Bank of Amer NA v. Klein

Filing 203

ORDER deferring issuance of recommended ruling and staying 14 day time period for objections on 184 MOTION for Summary Judgment As to Damages filed by Bank of Amer NA.. Signed by Judge William I. Garfinkel on 10-22-2012. (Sanders, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BANK OF AMERICA, N.A.,
Plaintiff,

:
:

v.

:

SAMUEL KLEIN,

No.: 3:10-cv-987(JBA)(WIG)

:

Defendant
:
____________________________________X

ORDER ON PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AS TO DAMAGES [Doc. # 184]

I.

Introduction
Before the Court is Plaintiff, Bank of America, N.A.’s (hereinafter “BOA” or Plaintiff

BOA”), Motion for Summary Judgment as to Damages against Defendant, Samuel Klein [Doc. #
184]. Mr. Klein has filed a Response in Opposition to BOA’s Motion for Summary Judgment
[Doc. # 188], to which BOA has filed a Reply Memorandum [Doc. # 191]. For the following
reasons, the Court intends to recommend that BOA’s Motion for Summary Judgment as to
Damages be GRANTED. However, the Court will withhold issuing its recommended ruling
until (1) BOA has had an opportunity to supplement the record with evidence that the billing
rates BOA seeks for an award of attorneys’ fees comport with those prevailing in the community,
and (2) Mr. Klein has had an opportunity to so respond.

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II.

Undisputed Facts1
On May 23, 2006, Agrippa, LLC (hereinafter “Agrippa”) executed a promissory note in

the amount of $3,200,000.00 in favor of United States Trust Company, N.A.2 (hereinafter
“Agrippa Note”) [Klein Aff., ¶ 4(a), Doc. # 188-1].

Mr. Klein personally guaranteed the

repayment of the Agrippa Note by virtue of a Consumer Guaranty (hereinafter “Guaranty”)
executed by him [P. R. 56(a)(1) Statement, (“P. R. 56(a)1”) ¶ 1, Doc. # 184-3]. On June 23,
2010, Plaintiff BOA filed a single count complaint against Mr. Klein for breach of the Guaranty
[Doc. # 1]. Plaintiff BOA is now proceeding under an Amended Complaint, which alleges the
same singular count [Doc. # 18]. On November 18, 2010, Plaintiff BOA filed a Motion for
Summary Judgment [Doc. # 29] against Mr. Klein.
On January 24, 2011, Agrippa filed for bankruptcy before the United States Bankruptcy
Court for the Southern District of New York (hereinafter “Agrippa Bankruptcy Proceedings”) [P.
R. 56(a)1, ¶ 2, Doc. # 184-3]. Thereafter, Mr. Klein conceded liability on BOA’s claim against
him [id. at ¶ 3]. Mr. Klein, however, disputed the amount owed by Agrippa to BOA, and
accordingly, the amount Mr. Klein ultimately owes to BOA under the Guaranty [id.]. Mr. Klein
has maintained that the bankruptcy court, not the district court, should determine the amount of
Agrippa’s debt [id. at ¶ 4].
On March 4, 2011, the parties filed a Corrected Stipulation (hereinafter “Stipulation”)
providing, inter alia, that summary judgment may enter against Mr. Klein as to liability only

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   Pursuant to District of Connecticut Local Civil Rule 56(a)1, Plaintiff BOA submitted its local
rule statement containing thirteen (13) paragraphs of undisputed material facts [Doc. # 184-3].
Mr. Klein, in his Loc. Civ. R. 56(a)2 Statement, admitted to the facts set forth in paragraphs 1-12
of BOA’s Loc. Civ. R. 56(a)1 Statement [Doc. # 195].

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  BOA subsequently acquired United States Trust Company, N.A.’s interests in the repayment of
the Agrippa Note and the Consumer Guaranty at issue.

