United States District Court, S.D. New York
ORDER REVIEWING REPORT AND RECOMMENDATION
S. ROMAN, United States District Judge.
case was referred to Magistrate Judge Lisa M. Smith ("MJ
Smith") for a Report and Recommendation
("R&R") on the award of attorneys' fees and
costs. In the R&R, dated August 3, 2017, MJ Smith
recommends that Plaintiff be awarded attorneys' fees in
the amount of $23, 189.77 and costs in the amount of $868.89,
for a total amount of $24, 057.69. (R. & R. (ECF No. 60)
16.) Plaintiff objects to the R&R on multiple bases,
including that MJ Smith erroneously applied an across the
board discount for legal services rendered. (pl's Obj. to
R. & R. (ECF No. 61) ¶ 4.) The Court adopts the
findings and conclusions of the R&R which Plaintiff has
not objected to on the basis that no clear error has been
shown. As to those portions of the R&R which Plaintiff
does object to, the Court conducts a de novo review
of MJ Smith's findings and conclusions. Based upon the
foregoing, the Court awards Plaintiff legal fees in the
amount of $24, 890.55 and costs in the amount of $868.89.
Daniel Verdier ("Plaintiff') commenced the instant
action against his former employer, Defendant Thalle
Construction Company, Inc. ("Defendant"), pursuant
to the Employee Retirement Income Security Act
("ERISA") Section 1132, 29 U.S.C. § 1132,
seeking to recover benefits due to him under a Deferred
Compensation Plan ("the Agreement"). (Am. Compl.
(ECF No. 17) Ex. A.) During the pendency of the litigation,
Defendant conceded liability. However, the parties could not
agree on the amount due to Plaintiff under the Agreement.
Plaintiff alleged he was owed $289, 900.00. Defendant alleged
Plaintiff was owed $123, 202.00. Thus, the only issue to be
determined was the amount of damages, inclusive of legal fees
and costs, if any, that should be awarded to Plaintiff.
motion practice, by Opinion and Order dated January 5, 2017,
this Court determined that Plaintiff was entitled to summary
judgment in the amount of $123, 202.00, which was the amount
Defendant claimed was owed and far less than the $289, 900.00
Plaintiff sought. (Mem. & Op. (ECF No. 44) 17.) This
Court also determined, upon weighing all relevant factors,
that Plaintiff was entitled to attorneys'
fees. By Order of Reference dated January 18,
2017, this matter was referred to MJ Smith for a
determination of reasonable attorneys' fees and costs.
(Order Referring Case to Magistrate Judge (ECF No. 46) 1.) On
August 3, 2017, MJ Smith issued the R&R granting
Plaintiff legal fees in the amount of $23, 189.77, plus costs
in the amount of $868.89.
reviewing the R&R of a magistrate judge, 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). A district court
"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).
In a de novo review, a district court must consider
the "[r]eport, the record, [and] applicable legal
authorities, along with Plaintiffs and Defendant's
objections and replies." Diaz v. Girdich, 2007
WL 187677, at * 1 (S.D.N.Y. Jan. 23, 2007) (internal
quotation marks and citations omitted). Objections must be
"specific and clearly aimed at particular findings"
in the R&R. Molefe v. KLMRoyal Dutch Airlines,
602 F.Supp.2d 485, 487 (S.D.N.Y. 2009).
accept those portions of the R&R to which no timely
objection has been made, however, a district court need only
satisfy itself that there is no clear error on the face of
the record. See, e.g., Wilds v. United Parcel Serv.,
Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003). The
"clearly erroneous" standard also applies when a
party makes only conclusory or general objections, or simply
reiterates his original arguments. See, e.g., Ortiz v.
Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008).
present case, the R&R advised the parties that they had
14 days from service of the R&R to file any objections,
and warned that failure to timely file such objections would
result in waiver of any right to object. In addition, it
expressly called the parties' attention to Fed.R.Civ.P.
