THORNER et al v. SONY COMPUTER ENTERTAINMENT AMERICA LLC et al

Filing 243

MEMORANDUM OPINION. Signed by Judge Mary L. Cooper on 8/14/2014. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CRAIG THORNER, et al.,
Plaintiffs,

CIVIL ACTION NO. 09-1894 (MLC)
MEMORANDUM OPINION

v.
SONY COMPUTER
ENTERTAINMENT AMERICA LLC,
et al.,
Defendants.

COOPER, District Judge
The facts and procedural history pertinent to this memorandum opinion are contained
in the Court’s opinion dated March 19, 2014. (See dkt. entry no. 237, 3-19-14. Op.) On that
date, the Court ordered the parties to show cause: “(1) which fee entries – among those
contained in invoice nos. 132490, 133785, and 133879 - correspond to [(a) work performed in
connection with the motion to stay pending appeal and (b) the appeal to the United States
Court of Appeals for the Federal Circuit (“work performed in this case”)], (2) the
reasonableness of said fees, and (3) whether Budd Larner is also entitled to attorney fees and
costs from Thorner, payable out of the outstanding balance in connection with filing this
motion and responding to this Order to Show Cause.” (Id. at 6; see also dkt. entry no. 238, 319-14 Order & Order to Show Cause.)

