Cabala v. Morris
ORDER granting 76 Motion for Attorney Fees. See attached memorandum of decision. The Court awards $32,489.29 including both fees and costs. Signed by Judge Vanessa L. Bryant on 8/24/2012. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOEL J. CABALA,
CIVIL ACTION NO.
August 24, 2012
MEMORANDUM OF DECISION GRANTING PLAINTIFF’S MOTION FOR
ATTORNEY’S FEE [Dkt. #76]
Before the Court is Plaintiff’s, Joel J. Cabala’s (“Cabala”) renewed motion
for attorney’s fees. Defendant Benjamin Morris1 has opposed Plaintiff’s request
for attorney’s fees arguing that Plaintiff’s attorney, Joanne Faulkner, repeatedly
rejected Defendant’s offers of settlement in bad faith. For the foregoing reasons,
the Court grants Plaintiff’s motion for attorney’s fee.
Plaintiff commenced this action under the Fair Debt Collection Practices
Act (“FDCPA”) on April 21, 2009. [Dkt. #1]. On September 9, 2010, the parties
jointly filed a stipulation for judgment requesting the Court to enter judgment in
favor of Plaintiff for $1,001 in damages. The stipulation indicated that the parties
agreed that costs and attorney’s fees were to be decided by the Court upon
During the pendency of this action, Defendant Benjamin Morris passed
away and the Court has substituted his fiduciaries Kim A. Morris and
Timothy W. Crowley as Defendants in the action. See [Dkt. ##82,83,84,85].
As the briefing pending before the court was submitted prior to Defendant
Morris’s death, the Court will still refer to Defendant Morris in this decision
for the convenience of the parties and the Court.
application. [Dkt. #54]. On September 15, 2010, Plaintiff moved for attorney’s
fees in the amount of $21,665 at $350 per hour plus costs of $869.82. [Dkt. #57, p.
On October 6, 2010, Defendant opposed Plaintiff’s fee application on the
basis that many of the fees sought were incurred after Defendant repeatedly
offered to settle this matter at its inception for all attorney fees and costs incurred
to the date of the settlement offers which were repeatedly rejected by Plaintiff’s
counsel. [Dkt. # 63]. Defendant indicated that Plaintiff’s counsel, Attorney
Joanne Faulkner, repeatedly refused to provide copies of her fee runs or invoices
“claiming that the defendant was not entitled to an accounting of her ‘privileged
fees’ until she filed a fee application.” Id.
On October 18, 2010, Plaintiff responded arguing that a party’s declining
settlement offers should not operate to reduce an otherwise appropriate fee
award under Second Circuit precedent. [Dkt. #65. p.3] (citing Ortiz v. Regan, 980
F.2d 138, 140-141 (2d Cir. 1992)). In Ortiz, the Second Circuit held that “absent a
showing of bad faith, ‘a party declining settlement offers should [not] operate to
reduce an otherwise appropriate fee award.’’’ Id. (quoting Cowan v. Prudential
Ins. Co. of America, 728 F.Supp. 87, 92 (D. Conn. 1990)). In addition, Plaintiff
pointed out that Defendant could have made a formal offer of judgment pursuant
to Federal Rule of Civil Procedure 68 but chose not to. Rule 68 “permits a party
defending against a claim to make a settlement offer and thereby avoid any
liability for costs, including attorney's fees, incurred after the making of the
offer.” Id. at 141. Plaintiff emphasized that if Defendant had made an offer of
judgment he could have then moved to dismiss the action for lack of jurisdiction
as an offer of judgment at the maximum amount of damages in an FDCPA action
would render the action moot as there would no longer be a justiciable case or
controversy. [Dkt. #65. p.2-3]; See also Murphy v. Equifax Check Servs., Inc., 35
F.Supp.2d 200 (D. Conn. 1999).
On October 5, Defendant filed a supplemental response opposing Plaintiff’s
fee application. [Dkt. #71]. Defendant additionally argued that Attorney Faulkner
did not lawfully represent Mr. Cabala in this action, did not communicate or
consult with Mr. Cabala during the litigation, and unreasonably prosecuted the
action in a manner to prolong litigation and incur unnecessary attorney’s fees.