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[Stipulation, ¶ 3, Doc. # 111; P. R. 56(a)1, ¶ 5, Doc. # 184-3]. The parties further stipulated that
a determination as to the amount of Mr. Klein’s liability would be held in abeyance pending a
finding by the bankruptcy court of the amount due under the Agrippa Note [Stipulation, ¶ 3, Doc.
# 111; P. R. 56(a)1, ¶ 5, Doc. # 184-3]. Mr. Klein, by means of the Stipulation, also effectively
withdrew all defenses and counterclaims to the Amended Complaint [Stipulation, ¶ 5, Doc. #
111; P. R. 56(a)1, ¶ 5, Doc. # 184-3]. On March 7, 2011, the Honorable Judge Mark Kravitz
granted Plaintiff BOA’s Motion for Summary Judgment in part, as to the issue of liability only
[Doc. # 113; P. R. 56(a)1, ¶ 6, Doc. # 184-3]. Although, Mr. Klein’s liability under the Guaranty
has been established [P. R. 56(a)1, ¶ 10, Doc. # 184-3], the district court entered an order
declining to enter a judgment against Mr. Klein until the bankruptcy court determined the
amount due and owing on the Agrippa Note [Doc. # 120; P. R. 56(a)1, ¶ 6, Doc. # 184-3].
On July 19, 2011, the parties stipulated before the bankruptcy court that as of January 24,
2011, Agrippa owed BOA $3,156,365.28 (hereinafter “Agrippa Debt”), attributable to principal
and interest accrued on the Agrippa Note [P. R. 56(a)1, ¶ 7, Doc. # 184-3; Frechette Decl., Ex.
A, pp.4-5, Doc. # 184-6].

Thereafter, BOA obtained relief from the bankruptcy stay and

conducted a secured party sale of a luxury apartment securing the Agrippa Note [P. R. 56(a)1, ¶
8, Doc. # 184-3].

BOA realized proceeds from the sale in the amount of $2,900,000.00

(hereinafter the “Sale Proceeds”) [id.]. On April 5, 2012, the bankruptcy court dismissed the
Agrippa Bankruptcy Proceedings because Agrippa failed to file operating reports or pay certain
fees to the United States Trustee [id. at ¶ 9].

The dismissal of the Agrippa Bankruptcy

Proceedings occurred prior to the bankruptcy court making a final finding as to the amount owed
by Agrippa to BOA [id.].

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Under the Guaranty, Mr. Klein is responsible for BOA’s costs and expenses, including
reasonable attorneys’ fees, incurred in connection with the enforcement of the Guaranty [Am.
Compl., Ex. B, Doc. # 18; P. R. 56(a)1, ¶ 11, Doc. # 184-3]. Plaintiff BOA seeks to recover the
following sums from Mr. Klein: (a) $3,156,365.28, representing the Agrippa Debt; (b)
$110,935.22, representing accrued interest on the Agrippa Note from January 23, 2011 through
January 10, 2012; (c) $9,969.45, representing accrued interest on the Agrippa Note for the period
of January 11, 2012 through June 1, 2012; and (d) $682,922.51 in costs, expenses and attorneys’
fees [Supp. Maidman Decl., ¶¶ 7-9, Doc. # 191-8]. After application of the Sale Proceeds, BOA
seeks to recover from Mr. Klein a total of $1,060,192.403 [Maidman Decl., ¶ 10, Doc. # 184-4].
Notwithstanding BOA’s demand for payment of Agrippa’s obligations, Mr. Klein has failed
and/or refused to pay the amounts due and owing to BOA pursuant to the terms of the Guaranty
[P. R. 56(a)1, ¶ 12, Doc. # 184-3]. It is Mr. Klein’s position that the only disputed factual issues
before the Court are whether the attorneys’ fees incurred by BOA are reasonable and whether
BOA incurred said fees in connection with the enforcement of the Guaranty [D. R. 56(a)2
Statement (“D. R. 56(a)2”), Disputed Issues of Material Fact, Doc. # 195].
III.

