SAMOST et al v. LUBORSKY et al

Filing 121

OPINION. Signed by Judge Robert B. Kugler on 3/13/2017. (dmr)

NOT FOR PUBLICATION

(Doc. Nos. 100, 105)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
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:
:
Plaintiffs /
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Counterclaim Defendants,
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:
:
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v.
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PAULA LUBORSKY ,
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Defendant /
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Counterclaim Plaintiff.
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___________________________________ :
JOSEPH and IVA SAMOST,

Civil No. 13-7365 (RBK/JS)

OPINION

KUGLER, United States District Judge:
This matter comes before the Court on Defendant/Counterclaim Plaintiff Paula Luborsky
(“Plaintiff”)’s Motion to Alter Judgment, to Make Supplemental and/or Amended Findings, or,
in the Alternative, for Reconsideration (Doc. No. 100) and Plaintiff’s Motion for Attorney Fees
(Doc. No. 105). For the following reasons Plaintiff’s Motion to Alter Judgment, Make
Supplemental and/or Amended Findings, or, in the Alternative, for Reconsideration is DENIED.
Plaintiff’s Motion for Attorney Fees is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND

The Court need not belabor the factual background of the ongoing dispute amongst the
Samost family which led to the recent contempt trial associated with the instant motions. The
Court laid out the relevant factual background regarding this case in its opinion entered August
2, 2016. August 2, 2016 Opinion at 2-5 (Doc. No. 98). On August 2, 2016, this Court held
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Defendant Joseph Samost in contempt of court and ordered that Samost should pay Plaintiff’s
attorneys’ fees, expert fees, and cost associated with the action, but only such fees as generated
in federal court and not in the related state court proceeding. Plaintiff filed the instant motion to
alter judgment, to make supplemental and/or amended findings, or, in the alternative, for
reconsideration on August 15, 2016. Plaintiff then filed her motion for attorney fees on
September 1, 2016.

II. DISCUSSION
a. Motion to Make Supplemental and/or Amended Findings
Plaintiff first moves to have the Court make supplemental findings allowing a judgment
which permits Plaintiff to submit an application for attorneys’ fees and costs incurred in related
State Court proceedings. Plaintiff’s Motion to Alter (“MTA”) at 2 (Doc. No. 100-1). “On a
party’s motion . . . the court may amend its findings—or make additional findings—and may
amend the judgment accordingly.” Fed. R. Civ. P. 52(b). Rule 52(b) allows district courts to
“correct plain errors of law or fact, or, in limited situations, to allow the parties to present newly
discovered evidence.” Roadmaster (USA) Corp. v. Calmodal Freight Sys., 153 F. App’x 827,
829 (3d Cir. 2005).
Rule 52 governs “findings and conclusions . . . by the court.” Fed. R. Civ. P. 52(a). The
court finds facts in cases “tried on the facts without a jury or with an advisory jury.” Id. Rule
52(b) relief is available after summary judgment has been granted, after a bench trial, and in
habeas proceedings. Gutierrez v. Ashcroft, 289 F. Supp. 2d 555, 561 (D.N.J. 2003). The Third
Circuit has explained that “[t]he purpose of this rule is to allow the court to correct plain errors of
law or fact, or in limited situations, to allow the parties to present newly discovered evidence.”
Roadmaster, 153 F. App’x at 829 (emphasis added) (citation omitted).
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Plaintiff suggests that the Court had adequate facts on the record to determine that she
incurred attorneys’ fees attempting to enforce this Court’s orders in state court. Plaintiff cites her
testimony and Stephen Samost’s testimony for the proposition that Plaintiff undertook specific
efforts to enforce this Court’s orders in state court. MTA at 2-3. This testimony is not new, nor
did the Court overlook it. Plaintiff’s testimony and Stephen Samost’s testimony did not identify
specific attempts or filings to enforce this Court’s orders in state court. Plaintiff also cites to state
court orders which reference this Court’s orders as proof that the state court actions were
undertaken to enforce this Court’s orders. Id. at 3-5.
Even if the Court were to accept Plaintiff’s contention that the state court may enforce
this Court’s order (rather than issue orders touching upon the same subject matter), Plaintiff has
failed to provide any case law to suggest she may recover the state court fees from this Court.
Plaintiff cites several cases to support her request for fees generated in the state court litigation.
First, Plaintiff cites Robin Woods, Inc. v. Woods, 28 F.3d 396, 400 (3d Cir. 1994) for the
proposition that an award of damages in a civil contempt proceeding should attempt to return the
parties to the position they would have been in had the order been obeyed. MTA 5-6. Plaintiff
then cites to three cases for the proposition federal courts have awarded attorneys’ fees incurred
in enforcing the federal court’s order in state court. Two of these cases (Gilgallon v. Cty. of
Hudson, 02-5948, 2006 WL 477042 (D.N.J. Feb. 28, 2006) and Schermerhorn v. CenturyTel.,
Inc., 528 B.R. 297 (S.D. Tex. 2015)) involved an award of attorneys’ fees incurred defending
state court actions that violated injunctive provisions of federal court orders. Neither the March
23, 2004 Order, nor the September 21, 2004 Order in this case contained such injunctive
provisions. The final case, Chosin Few, Inc. v. Scott, 209 F. Supp. 2d 593 (W.D.N.C. 2002) is

