Resnik et al v. Coulson
Filing
125
ORDER: For the reasons contained in the attached, 118 Plaintiffs' motion for attorneys' fees and costs is granted in part. The Court awards $228,332 in attorneys' fees, $550 in costs, and $37,646.86 in expert fees, for a total of $266,528.86. Ordered by Judge Pamela K. Chen on 9/28/2020. (Wisotsky, Shira)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANNE RESNIK, SAMUEL HERSCHKOWITZ,
M.D., ELIZABETH RESNIK, and MARY
PALINSKY,
MEMORANDUM & ORDER
17-CV-676 (PKC) (SMG)
Plaintiffs,
- against CROCKER COULSON,
Defendant.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Plaintiffs Anne Resnik, Samuel Herschkowitz, Elizabeth Resnik, and Mary Palinsky
(collectively, “Plaintiffs”) prevailed in this action against Defendant Crocker Coulson. Currently
before the Court is Plaintiffs’ motion for attorneys’ fees and costs. For the reasons that follow,
Plaintiffs’ motion is granted in part. The Court awards Plaintiffs $228,332 in attorneys’ fees, $550
in costs, and $37,646.86 in expert fees, for a total of $266,528.86.
BACKGROUND
Coulson and Anne Resnik were parties to divorce and custody proceedings in Kings
County Supreme Court. (See Complaint (“Compl.”), Dkt. 1, ¶¶ 1, 16.) During those proceedings,
Coulson was found to have installed spyware on Anne Resnik’s phone, which he used, inter alia,
to “knowingly and purposefully violate[] [her] attorney-client privilege through an ongoing course
of conduct of intercepting hundreds of her attorney-client communications and ‘listening in’ on
her attorney-client privileged consultations.” Crocker C. v. Anne R., 100 N.Y.S.3d 609 (Table),
at *22 (Sup. Ct. 2018). Additionally, Justice Jeffrey S. Sunshine, who presided over the state
family court proceedings, found that Coulson “engaged in spoliation of evidence when he installed
1
multiple data ‘wiping’ applications and used them to destroy much of the spyware data on his
computing devices,” id., and that the spoliation was “intentional and in bad faith,” id. at *23.
On February 6, 2017, Plaintiffs Anne Resnik, Samuel Herschkowitz, M.D., Elizabeth
Resnik, and Mary Palinski 1 commenced this action asserting claims under the Computer Fraud
and Abuse Act (“CFAA”), 18 U.S.C. § 1030, and Electronic Communications Privacy Act
(“ECPA”), 18 U.S.C. §§ 2510 et seq., as well as various state law claims. (See Compl., Dkt. 1,
¶ 101.) On October 13, 2017, Plaintiffs filed a motion for spoliation sanctions based on Defendant
having destroyed certain electronically stored information (“ESI”) relevant to the litigation. (Dkt.
22.) On January 4, 2019, Magistrate Judge Gold issued a Report and Recommendation (“R&R”)
finding that Defendant had engaged in the intentional spoliation of ESI for the purpose of depriving
Plaintiffs of its use in this litigation. (See generally R&R, Dkt. 62.) On March 30, 2019, this Court
adopted the R&R in full, over Defendant’s objections. (See Sanctions Order, Dkt. 82.) In the
interim, Defendant filed a cross-motion for discovery sanctions based on Plaintiffs’ failure to
comply with discovery requests, the parties’ stipulated discovery schedule, and Judge Gold’s
February 8, 2018 discovery orders.
(See Defendant’s Sanctions Cross Motion, Dkt. 42;
Defendant’s Sanctions Brief, Dkt. 44, at 3.) Defendant requested, as a sanction, that Plaintiffs be
prohibited from offering at trial any proof of Plaintiff Anne Resnik’s phone calls with Plaintiffs
David Resnik, Elizabeth Reznik, and Mary Palinski. (Id.) On January 4, 2019, Judge Gold found
this motion moot in light of discovery rulings made on the record at a conference held on
September 28, 2018. (See Sept. 28, 2018 Minute Entry, Dkt. 61; Jan. 4, 2019 Order.) On February
1
Dr. Herschkowitz is Anne Resnik’s psychiatrist (Compl., Dkt. 1, ¶ 20), Elizabeth Resnik
is her mother (id. ¶ 26), and Mary Palinski her sister (id. ¶ 29). David Resnik, Anne’s brother, was
initially a Plaintiff but withdrew his complaint during the pendency of the proceedings.
(Stipulation of Dismissal, Dkt. 60.)
2
22, 2019, Defendant filed a second motion for sanctions against Plaintiff Elizabeth Resnik
(Defendant’s Second Sanctions Motion, Dkt. 72), seeking to dismiss all of her remaining claims
against Defendant “based on the repeated, continuing, intentional, and prejudicial discovery
violations committed by her and her counsel” (Defendant’s Second Sanctions Brief, Dkt. 74, at 3).
On May 9, 2019, Judge Gold granted in part and denied in part Defendant’s motion, holding that
Plaintiff Elizabeth Resnik was required to list all telephone calls that formed the basis of her claims
and produce any documents that reflected these calls, and that any call not listed could not form
the basis of her claims in this case. (Discovery Sanctions Order, Dkt. 87.)
Following motions in limine and pre-trial conferences (see Dkt. 88; Sept. 4, 2019 Minute
Order; Sept. 5, 2019 Order; Sept. 16, 2019 Minute Order), a jury trial was held from September
16–19, 2019 (see Sept. 16–19, 2019 Minute Entries). The jury found that Defendant violated the
CFAA as to Anne Resnik, and awarded her $200,000 in compensatory damages for that violation.
(Jury Verdict Sheet, Dkt. 114, at 1–2.) The jury also found that Defendant had violated the ECPA
as to all Plaintiffs, awarding Anne Resnik $41,500 in statutory damages and $200,000 in punitive
damages, and each of the remaining Plaintiffs $10,000 in statutory damages. (See id. at 2–3.) The
jury also awarded Anne Resnik $500 in compensatory damages for Defendant’s violation of the
Trespass to Chattels Claim under New York law. (Id. at 4.) The jury further found for Plaintiff
Mary Palinski on her North Carolina Electronic Surveillance Act claim, but did not award
damages. (Id. at 4–5.) A Clerk’s Judgment was entered on September 20, 2019. (Dkt. 117.)
Plaintiffs filed a Motion for Attorneys’ Fees and Costs on October 4, 2019, 2 seeking fees
in the amount of $741,397.50 as of September 20, 2019, costs in the amount of $18,965.17, and
2
Prior to the trial, the Court ordered that, “[s]hould the jury return a verdict in Plaintiffs’
favor, Plaintiffs’ counsel can seek attorneys fees in the ordinary course; a specific jury instruction
or verdict sheet is not necessary.” (Sept. 4, 2019 Order.)
3
$56,470.29 in expert fees, pursuant to the ECPA and Federal Rule of Civil Procedure 54(d).