Legal Standard
Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The party seeking summary judgment bears the burden of establishing that no

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In support of its summary judgment motion, BOA submits the Declaration of Andrew J.
Maidman, an employee with BOA’s Special Assets Group. Mr. Maidman’s declaration seeks
recovery in the amount of $1,060,192.40 [Maidman Decl., ¶ 10, Doc. # 184-4]. A Supplemental
Declaration of Andrew J. Maidman, submitted with BOA’s Reply Memorandum in support of its
Motion for Summary Judgment (hereinafter “Reply”) [Doc. # 191], seeks recovery in the amount
of $1,060,192.46, a difference of six cents [Supp. Maidman Decl., ¶ 11, Doc. # 191-8]. BOA
recognizes this discrepancy in its Reply, and concedes that it will only seek recovery in the
amount of $1,060,192.40 [Reply, fn. 9, Doc. # 191].  
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genuine issue of material facts exist. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Accordingly, the summary judgment standard “provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
The Court is to view all inferences drawn from the underlying facts in the light most
favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). “When the moving party has carried its burden under Rule 56(c), the
[party opposing summary judgment] must do more than simply show that there is some
metaphysical doubt as to the material facts.” Id. at 586 (citation omitted). Under Rule 56(e), the
party opposing summary judgment “may not rest upon the mere allegations or denials of his
pleadings, but... must set forth specific facts showing there is a genuine issue for trial.”
Anderson, 477 U.S. at 248.
IV.

Discussion
A. Choice of Law
As this Court sits in diversity, it must apply Connecticut’s choice of law rules to

determine the substantive law applicable to this case. See Forest Park Pictures v. Univ. Tel.
Network, Inc., 683 F.3d 424, 433 (2d Cir. 2012). The Guaranty provides for the application of
New York law4 [Am. Compl., Ex. B, Doc. # 18]. Generally, courts in Connecticut give effect to
contractual choice of law clauses provided that the choice was made in good faith, unless (a) the
chosen state has no substantial relationship to the parties or transaction, or (b) application of the

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 The applicable provision of the Guaranty provides: “This Guaranty will be governed by federal

law applicable to Lender and, to the extent not preempted by federal law, the laws of the State of
New York, without regard to its conflicts of law provisions. This Guaranty has been accepted by
Lender in the State of New York.” [Am. Compl., Ex. B, p. 2, Doc. # 18].
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law of the chosen state would be contrary to the public policy of the state with a greater material
interest in the action. Elgar v. Elgar, 238 Conn. 839, 848-50 (1996).
There is no basis in the record from which to conclude that the choice of law was not
selected in good faith, or that the application of New York law would violate public policy.
Additionally, New York has a substantial relationship to the transaction and the parties where,
inter alia: (a) Agrippa is a New York limited liability company [Am. Compl., Ex. B, Doc. # 18;
Second Frechette Decl., Sched. A, ¶1, Doc. # 191-6]; (b) Mr. Klein delivered the Guaranty to
BOA’s predecessor in interest in New York [Am. Compl., Ex. B, Doc. # 18]; and (c) the real
property that secured the Agrippa Note is located in New York, New York [Second Frechette
Decl., Sched. B, p. 2, Doc. # 191-6]. Accordingly, New York substantive law should apply in
this case.
B. Damages, Excluding Attorneys’ Fees
The parties agree that the Agrippa Debt, as of the date of filing the Agrippa Bankruptcy
Proceedings, totals $3,156,365.28 [P. R. 56(a)1, ¶ 7, Doc. # 184-3; Frechette Decl., Ex. A, pp.45, Doc. # 184-5]. There is also no dispute that BOA received proceeds in the amount of
$2,900,000.00 from the secured party sale [P. R. 56(a)1, ¶ 8, Doc. # 184-3; Maidman Decl., ¶4,
Doc. # 184-4]. Mr. Klein’s main objection to the damages sought by BOA relates solely to the
issue of attorneys’ fees [D. R. 56(a)2, ¶ 13, Doc. # 195]. Mr. Klein fails to dispute, or offer
evidence to contradict, the amount of interest sought by BOA under the Agrippa Note. Mr.
Klein likewise fails to dispute, or offer evidence to contradict, the costs incurred by BOA for the
placement of forced insurance in the amount of $22,756.00.
Because Mr. Klein has failed to dispute the amount of interest or costs sought, the Court
shall consider those sums undisputed for purposes of BOA’s summary judgment motion. Fed. R.
Civ. P. 56(e)(2) (“If a party… fails to properly address another party’s assertion of fact as
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required by Rule 56(c), the court may…consider the fact undisputed for purposes of the
motion…”).