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inapplicable, as that case involved Rule 11 sanctions for an attorney attempting to undermine a
federal judgment.
The Court believes that the damages awarded in August 2016 have adequately put
Plaintiff back in the position she would have been in had Joseph Samost obeyed the Court’s
original order. Woods, 28 F.3d at 400. The Court awarded damages for the diminution of
Plaintiff’s property in addition to the legal fees and costs incurred in this Court in this action.
Thus, the Court has compensated Plaintiff for the damages Defendant caused by his defiance of
this Court’s order. The Court does not find any clear error or law or fact in the August 2, 2016
Opinion, nor has Plaintiff come forward with any newly discovered facts. Accordingly, Plaintiffs
Motion to Make Supplemental and/or Amended Findings is denied.
b. Motion to Alter Judgment/for Reconsideration
Plaintiff also moves to alter judgment, or in the alternative, for reconsideration of this
Court’s previous decision not to award attorneys’ fees for the state court matter. A motion to
alter judgment is governed by Federal Rule of Civil Procedure 59(e), while a motion for
reconsideration is brought under Local Civil Rule 7.1(i). While these motions arise under
different rules, the applicable standard for each rule is the same. See In re Vehicle Carrier Servs.
Antitrust Litig., 13-3306, 2016 WL 1628879, at *2 (D.N.J. Apr. 25, 2016) (citations omitted).
Local Civil Rule 7.1(i) directs a party seeking reconsideration to file a brief “setting forth
concisely the matter or controlling decisions which the party believes the Judge or Magistrate
Judge has overlooked.” L. Civ. R. 7.1(i); see also Bowers v. Nat'l Collegiate Athletic Ass'n, 130
F. Supp. 2d 610, 612 (D.N.J. 2001) (“The word ‘overlooked’ is the operative term in the Rule.”)
A motion for reconsideration under Rule 7.1(i) is “‘an extremely limited procedural vehicle,’ and
requests pursuant to th[is] rule[ ] are to be granted ‘sparingly.’” Langan Eng'g & Envtl. Servs.,
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Inc. v. Greenwich Ins. Co., Civ. No. 07–2983, 2008 WL 4330048, at *1 (D.N.J. Sept. 17, 2008)
(citing P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 353 (D.N.J.
1992)).
To prevail on a motion for reconsideration, the moving party must show at least one of
the following grounds: “(1) an intervening change in the controlling law; (2) the availability of
new evidence that was not available when the court [made its initial decision]; or (3) the need to
correct a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Café v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Reconsideration is not appropriate, however, where
the motion only raises a party’s disagreement with the Court's initial decision. Florham Park
Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J. 1988); see also United
States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999) (“Mere disagreement
with a court’s decision normally should be raised through the appellate process and is
inappropriate on a motion for [reconsideration]”); Schiano v. MBNA Corp., Civ. No. 05–1771,
2006 WL 3831225, at *2 (D.N.J. Dec. 28, 2006) (“Mere disagreement with the Court will not
suffice to show that the Court overlooked relevant facts or controlling law, . . . and should be
dealt with through the normal appellate process”) (citations omitted).
Plaintiff has not alleged any intervening change in controlling law, nor has she come
forward with new evidence that was unavailable when the Court made its initial decision
embodied in the August 2, 2016 Opinion. The Court has also already determined that there was
no clear error of law or fact in the August 2, 2016 opinion in its earlier analysis of Plaintiff’s
motion to make supplemental or amended findings. See infra Part II.a. Thus, Plaintiff has not
shown any of the grounds required for a motion to alter judgment or a motion for

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reconsideration. Accordingly, Plaintiff’s motion to alter judgment or, in the alternative, for
reconsideration, is denied.
c. Motion for Attorney Fees