(Plaintiffs’ Motion for Attorneys’ Fees & Costs (“Pls.’ Fees Mot.”), Dkt. 118.) Defendant opposed
the motion (Defendant’s Opposition Memorandum (“Def. Opp.”), Dkt. 119), Plaintiff replied on
November 1, 2019 (Plaintiffs’ Reply Memorandum (“Pls.’ Reply”), Dkt. 122), and the Court
deemed the matter fully briefed on November 18, 2019, when it denied Defendant’s motion to file
a sur-reply (Nov. 18, 2019 Order).
DISCUSSION
I.
Legal Standard
District courts have broad discretion, using “their experience with the case, as well as their
experience with the practice of law, to assess the reasonableness” of each component of a fee
award. Fox Indus., Inc. v. Gurovich, No. 03-CV-5166 (TCP) (WDW), 2005 WL 2305002, at *2
(E.D.N.Y. Sept. 21, 2005) (quoting Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992)). When
analyzing a request for attorneys’ fees, a court must first determine the “lodestar” amount, or “the
product of a reasonable hourly rate and the reasonable number of hours required by the case,” also
known as the “presumptively reasonable fee.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 166
(2d Cir. 2011) (citing Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany,
522 F.3d 182, 183 (2d Cir. 2008)). In determining a reasonable hourly rate, courts weigh twelve
factors:
(1) the time and labor required; (2) the novelty and difficulty of the questions;
(3) the level of skill required to perform the legal service properly; (4) the
preclusion of employment by the attorney due to acceptance of the case; (5) the
attorney’s customary hourly rate; (6) whether the fee is fixed or contingent; (7) the
time limitations imposed by the client or the circumstances; (8) the amount
involved in the case and the results obtained; (9) the experience, reputation, and
ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards in similar
cases.
4
Arbor Hill, 522 F.3d at 186 n.3 (citation omitted); see also Townsend v. Benjamin Enters., Inc.,
679 F.3d 41, 59 (2d Cir. 2012) (“[D]etermination of a reasonable hourly rate
contemplates . . . prevailing market rates for counsel of similar experience and skill to the fee
applicant’s counsel[.]” (internal quotation marks and citation omitted)).
Additionally, “[i]n reviewing a fee application, a district court must examine the particular
hours expended by counsel with a view to the value of the work product to the client’s case.”
Echevarria v. Insight Med., P.C., 102 F. Supp. 3d 511, 516 (S.D.N.Y. 2015) (citing Lunday v. City
of Albany, 42 F.3d 131, 133 (2d Cir. 1994) (per curiam)). “The court is to exclude ‘excessive,
redundant or otherwise unnecessary hours, as well as hours dedicated to severable unsuccessful
claims.’” Id. (quoting Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir.1999)).
[T]rial courts need not, and indeed should not, become green-eyeshade accountants.
The essential goal in shifting fees (to either party) is to do rough justice, not to
achieve auditing perfection. So trial courts may take into account their overall
sense of a suit, and may use estimates in calculating and allocating an attorney’s
time.
Fox v. Vice, 563 U.S. 826, 838 (2011). “The Second Circuit has held [that] for a prevailing
plaintiff, ‘attorney’s fees awards include those reasonable out-of-pocket expenses incurred by
attorneys and ordinarily charged to their clients.’” Torcivia v. Suffolk County, 437 F. Supp. 3d
239, 257 (E.D.N.Y. 2020) (citing LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.
1998)); see also Andrews v. City of New York, No. 14-CV-1721 (FB) (CLP), 2015 WL 5773961,
at *4 (E.D.N.Y. Sept. 29, 2015) (“The fee applicant bears the burden of documenting the
appropriate hours expended and hourly rates. . . . It is clearly the attorney’s burden to establish his
hourly rate with satisfactory evidence—in addition to the attorney’s own affidavits, and fee
applications are subject to denial where the fees have not been adequately documented.” (internal
quotation marks, alterations, and citations omitted)).
5
II.
Calculation of Fees
Plaintiffs’ attorneys are asking for $741,397.50 in attorneys’ fees. (Pls.’ Fees Mot., Dkt.
118, ¶ 3.) For the reasons contained herein, the Court grants Plaintiffs’ motion but reduces that
amount.
A.
Reasonable Hourly Rates
The Court finds that Plaintiffs’ counsel has failed to sufficiently justify why higher rates
for the attorneys and staff representing Plaintiffs should be adopted, and instead uses the prevailing
rates for the Eastern District.
“Th[e] calculus [of reasonable fees] is locality-sensitive; in order to determine a reasonable
hourly rate the court must look to ‘the prevailing market rates in the relevant community.’”
Andrews, 2015 WL 5773961, at *5 (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). “The
relevant community . . . is the district in which the court sits.” Farbotko v. Clinton County, 433
F.3d 204, 208 (2d Cir. 2005) (internal citation omitted). Plaintiff’s lead attorney, Daniel Hurteau,
submitted a declaration detailing his estimation of the hourly rates for the Nixon Peabody LLP
attorneys and staff that worked on this case, which he alleges are “standard rates for the attorneys
who worked on this matter, commensurate with the prevailing rate for a New York City Amlaw
200 firm.” (See Hurteau Declaration (“Hurteau Decl.”), Dkt. 118-2, ¶¶ 4–5, 10.) However,
Hurteau did not provide any support for his assertions about the prevailing rate of law firms of
similar size and caliber, nor did he cite any cases suggesting as much. Cf. Andrews, 2015 WL
5773961, at *5 (finding insufficient a reference to a National Law Journal survey of billing rates
in plaintiff’s attorney’s fees memorandum without attaching actual survey). Indeed, Plaintiffs’
counsel concedes that the billable rates requested exceed those prevailing in the Eastern District
but argues that this was “counterbalanced by the lean staffing to the case,” such that for the last
6
two years of litigation only two attorneys primarily worked on the case. (Plaintiffs’ Attorneys’
Fees Memorandum (“Pls.’ Memo”), Dkt. 118-1, at 7–8.)
Plaintiffs listed the rates for partner Daniel Hurteau and associate Leah Threatte Bojnowski
at $905–$995 and $635–$745, respectively, and briefly detailed the credentials of these two
attorneys. (Hurteau Decl., Dkt. 118-2, ¶¶ 7–8, 10.) Hurteau has practiced law for over 30 years
and has been a partner with Nixon Peabody for twenty-nine years, focusing on complex business
and tort-related actions in the healthcare realm, as well as representing owners and developers in
a wide variety of commercial and construction-related matters. (Id. ¶ 7.) Bojnowski has been a
Nixon Peabody associate for eleven of the fourteen years she has practiced law and is a trial
attorney for business entities, primarily in the investment banking, consumer products, and
automotive industries. (Id. ¶ 8.) Notably, neither attorney purports to have expertise with respect
to cases such as this one, which involves the use of spyware against individuals. Nor have
Plaintiffs cited to any case law to support their contention that “lean staffing” of two attorneys
warrants an upward departure from the prevailing rates of this District. Indeed, this fact is
presumably accounted for in the number of hours billed by the two attorneys and should have no
bearing on the rate that they deserve for that work. Therefore, the Court finds that Plaintiffs have
failed to provide sufficient evidence to justify the higher hourly rates they request for their
attorneys, and the Court instead applies the prevailing rates for this District.
