Felix Produce Corp. v. New Lots Food Corp. et al

Filing 21

MEMORANDUM AND ORDER - For the reasons set forth herein, Plaintiff's 19 motion for attorney's fees and costs is GRANTED. Plaintiff is entitled to attorneys' fees in the amount of $2,372.50 and costs in the amount of $472.40 for a total award of $2,844.90. So Ordered by Judge Joanna Seybert on 10/9/09. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------X FELIX PRODUCE CORP., Plaintiff, -againstNEW LOTS FOOD CORP., d/b/a BRAVOS SUPERMARKET, and JERRY CHOEZ, MEMORANDUM & ORDER 08-CV-5161 (JS)(ARL)

Defendants. ----------------------------------X APPEARANCES: For Plaintiff: Jamie C. Krapf, Esq. Timothy J. Fierst, Esq. Crowell & Moring LLP 153 East 53rd Street, 31st Floor New York, NY 10022-4611 For Defendants: No appearance

SEYBERT, District Judge: Pending before the Court is Plaintiff's motion for

attorney's fees and costs. GRANTS Plaintiff's motion.

For the reasons that follow, the Court

BACKGROUND On December 23, 2008, Plaintiff filed its Complaint against New Lots and Choez pursuant to the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. § 499e. "[A] PACA trust is

automatically established each time a broker or merchant purchases perishable commodities upon credit . . . ." D.M. Rothman & Co. v. Under

Korea Comm. Bank of N.Y., 411 F.3d 90, 96 (2d Cir. 2005).

PACA, trustees are required "`to maintain trust assets in a manner that such assets are freely available to satisfy outstanding obligations to sellers . . . .'" Bonell Produce Co. Inc. v. Chloe

Foods, Inc., No. 08-CV-4218, 2008 WL 4951942, at *2 (E.D.N.Y. Nov. 19, 2008) (quoting 7 C.F.R. § 46.46(d)(1)). unpaid seller provides written notice, such Provided that an unpaid sellers

"maintain a right to recover" trust assets.

See Endico Potatoes,

Inc. v. CIT Group/Factoring, Inc., 67 F.3d 1063, 1067 (2d Cir. 2001) (citing 7 U.S.C. § 499e(c)(1)) (other citations omitted). Furthermore, "[a]n individual who is in a position to control the assets of the PACA trust and fails to preserve them, may be held personally liable to the trust beneficiaries for breach of

fiduciary duty." Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d 701, 705-06 (2d Cir. 2007) (collecting cases). The Complaint asserts that New Lots is a "dealer" which has failed to maintain a statutory trust over food commodities. (Compl. ¶¶ 7, 9, 13-21.) PACA's notice Felix also alleges that it complied with by provided New Lots with written

provisions

invoices.

(Id. ¶¶ 23-24.)

The Complaint also asserts that Choez

is an officer of New Lots and was the person in control and responsible for the disposition of Felix's assets. (Id. ¶ 6.)

Felix thus claims that it is entitled under PACA to recover the unpaid and overdue amount owed by New Lots and Choez. 28-35.). Defendants have not appeared in this case, or filed an Answer. On February 25, 2009, Plaintiff filed a motion for entry (Id. ¶¶

of Default, which this Court referred to Magistrate Arlene R.

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Lindsay on March 24, 2009.

Judge Lindsay issued a Report and On September 14, 2009,

Recommendation ("R&R") on August 24, 2009.

this Court issued an Order adopting the R&R in its entirety, and DENYING Plaintiff's application for attorney's fees and costs with leave to re-file because Plaintiff failed to submit the required evidence to support the application. On September 17, 2009,

Plaintiff re-filed its motion for attorney's fees and costs. DISCUSSION I. Lodestar Approach for Calculating Attorneys' Fees Courts in the Second Circuit apply the lodestar approach to calculating attorney's fees. In re W. R. Huff Asset Management

Co., LLC, 409 F.3d 555, 562 (2d Cir. 2005); Bourgal v. Lakewood Haulage, Inc., 827 F. Supp. 126, 129 (E.D.N.Y. 1993). "According

to this method, the number of compensable hours is multiplied by a reasonable hourly rate, and any necessary adjustments are then made to the resulting amount." Meehan v. Gristede's Supermarkets, Inc., No. 95-CV-2104, 1997 WL 1097751, at *5 (E.D.N.Y. Sept. 25, 1997). In calculating the lodestar rate, the district court must ascertain whether the "requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v.

Stenson, 465 U.S. 886, 896 n.11, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984); Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997); Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053,

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1058-59 (2d Cir. 1989).

"If the Court finds that certain claimed

hours are excessive, redundant, or otherwise unnecessary, the Court should exclude those hours from its lodestar calculation." Duke v. County of Nassau, No. 97-CV-1495, 2003 WL 23315463, at *1 (E.D.N.Y. Apr. 14, 2003). The party seeking an award of attorneys' fees must support that request with contemporaneous time records that show, "for each attorney, the date, the hours expended, and the nature of the work done." N.Y. Ass'n for Retarded Children, Inc. v. Carey,

711 F.2d 1136, 1154 (2d Cir. 1983); see Musical Productions, Inc. v. Roma's Record Corp., No. 05-CV-5903, 2009 WL 3052630, at * 9 (E.D.N.Y. Sept. 23, 2009). To aid in the Court's inquiry, the

moving party should also submit evidence addressing the various factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See Simmons v. New York City Transit

Authority, 575 F.3d 170, 174 (2d Cir. 2009) (stating that district courts may consider the Johnson factors). II. Evidence in this Case In support of its motion in this action, Plaintiff submitted the Declaration of Timothy J. Fierst ("Fierst")

("Declaration" or "Decl."). ("Krapf") were the attorneys

Fierst, along with Jamie C. Krapf principally responsible for the

prosecution of this action.