Plaintiff makes a separate motion for the court to award attorney fees. This Court

awarded Plaintiff attorney’s fees incurred while pursuing her counterclaim for contempt against
Defendant Joseph Samost and ordered that she file a fee application in accordance with Local
Civil Rule 54.2. See August 2, 2016 Order (Doc. No. 99). As noted above, Plaintiff filed the
instant motion for attorney fees on September 1, 2016. Defendant then filed a brief in opposition
on September 19, 2016. Plaintiff filed her reply brief on September 26, 2016. Defendant then
submitted a sur-reply on October 18, 2016. Plaintiff submitted a sur-sur-reply on October 26,
2016.
The Supreme Court has held that “the most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The
product of this calculation is called the lodestar, which is presumed to yield a reasonable fee.
Washington v. Philadelphia Cty. Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996)
(citing City of Burlington v. Dague, 505 U.S. 557 (1992)). The party seeking fees bears the
burden of establishing their reasonableness by submitting evidence supporting the hours worked
and the claimed rates. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990) (citing Hensley,
461 U.S. at 433). The burden then shifts to the party opposing the attorneys' fees request to
contest either the reasonableness of the hours or the rates claimed. Apple Corps. Ltd. v. Int’l
Collectors Soc’y, 25 F. Supp. 2d 480, 485 (D.N.J. 1998). Once the opposing party has met this
burden, “the court has wide discretion” to determine whether the number of hours reported are
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reasonable, id., and whether the claimed rates are in accordance with prevailing market rates in
the relevant community, Rode, 892 F.2d at 1183 (citing Blum v. Stenson, 465 U.S. 886, 895
(1984)). Even an unopposed fee application must demonstrate the reasonableness of the
requested fees. See Spectrum Produce Distrib., Inc. v. Fresh Mktg., Inc., No. 11–6368, 2012 WL
2369367, at *1, *4 (D.N.J. June 20, 2012).
Plaintiff originally moved for attorney’s fees in the amount of $118,329, which included
273.8 hours of work by Mr. Peter J. Boyer, 5 hours of work by Robert Baranowski, 6.6 hours of
work by Megan Balne, and 5.7 hours of work by Rebecca Spinella. Boyer Decl., Ex. A (Doc.
No. 105-2). Plaintiff’s counsel submitted a supplemental bill for time spent replying to
Defendant’s opposition in the amount of $3,693.50. Boyer Decl. II, Ex. A (Doc. No. 109-2).
Plaintiff’s counsel submitted a declaration and accompanying spreadsheet which detailed the
work performed for Plaintiff, as well as the dates services were rendered, the identity of each
person performing work, qualifications for each person performing work, the time spent by each
person performing work, the normal rates charged by each person for their work, and the rate
charged for each person’s efforts. See Boyer Decl. ¶¶ 12-20 (Doc. No. 105-1); Boyer Decl., Ex.
A. Plaintiff’s counsel also provided an affidavit from a disinterested local attorney who affirmed
that the fees requested are reasonable for the area. Kudatzky Decl. (Doc. No. 105-3).
Defendant argues that Plaintiff’s motion for attorney’s fees is deficient in several regards.
First, Defendant claims that Plaintiff’s application does not comply with the first requirement in
Local Civil Rule 54.2, which requires that the motion shall include an affidavit and/or other
documents describing “the nature of the services rendered, the amount of the estate or fund in
court, if any, the responsibility assumed, the results obtained, any particular novelty or difficulty
about the matter, and other factors pertinent to the evaluation of the services rendered.”
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Defendant specifically alleges that Plaintiff’s counsel has not set forth the nature of the services
rendered, the amount of the estate or fund in court, if any, the responsibility assumed, the results
obtained, any particular novelty or difficulty about the matter and other pertinent factors. Samost
Opp’n Br. at 5 (Doc. No. 107). Defendant further argues that Plaintiff’s counsel did not
distinguish between work performed by Mr. Boyer and work performed by Stephen Samost. Id.
Plaintiff’s counsel responds that Defendant’s accusation that counsel is attempting to bill
for work performed by Stephen Samost is unfounded. Boyer Decl. II ¶¶ 7-10 (Doc. No. 109-1).
Plaintiff’s counsel also submitted a more specific description of the services, etc. as laid out in
Local Civil Rule 54.2(a)(1). Id. ¶ 16. Plaintiff also submitted a declaration attesting to her
agreement to have counsel represent her and the agreed-upon rate of representation. Luborsky
Decl. ¶ 3 (Doc. No. 109-3). Plaintiff explained that bills were sent to her husband, Stephen
Samost, to review due to his “greater familiarity” with the matters. Id. ¶ 4.
Defendant replies that Plaintiff still fails to satisfy Local Civil Rule 54.2 because Plaintiff
did not supply a letter memorializing the representation. Samost Sur-Reply at 2 (Doc. No. 116.
Defendant further argues that, because the bills were directed to Stephen Samost, the Court is not
able to determine whether Plaintiff actually paid the fees at issue. Id. at 2-3.
Plaintiff responds that Local Civil Rule 54.2 only requires an affidavit or other document
describing the fee agreement and amounts billed/paid. Pl.’s Sur-sur-Reply at 1 (Doc. No. 120).
Plaintiff is correct. The Court notes that Plaintiff has submitted an affidavit complying with 28
U.S.C. § 1746 describing her fee agreement and amounts paid. Luborsky Decl. ¶¶ 3-4.1 The
Court further notes that Plaintiff’s counsel has submitted affidavits describing the amounts billed