Moreover, BOA supports its application for said damages by virtue of two

declarations made by Andrew J. Maidman [Maidman Decl., ¶ 2, Doc. # 184-4; Supp. Maidman
Decl., ¶ 2, Doc. # 191-8]. The Court is satisfied with the evidence presented by Plaintiff BOA to
support its claims for accrued interest under the Agrippa Note, and costs incurred for the
placement of forced insurance.
Based on the foregoing, there is no genuine issue of material fact with respect to BOA’s
claim for damages in the following amounts: (a) $256,365.28 (the Agrippa Debt less the Sale
Proceeds); (b) interest in the total amount of $120,904.67; and (c) costs in the amount of
$22,756.00, for the placement of forced insurance.

Accordingly, the Court intends to

recommend that BOA’s motion for summary judgment as to the aforementioned damages be
granted.
C. Reasonable Attorneys’ Fees
There is no dispute that Mr. Klein is liable for BOA’s costs and expenses, including
BOA’s reasonable attorneys’ fees [P. R. 56(a)1, ¶ 11, Doc. # 184-3]. Specifically, the Guaranty
provides as follows:
I agree to pay all of Lender’s costs and expenses, including Lender’s reasonable
attorneys’ fees and Lender’s legal expenses, incurred in connection with the
enforcement of this Guaranty. Lender may hire or pay someone else to help
enforce this Guaranty, and I shall pay the costs and expenses of such enforcement.
Costs and expenses include Lender’s reasonable attorneys’ fees and legal
expenses whether or not there is a lawsuit, including reasonable attorneys’ fees
and legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated postjudgment collection services…
[Am. Compl., Ex. B, p. 2, Doc # 18].

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BOA seeks recovery of attorneys’ fees in the amount of $660,166.515 [Maidman Decl., ¶
8, Doc. # 184-4; Supp. Maidman Decl., ¶ 9, Doc. # 191-8]. Mr. Klein asserts two general
objections to the fees sought by BOA. First, that the requested fees are unreasonable and second,
that the requested fees were not all incurred in connection with the enforcement of the Guaranty.
[D. R. 56(a)2, Disputed Issues of Material Fact, Doc. # 195]. Based on these objections, Mr.
Klein asserts that he is entitled to an evidentiary hearing for the purposes of determining the
reasonable amount of attorneys’ fees owed to BOA.
“Under New York law, a contractual provision for the recovery of attorney’s fees is
enforceable.” Am. Fin. Servs. Group v. Treasure Bay Gaming & Resorts, Inc., No. 99 Civ. 1068
NT, 2000 WL 815894, at * 14 (S.D.N.Y. June 23, 2000) (citations omitted). Nevertheless, “[t]he
court has broad discretion to set reasonable attorneys’ fees.” Manheim Auto. Fin. Serv., Inc. v.
Fleet Funding Corp., No. 09-CV-4357 (NGG)(RER), 2010 WL 1692954, at * 7 (E.D.N.Y March
22, 2010) (citing Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 493
F.3d 110, 117-18 (2d Cir. 2008)); Orix Credit Alliance, Inc. v. Grace Indus., Inc., 261 A.D.2d
521, 521–22, 690 N.Y.S.2d 651 (2d Dep't 1999) (the court has “the inherent authority to
determine reasonable attorneys’ fees”). “Under both New York and federal law, attorneys’ fees
are determined by multiplying a reasonable hourly rate by the number of hours reasonably
expended to arrive at a presumptively reasonable fee, which may then be adjusted to account for
the circumstances of the case.” Amerisource Corp. v. Rx USA Intern., Inc., No. 02-CV-2514
(JMA), 2010 WL 2160017, at * 9 (E.D.N.Y. May 26, 2010) (citations omitted). “The party

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 The litigation between the parties has not been confined to the present action. In addition to the
fees that BOA has incurred in bringing this pending matter, BOA also seeks its reasonable
attorneys’ fees incurred in other separate matters, which involve different parties. It is BOA’s
position that these separate matters were litigated in connection with the enforcement of the
Guaranty.