On August 23, 2011, the Court denied Plaintiff’s motion for attorney’s fees
without prejudice to renewing addressing whether the Plaintiff’s refusal to settle
was in bad faith. [Dkt. ##75,80]. The Court further noted that Defendant's
argument that Attorney Faulkner did not lawfully represent Plaintiff in this action
was unpersuasive on the basis of Attorney Faulkner's association with Attorney
Pinskey. Id. On September 6, 2011, Plaintiff renewed his motion for attorney’s
fee which is currently before the Court. [Dkt. #76].
The Court has reviewed the correspondence regarding settlement between
Plaintiff’s counsel, Joanne Faulkner, and Defendant’s counsel, David Rubin,
submitted in connection with the parties’ briefing. See [Dkt. #77, Exs. A-N]. In
that correspondence, Attorney Rubin indicated that his client was offering to pay
Plaintiff the maximum statutory fine of $1,000.00 without any admission of guilt or
wrongdoing and to have the Court hold a hearing on Plaintiff’s attorney’s fees.
[Dkt. #77, Ex. N]. Attorney Rubin indicated that his client did not want to have a
judgment entered against him. [Dkt. #77. Ex. C].
Attorney Faulkner responded that it was her belief that the Court can’t
determine fees without a finding or admission of violation in an FDCPA case and
that the only way she can settle an FDCPA case is either a judgment plus fee
application or a lump sum which includes attorney’s fees costs and a withdrawal.
[Dkt. #77, Ex. D]. Attorney Rubin repeatedly requested that Attorney Faulkner
provide him with her billing records to determine the amount of fees his client
was willing to pay and to evaluate settlement. [Dkt. #77, Exs. E, F, H, I]. Attorney
Faulkner informed Attorney Rubin that he could see her “privileged legal bills”
when she applied for a fee award. [Dkt. #77, Ex. E]. Attorney Rubin emphasized
that he needed a settlement agreement that stated no admission of liability and
noted that Attorney Faulkner’s fees were not privileged. [Dkt. #77, Ex. F].
Attorney Faulkner repeatedly informed Attorney Rubin that if his client stipulated
to judgment she would apply for fees and costs to the Court. [Dkt. #77, Exs. J, L].
The correspondence also suggests that counsel were discussing resolution of
multiple claims none of which had ripened into a lawsuit.
A. Plaintiff’s rejection of Defendant’s offers of settlement
Defendant has argued that Plaintiff’s counsel, Attorney Faulkner, has
exhibited bad faith in declining his offers of settlement by repeatedly refusing to
produce her fee records and inflating her fee run. Defendant further argues that
Attorney Faulkner has pursued her own interest in accruing additional attorney’s
fees by refusing to agree to the proposed settlement at the maximum amount of
damages recoverable. Defendant contends that once he made an offer of the
maximum amount of damages recoverable under the FDCPA, the Plaintiff no
longer had a personal stake in the outcome of the litigation for purposes of
meeting the case-or-controversy requirement of Article III. See Murphy, 35
F.Supp.2d at 204. Defendant reasons that once the Plaintiff no longer had a
personal stake, Attorney Faulkner’s continued prosecution of Plaintiff’s claim
amounted to Attorney Faulkner impermissibly pursuing her own interest in
accruing attorney’s fees resulting in an inappropriate acquisition of a proprietary
interest in the cause of action or subject matter of litigation in violation of
Connecticut Rule of Professional Conduct 1.8.2 Defendant also takes issue with
Attorney Faulkner’s unusual retainer agreement and makes several arguments
regarding Attorney Faulkner’s lack of communication with Plaintiff which this
Court already held were unpersuasive in light of Attorney Faulkner’s association
with Attorney Pinskey who communicated with Plaintiff. Defendant argues on the
basis of the Second Circuit’s decision in Ortiz v. Regan that since Plaintiff’s
counsel’s rejection of settlement was in bad faith that should operate to reduce
the fee award.
First, the Court is not persuaded that Ortiz is applicable to the facts of the
present case where the maximum amount of recoverable damages had been
The Connecticut Rules of Professional Conduct have been adopted in this
District pursuant to Local Rule 83.2. See Local Rule 83.2 (“this Court
recognizes the authority of the ‘Rules of Professional Conduct,’ as
approved by the Judges of the Connecticut Superior Court as expressing
the standards of professional conduct expected of lawyers practicing in the
District of Connecticut.”).
offered. In Ortiz, the Second Circuit explicitly held that the offer made by
defendants to hold a post-deprivation hearing was not all the relief that Plaintiff
was entitled to as “more was at stake here than the post-deprivation hearing
offered.” Ortiz, 980 F.2d at 140. Consequently, the Court will examine the
reasonableness of Attorney Faulkner’s requested fees in light of her rejection of
Defendant’s offers of settlement pursuant to its authority and discretion to
determine a presumptively reasonable fee. See Arbor Hill Concerned Citizens
Neighborhood Ass'n v. County of Albany, 522 F.3d 182 (2d Cir.2008).
