CSL Silicones, Inc v. Midsun Group Inc
RULING (see attached) regarding Plaintiff's [Docs. 82-83]. For the reasons stated in the attached Ruling, Defendant is ORDERED to transmit to Plaintiff $15,705 in attorneys' fees. Defendant is further directed to certify with the Court, in the form of an affidavit, its full compliance with the terms of this Ruling on or before June 16, 2017. Signed by Judge Charles S. Haight, Jr. on April 18, 2017. (Kahl, A)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
CSL SILICONES, INC.,
MIDSUN GROUP INC.,
APRIL 18, 2017
RULING ON PLAINTIFF'S STATEMENT
OF REASONABLE ATTORNEYS' FEES AND EXPENSES
HAIGHT, Senior District Judge:
On June 27, 2016, the Court denied Defendant Midsun Group Inc.'s Renewed Motion for
Protective Order ("Renewed Motion") made pursuant to Fed. R. Civ. P. 26(c)(1)(g) and ordered that
Defendant pay Plaintiff's costs and fees in responding to its Motion should Plaintiff CSL Silicones,
Inc. seek such fees and costs.1 Doc. 81 (the "Ruling"). The instant ruling resolves Plaintiff's
subsequent request for attorneys' fees, Docs. 82-83. For the reasons that follow, the Court declines
to award Plaintiff the amount it requests and directs payment by Defendant of a slightly lesser
Defendant's Renewed Motion sought an order protecting it against disclosure as to certain
of Plaintiff's discovery requests principally on the ground that the information contained purported
confidential trade secrets. Doc. 81, at 1, 9. Defendant had filed a nearly identical motion before,
and Plaintiff had fully briefed an opposition to it, but the Court denied that earlier motion without
Familiarity with the Ruling, Doc. 81, is assumed and is described only as necessary.
prejudice to refiling. CSL Silicones, Inc. v. Midsun Grp. Inc., 170 F. Supp. 3d 304, 319-20 (D.
Conn. 2016). The parties had filed jointly a Stipulated Protective Order (the "SPO") and the Court
specifically noted that it appeared that the SPO "may seem to obviate the need for a ruling by the
Court" although it was "not so clear given counsels' statements at the hearing." Id. at 320. The Court
denied Defendant's Renewed Motion because the discovery sought was relevant and the SPO
adequately protected the trade secrets. See Doc. 81.
In the Ruling, pursuant to Fed. R. Civ. P. 37(a)(5), the Court held that Plaintiff was entitled
to attorney's fees and costs because "[t]here is no doubt that Defendant's motion was not
substantially justified and that sanctions are warranted." Doc. 81, at 10.2 The Court noted that it had
already expressed an initial view that the SPO may have obviated any need for the motion, and it
was clear that the SPO had in fact obviated that need. Id. More egregiously, Defendant had not
even tried to fully explain why the SPO had not obviated the need in its briefings despite already
knowing the Court's initial view on the issue. Id. Thus, the Court awarded attorneys' fees and costs
pursuant to Fed. R. Civ. P. 37(a)(5) and instructed Plaintiff to file a statement as to those fees.
The Court later received a statement as to as to the amount of fees to which Plaintiff claims,
Docs. 82-83, in the form of a Declaration from Attorney John A. Clifford ("Clifford Decl."), and
Defendant submitted a detailed response and objections to Plaintiff's request in a briefing, Doc. 85
("Def. Response"). Plaintiff also submitted certain exhibits in support of its fees application
("Clifford Ex."). Defendant also submitted exhibits A-C ("Def. Ex."), including a Declaration from
Throughout the Ruling, the Court also took issue with the general "sloppiness" of
Defendant's papers and citations to erroneous cases. Doc. 81, at 2-3, 10 n.4. Defendant has
apologized to the Court, the opposing party, and the opposing party's counsel for any such
confusion. Def. Response, at 1. The Court appreciates and accepts the apology.
Attorney Joseph R. Carvalko ("Carvalko Decl.") and an exhibit attached to that Declaration in
support of its response ("Carvalko Ex."). This ruling resolves the parties' dispute as to the award
of fees and as to the amount awarded.
Standard for Attorneys' Fees
To evaluate a request for attorneys' fees, courts must conduct a "lodestar analysis, which
calculates reasonable attorneys' fees by multiplying the reasonable hours expended on the action by
a reasonable hourly rate." Kroshnyi v. U.S. Pack Courier Servs., Inc., 771 F.3d 93, 108 (2d Cir.