“[T]he prevailing rates for attorneys in the E.D.N.Y. . . . are approximately $300–$450 per
hour for partners, $200–$300 per hour for senior associates, and $100–$200 per hour for junior
associates.” Cleanup N. Brooklyn by Chantrtanapichate v. Brooklyn Transfer LLC, 373 F. Supp.
3d 398, 404 (E.D.N.Y. 2019) (citing Valvo v. City of New York, No. 13-CV-6562 (NG) (SMG),
2018 WL 3999011 (E.D.N.Y. Jan. 23, 2018); Pocius v. Sec. Auto Sales Inc., No. 16-CV-400 (JFB)
7
(SIL), 2018 WL 3999649, at *4 (E.D.N.Y. July 6, 2018), report and recommendation adopted,
2018 WL 3998965 (E.D.N.Y. Aug. 20, 2018)); see also Rudler v. Houslanger & Assocs., PLLC,
No. 18-CV-7068 (SFJ) (AYS), 2020 WL 473619, at *4 (E.D.N.Y. Jan. 29, 2020) (collecting
cases).
The Court finds that Daniel Hurteau is entitled to a rate of $400 per hour rather than the
extravagant rate of $905–$995 per hour. This amount is in line with the prevailing rate for partners
in this district, and accounts for his decades of legal experience but lack of expertise in the area of
law involved in this case, as well as the limited complexity of this matter as observed by the Court
throughout this proceeding, including trial. See e.g., Torcivia, 437 F. Supp. 3d at 252–53 (finding
that hourly rate of $350 was appropriate for an attorney with twenty years of experience litigating
a case of limited complexity with a three-day, “relatively straightforward” trial); cf. Anderson v.
County of Suffolk, No. 09-CV-1913 (GRB), 2016 WL 1444594, at *4 (E.D.N.Y. Apr. 11, 2016)
(holding that rate of $450 per hour was warranted for well-known civil rights attorney with almost
30 years of experience who is regarded as a leader in his field); Sass v. MTA Bus Co., 6 F. Supp.
3d 238, 262–63 (E.D.N.Y. 2014) (awarding $425 to partner with 33 years of experience who had
handled hundreds of employment discrimination cases).
The Court finds that Bojnowski, whom the Court views as a senior associate in light of her
fourteen years of law practice and trial experience, is entitled to a rate of $325 per hour. This is in
line with the prevailing rate for senior associates in the district and accounts for her lack of
experience in this particular area of the law. See Trs. of Ne. Carpenters Health, Pension, Annuity,
Apprenticeship, & Labor Mgmt. Coop. Funds v. Cali Enters., Inc., No. 18-CV-3556 (JFB) (AYS),
2019 WL 2076784, at *5 (E.D.N.Y. May 10, 2019) (“Courts in this district have concluded that
approximately $200 to $325 is a reasonable hourly rate for senior associates, and that $100 to $200
8
is a reasonable hourly rate for more junior associates.” (citation omitted)); Cleanup N. Brooklyn,
373 F. Supp. 3d at 404–05 (awarding $325 hourly rate to a counsel with thirteen years of
experience in commercial litigation).
As part of Plaintiffs’ attorneys’ fees requests, Plaintiffs’ counsel includes an additional six
attorneys and five legal professionals as timekeepers on this case. (See Hurteau Decl., Dkt. 1182, ¶ 10.) These timekeepers are all listed with varying hourly rates, and altogether billed 174.4
hours. (See id.) Initially, Plaintiffs’ counsel failed to provide any information regarding the
experience of the other Nixon Peabody attorneys and staff that worked on the case. (See id.) In
their Reply Memorandum, 3 Plaintiffs note “[t]he experience of each attorney who worked on the
case is . . . reflected in the rate charged” (Pls.’ Reply, Dkt. 122, at 6), and provided copies of the
backgrounds of each attorney timekeeper (see Nixon Peabody Backgrounds, Dkt. 122-2; LinkedIn
Resumes, Dkt. 122-3). Upon review of this material, the Court declines to award this staff the
rates requested in Plaintiffs’ fee application, given the absence of any indication that they have
experience or expertise in this area of the law. The sole exception is Nixon Peabody partner Jason
Gonzalez, who is a group leader of the firm’s Data Privacy & Cybersecurity practice. (See Nixon
Peabody Backgrounds, Dkt. 122-2, at ECF 4 5.) 5 Except as to Gonzalez, the Court again applies
the prevailing rates in this District as discussed supra, and sets the following rates: $400 for partner
3
“The Court of Appeals for the Second Circuit accords district courts wide discretion in
determining how to handle arguments first raised on reply submissions.” Mango v. BuzzFeed,
Inc., 397 F. Supp. 3d 368, 375 (S.D.N.Y. 2019) (citations omitted).
4
Citations to ECF refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
5
Mr. Gonzalez focuses his practice on three primary areas: government investigations,
prosecutions, and regulatory matters; commercial litigation; and data security and privacy. (Id. at
ECF 5–6.)
9
Adam Gilbert 6; $300 for counsel Aaron Brian 7; $250 for senior associate Jena Rotheim 8; $200 for
senior associate Jessica Walker 9; and $150 for junior associate Paul Williamson. 10 In light of
Gonzalez’s data privacy and cybersecurity expertise, the rate that will apply to his time is $450 per
hour.
Plaintiffs also billed for the work of two paralegals, two eDiscovery specialists, and one
research librarian at rates ranging from $230–$360. (See Hurteau Decl., Dkt. 118-2, at 3.)
Plaintiffs have not provided any information regarding the experience of these legal professionals
in their filings, and thus have not met their burden to establish the requested hourly rates with
satisfactory evidence. See Andrews, 2015 WL 5773961, at *4; see also Rudler, 2020 WL 473619,
at *12 (“[W]here an applicant fails to provide background and experience information that would
enable a court to assess the reasonableness of a requested rate, a court may use its discretion to
award fees at a lower rate.” (citation omitted)). The Court finds that $100 per hour is a reasonable
rate for this staff. See D’Annunzio v. Ayken, Inc., No. 11-CV-3303 (WFK) (WDW), 2015 WL
6
Adam Gilbert is a partner at the New York office of Nixon Peabody and has been
practicing law for 35 years, specializing in complex commercial litigation. (See Nixon Peabody
Backgrounds, Dkt. 122-2, at ECF 2.)
7
Aaron Brian is of counsel at Nixon Peabody’s Los Angeles office with twenty years of
litigation experience, specializing in intellectual property litigation, entertainment and fashion law,
and complex commercial litigation. (Id. at ECF 13–14.)
