted a protective order precluding the depositions of Sheldon and Stefan Solow, provided that defendants submitted affidavits or declarations from the Solows confirming their positions in Solow Management Corp., Solow Realty & Devel- opment Company LLC and their related entities and confirming that they had no knowledge concerning the events underlying plaintiff's claims apart from what they may have learned from counsel (Opinion and Order, at 49-50) .

         Finally, I granted defendants' motion for sanctions. First, I found that plaintiff's Second Request for Documents was unquestionably prepared and served in bad faith and in a conscious effort to impose an unreasonable burden on defendants (Opinion and Order, at 56-59). Second, I found that plaintiff violated at least two of my discovery orders (Opinion and Order, at 60-61). Third, I found that plaintiff engaged in other obstructive behavior throughout the course of the litigation and that the behavior was "so far beyond the bounds of reason, that the inference of plaintiff's bad faith [was] overwhelming" (Opinion and Order, at 61-63). Accordingly, balancing the relevant factors in determining an appropriate sanction, I concluded, inter alia, that plaintiff was required to pay the reasonable attorneys' fees defendants incurred in addressing the motions resolved in the Opinion and Order (Opinion and Order, at 72) .

         Defendants timely submitted a declaration and contemporaneous time records establishing the legal fees they incurred in preparing the motions resolved by the Opinion and Order and in opposing plaintiff's motion to compel; they seek attorneys' fees in the total amount of $114, 025.00 (Declaration of Melissa D. Hill, Esq., dated Mar. 1, 2016 ("Hill Decl.") ¶ 6).

         Plaintiff was required to submit any response or opposition to the amount of fees sought by defendants within 14 days of defendants' submission (Opinion and Order, at 72) . Plaintiff requested an extension of time to comply with the Opinion and Order, and I granted him until April 18, 2016 to submit his response or opposition (Endorsement, dated Mar. 7, 2016 (D.I. 308)). Approximately two weeks later, plaintiff requested another extension of time, which I denied for lack of good cause shown (Order, dated Mar. 21, 2016 (D.I. 312)). It was not until May 25, 2016, more than a month late, that plaintiff filed his response to the amount of fees defendants sought. Plaintiff also submitted a declaration from Steven A. Morelli, an attorney whom plaintiff had newly retained.[1]

         Ill. Analysis

         A. Applicable Principles

         Whether an attorneys' fee award is reasonable is within the discretion of the court. Melgadeio v. S & D Fruits & Vegetables Inc., 12 Civ. 6852 (RA)(HBP), 2015 WL 10353140 at *23 (S.D.N.Y. Oct. 23, 2015) (Pitman, M.J.) (Report & Recommendation), adopted by, 2016 WL 554843 (S.D.N.Y. Feb. 9, 2016) (Abram-s, D.J.). The party seeking fees bears the burden of establishing that the hourly rates and the number of hours for which compensation is sought are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); accord Cruz v. Local Union No. 3 of Int'1 Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994).

         In determining the amount of reasonable attorneys' fees, "[b]oth [the Second Circuit] and the Supreme Court have held that 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.R. Co., 658 F.3d 154, 166 (2d Cir. 2011), quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 183 (2d Cir. 2008). The hourly rates used in determining a fee award should be "what a reasonable, paying client would be willing to pay." Arbor Hill Concerned Citizens NeighborhoodAss'n v. County of Albany, supra, 522 F.3d at 184. This rate should be "in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895 n.ll (1984). "[C]ourts should generally use 'the hourly rates employed in the district in which the reviewing court sits' in calculating the presumptively reasonable fee." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, supra, 522 F.3d at 192, quoting In re "Agent Orange" ...


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