Markey et al v. Lapolla Industries, Inc. et al
MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, Judge Tomlinson's R&R (Docket Entry 136) is ADOPTED in its entirety, MAR's Objections (Docket Entry 137) and Lapolla's Objections (Docket Entry 138) are OVERRULED, and Lapolla's fee application (Docket Entry 129) is GRANTED IN PART and DENIED IN PART. Lapolla is awarded the following attorneys' fees and costs: $40,935 in attorneys' fees to Hoover Slovacek ($1,020 for review of the Maul Emails and $39,915 for time spent drafting the Sanctions Motion and post-hearing brief), $746.70 in attorneys' fees to Greenbaum Rowe, and $2,429.28 in costs to Hoover Slovacek. Lapolla's pending letter motions (Docket Entries 133 and 134) are TERMINATED AS MOOT. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 9/26/2017. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NEIL MARKEY and KRISTINE MARKEY,
MEMORANDUM & ORDER
LAPOLLA INDUSTRIES, INC.,
LAPOLLA INTERNATIONAL, INC., and
DELFINO INSULATION COMPANY, INC.,
A. Craig Purcell, Esq.
Glynn Mercep and Purcell, LLP
North Country Road, P.O. Box 712
Stony Brook, NY 11790-0712
and Lapolla Int’l
Dylan B. Russell, Esq.
Matthew A. Kornhauser, Esq.
Mitchell A. Ward, Esq.
Sidney Watts, Esq.
Hoover Slovacek LLP
5051 Westheimer Rd., Suite 1200
Houston, TX 77056
Robert M. Goodman, Esq.
Clifford B. Kornbrek, Esq.
Greenbaum, Rowe, Smith & Davis LLP
75 Livingston Avenue
Roseland, NJ 07068
Eric G. Siegel, Esq.
John Patrick Cookson, Esq.
Robert W. Gifford, Esq.
McElroy Deutsch Mulvaney & Carpenter, LLP
88 Pine Street
New York, NY 10005
David Ratner, Esq.
David T. Sirotkin, Esq.
Benedict P. Morelli, Esq.
Morelli Alters Ratner, P.C.
777 Third Avenue, 31st Floor
New York, NY 10017
SEYBERT, District Judge:
Currently pending before the Court is Magistrate Judge
A. Kathleen Tomlinson’s Report and Recommendation dated August 24,
2017 (the “R&R”) with respect to defendants Lapolla Industries,
Inc. and Lapolla International, Inc.’s (collectively, “Lapolla”)
motion for counsel fees.
Docket Entry 129.)
(R&R, Docket Entry 136; Lapolla’s Mot.,
Judge Tomlinson recommends that Lapolla be
awarded counsel fees and costs totaling $44,110.98 for discovery
violations committed by Plaintiffs’ former counsel, non-party
Lapolla’s prior sanctions motion.
(R&R at 2-3, 21.)
MAR filed objections to the R&R, which are presently before the
Court. (MAR’s Obj., Docket Entry 137; Lapolla’s Obj., Docket Entry
For the following reasons, the parties’ objections are
OVERRULED and the R&R is ADOPTED in its entirety.
The Court assumes familiarity with the facts of this
case, which are set forth in detail in Judge Tomlinson’s Report
and Recommendation dated August 25, 2015 (the “2015 R&R”).
generally 2015 R&R, Docket Entry 126.)
Company, Inc. (“Delfino” and collectively, “Defendants”) asserting
claims for design defect, failure to warn, breach of express and
implied warranties, unjust enrichment, and violations of consumer
insulation manufactured by Lapolla and installed in Plaintiffs’
home by Delfino. (See Sec. Am. Compl., Docket Entry 61.)
served as counsel for Plaintiffs.
On April 28, 2014, MAR moved to withdraw from this
(See Docket Entry 76.)
On May 2, 2014, the Court granted
MAR’s motion and terminated MAR as Plaintiffs’ counsel. (See Docket
Entry 82.) On May 29, 2014, Glynn Mercep and Purcell, LLP appeared
as counsel for Plaintiffs and moved to voluntarily dismiss this
(See Docket Entry 83 and 84.)
On July 8, 2014, Lapolla filed a motion seeking sanctions
against Plaintiffs and MAR (the “Sanctions Motion”).
On December 15, 2014, the Court referred Lapolla’s
recommendation. (See Docket Entry 104.)
Judge Tomlinson scheduled
an evidentiary hearing, which was conducted during early 2015.
Plaintiffs’ motion to dismiss but retained jurisdiction to address
the Sanctions Motion. (See Docket Entry 110.)
On August 25, 2015, Judge Tomlinson issued her report
and recommendation regarding Lapolla’s Sanctions Motion.
Judge Tomlinson concluded that sanctions should be
imposed against MAR pursuant to Federal Rules of Civil Procedure
26(g) and 37(c) for MAR’s failure to disclose emails between
plaintiff Kristine Markey and George Maul, an industrial hygienist
for Insight Environmental, Inc. (the “Maul Emails”).
2, 7-8, 44.)