2014). If "at the time the work was performed, a reasonable attorney would have engaged in similar
time expenditures," then the number of hours proffered is reasonable. Grant v. Martinez, 973 F.2d
96, 99 (2d Cir. 1992) (citing Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir.
1990)). As to the hourly rate, a district court has discretion but should begin generally with "the
prevailing market rates in the relevant community." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,
551 (2010) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)) (internal quotation marks omitted).
"Although there is a strong presumption that the lodestar figure represents a reasonable fee,
the district court may, in its discretion, adjust the lodestar based on a variety of factors," but, "must
state its reasons for doing so as specifically as possible." Ayres v. 127 Rest. Corp., No. 99-7723,
1999 WL 1295335, at *1 (2d Cir. Dec. 23, 1999) (citations, internal quotation marks, and alterations
omitted). For example, "in dealing with items that are 'excessive, redundant, or otherwise
unnecessary, . . . the [district] court has discretion simply to deduct a reasonable percentage of the
number of hours claimed as a practical means of trimming fat from a fee application.'" Hines v. City
of Albany, 613 F. App'x 52, 54-55 (2d Cir. 2015) (summary order) (quoting Kirsch v. Fleet St., Ltd.,
148 F.3d 149, 173 (2d Cir. 1998)). A Court may also deduct a percentage of hours where proffered
time entries are overly vague. Kirsch, 148 F.3d at 172-73; see also Conn. Hosp. Ass'n v. O'Neill,
891 F. Supp. 687, 690 (D. Conn. 1994).
This Circuit has long followed the dictates of Judge Newman's opinion in New York State
Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148, 1154 (2d Cir. 1983) to
evaluate a movant's proffered evidence supporting its attorneys' fees request:
Hereafter, any attorney—whether a private practitioner or an
employee of a nonprofit law office—who applies for court-ordered
compensation in this Circuit . . . must document the application with
contemporaneous time records. . . . All applications for attorney's
fees . . . should normally be disallowed unless accompanied by
contemporaneous time records indicating, for each attorney, the date,
the hours expended, and the nature of the work done.
The Second Circuit subsequently clarified its use of the word "normally" in Carey, holding
that while it "indicates that we intend to leave the district courts with some limited discretion to
make exceptions to the hard-and-fast rule," Carey nonetheless "sets out unequivocally that absent
unusual circumstances attorneys are required to submit contemporaneous records with their fee
applications." Scott v. City of New York, 626 F.3d 130, 133 (2d Cir. 2010). "In other words, Carey
establishes a strict rule from which attorneys may deviate only in the rarest of cases." Id.
Plaintiff's Statement of Reasonable Attorneys' Fees and Expenses
Plaintiff submitted for consideration several exhibits to demonstrate and prove its fees in
accordance with this Court's instructions in the prior Ruling. First, Plaintiff submitted Exhibit A,
which are the actual monthly invoices for the months of April 2016 and May 2016 reflecting work
performed in March and April 2016 sent by Plaintiff's counsel to its client, CSL Silicones, Inc. See
Clifford Decl. ¶ 3; Clifford Ex. A. Second, Plaintiff submitted Exhibit B, which "is a table,
compiled from [Plaintiff's counsel's] contemporaneous billing records, which calculates the total
amount of attorneys' fees [counsel] incurred in opposing" Defendant's Renewed Motion. Clifford
Decl. ¶ 4. Exhibit B was created at Attorney Clifford's direction in consultation with each attorney
billing time to determine the amount of time actually spent in opposing Defendant's Renewed
Motion. Id. Based on the calculations from Exhibit B, the total value of attorneys' fees incurred in
opposing Defendants' Renewed Motion that Plaintiff seeks is $16,146.00 based on 47.9 hours with
an average hourly rate of $347.51 per hour.
Plaintiff also submitted Exhibit C, an American Intellectual Property Law Association 2015
Report of the Economic Survey (the "AIPLA Report") which details the average billing rates for
partners and associates specializing in intellectual property law in different areas of the United
States. Plaintiff asserts that the billing rates of the three attorneys involved in opposing Defendant's
motions were within the ranges identified in Exhibit C taking into account each attorneys' experience
and location. Clifford Decl. ¶¶ 6-7. The three attorneys working on the opposition were: (i) Rachel
Zimmerman Scobie, a shareholder of Merchant & Gould P.C., practicing law since 2001; (ii) John
T. Winemiller, a shareholder of Merchant & Gould P.C., practicing law since 2000; and (iii) Michael
A. Erbele, an associate at Merchant & Gould P.C., practicing law since 2012. Id. ¶ 6. Plaintiff does
not seek to recover any costs except for the reasonable attorneys' fees in the amount of $16,146.00.