8
At the time of the litigation, Jena Rotheim had practiced law for sixteen years and was an
associate at Nixon Peabody for eleven years, focusing on commercial litigation and alternative
dispute resolution. (LinkedIn Resumes, Dkt. 122-3, at ECF 2.)
9
At the time of the litigation, Jessica Walker was practicing law for approximately seven
years and was an associate at Nixon Peabody for three years, representing automotive and beverage
manufacturers, pharmaceutical and laboratory companies, and technology companies. (LinkedIn
Resumes, Dkt. 122-3, at ECF 4.)
10
At the time of the litigation, Paul Williamson had practiced law for approximately two
years, all of which were at Nixon Peabody. (LinkedIn Resumes, Dkt. 122-3, at ECF 6.)
10
5308094, at *4 (E.D.N.Y. Sept. 10, 2015) (finding $70 to $100 reasonable rate for paralegals); see
also Rudler, 2020 WL 473619, at *12 (awarding an hourly rate of $90 for a paralegal); Cleanup
N. Brooklyn, 373 F. Supp. 3d at 405 (awarding to a paralegal with less than one year of experience
a rate of $70).
B.
Hours Expended
“The party seeking attorney’s fees also bears the burden of establishing that the number of
hours for which compensation is sought is reasonable.” Torcivia, 437 F. Supp. 3d at 253 (quoting
Anderson, 2016 WL 1444594, at *5). “Courts are empowered to reduce claimed hours that are
‘excessive, redundant or otherwise unnecessary.’” Id. (quoting Cocuzza v. Rockland County, No.
17-CV-8217 (KMK) (PED), 2019 WL 6498915, at *5 (S.D.N.Y. Nov. 7, 2019); see also Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983); Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994)
(“We do not require that the court set forth item-by-item findings concerning what may be
countless objections to individual billing items.”) Plaintiffs’ attorney submitted to the Court a
copy of the bills reflecting attorney time and costs (Plaintiffs’ Fee Bill (“Pls.’ Bill”), Dkt. 118-3),
and initially did not make any arguments or cite any case law to support the reasonableness of the
number of hours for which compensation is sought (see Pls.’ Memo, Dkt. 118-1; Hurteau Decl.,
Dkt. 118-2). Following the filing of Defendant’s opposition to the hours claimed by Plaintiffs’
counsel (Def. Opp., Dkt. 119, at 5), Plaintiffs proffered arguments regarding the reasonableness as
to the claimed hours. The Court addresses each of Defendant’s objections in turn and finds that a
5% reduction in the claimed number of hours for Gilbert, and a 15% percent reduction in the
number of claimed hours for Hurteau, is warranted.
11
1.
Fees and Costs Related to David Resnik
Defendant argues that, “[i]n light of David Resnik’s noncompliance with legitimate
discovery requests, withdrawal from the case, and the Court’s order granting [Defendant] the
ability to seek fees and costs from him, 11 Plaintiffs are not entitled to recover any attorney fees or
costs related to work performed on his behalf in this case.” (Def. Opp., Dkt. 119, at 6.) Defendant
contends that Plaintiffs treat their attorneys’ fees and expenses as if there was only one Plaintiff in
this case in their motion papers and attachments, and “[t]hat distinction is important because []
Plaintiffs’ recovery depends, in part, on the success of their own claims.” (Id. at 5 (citation
omitted).) The Court disagrees.
“[A] plaintiff’s lack of success on some of his claims does not require the court to reduce
the lodestar amount where the successful and the unsuccessful claims were interrelated and
required essentially the same proof.” Anderson, 2016 WL 1444594, at *7 (quoting Murphy v.
Lynn, 118 F.3d 938, 952 (2d Cir. 1997)). Here, the successful and unsuccessful claims arose out
of a common core of facts. All claims by Plaintiffs stemmed from Defendant’s installation of
spyware on Plaintiff Anne Resnik’s cell phone and the alleged interception of telephonic
communications between Anne Resnik and all of the other Plaintiffs. While Plaintiffs’ attorney
undoubtedly had to expend some additional time on David Resnik’s claim, given the joint nature
11
After David Resnik withdrew as Plaintiff from this case, Judge Gold stated: “Defendant
may seek reimbursement from plaintiff David Resnik for fees and costs directly attributable
exclusively to defendant against his claims.” (Sept. 28, 2018 Minute Entry, Dkt. 61.) Similarly,
upon granting in part Defendant’s second motion for sanctions against Plaintiff Elizabeth Resnik,
Judge Gold issued the following order: “Defendant Coulson may seek fees and costs incurred
solely in connection with his efforts to discover telephone records and related information with
respect to Elizabeth Resnik’s claims. Counsel are urged to confer in an effort to resolve
defendant’s claim for these fees and costs.” (May 9, 2019 Order, Dkt. 87.)
12
of all filings prior to his withdrawal and the common core of facts, this time was negligible, and
the Court declines to reduce the hours expended on this ground.
2.
Minimal Success
The Court also does not credit Defendant’s argument that “Plaintiffs’ recovery of attorney
fees and costs expended on behalf of Elizabeth Resnik, Mary Palinski, and Dr. Herschkowitz
should also be significantly limited given their minimal success.” (Def. Opp., Dkt. 119, at 6.) As
proof of Plaintiffs’ alleged “minimal success,” Defendant points to the fact that the jury awarded
“only $10,000” statutory damages to each of these three Plaintiffs. (Id.) However, an award of
the statutory maximum under 18 U.S.C. § 2520(c)(2) hardly indicates an unsuccessful plaintiff.
See Rozell v. Ross-Holst, 576 F. Supp. 2d 527, 542 (S.D.N.Y. 2008) (“A plaintiff may still be
viewed as having obtained a significant and valuable level of success even if she did not achieve
the precise result originally sought.” (internal quotation marks and citation omitted)). Therefore,
the Court will not reduce the hours expended on behalf of these Plaintiffs on this ground either.
3.
Block Billing and Vague Descriptions of Plaintiffs’ Attorneys’ Work
Defendant argues that the Court should impose a 10% reduction in Plaintiffs’ attorneys’
fees because Plaintiffs’ counsel engages in a practice of block billing and submitting vague billing
entries. (Def. Opp., Dkt. 119, at 6–7.) “Block billing is the aggregation of multiple tasks into a
single billing entry,” Marchuk v. Faruqi & Faruqi LLP, 104 F. Supp. 3d 363, 370 n.3 (S.D.N.Y.
2015) (citing Wise v. Kelly, 620 F. Supp. 2d 435, 450 (S.D.N.Y. 2008)), which “mak[es] it difficult
for the Court to isolate areas of excess,” id. at 370. Block billing is not per se unreasonable if the
court can still determine the reasonableness of the hours claimed. See Hines v. City of Albany, 613
F. App’x 52, 55 (2d Cir. 2015) (summary order); Adorno v. Port Auth. of N.Y. & N.J., 685 F. Supp.
2d 507, 515 (S.D.N.Y. 2010) (“While block-billing is disfavored and may lack the specificity
13
required for an award of attorneys’ fees, it is not prohibited as long as the [c]ourt can determine
the reasonableness of the work performed.” (internal quotation marks and citation omitted)).