72 and 28 U.S.C. § 636(b)(1). In accordance with the
statutes cited, Plaintiff filed a timely objection to the
R&R, dated August 17, 2017. Thus, the Court reviews the
R&R to determine whether there is "clear error on
the face of the record" as to those portions not
objected to, and conducts a de novo review only as
to those issues Plaintiff raised a "clear and
specific" objection to.
review of the R&R reveals that MJ Smith determined
Plaintiffs current counsel, Corbally, Gartland and Rappleyea,
LLP ("CG&R"), billed (1) $13, 530.00 for legal
services performed from the filing of Plaintiff s complaint
through August 2015, when Defendant conceded liability, (2)
$2, 000.00 for legal services provided in preparation of the
instant fee application, and (3) SI 5, 389 for legal fees
accumulated "litigating the amount owed under the
agreement." (R. & R. 9.) Thus, MJ Smith determined
that Plaintiff established entitlement to $30, 919.69
(excluding interest) in legal fees for services provide by
$30, 919.69 amount was based upon a $300.00 hourly rate as
charged by Allan Rappleyea, Esq. ("Rappleyea") and
Vincent DiBiase, Esq. ("DiBiase"), partners at
CG&R. (Id. 6.) Plaintiffs objection suggests
that MJ Smith reduced counsels' fees from a $425.00
hourly rate to a $300.00 hour rate. Such suggestion is
misleading and lacks merit. MJ Smith merely noted that in a
case of similar import, the court deemed a $425.00 hourly
rate reasonable for partners that had litigated an ERISA case
wherein their client prevailed. (Id.) See N.Y. Dist.
Council of Carpenters Pension Fund v. Perimeter Interiors,
Inc., 657 F.Supp.2d 410, 424 (S.D.N.Y. 2009). MJ Smith
similarly found that the rate at issue in this case was
reasonable. (R. & R. 6.) Likewise, this Court determines
de novo that the $300.00 hourly rate for services
provided by CG&R partners Rappleyea and DiBiase is
Smith determined that a 25% across the board reduction in
legal fees was warranted on the basis that Plaintiff
recovered far less the $289, 900.00 amount he originally
sought in his pleadings and throughout the litigation.
(Id. 9.) Plaintiff objects to this reduction,
arguing that it is not equitable. Under ERISA, an
attorneys' fees claimant must show some degree of success
on the merits before a court may award attorneys' fees
under the statute's general fee-shifting standard.
Hardt v. Reliance Standard Life Ins. Co., 560 U.S.
242, 255 (2010). In determining the amount ultimately to be
awarded, a court ordinarily considers the following five
factors: "(1) the degree of the offending party's
culpability or bad faith, (2) the ability of the offending
party to satisfy an award of attorney's fees, (3) whether
an award of fees would deter other persons from acting
similarly under like circumstances, (4) the relative merits
of the parties' positions, and (5) whether the action
conferred a common benefit on a group of pension plan
participants." Sheehan v. Metro. Life Ins. Co.,
450 F.Supp.2d 321, 325 (S.D.N.Y. 2006) (citing Chambless
v. Masters, Mates & Pilots Pension Plan, 815 F.2d
869, 871 (2d Cir. 1987)).
it is clear that Plaintiff achieved some measure of success,
he did not demonstrate entitlement to recovery of the full
amount he originally claimed he was due. When a plaintiff
achieves "only partial or limited success, " full
compensation for attorneys' fees may not be reasonable.
Sheehan,450 F.Supp. 2d. at 329 (citing Hensley
v. Eckerhart,461 U.S. 424, 436 (1983)). Under such
circumstances, courts are permitted to "reduce the award
to account for the limited success." Id.
(internal citations omitted); see also U.S. Football
League v. Nat'l Football League,887 F.2d 408, 414
(2d Cir. 1989) (internal citations omitted). The Court
determines that Plaintiff has demonstrated entitlement to