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seeking reimbursement bears the burden of proving the reasonableness and necessity of hours
spent and rates charged.” Coated Fabrics Co. v. Mirle Corp., No. 06 CV 5415(SJ), 2008 WL
163598, at * 7 (E.D.N.Y. Jan. 16, 2008) (citations omitted).
1. Mr. Klein Fails to Raise an Issue of Material Fact as to Reasonable Attorneys’ Fees
Mr. Klein argues in his opposition papers that the fees sought by BOA are unreasonable
because BOA’s attorneys billed excessive hours and for duplicative work [Def. Resp. to Mot.
Summ. J., p. 9, Doc. # 188]. In his Loc. Civ. R. 56(a)2 Statement, Mr. Klein fails to raise
specific objections, and makes only conclusory statements that the fees sought by BOA are
unreasonable [D. R. 56(a)(2), ¶ 13, Doc. # 195]. Mr. Klein fails to support the allegations that
BOA’s attorneys billed for excessive hours or duplicative work with any competent proof. Mr.
Klein also fails to present any competent proof that the fees sought by BOA are unreasonable.6
Mr. Klein’s conclusory statements that the sought-after fees are unreasonable are insufficient to
defeat BOA’s motion for summary judgment. See Pascale v. Lepore, No. 3:09-cv-08(CFD),
2010 WL 3257660, at * 1 (D. Conn. Aug. 16, 2010) (quoting W. World Ins. Co. v. Stack Oil,
Inc., 922 F.2d 118, 121 (2d Cir. 1990)) (“When a motion for summary judgment is supported by
documentary evidence and sworn affidavits, the nonmoving party must do more than vaguely

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  In his Local Civil Rule 56(a)2 Statement, Mr. Klein cites to certain billing invoices submitted
by BOA in support of his position. All of the referenced billing invoices are greater than one
page in length, and Mr. Klein fails to cite to the specific pages of same which support his denial
and disputed issues of material fact. Local Civil Rule 56(a)3 provides “Each statement of
material fact… by an opponent in a Local Rule 56(a)2 Statement, and each denial in an
opponent’s Local Rule 56(a)2 Statement, must be followed by a specific citation to (1) the
affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be
admissible at trial… The ‘specific citation’ obligation of this Local Rule requires counsel and pro
se parties… to cite to specific pages when citing… to documents longer than a single page in
length.” Despite the failure of Mr. Klein’s Loc. R. 56(a)2 Statement to comply with Loc. R.
56(a)3, the Court’s review of the referenced billing invoices nevertheless fails to support Mr.
Klein’s argument that the fees sought are unreasonable. Rather, said invoices appear to reflect
billing entries for matters that Mr. Klein maintains were not incurred “in connection with the
enforcement of the Guaranty”, as discussed further below.  