It is apparent that Attorney Faulkner declined to accept the proposed
settlement offers based on her belief that her attorney records were privileged
and that attorney’s fee were not recoverable absent an entry of judgment.
However, neither of these two reasons is founded in law. First, it is well
established that “absent special circumstances, client identity and fee
information are not privileged.” In re Grand Jury Subpoena Served Upon Doe,
781 F.2d 238, 247 (2d Cir. 1986); Bank Hapoalim, B.M. v. American Home Assur.
Co., No.92CIV.3561(KMW), 1993 WL 37506, at *5 (S.D.N.Y. Feb. 8, 1993)
(“Documents regarding payment of fees, billing, and time expended are generally
subject to discovery.”); Duttle v. Bandler & Kass, 127 F.R.D. 46, 52 (S.D.N.Y. 1989)
(“Attorneys' bills and communications regarding retainer agreements are not
privileged.”). Moreover, to the extent that Attorney Faulkner’s billing records did
contain any privileged material, Attorney Faulkner could have redacted that
portion of the record. See Sidley Holding Corp. v. Ruderman,
No.08Civ.2513(WHP)(MHD), 2009 WL 6047187, at *24 (S.D.N.Y. Dec. 30, 2009)
(“Courts in this circuit have awarded attorneys' fees despite the redaction of
privileged information in attorneys' contemporaneous time records.”).
Second, Attorney Faulkner has argued that the Supreme Court’s decision
in Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health & Human
Res., 532 U.S. 598, 121 S. Ct. 1835 (2001) requires that there be an admission of
liability in order for the plaintiff to be considered the “prevailing party” – which is
a necessary prerequisite to this Court’s jurisdiction to award attorney’s fees.
However it is well established that parties can contract to permit the recovery of
attorney’s fees under the American Rule. See, e.g., U.S. Fidelity and Guar. Co. v.
Braspetro Oil Servs. Co., 369 F.3d 34, 74 (2d Cir. 2004) (holding that under the
American Rule, it is well established that attorney’s fee are “not ordinarily
recoverable in the absence of statute or enforceable contract providing thereof”
but that “parties may agree by contract to permit recovery of attorneys’ fees, and
a federal court will enforce contractual rights to attorneys’ fees if the contract is
valid under applicable state law.”); Aspex Eyewear, Inc. v. Cheuk Ho Optical
Intern. Ltd., No.00Civ.2389(RMB)(HBP), 2008 WL 4549118, at *3 (S.D.N.Y. Oct. 8,
2008) (awarding attorney’s fees contractual provided for in a settlement
agreement); Home Funding Group, LLC v. Kochmann, No.3:06CV1234(HBF), 2008
WL 4298325, at *4 (D. Conn. Sept. 18, 2008) (acknowledging that Connecticut
follows the common law American Rule and that under the rule a “‘successful
litigant is entitled to an award of attorney’s fees if they are provided by contract’”)
(quoting Jones v. Ippoliti, 52 Conn.App. 451, 457-58 (2006)). Here, Defendant was
offering to execute a settlement agreement that would have contractually
provided for attorney’s fees and therefore the Court would have had the authority
to entertain Attorney Faulkner’s fee application even absent an admission of
liability on the part of Defendant.
Although the Court agrees that Attorney Faulkner’s reasons for not
providing her fee records and her insistence on obtaining a finding or admission
of liability were not founded in law, it is apparent from the Court’s review of the
correspondence between Attorney Faulkner and Attorney Rubin that Plaintiff’s
rejection of Defendant’s offers of settlement was not unreasonable. Despite
Attorney Faulkner’s refusal to provide Attorney Rubin her fee records, she
demonstrated a willingness to have the Court determine reasonable attorney’s
fees should the Defendant file an offer or stipulation of judgment throughout the
course of the litigation. See [Dkt. #77, Exs. D, J, L]. Indeed, Defendant eventually
did just that and filed a stipulation for judgment with attorney’s fee and costs to
be decided by the Court upon application. See [Dkt. #54]. Therefore Defendant’s
insistence on settling the matter without any admission of liability significantly
contributed to the delay in the resolution of this case and the accrual of
additional attorney’s fees.