Id. ¶ 9.
Defendant's Objections to the Plaintiff's Fees Statement
The Court will address the merits of Defendant's objections below, but summarizes them
briefly here. Defendant argues that: (i) the award of attorneys' fees is not proper because
Defendant's Renewed Motion was "substantially justified"; (ii) the block billing by Plaintiff
obfuscates the amount of time devoted to actually opposing Defendant's motion, (iii) the time entries
are vague and often bill for duplicative work and are more generally just "excessive," (iv) the
number of hours claimed is unreasonable in light of the task and the fact that it was a Renewed
Motion, and (v) the hourly rates charged are unreasonable because Plaintiff has ignored the "forum
Analysis of Reasonable Attorneys' Fees
As a preliminary matter, Defendant asserts that attorneys' fees should not be awarded
because it was "substantially justified" in bringing its Renewed Motion. The Court disagrees
primarily for the reasons stated in its prior Ruling. In that Ruling, the Court concluded that
Defendant's relevancy argument was "entirely without merit" and "unsupported by any authority."
Doc. 81, at 10. Moreover, Defendant made no effort to fully explain why the SPO did not
adequately protect its trade secrets despite the Court expressing that it believed the SPO may have
obviated any such concerns. Id. Defendant urges that it did not understand the Court to imitate any
view on any potential renewed motions for a protective order when it denied the earlier motion. Def.
Response, at 3-4. The Court, of course, did not imitate any views on future motions at that time.
The point made in the Ruling was that the Court had, in denying the earlier motions, flagged for both
parties that the SPO may have obviated any disagreements. Doc. 81, at 10. Defendant wholly
ignored that in its Renewed Motion—failing to address fully and adequately the SPO's provisions
and explain how the SPO did or did not affect Defendant's arguments.3 Again, the Court holds that
Defendant's Renewed Motion was not "substantially justified," and therefore, Plaintiff is entitled to
attorneys' fees pursuant to Fed. R. Civ. P. 37(a)(5).
Defendant points to its argument concerning experts for support that it did address the SPO
in its motion. Def. Response, at 3. The Court, however, quickly dismissed such concerns based on
a basic reading of the provisions of the SPO. Doc. 81, at 7-8.
As discussed above, to determine the amount of attorneys' fees owed to Plaintiff, this Court:
[M]ust: (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.
Trustees of the I.B.E.W. Local Union v. Norland Elec., Inc., No. 11-CV-709, 2015 WL 3581011, at
*4 (D. Conn. June 5, 2015) (quoting Parris v. Pappas, 844 F. Supp. 2d 262, 266 (D. Conn. 2012))
(internal quotation marks omitted). The Court now turns to each of these considerations and
addresses each of Defendant's arguments against the award of fees requested by Plaintiff.
Reasonable Hourly Rate
Plaintiff requests $570 and $450 per hour of work by its more senior attorneys (Attorneys
Rachel Zimmerman Scobie and John T. Winemiller respectively) and $300 for its more junior
attorney (Attorney Michael A. Erbele); this averages out to $347.51 when the hours are accounted
for by Plaintiff. Clifford Decl. ¶¶ 4-7. Attorneys Zimmerman Scobie and Erbele practice in
Minneapolis, Minnesota and Attorney Winemiller practices in Knoxville, Tennessee. Id. ¶ 6.
Defendant objects to these rates, arguing that the Court should not ignore the "forum rule" and
should use the hourly rates employed in this district to calculate a reasonable fee. Def. Response,
at 17-18. Both parties submitted the AILPA Report as evidence of reasonable attorneys' hourly
rates. Clifford Ex. C; Carvalko Ex. 1. Defendants argue that the report is useful as "some guidance"
but should not be dispositive because it is largely based on fees charged by attorneys admitted to the
patent bar and Plaintiff's lawyers are not admitted to that bar. Def. Response, at 18-19. Defendant
believes a $250 hourly fee for partners and $131.57 for is appropriate for attorneys of like
experience in this district.4
The parties also disagree over which geographical area from the AILPA Report should be
used to determine the reasonable rate to be charged. Plaintiff asserts that the hourly rates are
reasonable by comparing the rates to the mean, or average, billing rates for intellectual property
attorneys in Boston ($576 for partners and $412 for associates) and in New York City ($530 for
partners and $481 for associates) as well as those in Minneapolis/St. Paul ($399 for partners and
$240 for associates) and the Metro Southeast ($439 for partners). Clifford Decl. ¶ 5, 7. Defendant
asserts that the hourly fees are much too high when you compare them to the averages for the "Other
East" category in the AILPA Report, a category that includes Connecticut and other states from
Maine to Virginia. Def. Response, at 18 & n.11; Carvalko Ex. 1, at 7. The mean for partners in that
category is $427 and it is $298 for associates. Clifford Ex. C, at 3-4; Carvalko Ex. 1, at 9-10.