The movant, Budd Larner, P.C. (“Budd Larner”), responded to the Court’s Order to
Show Cause (“OTSC”) by (1) identifying the fee entries contained in the specified invoices
that correspond to the work performed in this case, (2) addressing the reasonableness of the
fees, and (3) arguing that it is entitled to attorney fees and costs and prejudgment and postjudgment interest. (See dkt. entry no. 239, Budd Larner Supplemental Br.) Budd Larner
argues that, in total, “the time entries contained in Invoice Nos. 132490, 133785 and 133879
that correspond to Work Performed in This Case is $36,653, so, therefore, the attorney lien
attaches to $36,653.” (See id. at 4 (emphasis omitted).) Budd Larner further argues that
outstanding disbursements related to work performed in this case amount to $1,381.46. (See
id. at 4-5.) Budd Larner maintains that “in light of the Court’s ruling that the attorney lien
attaches to the Work Performed in This Case and not to work performed in the state court
legal malpractice action against Niro, a 50%-50% allocation is appropriate,” and thus
disbursements of $690.73 should be added to the outstanding fee amount to reach a total
amount of $37,343.73, which “should be payable to Budd Larner out of the outstanding
balance held in escrow.” (See id. at 5.)
Budd Larner also analyzed the factors enumerated in New Jersey Rule of Professional
Conduct (“RPC”) 1.5(a) in arguing that the fees it billed its former clients Craig Thorner and
Virtual Reality Feedback Corporation (“Thorner”) were reasonable. (See id. at 5-6; dkt. entry
no. 239-1, Aff. of Allen L. Harris at 14-18 (analyzing reasonableness of fees).) Budd Larner
notes that Thorner cannot challenge the reasonableness of the fees charged unless he provides
an expert to opine on the reasonableness of Budd Larner’s fees. (See Budd Larner
Supplemental Br. at 6.)
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Budd Larner then argues that there are particular policy considerations that the Court
should consider that should lead the Court to award attorney fees and costs. (See id. at 6-7.)
Budd Larner states:
Indeed, the filing of the Petition in this matter was necessitated solely as a result
of Thorner and VRF's failure to pay attorneys’ fees and disbursements to Budd
Larner as they had agreed to pay. If compensation for attorney fees are not
permitted for fees incurred in connection with the fee Petition, then clients
(such as is the case with Thorner and VRF) could simply ignore their payment
obligations knowing that they are placing the law firm in a no-win situation.
Even if a law firm such as Budd Larner prevails on its fee lien application (as
Budd Larner has done here), the attorney will in effect not be made whole.
(Id. at 7.) Budd Larner lastly argues that it is entitled to prejudgment and post-judgment
interest. (See id. at 8-9; dkt. entry no. 241, Budd Larner Reply Br. at 12-14.)
Thorner counters by stating that Budd Larner’s fees are unreasonable, and proceeds
with analyzing the RPC 1.5(a) factors. (See dkt. entry no. 240, Thorner Supplemental Br. at
7-11.) Thorner next contends that Budd Larner is not entitled to attorney fees because
relevant case law states that attorneys are prohibited from recovering fees for the time spent
appearing on their own behalf. (See id. at 11-12.) Thorner lastly argues that Budd Larner is
not entitled to prejudgment or post-judgment interest because the Court did not order as such
in the 3-19-14 Order and OTSC, and Budd Larner did not seek timely reconsideration of the
order. (See id. at 13.)
The Court, having reviewed the parties’ responses to the OTSC, finds that: (1) Budd
Larner’s attorney fee lien shall attach to $36,653.00; (2) Budd Larner has not made a showing
that it is entitled to recover outstanding disbursements; (3) Budd Larner’s fees were
reasonable; and (4) Budd Larner is entitled to prejudgment and post-judgment interest.
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The Court notes, as an initial matter, that Thorner does not challenge a single fee entry
in invoice nos. 132490, 133785, and 133879. (See generally Thorner Supplemental Br.)
Rather than contesting whether specific fee entries should be attributed to this case, Thorner
only challenges the reasonableness of the fees. The Court therefore need not contemplate
whether certain fee entries are properly attributed to this case and must only consider the
reasonableness of said fees.
In regard to the reasonableness of the fees charged, Budd Larner posits that Thorner
“cannot challenge the reasonableness of the fees charged by [Budd Larner] unless [he]
provide[s] an expert to opine on the reasonableness of Budd Larner’s fees.” (See Budd
Larner Supplemental Br. at 6.) Budd Larner cites to the New Jersey Appellate Division to
support its position: “Defendants did not produce an expert to opine on the reasonableness of
the services rendered. Defendants, here, are lay persons and are not expected nor do they
have sufficient knowledge or experience to opine on the reasonableness of legal services.”
(See Budd Larner Reply Br. at 8 (citing Alpert, Goldberg, Butler, Norton & Weiss, P.C. v.
Quinn, N.J. Super. 510, 538 (N.J. App. Div. 2009)).) While the Court agrees that Thorner
himself is not qualified to opine on the reasonableness of the fees charged, expert testimony is
not required to establish the reasonableness of attorney fees. See Ranco Indus. Products Corp.
v. Dunlap, 776 F.2d 1135, 1140 (3d Cir. 1985). This is because “[a] judge is presumed
knowledgeable as to the fees charged by attorneys in general and as to the quality of legal
work presented to him by particular attorneys.” Id.
The factors to be considered in determining the reasonableness of a fee include the
following:
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(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services;
(8) whether the fee is fixed or contingent.
N.J.R.P.C. 1.5(a)(1)-(8). The Court has considered these factors and finds that the fees
charged by Budd Larner were reasonable. The work performed in this case by Budd Larner
was involved and required a great deal of time and labor, particularly with regard to the
preparation of the joint appendices and the brief for the appeal to the United States Court of
Appeals for the Federal Circuit. Budd Larner offered Thorner discounted billing rates of $300
to $400 per hour, which this Court finds to be reasonable considering the particular legal
services rendered and the experience of the attorneys involved. (See, e.g., dkt. entry no. 242,
Aff. of Peter J. Frazza at ¶ 6 (stating that Attorney Frazza’s customary hourly rate in January
2010 was $475.00 per hour, yet he billed Thorner discounted hourly rate of $350.00 per
hour).) Regarding the amount involved, the Court notes that it is at least $300,000, as agreed
to in the settlement agreement. Yet, the Court observes that one could argue that the amount
involved could be considered in excess of $300,000, as much of the work performed in this
case related to Thorner’s appeal from this Court’s ruling regarding the settlement agreement.1

1

Thorner previously claimed that the Niro Firm settled the underlying matter without his consent.
(See dkt. entry no. 232, Opp’n to Mot. to Enforce Att’y Fee Lien at 1.) Thorner subsequently retained
Budd Larner to represent him to oppose Sony’s Motion to Enforce the Settlement Agreement. (See