Consequently, Attorney Faulkner’s conduct was not the sole or perhaps
even the principal cause of the delay in the resolution of the matter and the
accrual of additional attorney’s fees as Defendant contends. The
correspondence between Attorney Rubin and Attorney Faulkner demonstrates
that the parties had a legitimate dispute as to the nature and form of settlement
and therefore Plaintiff’s rejection of Defendant’s settlement offers was not
unreasonable. Since the parties’ dispute as to the terms of settlement was
sincere, the rejection of the settlement offers in the instant case is not an
appropriate basis to reduce the fee award. Moreover, since the dispute was
sincere, the Court cannot conclude that Attorney Faulkner was simply pursuing
her own pecuniary interest in accruing additional attorney’s fees or had acquired
a proprietary interest in the subject matter of the litigation as Defendant
The availability of Rule 68 gives additional weight to this conclusion. As
Attorney Faulkner repeatedly pointed out, Defendant could have made a formal
offer of judgment at the inception of this lawsuit thereby avoiding any liability for
costs, including attorney’s fee, incurred after the offer was made. Instead,
Defendant made the decision to continue to try to negotiate a settlement without
admission of liability which had the effect of prolonging the litigation and
increasing Plaintiff’s attorney’s fees. Attorney Faulkner’s refusal to facilitate the
Defendant’s strategic objective of avoiding having a judgment rendered against it
is not bad faith.
In addition, the Court does not find that Attorney Faulkner unreasonably
inflated her fee run as Defendant contends. Defendant argues that on April 29,
2010, Attorney Faulkner made a lump sum settlement offer of $3,350 which was
inflated by over 30% of actual costs, fees and damages. According to Attorney
Faulkner’s fee run, the attorney’s fees accrued by April 29 were $1,242 with $350
in costs. The statutory maximum of $1,000 in damages added to the actual fees
and costs Attorney Faulkner incurred as of that date totals $2,592. Therefore
Attorney Faulkner’s offer of $3,350 included $758 in fees not yet incurred.
Considering that Attorney Faulkner has applied for an hourly rate of $350, her
April 29 offer included approximately two extra hours worth of work on the
matter. The Court does find the fact that Attorney Faulkner included two to three
additional hours into her request to be unreasonable in light of the fact that it
would likely take her those additional hours to draft a release and close out the
case. The Court therefore does not find the inclusion of additional fees
representing a couple hours of work needed to close out the case after settlement
into a fee estimate unreasonable.
Lastly, although Defendant takes issue with Attorney Faulkner’s unusual
retainer agreement which has been the subject of past scrutiny by other courts in
this district, it is clear that Attorney Faulkner’s retainer agreement did not
contribute to the unreasonable accrual of fees in the instant matter. As noted
above, from the outset Attorney Faulkner indicated her willingness to submit her
fees to the Court upon an offer or stipulation of judgment. Consequently, the
Court does not find that Attorney Faulkner’s retainer agreement in this instant
matter led Attorney Faulkner to unreasonably pursue her own economic interest
in the matter.
In sum, the Court is not persuaded that Attorney Faulkner’s conduct in
failing to provide her fee records and insisting on an offer or stipulation of
judgment resulted in the accrual of unreasonable fees which warrant a reduction
in the fee award in view of the fact that Attorney Rubin insisted on negotiating a
settlement without admission of liability and failed to take advantage of Rule 68 to
cut off the further accumulation of attorney’s fee in the matter. The Court will
now examine Attorney Faulkner’s fee affidavits to determine presumptively
B. Presumptively Reasonable Fee Analysis
In a successful action pursuant to the FDCPA, a debt collector is liable to
the plaintiff for “the costs of the action, together with a reasonable attorney's fee
as determined by the court.” 15 U.S.C. § 1692k(a)(3). “To determine reasonable
attorneys' fees, the Second Circuit has historically implemented the lodestar
method of examining the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Silver v. Law Offices Howard Lee Schiff,
P.C., No.3:09cv912(PCD), 2010 WL 5140851, at *1 (D.Conn. Dec. 15, 2010) (internal
quotation marks and citation omitted). “However, in a recent decision, the court
determined that ‘[t]he meaning of the term ‘lodestar’ has shifted over time, and its
value as a metaphor has deteriorated to the point of unhelpfulness.’” Id. (quoting
Arbor Hill, 522 F.3d 182). “In place of the lodestar method, the court used the
‘presumptively reasonable fee’ standard.” Id.