"The Second Circuit has required locality rates unless the qualifications of counsel are such
that a reasonable client would pay these rates and could not get comparable representation from an
in-state firm." Tyco Healthcare Grp. LP v. Ethicon Endo-Surgery, Inc., No. 3:10-CV-60, 2012 WL
4092515, at *2 (D. Conn. Sept. 17, 2012) (citing Simmons v. N.Y.C. Transit Auth., 575 F.3d 170,
175-76 (2d Cir. 2009). This "forum rule" requires that courts "generally use 'the hourly rates
employed in the district in which the reviewing court sits in calculating the presumptively reasonable
fee.'" Simmons, 575 F.3d at 174 (quoting Arbor Hill Concerned Citizens v. Cnty. of Albany, 493
F.3d 110, 119 (2d Cir. 2007)). Thus, "when faced with a request for an award of higher out-of-
It is not clear to the Court from Defendant's filings how exactly Defendant arrives at these
numbers. The numbers are asserted only in Defendant's conclusion. Def. Response, at 21. The
Court notes that Defendant's attorney, a senior solo practitioner in the district with significant
experience, charges $250 per hour and has alleged that his rate is representative of other lawyers that
practice in the manner such as him. Carvalko Decl.¶¶ 2-4, 7-8.
district rates, a district court must first apply a presumption in favor of application of the forum
rule." Id. at 175. "[T]o overcome that presumption, a litigant must persuasively establish that a
reasonable client would have selected out-of-district counsel because doing so would likely (not just
possibly) produce a substantially better net result." Id. Mere proximity of the districts and "brand
name" or prestige of the attorneys will not overcome the presumption. Id. at 176. The party seeking
the award must make a "particularized showing" that the selection of counsel was based on
experience and objective factors and that use of in-district counsel would produce a substantially
inferior result. Id. at 176.
Plaintiff has not tried overcome the presumption of application of the forum rule; instead,
Plaintiff appears to assert that Boston and New York City offer comparable rates to those charged
in this district by intellectual property attorneys. This, however, ignores that Connecticut is
represented in the AIPLA Report in the "Other East" category. The Court, thus, concludes that the
forum rule should apply and the reasonable hourly rates recoverable should be those charged by
attorneys of comparable experience in comparable trademark litigations in this district. Based on
the evidence before this Court, the Court determines that an hourly rate of $500 for Attorney
Zimmerman Scobie, $450 for Attorney Winemiller (the actual rate sought by Plaintiff) and $300 for
Attorney Erbele (the actual rate sought by Plaintiff) are reasonable hourly rates for the instant
litigation. See, e.g., Barnes Grp. v. Does, No. 12-CV-1688, 2014 WL 580896, at *1 (D. Conn. Feb.
12, 2014) (applying the presumption for an in-district rate and allowing for a $500 rate for partner
and $375 for associate in a Lanham Act case with trademark infringement and cyberpiracy claims).
Attorneys Zimmerman Scobie and Winemiller had, at the time of the motion, nearly fifteen or
sixteen years of experience and Attorney Erbele had nearly four years of experience.
These rates are based, in part, on the AILPA Report, a report relied on by both parties, which
identifies an average of $427 and $298 for partners and associates respectively in the "Other East"
category. The Court concludes that the higher rate of $500 and $450 for senior level partners is
reasonable here particularly in light of the fact that "Other East" includes a number of other states,
not just Connecticut, and that similar partners are paid substantially higher hourly fees in
metropolitan areas close to this district. To account for these differences, and the fact that these
rates are averages, the Court has increased the amount to $500 and $450 per hour. In addition, the
Court concludes that the associate rate of $300 requested by Plaintiff is reasonable in light of the fact
that the "Other East" average rate is just $2 less at $298.