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The legal work was performed on an emergent basis. Regarding the ability of the Budd
Larner attorneys, Thorner himself expressed his satisfaction, on a number of occasions, with
the abilities and the quality of work of Budd Larner’s attorneys. (See Aff. of Peter J. Frazza,
Ex. A, 10-1-12 Email from Thorner to Budd Larner.) In one particular email to Budd Larner,
Thorner stated:
Gentlemen, I want to confirm that I am thrilled with the work you have done.
It is absolutely acceptable for the next version I see to be the filed version. I
can't express enough my sincere gratitude for your efforts on my behalf. I want
to let you all know that if we lose this motion, such an outcome would in no
way whatsoever be reflective of your brilliant efforts. You have done all that
could be done and I am grateful beyond words.
(Id.)2
After considering the above factors, and the parties’ arguments regarding the same, the
Court finds that the fees charged by Budd Larner for the work performed in this case are
reasonable. Budd Larner’s attorney fee lien shall therefore attach to $36,653.00.3
Budd Larner finally argues that it is entitled to attorney fees and costs and prejudgment
and post-judgment interest. (See Budd Larner Supplemental Br.) In regard to the attorney
id.) As Thorner opposed Sony’s Motion to Enforce the Settlement Agreement, Thorner necessarily
believed the amount involved should have been greater than $300,000.
Thorner premises much of his argument on the notion that Budd Larner approximated – at the onset
of the representation – that fees for the work performed in this case would be $50,000. This is
inconsequential. Thorner retained Budd Larner – by written fee agreements – to represent him in the
work performed in this case. (See dkt. entry no. 239-1, Aff. of Allen L. Harris, Ex. E, Fee
Agreements.) Thorner has provided the Court with no reason to question Budd Larner’s position that
Thorner had knowledge of and consented to all of the work performed in this case. (See Aff. of Peter
J. Frazza at ¶ 5; see also Aff. of Peter J. Frazza, Ex. A, 10-1-12 Email from Thorner to Budd Larner.)
2

Budd Larner’s argument regarding disbursements is unintelligible, and thus the Court finds that
Budd Larner has not made a showing that it is entitled to outstanding disbursements.
3

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fees and costs, Budd Larner asks this Court to overlook relevant case law finding that
attorneys who represent themselves are not entitled to be paid for their time, in favor of
reaching the opposite conclusion due to the “unique policy considerations” at play in this
matter. (See id. at 7; Budd Larner Reply Br. at 12.) The Court agrees with Thorner that Budd
Larner – which is acting pro se – cites no statute, relevant case law, or other legal authority to
support the proposition that it may collect its attorney fees and costs as a prevailing party in an
attorney lien claim. The New Jersey Lien Statute, N.J.S.A. 2A:13-5 does not provide for fee
recovery by an attorney who is successful. Nor did the fee agreements between the parties
provide for such a recovery. Additionally, as conceded by Budd Larner, relevant case law
precludes an award of attorney fees in such a situation. See, e.g., Segal v. Lynch, 211 N.J.
230, 259-60 (N.J. 2012) (“We perceive in this record no basis on which to conclude that
attorneys who represent themselves are entitled to be paid for their time when all other
litigants who choose to represent themselves would be denied such compensation.”). The
Court furthermore finds the policy considerations proffered by Budd Larner unpersuasive.
The Court thus finds that Budd Larner is not entitled to attorney fees and costs.
The Court does, however, find that Budd Larner is entitled to prejudgment and postjudgment interest. There is a strong presumption in favor of an award of prejudgment
interest. See Marcus v. PQ Corp., 458 Fed.Appx. 207, 214 (3d Cir. 2012). Budd Larner has
not had use of the funds to which its attorney lien attaches, and those funds have been earning
interest. Thorner furthermore has not provided an adequate reason for Budd Larner not to
receive prejudgment interest. As Budd Larner has not provided any calculations concerning
the imposition of prejudgment interest, the Court will exercise the discretion to utilize the
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modest rate set forth in 28 U.S.C. § 1961 for ease of calculation and in the interest of
justice. See St. Paul Fire & Marine Ins. Co. v. AVH Trucking, No. 07-4802, 2008 WL
4601771, at *5 (D.N.J. Oct. 15, 2008). The Court also finds that Budd Larner is entitled to
post-judgment interest. In an exercise of discretion and for ease of calculation, the Court will
utilize the statutory rate set forth in 28 U.S.C. § 1961.4
For these reasons, the Court finds that: (1) Budd Larner’s attorney fee lien shall attach
to $36,653.00; (2) Budd Larner has not made a showing that it is entitled to recover
outstanding disbursements; (3) Budd Larner’s fees were reasonable; and (4) Budd Larner is
entitled to prejudgment and post-judgment interest. The Court will issue an appropriate order
and judgment.

s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge

Dated: August 14, 2014

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The Court notes that Budd Larner has not provided the Court with a date from which the
prejudgment interest should be calculated. In an exercise of discretion and for ease of calculation, the
Court will instruct the Clerk of the Court to calculate the prejudgment interest beginning on August 6,
2013 – the date the Court ordered that the outstanding attorney fees be deposited into the Court’s
Registry Fund to be transferred into the Court Registry Investment System to be held in escrow
pending resolution of Budd Larner’s petition to enforce its attorney fee lien – and ending on August
14, 2014. (See dkt. entry no. 226, 8-6-13 Stipulation and Order.)

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