“[T]he Court may also impose an across-the-board reduction for billing entries that are so vague
as to prevent the Court from determining whether the hours billed were excessive.” Makinen v.
City of New York, No. 11-CV-7535 (ALC) (AJP), 2016 WL 1451543, at *5 (S.D.N.Y. Apr. 12,
2016); accord Anderson, 2016 WL 1444594, at *6 (“Courts have imposed reductions as high as
40% based solely on vague billing entries.”) (collecting cases).
The Court has reviewed the billing and timekeeping notes submitted by Plaintiffs’ counsel,
and finds that, in most instances, Plaintiffs’ attorneys did not engage in block billing such that the
Court cannot determine the reasonableness of the work done in the time billed. Generally,
Plaintiffs’ attorneys billed in relatively small increments of time of under an hour, and the nature
of the work was discernible, making it possible to determine the reasonableness of the hours
expended on each task. Cf. Makinen, 2016 WL 1451543, at *6 (awarding a 10% across-the-board
reduction where the court could not discern the amount of time spent on any individual activity or
the subject matter of various communications from a vague entry billed for 8.3 hours); see also
Balu v. City of New York, No. 12-CV-1071 (KPF), 2016 WL 884666, at *5 (S.D.N.Y. Mar. 8,
2016) (“[T]he law does not require counsel to ‘record in great detail how each minute of their time
was expended,’ but only to ‘identify the general subject matter of their time expenditures.’”
(alterations omitted) (quoting Hensley, 461 U.S. at 437 n.12)). Even where Plaintiffs’ counsel
aggregated multiple tasks into an individual description of services, the descriptions were mostly
specific enough for the Court to evaluate whether the time spent on the combined tasks was
reasonable. (See, e.g., 4/17/17 Entry Pls.’ Bill, Dkt. 118-3, at ECF 10 (billing 2.90 hours to
“Review complaint in detail. Prepare for conference with client and conduct research on impact
14
of Fifth Amendment on document disclosure. Participate in conference call with client team.
Confer with opposing counsel on Rule 26 and 16 review.”); 8/29/17 Entry Pls.’ Bill, Dkt. 118-3,
at ECF 26 (billing 5.50 hours for “Legal research regarding spoliation standard for adverse
inference in light of revisions to rule 37. Draft motion for sanctions legal argument.”).)
Though, in connection with the deposition and trial phases of this litigation, there were
more instances of block billing for which the tasks were not ideally detailed (see, e.g., 9/14/19 and
9/15/19 Entries Pls.’ Bill, Dkt. 118-3, at ECF 113 (Daniel Hurteau, for each of the two days before
trial, billing approximately 10 hours preparing for trial); 9/16/19, 9/17/19, 9/18/19, and 9/19/19
Entries Pls.’ Bill, Dkt. 118-3, at ECF 113 (Daniel Hurteau billing between 12.70 and 13.70 hours
on each day of trial)), the Court finds that the number of hours claimed during these periods, given
the amount of work that would reasonably be expected during these stages of the case, does not
warrant a reduction in attorneys’ fees. The Court similarly finds that other time entries related to
the appearance of Plaintiffs’ counsel in court, 12 though combining many tasks, are reasonable
12
(See 4/25/17 Entry Pls.’ Bill, Dkt. 118-3, at ECF 11 (billing 4.60 hours to “Travel to
Brooklyn and attend Rule 16 conference. Confer with opposing counsel on discovery issues and
return to office from Brooklyn”); 6/14/17 Entry Pls.’ Bill, Dkt. 118-3, at ECF 18 (billing 3.90
hours to “Travel to the SDNY and appear for the Rule 16 conference. Travel back to office and
prepare correspondence for client team on outcome of conference”); 9/28/2018 Entry Pls.’ Bill,
Dkt. 118-3, at ECF 73 (billing 4.70 hours to “Prepare for conference with court. Travel to court
and participate in conference with Judge Gold. Return to office and follow up on issues raised by
court”); 4/16/19 Entry Pls.’ Bill, Dkt. 118-3, at ECF 95 (billing 4.90 hours to “Prepare for pretrial. Travel to EDNY from NYC office. Participate in pre-trial conference with Court. Discuss
issues with opposing counsel. Travel back to NYC office. Correspond with client on pre-tr[ia]l
conference. Correspond with expert on trial date. Correspond with client team on outcome of
conference”); 5/8/19 Entry Pls.’ Bill, Dkt. 118-3, at ECF 98 (billing 5.40 hours to “Prepare for oral
argument on motion to dismiss E. Resnik’s claims. Travel to EDNY and argue motion before
Court. Return to office and confer with E. Resnik”); 9/4/19 Entry Pls.’ Bill, Dkt. 118-3, at ECF
111 (billing 8.40 hours to “Prepare for pre-trial conference with Judge Chen. Attend and
participate in [argument] on motions in limine. Discuss issues for trial with B. King. Follow up
to send documents requested by Court”).)
15
given the work normally associated with handling the identified matters, as well as the delays
inherent in traveling anywhere in New York City.
4.
Vague Tasks Related to Divorce Action
Defendant argues that numerous entries throughout Plaintiffs’ attorneys’ invoice include
vague entries related to the divorce action, and “do not appear to be work needed to be performed
in this case,” warranting reduction of the Plaintiffs’ recoverable attorneys’ fees. (Def. Opp., Dkt.
119, at 7–8.) The Court rejects this argument. This litigation stems directly from the finding of
Defendant’s use of spyware in the matrimonial action in state court. Thus, it is not only
conceivable, but expected, that Plaintiffs’ attorneys in the litigation before this Court would
correspond with Anne Resnik’s divorce attorneys regarding evidence and legal theories regarding
the spyware and spoliation of evidence. Furthermore, as the acrimonious state actions were
proceeding in concert with this action, and involved the same parties, it is conceivable that the
attorneys involved in the two actions might strategize to leverage one proceeding in settlement
negotiations relating to the other. 13 Therefore, the Court declines to award a fee reduction on these
grounds.
5.
Excessive Billing
Defendants argue that Plaintiffs overstaffed this matter, specifically at the complaint stage
of this litigation, which resulted in “five attorneys working on assessing the matter and drafting
13
During a February 8, 2018 status conference, Judge Gold and the parties addressed the
parties’ goals in the present action in light of the matrimonial action, and discussed the potential
of settlement given the intertwined nature of both cases. (See Feb. 8, 2018 Status Conference
Transcript, Dkt. 38, at 27:19–33:7.) Ultimately, counsel reported that settlement was not possible
during the course of discovery in this litigation. (See Plaintiffs’ Letter Regarding Settlement, Dkt.