In so ruling, the Court rejects Defendant's argument that these fees should be reduced to $250
for senior level partners and $131.57 for associates in this district. Defendant focuses largely on the
fact that each lawyer is not admitted to the patent bar, but each of Plaintiff's lawyers are intellectual
property lawyers and this is a complicated trademark dispute. The Court concludes that considering
the AILPA Report and the rates regularly billed by Plaintiff, the rates set by the Court are
reasonable. See Barnes Grp., 2014 WL 580896, at *1.
Hours Reasonably Expended5
Attorney Zimmerman Scobie
Plaintiff seeks reimbursement for 6.3 hours of work performed by Attorney Zimmerman
Scobie.6 Clifford Ex. B. The Court has reviewed Attorney Zimmerman Scobie's log of tasks
The Court assumes, only for the present section, that the descriptions of the nature of the
work done were drafted contemporaneously with the hours worked, are not impermissibly vague,
and are not otherwise duplicative or excessive. The Court will then address these potential
deficiencies in the following section unless Defendant has made a specific argument directed to one
attorney's hours, in which case it will be addressed here as well as in the following section.
The Court arrived at this number, and the other numbers for Attorneys Erbele and
Winemiller, by adding up the column "Hours Spent Opposing Renewed Motion" in Plaintiff's
performed (Clifford Exs. A, B) and finds that the hours spent were reasonably expended. Attorney
Zimmerman Scobie spent this time reviewing and analyzing Defendant's Renewed Motion,
conferring with other attorneys working on the opposition to the Renewed Motion, reviewing and
revising the draft of that opposition, and reviewing Defendant's reply briefing to ascertain whether
another sur-reply should be filed. See Clifford Ex. B. Thus, Plaintiff has demonstrated that
Attorney Zimmerman Scobie reasonably expended 6.3 hours of reimbursable work with respect to
opposing Defendant's Renewed Motion.
Plaintiff seeks reimbursement for 41.1 hours of work performed by Attorney Erbele.
Clifford Ex. B. The Court has reviewed Attorney Erbele's log of tasks performed (Clifford Exs. A,
B) and finds that the hours spent were reasonably expended. Attorney Erbele spent this time
reviewing and analyzing Defendant's Renewed Motion, conferring with other attorneys working on
the opposition to the Renewed Motion, analyzing appropriate caselaw on the specific issues raised
by Defendant's Renewed Motion, substantially drafting the opposition, revising the opposition in
light of comments from Attorney Zimmerman Scobie, conducting additional research to address
such comments, and finalizing the opposition for filing. See Clifford Ex. B.
Defendant argues that these hours expended were not reasonable because Plaintiff had
already drafted an opposition to Defendant's prior motion and submitted it. Def. Response, at 11-12.
In light of the fact that approximately 45% of Plaintiff's opposition was identical to the prior
submitted opposition, Defendant argues that Attorney Erbele's hours are unreasonable and
Exhibit B. Defendant reached the same conclusion with regard to the hours Plaintiff seeks to have
reimbursed for each attorney. See Def. Response, at 5.
Defendant should not be required to pay these fees.7 Id. Defendant also asserts that Attorney
Erbele's hours (approximately 6.5 hours according to Defendant) spent on research are unreasonable
given that only eight cases were added to the opposition. Id. at 16-17.8 The Court disagrees.
Attorney Erbele spent just over forty hours analyzing, researching, drafting, and revising the
opposition. His time entries reflect that his work was concentrated on updating the research,
updating the prior draft, revising the draft in light of comments, and adding new sections related to
his research as well as sections to address the SPO. See Clifford Ex. B. Thus, Plaintiff has
demonstrated that Attorney Erbele reasonably expended 41.1 hours of reimbursable work with
respect to opposing Defendant's Renewed Motion.
Plaintiff seeks reimbursement for just .5 hours of work by Attorney Winemiller. Clifford
Ex. B. The Court has reviewed Attorney Winemiller's log of tasks performed (Clifford Exs. A, B)
and finds that the hours spent were reasonably expended. Attorney Winemiller spent this time
communicating with Attorney Zimmerman Scobie and Attorney Erbele as well as reading the reply
briefing filed by Defendant. Defendant asserts that these hours are entirely duplicative of Attorney
Zimmerman Scobie and should not be considered reasonable, given that two partners reviewing the
Renewed Motion and opposition was unnecessary. Def. Response, at 14-15. The Court disagrees.