(2015 R&R at
However, Judge Tomlinson found that Lapolla did not
establish that sanctions should be imposed against Plaintiffs, or
that sanctions should be imposed against MAR pursuant to 28 U.S.C.
§ 1927 or the Court’s inherent power.
(2015 R&R at 2.)
recommended that “sanctions be assessed against MAR for reasonable
legal fees and costs incurred by Lapolla in connection with its
review of the [Maul Emails] in preparation for [Plaintiffs’]
(2015 R&R at 56.)
Judge Tomlinson also recommended
that “Lapolla be awarded the costs and attorneys’ fees related to
bringing this motion” and went on to specifically recommend that
“Lapolla be permitted to make a fee application for its reasonable
legal fees and costs incurred in connection with the additional
discovery described above, as well as the fees and costs incurred
in drafting the motion for sanctions as well as Lapolla’s posthearing brief--but not for the time incurred at the hearing since
that time was directed by the Court.”
(2015 R&R at 56-57.)
Tomlinson also noted that her recommendations were made “with the
understanding that Lapolla was not entirely successful on its
sanctions motion and, as such, its fee application should be
directed to the relevant legal fees and costs.”
(2015 R&R at 58.)
Memorandum and Order dated January 26, 2016 (the “Adoption Order”).
(2016 Adoption Order, Docket Entry 132, at 24.)
Court overruled Lapolla’s objections regarding the limitations
Judge Tomlinson recommended for Lapolla’s recoverable attorneys’
(2016 Adoption Order at 16-18.)
The Court concurred with
rejected Lapolla’s contention that it should be permitted to seek
attorneys’ fees for its preparation for Plaintiffs’ depositions,
preparation for and examination of Mr. Maul, time spent on written
discovery related to Mr. Maul and Insight Environmental, and time
spent conducting discovery and defending Plaintiffs’ personal
concluded that Lapolla should only be awarded attorneys’ fees and
costs with respect to “its belated review of the Maul Emails and
its filing of this [Sanctions Motion].”
(2016 Adoption Order at
In that same Order, the Court also referred Lapolla’s
pending fee application seeking an award of $233,058.46 to Judge
Tomlinson for a report and recommendation on the appropriate amount
of attorneys’ fees and costs to be awarded.
(2016 Adoption Order
at 24; Lapolla’s Mot. at 3.)
On August 24, 2017, Judge Tomlinson issued her R&R
regarding Lapolla’s fee application.
Judge Tomlinson noted the
paucity of Lapolla’s application, which consists of a two and onehalf page “summary,” but concluded that the Court was not relieved
of its obligation to award reasonable fees even when faced with
Tomlinson “ma[de] an assessment based on the submission made by
Lapolla and [dealt] with the particular deficiencies accordingly.”
information regarding hourly rates, Judge Tomlinson accepted the
Slovacek LLP (“Hoover Slovacek”) and Greenbaum, Rowe, Smith & Davis
reasonable rates for attorneys in the Eastern District of New York.
(R&R at 12-13.)
Lapolla also failed to provide an affidavit regarding
the credentials of each attorney who billed time on its behalf and
“the reasonableness of those hours as to the tasks the Court has
designated as relevant to an award of attorney’s fees in these
(R&R at 14.)
Nevertheless, Judge Tomlinson
recommended that the Court award sanctions to Lapolla in the sum
of $1,020 for their review of these emails.
(R&R at 15.)
the fees billed for the preparation of the Sanctions Motion and
post-hearing brief, Judge Tomlinson undertook a detailed review of
attributable to the matters that fell within the scope of the 2015
(R&R at 16-17, 23-44.)
Judge Tomlinson recommended that
Lapolla be awarded a total of $40,661.70 in attorneys’ fees for
the briefing of the Sanctions Motion and post-hearing brief.1
In light of Lapolla’s failure to submit documentation for
its requested costs, Judge Tomlinson recommended that Lapolla only
be awarded $2,429.28 in costs for obtaining the hearing transcript.
(R&R at 19-20.)
On September 7, 2017, MAR filed objections to the R&R.
MAR argues that Lapolla should not be awarded any
counsel fees based on its failure to provide information regarding
its counsel’s hourly rates, credentials, and the reasonableness of
the time spent.
(MAR’s Obj. at 2-3.)
Additionally, MAR argues
that the recommended award of counsel fees is excessive considering
Specifically, Judge Tomlinson recommended that Hoover Slovacek
be awarded $39,915 in attorneys’ fees and Greenbaum Rowe be
awarded $746.70 in attorneys’ fees. (R&R at 17.)
that the sanctionable conduct at issue amounted to an award of
only $1,020, and the bulk of Lapolla’s Sanctions Motion was denied.
(MAR’s Obj. at 3-4.)
MAR avers that “[a]t most, Defendants should
only be awarded fees for a small portion of their time spent
successful on a small portion of their Motion.” (MAR’s Obj. at 4.)
On September 7, 2017, Lapolla filed objections to the
Lapolla alleges that the precise nature of the categories of
work for which it could seek attorneys’ fees pursuant to the 2015
R&R was unclear and as a result, it “incorporated into its [motion]
all of the applicable invoices, redacting the irrelevant portions
of the invoices, i.e., the portions that Lapolla did not believe
would fit within any of the [ ] categories.”