48; Minute Entry, Apr. 24, 2018.)
16
and revising the Complaint.” (Def. Opp., Dkt. 119, at 8–9 (record citation omitted).) The Court
disagrees.
Although, as Plaintiffs concede, “[t]he allegations in [the] Complaint are primarily derived
from . . . [the] Decisions and Orders of Justice Jeffery S. Sunshine, Supreme Court, Kings County,
New York State” (Compl., Dkt. 1, ¶ 1), the resulting Complaint was thirty-six pages in length and
involved an entirely different set of legal claims than were raised in the state court case, including
claims under ECPA and the CFAA, and an assortment of state law claims. The process of drafting
and reviewing such a complaint could easily be time-consuming, notwithstanding the established
nature of the relevant facts. The Court therefore does not find the expenditure of a total of 82.7
hours of work by Plaintiffs’ counsel (two partners and three associates) in writing, reviewing, and
re-reviewing the Complaint, 14 to be unreasonable. (See Pls.’ Bill, Dkt. 118-3, at ECF 1–9.)
6.
Duplicative Work
Defendant argues that duplicative work was performed by partners Hurteau and Gilbert.
(Def. Opp., Dkt. 119, at 9–10.) “It is within the court’s discretion [to] reduce the attorneys’ fees
14
Entries relating to the preparation of the Complaint include, for example: On January 18,
2017, Gonzalez billed 1.10 hours for reviewing and analyzing the draft complaint; on January 27,
2017, Walker spent 1.60 hours reviewing the draft complaint and researching related state law; on
January 30, 2017, Walker reviewed and revised the draft complaint for 2.10 hours; on February 2,
2017, Hurteau reviewed the draft complaint and participated in a call to discuss changes to the
draft for 1.80 hours; on February 3, 2017, Hurteau spent 3.60 hours reviewing and revising the
complaint in detail and corresponding with the team about changes; on February 4, 2017, Hurteau
spent 1.10 hours reviewing the latest draft of the complaint and conferring with the team about
final changes; on the same day, Gonzalez spent 2.10 hours reviewing, analyzing, and revising the
draft complaint; on February 5, 2017, five attorneys collectively spent 8.70 hours on a call
discussing the complaint; and, finally, on February 6, 2017, Hurteau spent 7.80 hours reviewing,
revising, and finalizing the complaint for filing. (See Pls.’ Bill, Dkt. 118-3, at ECF 2–6.)
Although, on their face, these entries may be viewed as demonstrating duplication of or wasted
effort by multiple attorneys, the Court finds, based on its experience, that such repetitive review,
editing, and redrafting is necessary to ensure a properly pled complaint, especially in a non-routine
matter such as this.
17
sought ‘where the prevailing party assigned an inordinate number of attorneys to litigate the
action.’” Reiter v. Maxi-Aids, Inc., No. 14-CV-3712 (SJF) (GRB), 2019 WL 1641306, at *5
(E.D.N.Y. Apr. 16, 2019) (quoting Houston v. Cotter, 234 F. Supp. 3d 392, 404 (E.D.N.Y. 2017));
id. at *6 (finding that a significant reduction in the number of hours billed was warranted where
multiple attorneys were actively participating at every point of the case and duplicating work); see
also Lochren v. County of Suffolk, 344 F. App’x 706, 709 (2d Cir. 2009) (summary order)
(affirming “25% across-the-board reduction in fees because plaintiffs overstaffed the case,
resulting in the needless duplication of work and retention of unnecessary personnel”); Small v.
N.Y.C. Transit Auth., No. 03-CV-2139 (SLT) (MDG), 2014 WL 1236619, at *13 (E.D.N.Y. Mar.
15, 2014) (finding that time billed for strategy sessions between attorneys was duplicative work).
Courts reviewing a fee application involving multiple attorneys “should be particularly attentive
to the risk of inefficiency and avoid making the defendant subsidize it.” Cruceta v. City of New
York, No. 10-CV-5059 (FB) (JO), 2012 WL 2885113, at *6 (E.D.N.Y. Feb. 7, 2012), report and
recommendation adopted, 2012 WL 2884985 (E.D.N.Y. July 13, 2012). “In such circumstances,
a court should ‘compensate only that work which was necessary to the litigation and which
constituted a cost efficient use of co-counsel and outside counsel.’” Id. (citation omitted).
Here, the Court agrees with Defendant that some of the work performed by both Hurteau
and Gilbert was unnecessarily duplicative and thus warrants a reduction in fees. For example,
within the course of four days, each partner spent over an hour reviewing the answer to the
Complaint and corresponding with each other and the attorneys from the matrimonial action about
it. (See 4/13/17–4/17/17 Entries Pls.’ Bill, Dkt. 118-3, at ECF 10.) Then, Hurteau spent some
portion of 2.90 hours reviewing the Complaint “in detail,” despite spending many hours working
on its drafting in the first instance. (Id.) Additionally, from June 1 to 14, 2017, both partners
18
individually spent several hours reviewing the same orders and reports deriving from the
matrimonial action, and discussed the same with each other and the divorce attorneys. (See 6/1/17–
6/14/17 Entries Pls.’ Bill, Dkt. 118-3, at ECF 17–18.)
Plaintiffs defend this “symbiotic utilization of co-counsel” by asking the Court to treat the
collaborative work here the same as was approved in United States ex rel. Coughlin v.
International Business Machines Corp., 992 F. Supp. 137 (N.D.N.Y. 1998). (Pls.’ Reply, Dkt.
122, at 10–11.) However, that case is distinguishable because the court there found that, “[i]n light
of the complex nature of [the] case, the [c]ourt cannot conclude that the use of multiple attorneys
was unnecessary or extravagant.” Coughlin, 992 F. Supp. at 145. 15 In contrast, the Court does not
find this case to be so complex as to require work by two partners on the same tasks at the
beginning of the litigation, especially when there was also collaboration on strategy with the
attorneys from the matrimonial proceeding.
7.
Partners Performing Associate or Paralegal Work
Defendant argues that, in certain instances, Hurteau performed work that an associate could
have performed at a lower hourly rate, and thus requests that the recoverable rate for that work
should be reduced to that of an associate. (See Def. Opp., Dkt. 119, at 11–12.) The Court finds
that the general partner-heavy staffing of the case, and the misappropriation of associate-level
discovery and document review work to partners, warrants a reduction in the hours awarded.
“[L]opsidedly partner-heavy bills are quite unusual in the context of litigation work,”
where “[i]t is common, particularly with respect to discovery and other pretrial tasks, that
15
Couglin involved a settlement agreement after a former receiving inspector at a
government contractor’s manufacturing facility alleged, under the False Claims Act, that a
contractor and subcontractor failed to test computer components manufactured for military aircraft
and submarines. See 992 F. Supp. at 139.