Defendant relies on an elaborate breakdown of the identical nature of the oppositions based
on pages written and believes a certain amount of time and money could cover each newly added
page. Def. Response, at 11-12. The Court does not believe an attorney's work can be fully valued
using this approach and Defendant cites no caselaw supporting such an approach here.
Again, Defendant relies on an elaborate breakdown of the new cases added to demonstrate
that such research was unnecessary. The Court disagrees that this demonstrates that Attorney
Erbele's 6.5 hours of research were unnecessary or unreasonable. For example, Attorney Erbele
could have researched and not included relevant cases or every case that he read fully in the 6.5
hours he spent conducting research.
Attorney Winemiller spent a limited amount of time, in fact only one half hour, working on the
opposition to this Renewed Motion and such communications may well have been necessary simply
to keep him involved, to provide his opinion, and keep him apprised of counsel's progress on the
opposition. Thus, Plaintiff has demonstrated that Attorney Winemiller reasonably expended .5 hours
of reimbursable work with respect to opposing Defendant's Renewed Motion.
Conclusion as to Hours Reasonably Expended
Prior to any adjustments, the Court determines that Plaintiff has spent 47.9 hours in
reasonably expended and documented time on opposing Defendant's renewed motion, amounting
to $15,705 utilizing the reasonable hourly rates set by the Court.9
Adjustments to Attorney's Fees
Lack of Contemporaneous Records As to the Nature of the Work
Defendant argues that Plaintiff has not submitted adequate contemporaneous records and
that this impacts Defendant's and the Court's ability to adequately understand the entries. Def.
Response, at 5-6 n.4. Defendant asserts that the invoice submitted by Plaintiff, Clifford Exhibit A,
is not evidence that the attorneys made the entries as the work was completed. Although to some
extent this could be true, Plaintiff has submitted a declaration sworn to by one of its attorneys, John
A. Clifford, which states that the invoices were created in the ordinary course of business using
Merchant & Gould LLP's billing software, reflect contemporaneous business records of the
attorneys' time, and that Clifford Exhibit B is "a table, compiled from M&G's contemporaneous
billing records." Clifford Decl. ¶¶ 3-4, 8. Exhibit B contains the exact dates and descriptions of the
work as are included in the invoices on Exhibit A. The Court sees no reason to discredit Attorney
$3,150 for Attorney Zimmerman Scobie (6.3 hours at $500/hour); $12,330 for Attorney
Erbele (41.1 hours at $300/hour); and $225 for Attorney Winemiller (.5 hours at $450/hour).
Clifford and believes such records are generally sufficient under the standard annunciated in Carey,
711 F.2d at 1148.10 See Prince of Peace Enterps., Inc. v. Top Quality Food Market, LLC, No. 7-CV349, 2014 WL 793084, at * (S.D.N.Y. Feb. 28, 2014) (holding that invoices were a sufficiently
contemporaneous record given that copies of checks reflecting the payments were in the record and
the invoices were not "the sort of post-hoc cobbling together of notes, emails and calendars that
courts have disapproved of in the past"), adopted in part by, 2015 WL 456645 (S.D.N.Y. Feb. 3,
2015). In fact, Defendant appears to recognize this asserting that it would be appropriate to equate
the reliability of contemporaneous time sheet entries to an invoice if there was an assertion under
oath that they are equivalent in every regard. Def. Response, at 8. That is, in effect, what Plaintiff
has done here with the Clifford Declaration and Exhibits A and B.
Vague Descriptions of Work Performed and Block Billing
Defendant cursorily asserts, at various points in its response, that certain of Plaintiff's
descriptions are vague, and therefore, a percentage reduction is warranted. See Def. Response, at
10-15. As examples, Defendant points to Attorney Zimmerman Scobie's entries, specifically one
on March 29, 2016 that stated she had "confer[red] with Michael Erbele and John Winemiller
regarding strategy for response to motion for protective order," and two other entries on April 1,
2016 and April 5, 2016 that stated she had "confer[red] with team regarding same" after describing
other work on the opposition. Id. at 13; see also Clifford Ex. B, at 1, 3-4. Although it is true that
The attorneys did, however, use block billing and there are, in regards to some entries, no
contemporaneous records of the time actually spent solely in opposing the motion (as opposed to
the other activities also billed in the same entry). However, the attorneys have broken down such
fees solely for purposes of the fee statement in Clifford Exhibit B after the fact. See Clifford Decl.