Fierst has been a member of the Bar of

this Court since October 25, 1991 and is counsel to the firm of

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Crowell & Moring LLP.

He has considerable experience litigating

financial matters in state and federal court, and currently has an hourly rate of $545 per hour; however, according to the Affidavit, he has billed his time in this action at the rate of $495.00 per hour. (Fierst Decl. ¶¶ 3-4.) Krapf, is an associate of the firm,

and was admitted to practice in 2004, and has been a member of the Bar of this Court since 2007. The Declaration states that Krapf

"too, has litigated all aspects of financial matters in state and federal court and has assisted me in the representation of

supermarket owners and produce distributors." (Fierst Decl. ¶ 5.) Additionally, although Krapf has been practicing for thirteen years less than Fierst, the Declaration states Krapf's general hourly rate as $525 per hour; however, her time has been billed at the rate of $485.00 per hour in this action. (Id.) Celeste Hernandez

("Hernandez") is one of two paralegals working on this matter. She has more than five years of general litigation experience, and an hourly billable rate of $195.00 per hour. other paralegal working on the matter. Melissa Peoples is the She has ten years of

financial services litigation experience, and has an hourly rate that ranges between $205-215 per hour. Based on those rates, and

the contemporaneous time records submitted, Plaintiff's assert that they are entitled to attorneys' fees in the sum of $3,821.00 and costs in this action in the sum of $472.40. In this case, Plaintiff seeks attorneys' fees and costs

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for a somewhat standard default judgment motion.

Although the

number of hours expended by counsel appear to be reasonable, the hourly rates contained in the Declaration cause the Court some concern. Courts in this district have awarded attorney's fees at

lesser rates of $200 to $300 for partners, $200 to $250 for senior associates, $100 to $150 for junior associates and approximately $100 for paralegals, see, e.g, Morin v. Nu-Way Plastering, No.

03-CV-0405, 2005 WL 3470371, at *2 (E.D.N.Y. Dec. 19, 2005). Although these rates are somewhat outdated, they remain

instructive. Because the firm has not provided any evidence of the prevailing market rates in this District, the Court has researched the prevailing market rates in the Eastern District of New York. Perhaps most helpful, was Judge Joseph Bianco's decision in Melnick v. Press, No. 06-CV-6686, 2009 WL 2824586, at *9 (E.D.N.Y. Aug. 28, 2009). Although Melnick dealt with a real property dispute, the

long list of cases cited by the court are extremely informative. See id. at *9-10 (citing, for example, Moreno v. Empire City Subway Co., No. 05-CV-7768, 2008 WL 793605, at *7 (S.D.N.Y. Mar. 26, 2008) (finding that, where the fee applicant "has submitted no evidence of the prevailing cases market rate to for attorneys i.e. of like skill and

litigating

similar

plaintiff's,

negligence

personal injury cases . . . it is within [the court's] discretion to determine the reasonable hourly rate at which plaintiffs counsel

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should be compensated based on [the court's] familiarity with plaintiff's case and the prevailing rates in the Southern

District."); Alexander v. Amchem Products, Inc., No. 07-CV-6441, 2008 WL 1700157, at *7 (S.D.N.Y. Apr. 3, 2008) ("Other than Counsel's conclusory assertion that a $600 rate is `reasonable,' he has failed to submit any case authority or other evidence in support of the reasonableness of the proffered rate. Thus,

Counsel's submissions are of little help to the `case-specific inquiry' that must be conducted by this Court regarding the

prevailing market rates for counsel of similar experience and skill to the fee applicant's counsel.") (citations omitted); Moran v. Sasso, No. 05-CV-4716, 2009 WL 1940785, at *4 (E.D.N.Y. July 2, 2009) (holding that reasonable hourly rates have ranged from $200 to $350 for partners, $200 to $250 for senior associates, $100 to $150 for junior associates, and $70 to $80 for legal assistants); Duverger v. C & C Duplicators, Inc., No. 08-CV-0721, 2009 WL 1813229, at *2 (E.D.N.Y. June 25, 2009) ("Overall hourly rates for attorneys approved in recent Eastern District of New York cases have ranged from $200 to $350 for partners, $200 to $250 for senior associates, $100 to $150 for junior associates and $70 to $80 for legal assistants.")). Based on Melnick and other cases, the Court

finds that the hourly rate proffered by Plaintiff is higher than the prevailing rate in this District. In particular, the Court

notes that the Melnick rates were calculated based on a matter more

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complex than the one before this Court in this case. Given the particular circumstances of the representation in this case, the range of appropriate billing rates is $200-$350 per hour for partners, $100-$295 per hour for associates, and $75$120 for paralegals. Thus, the Court determines that the following rates are appropriate and reasonable in this case: $250 per hour for Krapf's work, and $350 per hour for Fierst's work.

Additionally, People's hourly rate shall be reduced to $85 per hour, and Hernandez's rate shall be reduced to $120 per hour. CONCLUSION For the foregoing reasons, Plaintiff's motion for

attorney's fees and costs is GRANTED.

Plaintiff is entitled to

attorneys' fees in the amount of $2,372.50 and costs in the amount of $472.40 for a total award of $2,844.90. SO ORDERED /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: October 9 , 2009 Central Islip, New York

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