The Second Circuit has noted that “[w]hile the Arbor Hill panel indicated its
preference for abandonment of the term ‘lodestar’ altogether, the approach
adopted in that case is nonetheless a derivative of the lodestar method.”
McDaniel v. County of Schenectady, 595 F.3d 411, 417 N.2 (2d Cir. 2010). In Arbor
Hill, the Second Circuit instructed that:
[T]he better course – and the one most consistent with attorney's
fees jurisprudence – is for the district court, in exercising its
considerable discretion, to bear in mind all of the case-specific
variables that we and other courts have identified as relevant to the
reasonableness of attorney's fees in setting a reasonable hourly rate.
The reasonable hourly rate is the rate a paying client would be
willing to pay. In determining what rate a paying client would be
willing to pay, the district court should consider, among others, the
Johnson factors; it should also bear in mind that a reasonable,
paying client wishes to spend the minimum necessary to litigate the
case effectively. The district court should also consider that such an
individual might be able to negotiate with his or her attorneys, using
their desire to obtain the reputational benefits that might accrue from
being associated with the case. The district court should then use
that reasonable hourly rate to calculate what can properly be termed
the “presumptively reasonable fee.”
Arbor Hill, 522 F.3d at 190.
Consequently, courts have described the “presumptively reasonable
fee” analysis as a “process” that is “really a four-step one, as the court
must: ‘(1) determine the reasonable hourly rate; (2) determine the number
of hours reasonably expended; (3) multiply the two to calculate the
presumptively reasonable fee; and (4) make any appropriate adjustments to
arrive at the final fee award.’” Vereen v. Siegler, No.3:07CV1898, 2011 WL
2457534, at *1 (D. Conn. June 16, 2011) (quoting Adorno v. Port Authority of
New York and New Jersey, 685 F.Supp.2d 507, 510 (S.D.N.Y. 2010)). Here,
Attorney Faulkner seeks an award in the amount of $32,489.29 in fees and
costs for 89.61 hours at a $350 hourly rate.
Reasonable Hourly Rate
In Arbor Hill, the Second Circuit indicated the relevant factors in
determining the reasonable hourly rate were articulated in Johnson v.
Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974):
(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the level of skill required to perform the legal service
properly; (4) the preclusion of employment by the attorney due to
acceptance of the case; (5) the attorney's customary hourly rate; (6)
whether the fee is fixed or contingent; (7) the time limitations imposed by
the client or the circumstances; (8) the amount involved in the case and the
results obtained; (9) the experience, reputation, and ability of the attorneys;
(10) the “undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases.
Johnson, 488 F.2d 717-19.
Reasonable hourly rates “are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill,
experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 (1984).
“[C]urrent rates, rather than historical rates, should be applied in order to
compensate for the delay in payment.” LeBlanc-Sternberg v. Fletcher, 143
F.3d 748, 764 (2d Cir. 1998). The determination of a prevailing rate requires
a ‘case-specific inquiry into the prevailing market rates for counsel of
similar experience and skill to the fee applicant's counsel.’” M.K. ex rel. K.
v. Sergi, 578 F.Supp.2d 425, 427 (D. Conn. 2008) (quoting Farbotko v.
Clinton County of New York, 433 F.3d 204, 209 (2d Cir. 2005)).
Attorney Faulkner has requested a rate of $350 per hour which is
consistent with the rate Attorney Faulkner has been awarded in past
FDCPA cases in this district. See Silver, 2010 WL 5140851, at *2 (finding
that $350 is Attorney’s Faulkner’s “customary hourly rate and the same
hourly fee awarded to her in similar cases.”); Ellis v. Solomon & Solomon,
P.C., No.3:05-cv1623(JBA), 2009 WL 3418231, at *2 (D. Conn. Oct. 20, 2009)
(finding that Attorney Faulkner’s hourly rate of $350 is “well within the
range of comparable attorney billing rates attested to by counsel and
independently known to the Court from fee applications”); Cooper v. Ellis
Crosby & Assocs., Inc., No.3:05cv1467(MRK), 2007 WL 1322380, at *3 n.3
(D. Conn. May 2, 2007) (approving Attorney Faulkner’s hourly rate of $350
based on the Court’s review of awards to counsel with similar experience
and based on the Court’s familiarity with prevailing rates in Connecticut.).
Moreover, Defendant conceded in his opposition to Plaintiff’s first motion
for attorney’s fees that he does not object to the proposed hourly rate.