¶ 4 ("I consulted each attorney listed in Exhibit B to determine the amount of time in each time entry
listed in Exhibit B that was spent opposing Midsun's Renewed Motion for Protective Order."). The
Court will address this issue in the following section.
"[f]ees should not be awarded for time entries when the corresponding description of work
performed is vague and therefore not susceptible to a determination of whether the time [billed] was
reasonably expended," Conn. Hosp. Ass'n, 891 F. Supp. at 690 (citation and internal quotation marks
omitted), the entries pointed to by Defendant are not vague at all and the Court can discern whether
the time was reasonably expended. The March 29th entry clearly billed just one half hour of
Attorney Zimmerman Scobie's time to conferring with her team regarding a strategy for responding
to Defendant's Renewed Motion. Clifford Ex. B, at 1. The April 1st and April 5th entries also
clearly refer to Attorney Zimmerman Scobie conferring with her team regarding the review and
revising of the draft opposition, and Attorney Erbele's entries support that he also conferred with
Attorney Zimmerman Scobie on the dates at issue.11 Clifford Ex. B, at 3-4. In short, there is nothing
impermissibly vague about these entries when they are read in full and in context.12
Defendant also asserts that the block billing utilized by Plaintiff, in addition to the overall
vagueness of the entries, makes it impossible to ascertain whether the hours asserted were
reasonable. Def. Response, at 6-8. However, block billing is not prohibited and does not warrant
a reduction "absent evidence that [a party's] block-billing has obscured such unreasonable billing."
See Hnot v. Willis Grp. Holdings Ltd., No. 01-CV-6558, 2008 WL 1166309, at *6 (S.D.N.Y. April
Even if the entry was vague, the Court could clarify it by reference to other entries such
as Attorney Erbele's. See Blumenschine v. Prof'l Media Grp., LLC, No. 02-CV-2244, 2007 WL
988192, at *17 (D. Conn. March 30, 2007) ("A court may attempt to clarify vague entries by looking
at the context of adjacent entries." (citing Conn. Hosp. Ass'n, 891 F. Supp. at 691)).
The cases relied upon by Defendant where such reductions were made are inapposite. For
example, in Bravia Capital Partners, Inc. v. Fike, 296 F.R.D. 136, 145 (S.D.N.Y. 2013), the entries
did not state that the tasks were done in support of the motion for which fees were awarded.
Essentially, the entries stated only "confer with client" without any connection to the motion;
whereas here, the entries stated "Review and finalize opposition to motion for protective order;
confer with team regarding same," which clearly connects the "confer" to the opposition drafting
and makes the fee sought reasonable. Clifford Ex. B, at 3.
7, 2008); see also Ass'n of Holocaust Victims v. Bank of Austria Creditanstalt AG, No. 04-CV-3600,
2005 WL 3099592, at *5 (S.D.N.Y. Nov. 17, 2005) (noting that block billing is not prohibited but
that it can make it difficult to determine if reported hours are duplicative or unnecessary). Other
courts have recognized that it is not appropriate to "impose an across-the-board penalty simply
because a law firm has engaged in a generally accepted billing practice." Hnot, 2008 WL 1166309,
at *6. Here, Plaintiff has addressed this concern by adding a separate column that delineates
specifically the hours spent opposing the Renewed Motion. Clifford Ex. B.13 With the block billed
entries that contain time billed for matters unrelated to the opposition of the Renewed Motion,
Plaintiff seeks compensation only for time billed related to the opposition—and a separate column
denotes that time.
The Court has reviewed the blocked billed entries and determined that the hours noted as
spent working to oppose the Renewed Motion are reasonable. There is no evidence that the block
billing has obscured an assessment of whether the hours ultimately asserted by Plaintiff are
reasonable. Defendant points to a March 25, 2016 entry made by Attorney Erbele that reflects block
billing for tasks related to modifying the scheduling order in addition to those related to opposing
Defendant's Renewed Motion. Def. Response, at 7. Defendant ignores altogether that Plaintiff has
asserted that only a specific number of the total hours billed for this entry were attributed to
opposing Defendant's Renewed Motion. Attorney Erbele billed 3.6 hours and attributes 3 hours of
that time to work opposing Defendant's Renewed Motion. Clifford Ex. B, at 1. This is reasonable
The Court recognizes that these breakdowns were not contemporaneous with the time
entries, which recorded only the total time spent for each entry. However, the Court does not
believe that in and of itself should warrant a reduction. To do so would mean that block billing, a
practice often utilized by attorneys, would always result in a reduction. This would be contrary to
the rule expressed in other cases. See, e.g., Hnot, 2008 WL 1166309, at *6.