1. The Court finds that it is of no matter whether the payment ultimately came from Stephen Samost, Plaintiff’s
husband.

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to Plaintiff. Accordingly, the Court is satisfied that Plaintiff’s counsel has adequately described
relevant factors for evaluating services rendered as required by Local Civil Rule 54.2.
Defendant also argues that Plaintiff’s fee award should be reduced because the requested
amount is unreasonably high. Samost Opp’n Br. at 5. Defendant claims that the requested fees
are too high because the hourly rate charged is unreasonable given the subject matter of the case,
because Plaintiff seeks to hold Defendant liable for time Plaintiff spent litigating against other
parties, because the fees include time spent consulting with Stephen Samost (who was allegedly
disqualified from representing Plaintiff), because the fee request seeks to hold Defendant liable
for time spent defending a motion for sanctions stemming from Plaintiff’s own violation of
Federal Rule of Civil Procedure 26, and because Plaintiff incurred unnecessary fees by going to
trial to secure fees for state court proceedings. Samost Opp’n Br. at 5-14.
Plaintiff responds first to Defendant’s contention that the hourly rate charged was
unreasonably high. Plaintiff argues that it is of no matter whether Defendant’s attorney charged
less in the instant case or Plaintiff paid a lower rate to attorneys in state court. Pl.’s Reply Br. at 6
(Doc. No. 109). Plaintiff again has the better of this argument. A reasonable hourly rate “is to be
calculated according to the prevailing market rates in the relevant community.” Rode, 892 F2d at
1183. Counsel is required to establish, by satisfactory evidence beyond its own affidavits, that
the rates charged reflect those prevailing in the region for similar services by lawyers with
comparable skill, experience, and reputation. Washington, 89 F.3d at 1035. Counsel's burden
may be satisfied by the submission of affidavits of non-party attorneys with personal knowledge
of the hourly rates customarily charged in the relevant community, or by third party fee
structures. See id. at 1036; Spectrum Produce, 2012 WL 2369367, at *4 n.4. Plaintiff’s counsel

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has submitted such an affidavit by a non-party attorney; Defendant has not. Accordingly, the
Court finds that Plaintiff’s counsel charged a reasonable hourly rate.
Plaintiff does not appear to respond to Defendant’s argument regarding time Plaintiff
spent litigating against other parties. The Court finds that Plaintiff’s spreadsheets and affidavits
adequately assert that the fees sought were generated in this litigation against Defendant.
Plaintiff’s counsel responds to arguments regarding Stephen Samost’s involvement in the
matter by affirming that all final products were his own. Boyer Decl. II ¶ 10. The Court finds that
Stephen Samost’s involvement does not make Plaintiff’s fee application unreasonable. Despite
Defendant’s accusation, there is nothing to suggest that Plaintiff’s counsel is attempting to
charge fees for work that was actually performed by Stephen Samost. Furthermore, the time
Plaintiff’s counsel spent conferring with Stephen Samost went directly towards counsel’s
representation of Ms. Luborsky in the instant matter.
Plaintiff’s counsel succinctly points out that there was no finding of non-compliance with
Federal Rule of Civil Procedure 26. Boyer Decl. II ¶ 15. Rather, Defendant’s motion alleging
Rule 26 non-compliance was denied. Id. Accordingly, Defendant’s argument regarding noncompliance with Federal Rule of Civil Procedure 26 is not a grounds for reducing Plaintiff’s
requested fees.
Finally, Plaintiff’s counsel argues that trial was, in fact, necessary due to Defendant’s
reticence regarding the value of diminution to Plaintiff’s property. Pl.’s Reply Br. at 7. The Court
finds that the trial should not reduce Plaintiff’s requested fees incurred in holding Defendant in
contempt.

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For the reasons stated above, the Court finds that Plaintiff is entitled to $122,022.50 in
attorneys’ fees in light of this Court’s August 2, 2016 Order.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Alter Judgment, to Make Supplemental
and/or Amended Findings, or, in the Alternative, for Reconsideration is DENIED. Plaintiff’s
Motion for Attorney Fees is GRANTED.
Dated:

03/13/2017

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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