[Dkt. #62, p. 3]. Consequently, Attorney Faulkner’s requested hourly rate of
$350 is in line with prevailing rates and her customary hourly rate.
Reasonableness of time spent
“The task of determining a fair fee requires a conscientious and
detailed inquiry into the validity of the representations that a certain
number of hours were usefully and reasonably expended.” Lunday v. City
of Albany, 42 F.3d 131, 134 (2d Cir. 1994). Here Attorney Faulkner has
submitted billing records for 89.61 hours of work. See [Dkt. ## 57, 76].
Attorney Faulkner’s fee affidavits contain sufficiently specific and detailed
time records indicating the nature and relevance of the work performed
which evince a high degree of efficiency. Id.
Defendant generally objects to the amount of time spent by Attorney
Faulkner drafting certain motions and documents in light of her substantial
experience in prosecuting FDCPA actions. See [Dkt. #62, p. 20-22].
Defendant contends that it is improper to demand $2,000 for drafting a nine
paragraph one page form complaint. Id. Defendant further argues without
citation to any caselaw or authority that Attorney Faulkner is not entitled to
fees related to work or arguments that were subsequently abandoned by
the plaintiff and points to the entries on September 21, 2009 and October
19, 2009 in connection with a motion for a protective order that Attorney
Faulkner filed and then subsequently withdrew. Id.
Contrary to Defendant’s contentions, it does not appear after a
review of Attorney Faulkner’s fee records that they include excessive,
redundant or otherwise unnecessary hours.
For example, Attorney
Faulkner billed 6.25 hours to research, prepare and draft an eight page
motion for summary judgment, including the drafting of a Local Rule 56
statement, collecting the accompany exhibits and drafting a supporting
affidavit. See [Dkt. #42]. Attorney Faulkner billed 5.5 hours to draft an
eleven page reply brief in support of summary judgment which was
substantially longer and included more substantive analysis then her
original motion for summary judgment. See [Dkt. #49]. The Court does not
find that one day’s worth of work spent on a motion for summary judgment
and reply brief in support of summary judgment was unreasonable even in
light of the rather straightforward nature of this case. Indeed, Attorney
Faulkner’s fee records demonstrate that she pursued this matter efficiently
as a result of her expertise.
Further, Attorney Faulkner did not charge $2,000 to draft a nine
paragraph complaint as Defendant contends.
Attorney Faulkner’s fee
affidavit indicated that she billed 1.25 hours to draft the complaint, cover
and summons resulting in fees of $507.50. To the extent that Attorney
Faulkner may have spent more time than was optimally necessary to draft a
straightforward form complaint and summons, her efficient work on the
summary judgment motion and other work on this matter indicate that her
fees are not unreasonable or excessive.
After reviewing Attorney
Faulkner’s detailed fee records, this Court concludes that the attorney’s
fees and costs sought are reasonable.
Lastly, this Court sees no reason why Attorney Faulkner should not
be entitled to fees related to work or arguments that were subsequently
abandoned where there was a non-frivolous basis to pursue such work or
arguments in the first instance. It is entirely reasonable if not part and
parcel of attorney’s obligation to zealously advocate to research and
advantageous to abandon or withdraw. Where the strategy or work was
not frivolous in the first instance, an attorney should be entitled to those
fees as time reasonably spent pursuing the matter.
Faulkner filed a motion for a protective order against a noticed deposition
of her client on the basis of her belief that the subject of the noticed
deposition was irrelevant to the claims at issue. See [Dkt. #15]. Defendant
opposed the protective order on the grounds that the subject of the
deposition was relevant to its defense of materiality.
Upon review of
Defendant’s opposition, Attorney Faulkner did not persist in her motion but
apparently conceded that Defendant had a basis for the noticed deposition
and shortly afterward withdrew her motion. Because her initial motion for a
protective order was not frivolous, Attorney Faulkner should be entitled to
fees in connection with such work.
Since the Court has found that the requested hourly rate by Attorney
Faulkner is reasonable and the time spent by Attorney Faulkner is also
reasonable, the presumptively reasonable fee is appropriately set at
$32,489.29 including both fees and costs. Further as discussed above, the
Court sees no reason why the presumptively reasonable fee should be
For the foregoing reasons, the Court GRANTS Plaintiff’s renewed
motion for attorney’s fees. The Court awards $32,489.29 including both
fees and costs.
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: August 24, 2012
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