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assert ‘the existence of some unspecified disputed material facts’ or present ‘mere speculation or
conjecture.’”). In any event, it is well within the Court’s discretion to determine a reasonable fee
and to exclude “excessive, redundant or otherwise unnecessary hours” from the calculation of an
award of reasonable attorneys’ fees. See Amerisource, 2010 WL 2160017, at * 11 (quoting
Quarantino v. Tiffany & Co., 166 F.3d 422, 235 (2d Cir. 1999)).
In support of his opposition to BOA’s motion for summary judgment, Mr. Klein submits
his affidavit [Doc. # 188-1]. Attached to Mr. Klein’s affidavit are invoice summaries received
from his prior counsel. The invoice summaries show that Mr. Klein has incurred $155,836.51 in
attorneys’ fees in defending this action [id.]. The invoice summaries fail to set forth the work
performed, the time it took to complete any task, and the hourly rate at which each task was
performed. Presumably, Mr. Klein submits the invoice summaries in support of his position that
the fees sought by BOA are unreasonable. The Court finds that neither the assertions set forth in
Mr. Klein’s affidavit, nor the invoice summaries attached thereto, constitute competent proof to
raise an issue of material fact to defeat summary judgment on the issue of attorneys’ fees.
Moreover, as the Southern District of New York has noted, “a dispute over the amount of
attorneys’ fees does not prevent summary judgment.” U.S. Bancorp Oliver-Allen Tech. Leasing
v. Hall, Dickler, Kent, Goldstein & Wood, LLP, No. 04 Civ. 4986, 2005 WL 1875459, at * 3
(S.D.N.Y. Aug. 8, 2005) (emphasis in original).7

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  Mr. Klein additionally asserts that under New York law, he is entitled to a hearing with respect

to the reasonableness of the attorneys’ fees sought by BOA. However, pursuant to New York
law, a hearing is not required in all circumstances, but only with respect to issues of fact raised in
opposing affidavits. Bankers Fed. Sav. Bank FSB v. Off N. Broadway Dev., 224 A.D.2d 376,
378, 638 N.Y.S.2d 72 (1st Dep’t 1996) (citation omitted). As set forth above, Mr. Klein’s
affidavit fails to raise any issues of material fact, and accordingly, an adversarial hearing on the
issue of attorneys’ fees is not required.
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2. Attorneys’ Fees Incurred in Connection with the Enforcement of the Guaranty
The Guaranty provides that Mr. Klein is only liable for those costs and expenses incurred
in connection with the enforcement of the Guaranty. Mr. Klein argues that the attorneys’ fees
BOA seeks to recover were not all incurred in connection with the enforcement of the Guaranty
[D. R. 56(a)2, Disputed Issues of Material Fact, Doc. # 195]. For this reason, Mr. Klein
maintains that an issue of material fact exists to prevent summary judgment in favor of BOA.
Specifically, Mr. Klein takes issue with attorneys’ fees BOA seeks for, inter alia, tasks relating
to discovery and to Mr. Klein’s counterclaim [Def. Resp. to Mot. for Summ. J., pp. 15-17, Doc. #
188]. Mr. Klein additionally asserts that BOA seeks attorneys’ fees for “different matters”
involving “different parties”, which are not recoverable under the language of the Guaranty [id.
at p. 18]. The Court disagrees with Mr. Klein that an issue of material fact exists in this regard.
The meaning to be given to the Guaranty is an issue of law, which is for the Court’s
determination. See Leslie Fay, Inc. v. Rich, 478 F. Supp. 1109, 1113 (S.D.N.Y. 1979).
Accordingly, Mr. Klein’s argument fails to raise a genuine issue of material fact to defeat BOA’s
summary judgment motion.
Moreover, Mr. Klein’s argument that attorneys’ fees incurred by BOA for “different
matters” involving “different parties” are not recoverable under the language of the Guaranty is
misplaced. The express language in the Guaranty provides that Mr. Klein agrees to pay all of
BOA’s costs and expenses, including reasonable attorneys’ fees, “incurred in connection with the
enforcement” of the Guaranty (emphasis added) [Am. Compl., Ex. B, p. 2, Doc # 18]. Courts
have construed the phrase “in connection with” as equivalent to the phrases “relating to” or
“associated with”. See, e.g., Allied Irish Banks, p.l.c. v. Bank of America, N.A., -- F. Supp. 2d --,
No. 03 Civ. 3748(DAB)(GWG), 2012 WL 2856073, at * 3 (S.D.N.Y. July 12, 2012) (citing