19
associates shoulder much of the work, under the active supervision of partners, and that partners
take lead roles as to projects for which their expertise adds value.” Beastie Boys v. Monster Energy
Co., 112 F. Supp. 3d 31, 51 (S.D.N.Y. 2015). In this case, the firm billed approximately 1.6 times
as many partner hours as associate hours: 413.5 hours were billed by three partners, whereas 257.7
hours were billed by one attorney of counsel and four associates. (See Hurteau Decl., Dkt. 118-2,
at 3.) Work on this case was narrowed down to Hurteau and Bojnowski beginning in October 2,
2017, from which point a review of the invoices reflects approximately equal work between partner
and associate. (See Pls.’ Bill, Dkt. 118-3, at ECF 34.)
The following could have been delegated to Nixon Peabody associates: (1) preparing and
reviewing discovery disclosures (see 6/28/17–7/14/17 Entries, Pls.’ Bill, Dkt. 118-3, at ECF 18–
22); (2) document review (see 8/17/17, 8/18/17, and 8/28/17 Entries, Pls.’ Bill, Dkt. 118-3, at ECF
26); and (3) reviewing arguments and decisions from the matrimonial action (see 9/12/17 and
9/18/17, Pls.’ Bill, Dkt. 118-3, at ECF 31). See Kizer v. Abercrombie & Fitch Co., No. 12-CV5387 (JS) (AKT), 2017 WL 9512408, at *4 (E.D.N.Y. July 24, 2017) (questioning the performance
of tasks by a partner which could have been performed by a less experienced counsel), report and
recommendation adopted, 2017 WL 3411952 (E.D.N.Y. Aug. 9, 2017); United States ex rel. Bisk
v. Westchester Med. Ctr., No. 06-CV-15296 (LAK) (FM), 2016 WL 8254797, at *5 (S.D.N.Y.
Aug. 5, 2016) (reducing the hourly rate for time spent by senior attorneys conducting document
review which could have been completed by less experienced, lower cost attorneys). “[T]here is
ample authority in this District, applying the standard of objective reasonableness, for reducing a
fee award where the legal hours recorded by plaintiffs’ counsel fell unusually heavily on partners
with high hourly rates.” Beastie Boys, 112 F. Supp. 3d at 53 (collecting cases). The Court finds
that such circumstances exist in this case, thus warranting a fee reduction.
20
8.
Unnecessary Work Due to Discovery Violations
Defendant alleges that “a vast amount of Nixon Peabody’s work was dedicated to the
Plaintiffs’ inexcusable failure to comply with [Defendant’s] legitimate and straight-forward
discovery demands.” (Def. Opp., Dkt. 119, at 13.) Defendant is referring to the work done by
Plaintiffs’ attorneys in resisting Defendant’s discovery requests seeking Plaintiffs’ phone records.
(See Dec. 26, 2017 Order; Feb. 8, 2018 Minute Entry, Dkt. 36; Defendant’s Sanctions Cross
Motion, Dkt. 42; Plaintiffs’ Discovery Status Report, Dkt. 53; Defendant’s Sanctions Letter, Dkt.
54; June 29, 2018 Order; Defendant’s Cross-Motion Status Report, Dkt. 55; Sept. 28, 2018 Minute
Entry, Dkt. 61; Jan. 4, 2019 Order; Defendant’s Second Sanctions Motion, Dkt. 72; May 9, 2019
Minute Order, Dkt. 87.) Although Plaintiffs did initially fail to respond to Defendant’s requests
and the Court’s orders to produce phone records, Judge Gold did not grant Defendant’s motion for
sanctions as to Plaintiff Elizabeth Resnik. (See May 9, 2019 Minute Order, Dkt. 87.) Informed
by Judge Gold’s ruling, the Court rejects Defendant’s characterization of the work done by
Plaintiffs’ counsel as “unnecessary,” and instead views it as part of Plaintiffs’ strategic defense in
this case. Cf. Small, 2014 WL 1236619, at *9 (finding that “it would be unreasonable to impose
fees on defendant for the time plaintiffs spent opposing defendant’s discovery motions, especially
since plaintiffs were found not to have acted in good faith” (citations omitted)).
Additionally, the Court provided an opportunity for Defendant to recover for the work done
in pursuit of his discovery requests, which Defendant has seemingly failed to take advantage of.
During the course of litigation, Judge Gold noted that Defendant may seek “reimbursement . . . for
fees and costs directly attributable exclusively to [D]efendant against [David Resnik’s] claims”
after David Resnik withdrew as a Plaintiff (Sept. 28, 2018 Minute Entry), and that Defendant may
“seek fees and costs incurred solely in connection with his efforts to discover telephone records
21
and related information with respect to Elizabeth Resnik’s claims” (May 9, 2019 Minute Order).
Defendant’s remedy for having to litigate certain discovery requests was to seek fees and costs on
his own, which he has not done and as to which the time has passed. The Court declines to reduce
Plaintiffs’ attorneys’ fees award on this basis.
9.
Bad Faith in Settlement Negotiations
Defendant alleges that Plaintiff Anne Resnik displayed bad faith in settlement negotiations
by conditioning settlement in this case on Defendant consenting to her proposed child custody
terms in the state court proceeding. (See Def. Opp., Dkt. 119, at 19–21.) “[T]he Second Circuit
has held that ‘absent a showing of bad faith, a party’s declining settlement offers should not operate
to reduce an appropriate fee award.’” Siracuse v. Program for the Dev. of Hum. Potential, No.
07-CV-2205 (CLP), 2012 WL 1624291, at *20 (E.D.N.Y. Apr. 30, 2012) (alterations omitted)
(quoting Ortiz v. Regan, 980 F.2d 138, 141 (2d Cir. 1992)).
Aside from making yet another
attempt to malign Anne Resnik’s character, for which the Court has repeatedly admonished
Defendant throughout the course of these proceedings, Defendant fails to offer any evidence or
case law for his conclusory proposition that Plaintiff Anne Resnick’s attempt at global settlement
was undertaken in bad faith. Therefore, the Court denies Defendant’s request to reduce Plaintiffs’
attorneys’ fees on this ground.
10.
Defendant’s Strained Financial Circumstances
Defendant argues that the Court should take into account the “vast disparity in wealth”
between himself and Plaintiffs Anne and Elizabeth Resnik. (Def. Opp., Dkt. 119, at 21.) Although
“the court may take into account the relative wealth of the parties,” Cohen v. W. Haven Bd. of
Police Comm’rs, 638 F.2d 496, 505 (2d Cir. 1980) (citing Faraci v. Hickey-Freeman Co., 607
F.2d 1025 (2d Cir. 1979)), the court declines to “focus exclusively on the financial condition of
22
one party unless that party appear[s] to be in extremis” id. at 506. Furthermore, “[s]ince Faraci,
courts in this Circuit have considered the parties’ relative wealth almost exclusively when
awarding fees against plaintiffs who bring frivolous or sanctionable claims.” Crews v. County of
Nassau, No. 06-CV-2610 (JFB) (GRB), 2019 WL 6894469, at *12 (E.D.N.Y. Dec. 18, 2019)
(collecting cases). Defendant has not provided any credible evidence regarding the financial status
of himself or any Plaintiffs. Even if there is a disparity in financial status, Defendant has certainly
failed to show that he is impoverished to the point of “in extremis.” The Court declines to credit
nebulous claims of financial disparity between the parties as a reason to further reduce attorneys’
fees.
