Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Verdier v. Thalle Construction Company, Inc.

United States District Court, S.D. New York

March 1, 2018



          NELSON S. ROMAN, United States District Judge.

         This 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.


         Plaintiff 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.[1] 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.

         Following 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.[2] 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.


         In 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).

         To 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).

         In the 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.[3] 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.


         A 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 CG&R.

         The $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 reasonable.

         MJ 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)).

         While 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.