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Tufino v. N.Y. Hotel and Motel Trades Council and Hotel Ass'ns of the N.Y.C. AFL–CIO Local 6,
223 A.D.2d 245, 247, 646 N.Y.S.2d 799 (1st Dep’t 1996)) (noting that the phrase “relate to” has
a “broad meaning”, including “having a connection with the designated item.”); Corgeis Ins. Co.
v. Am. Health Found., Inc., 241 F.3d 123, 128-29 (2d Cir. 2001) (citations omitted) (in
construing an insurance contract, the Second Circuit stated that “Courts have similarly described
the term ‘relating to’ as equivalent to the phrases ‘in connection with’ and ‘associated with,’ and
synonymous with the phrases ‘with respect to,’ and ‘with reference to’...”). Accordingly, if any
of the complained of “different matters” relate to, or are otherwise associated with the
enforcement of the Guaranty, then BOA may recover its attorneys’ fees incurred for such
matters.
3. Reasonable Hours Expended
“The fee applicant bears that burden of proving that the hours are reasonable and must
produce contemporaneous time records showing the dates, hours expended, and nature of work
performed by each attorney.” Amerisource, 2010 WL 2160017, at * 11 (citation omitted). In
support of an award of attorneys’ fees, BOA submits the declaration of Donald E. Frechette. Mr.
Frechette is a partner in the law firm of Edwards Wildman Palmer LLP, which represents BOA
in this action [Frechette Decl., ¶ 1, Doc. # 184-5]. Attached to Mr. Frechette’s declaration are
contemporaneous billing invoices for legal work performed for the period of August 31, 2010
through January 15, 2012. The invoices detail the work performed, the time in which it took to
complete each task, and the hourly rate at which each task was performed. The Court finds that
BOA has produced sufficient evidence to meet its initial burden with respect to the
reasonableness of the hours upon which it seeks to recover. Nevertheless, the Court shall
withhold its recommended findings as to the reasonableness of the hours billed, including

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whether the same were incurred in connection with the enforcement of the Guaranty, until the
issuance of its recommended ruling.
4. Reasonable Billing Rate
“The burden is on the fee applicant to produce satisfactory evidence - in addition to the
attorney’s own affidavits - that the requested rates are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience, and
reputation.” Coated Fabrics, 2008 WL 163598, at * 7 (quoting Blum v. Stenson, 465 U.S. 886,
896 n. 11 (1984)); see also Gamache v. Steinhaus, 7 A.D.3d 525, 527, 776 N.Y.S.2d 310 (2d
Dep’t 2004) (citation omitted) (“Although an award of attorney’s fees is within the discretion of
the court, such award must be based upon a showing of the hours reasonably expended and the
prevailing hourly rate for similar legal work in the community.”). BOA has failed to submit any
evidence with respect to the prevailing hourly rate for similar legal work in the community. At
this time the Court does not have sufficient information upon which to make an informed
assessment of the reasonable value of the legal services rendered. Nevertheless, it is the Court’s
opinion that BOA should have an opportunity to supplement the record with evidence that the
requested billing rates are in line with those prevailing in the community, and that Mr. Klein
have an opportunity to so respond.
V.

Conclusion
Based on the foregoing reasons, the Court intends to grant BOA’s Motion for Summary

Judgment as to Damages. However, the Court will not issue its recommended ruling until BOA
has had an opportunity to supplement the record with evidence that the billing rates requested
comport with those prevailing in the community. BOA shall file any such evidence with the
Court within ten (10) days from the date of this Order. Mr. Klein shall file any response to

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BOA’s supplemental submission(s) within ten (10) days from the filing date of BOA’s
submissions.
Federal Rule of Civil Procedure 72(b)(2) provides that a party may serve and file specific
objections to a magistrate judge’s recommended ruling within fourteen (14) days after being
served with a copy of the recommended disposition. However, in light of the above, the Court
hereby stays the running of this fourteen (14) day time period until such time as the Court issues
its recommended ruling.
SO ORDERED, this 22nd day of October, 2012, at Bridgeport, Connecticut,

___/s/ William I. Garfinkel
Hon. William I. Garfinkel
U.S. MAGISTRATE JUDGE

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