C.
Lodestar Amount
In light of all of the factors discussed supra, in addition to the Court’s experience with the
attorneys and claims in this case, the Court finds that a reduction in the number of hours claimed
by Attorneys Gilbert and Hurteau is warranted—specifically, the Court reduces the number of
hours claimed by Gilbert by 5% and by Hurteau by 15%. See Cleanup N. Brooklyn, 373 F. Supp.
3d at 407 (“[I]n reviewing a fee application, ‘trial courts . . . may take into account their overall
sense of a suit, and may use estimates in calculating and allocating an attorney’s time.’” (quoting
Fox, 563 U.S. at 838)) (making a 30% across-the-board reduction to account for excessive hours
of work requested); Anderson, 2016 WL 1444594, at *7–8 (applying a 33% across-the-board
reduction of hours claimed by plaintiff’s counsel to account for vagueness, excessive billing, and
limited success). This percentage reduction of hours is to account for duplicative work and for
partners performing the work of an associate or paralegal.
23
The following table summarizes the reasonable hours award:
Timekeeper
A. Gilbert
Requested
Hours
30.30
Requested
Rate
$965 – $1,045
Approved
Hours
28.79
Approved
Rate
$400
Total
$11,516
D. Hurteau
376.40
$905 – $995
319.94
$400
$127,976
J. Gonzalez
6.80
$755
6.80
$450
$3,060
A. Brian
34.10
$635 – $705
34.10
$300
$10,230
L. Bojnowski
189.2077
$635 – $745
189.20
$325
$61,490
J. Rotheim
17.40
$715
17.40
$250
$4,350
J. Walker
5.60
$595
5.60
$200
$1,120
P. Williamson
11.40
$435
11.40
$150
$1,710
K. Dayer
46.00
$330 – $360
46.00
$100
$4,600
P. Dirmyer
7.70
$320
7.70
$100
$770
J. Jarrett
1.00
$340
1.00
$100
$100
A. Vescova
12.50
$230
12.50
$100
$1,250
M. Harasymiw
1.60
$360
1.60
$100
$160
This amounts to an attorneys’ fees award totaling $228,332.
III.
Costs and Expert Fees
Plaintiffs request that the Court award costs in the amount of $18,965.17 and $56,470.29
in expert fees. (Pls.’ Fees Mot., Dkt. 118, ¶ 3.) “The fee applicant bears the burden of adequately
documenting and itemizing the costs requested.” Volpe v. Nassau County, No. 12-CV-2416 (JFB)
(AKT), 2016 WL 6238525, at *10 (E.D.N.Y. Oct. 24, 2016) (citation omitted). “Nonetheless, a
court may take judicial notice of the payment of a filing fee and, therefore, award that cost.”
Rudler, 2020 WL 473619, at *12 (citation omitted).
24
Defendant has not provided any documentation or itemization regarding the $18,965.17 in
costs requested. Therefore, the Court declines to award these costs, with the exception of the filing
fee payments of which it takes judicial notice. This amounts to $550 for the following: $400 for
the complaint filing fee (see Compl., Dkt. 1), and $150 for Leave to Appear pro hac vice (see
Motion for Leave to Appear Pro Hac Vice, Dkt. 13; Feb. 27, 2017 Order).
Regarding the fees claimed for the work done by Yalkin Demirkaya, Plaintiffs’ testifying
expert, Plaintiffs explain that their request does not reflect or include any amounts billed in the
state court matrimonial action. (Hurteau Decl., Dkt. 118-2, ¶ 13.) Demirkaya’s hourly rate is
$325, and his total fees billed are $56,470.29. (Id.; CyberDiligence Invoice, Dkt. 118-4.) Plaintiffs
have not provided any information regarding Demirkaya’s experience to assist the Court in
determining whether this hourly rate is reasonable. See Indep. Project, Inc. v. Ventresca Bros.
Constr. Co., 397 F. Supp. 3d 482, 500–02 (S.D.N.Y. 2019) (examining the reasonableness of an
expert fee request in the context of that expert’s experience). 16 “When the reasonableness of an
expert’s fees is not fully explained, the Court may exercise its discretion to determine a reasonable
fee.” Penberg v. HealthBridge Mgmt., No. 08-CV-1534 (CLP), 2011 WL 1100103, at *15
(E.D.N.Y. Mar. 22, 2011) (collecting cases). Courts consider the following factors in determining
the reasonableness of an expert witness’s fees:
(1) the witness’s area of expertise; (2) the education and training that is required to
provide the expert insight that is sought; (3) the prevailing rates for other
comparably respected available experts; (4) the nature, quality and complexity of
the discovery responses provided; (5) the cost of living in the particular
geographical area; (6) any other factor likely to be of assistance to the court in
balancing the interests implicated by Rule 26; (7) the fee being charged by the
expert to the party who retained him; and (8) fees traditionally charged by the expert
on related matters.
16
Although Demirkaya summarized his experience and expertise during his trial testimony,
Plaintiffs have not included that testimony in support of their fee application, and the Court is not
obligated to hunt for that information in the record.
25
Korabik v. Arcelormittal Plate LLC, 310 F.R.D. 205, 206 (E.D.N.Y. 2015) (citations omitted).
Again, because Plaintiffs have provided absolutely no information aside from the expert invoice,
the Court cannot weigh these factors in determining the reasonableness of the hourly rate requested
by this expert. The Court also observed the expert’s testimony and notes that much of his work
was done in preparation for the divorce proceedings, and not in anticipation of the litigation before
it. The Court further notes that the expert’s trial testimony ultimately involved very little actual
expertise; rather, Demirkaya’s conclusion that Defendant likely had wiped his computers of
relevant electronic data was simply based on evidence showing that Defendant had purchased a
data wiping program shortly before a forensic examination conducted in connection with the
matrimonial proceedings. (See generally Redacted Testimony of Yalkin Demirkaya, Dkt. 116.)
Therefore, the Court will apply a one-third reduction of the total amount billed, reducing
the $56,470.29 requested to an award of $37,646.86 in expert fees. See Indep. Project, 397 F.
Supp. 3d at 501 (reducing expert fee award by 15% and collecting cases).
CONCLUSION
For the reasons contained herein, Plaintiffs’ motion for attorneys’ fees and costs is granted
in part. The Court awards $228,332 in attorneys’ fees, $550 in costs, and $37,646.86 in expert
fees, for a total of $266,528.86.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: September 28, 2020
Brooklyn, New York
26
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