given that the majority of the entry is devoted to substantive research related to that opposition as
well as analyzing Defendant's Renewed Motion, a more complex task than the work and
correspondence related to modifying the scheduling order.14
Duplication of Efforts and Excessive Hours
Defendant asserts that the tasks split among Attorneys Zimmerman Scobie, Erbele and
Winemiller were inappropriate and duplicative of each other. Def. Response, at 14-15. Essentially,
Defendant appears to assert that the task at hand did not require the work of two partners and did
not require that the attorneys confer with each other. Id. The Court rejects Defendant's argument.
It is true that "a trial court should ordinarily greet a claim that several lawyers were required
to perform a single set of tasks with healthy skepticism." Blumenschine, 2007 WL 988192, at *17
(quoting Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir. 1992)) (internal quotation marks omitted).
However, in this case, the attorneys each performed specific and separate tasks, a division revealed
by a review of the time entries. Attorney Erbele conducted the research and initial drafting in light
of comments and conversations with the more senior Attorneys Zimmerman Scobie and Winemiller.
He also input and incorporated changes to the draft from these conversations and other edits.
Attorney Zimmerman Scobie took the lead on supervising the drafting and Attorney Erbele's work
Defendant later on points to a March 25, 2016 entry by Attorney Zimmerman Scobie as
being unreasonable because it bills 1 hour of 1.8 hours to work opposing Defendant's Renewed
Motion when it included work related to scheduling orders. Def. Response, at 9. Reviewing that
entry, however, leads to the conclusion that such billing was reasonable. It is just over half the time
of the full entry that is devoted to work opposing Defendant's Renewed Motion and the entry also
provided that she spent time "review[ing] and analyz[ing] the motion for protective order." Clifford
Ex. B at 1. It is clear that this would take the majority of her time in relation to the other tasks listed,
which include correspondence with local counsel and with Attorney Erbele regarding the scheduling
order and opposing Defendant's Renewed Motion.
(expending just 6.3 hours to do so), while Attorney Winemiller provided additional support as
needed (expending just .5 hours to do so).
Defendant primarily takes issue with the fact that the opposition went through multiple drafts
and revisions, asserting that such effort is improper duplication. Def. Response, at 14. The Court
disagrees. Such drafting exercises are reasonable in this instance. In any event, the opposition went
through, at most, three rounds of comments from Attorney Zimmerman Scobie. There was no
duplication in these efforts and such efforts were not excessive; each round of editing, based on the
descriptions in the entries, provided something for Attorney Erbele to research, add or edit prior to
the finalization of the opposition. See Clifford Ex. B. Defendant also appears to assert that the fact
that each attorney billed for conferring with one another was unnecessary duplication. The Court,
again, disagrees. That is not the type of duplication referenced and elaborated on in the appropriate
caselaw. See, e.g., Blumenschine, 2007 WL 988192, at *17 (noting that such duplication occurs
when multiple lawyers perform a single task). Each attorney was entitled to bill for his or her time
spent discussing the opposition draft or Defendant's Renewed Motion with each other.
To the extent that Defendant has argued the hours were excessive in relation to the task at
hand, particularly in light of the fact that an opposition to a prior motion had already been drafted,
the Court, again, rejects such an argument. The total number of hours spent by each attorney was
reasonable to the task at hand, even in light of the fact that an opposition to a prior similar motion
was already submitted. See Part V(B)(2), supra.
Conclusion as to Attorneys' Fees
Plaintiff identified $16,146 in documented reasonable attorneys' fees. The Court has
determined that number should be reduced as to the 6.3 hours attributed to Attorney Zimmerman
Scobie because her hourly rate should be $500 instead of $570. Plaintiff is therefore entitled to
$15,705 in reimbursement for attorneys' fees.
Defendant is ORDERED to transmit to the Plaintiff the amount of $15,705 in attorneys' fees
for fees required for Plaintiff to opposed Defendant's Renewed Motion for a protective order.
Defendant is further directed to certify with the Court, in the form of an affidavit, its full compliance
with the terms of this ruling on or before June 16, 2017, or otherwise inform the Court why
compliance by that date is not feasible.
It is SO ORDERED.
Dated: New Haven, Connecticut
April 18, 2017
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge
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