(Lapolla’s Obj. at
contemporaneously written at the time such work was performed so
that the Court could determine whether those entries fit within
the scope of the . . . categories.” (Lapolla’s Obj. at 4.) Lapolla
notes that the invoices it provided contained the date of work,
attorney initials, narrative description of the work, hourly rate,
time increments, and total amount of work performed.
Obj. at 5.)
Additionally, Lapolla submitted a spreadsheet that
“broke down, by date and amount, what portion of the amounts
reflected in the invoices were relevant to the work that Lapolla
concluded was relevant to the particular category, as listed in
the applicable columns.”
(Lapolla’s Obj. at 5.)
objects to the R&R to the extent that it does not recommend an
award of “certain fees and expenses that are within the relevant
(Lapolla’s Obj. at 8.)
Lapolla acknowledges that it “should have asked for
Application,” but notes that it twice requested an opportunity to
provide additional information or clarification.
Lapolla submits an exhibit in which it highlights the
additional fees and costs it believes are relevant and requests an
opportunity to submit a revised fee application that addresses the
deficiencies noted in the R&R and “thoroughly explains the reasons
those fees and costs should also be awarded in addition to those
already identified by the Court.”
(Lapolla’s Obj. at 8.)
argues that “it should not have the amount of sanctions justly due
to it be reduced only as a result of deficiencies in the Fee
Application prepared by its counsel . . . without at least one
opportunity to correct them.”
(Lapolla’s Obj. at 6.)
“When evaluating the report and recommendation of a
magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
Walker v. Vaughan, 216 F. Supp. 2d 290, 291
(S.D.N.Y. 2002) (citation omitted).
A party may serve and file
specific, written objections to a magistrate judge’s report and
recommendation within fourteen days of being served with the
See Fed. R. Civ. P. 72(b)(2).
recommendation, the district court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
28 U.S.C. § 636(b)(1)(C); see also Fed. R.
recommendation must point out the specific portions of the report
and recommendation to which they are objecting to.
See Barratt v.
Joie, No. 96-CV-0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002)
When a party raises an objection to a magistrate judge’s
report, the Court must conduct a de novo review of any contested
sections of the report.
815, 817 (S.D.N.Y. 1991).
See Pizarro v. Bartlett, 776 F. Supp.
But if a party “makes only conclusory
arguments, the Court reviews the Report and Recommendation only
for clear error.”
Walker, 216 F. Supp. 2d at 291 (internal
quotation marks and citation omitted).
The determination of the appropriate amount of counsel
fees is committed to the Court’s discretion.
Shabazz v. City of
N.Y., No. 14-CV-6417, 2015 WL 7779267, at *1 (S.D.N.Y. Dec. 2,
Indeed, the Supreme Court has noted that such discretion
understanding of the litigation and the desirability of avoiding
Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 437,
103 S. Ct. 1933, 1941, 76 L. Ed. 2d 40 (1983)).
As set forth above, MAR objects to the R&R, arguing that
Judge Tomlinson erred in recommending an award of counsel fees and
costs to Lapolla because: (1) Lapolla failed to provide information
regarding hourly rates and the necessity of the hours expended, or
an affidavit detailing the billing attorneys’ credentials and
attesting to the time spent, and (2) the award is “unjust and
excessive” in relation to sanctionable conduct that only amounted
to $1,020 and a motion that was largely denied.
(MAR’s Obj. at 3-
The Court will address each argument in turn.
Fee Application Deficiencies
The Court concurs with both Judge Tomlinson and MAR that
Lapolla’s Motion is deficient insofar as it fails to provide
information regarding hourly rates, the reasonableness of the
hours billed, and the credentials of the billing attorneys, as
well as an attestation of the time spent.
(See generally R&R at
However, Judge Tomlinson did not err in fashioning a
counsel fee award in spite of these deficiencies by relying on
Lapolla’s billing records, which contain entries detailing the
billing attorney’s initials, a summary of the tasks completed, and
the time spent on each task.
(See Lapolla’s Mot. at Exs. A and B,
Docket Entries 129-1 and 129-2.)
MAR does not dispute that the billing rates for Hoover
Slovacek and Greenbaum Rowe fall within the prevailing rates for
attorneys and paralegals in the Eastern District.
(See R&R at 12since
counsel’s billing rates do not exceed the prevailing rates in this
District, the credentials of the billing attorneys are not vital
to the Court’s ability to determine the reasonableness of the
Cf. Trustees of the Local 813 Ins. Trust Fund v.
Tres Chic, Ltd., No. 09-CV-5452, 2010 WL 3782033, at *4 (E.D.N.Y.
Aug. 16, 2010), report and recommendation adopted as modified on
other grounds, 2010 WL 3746942 (E.D.N.Y. Sept. 20, 2010) (“[t]he
hourly rate awarded to counsel should be in line with those [rates]
prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience and reputation”) (internal
Further, the Court finds that Judge Tomlinson did not
err in reviewing Hoover Slovacek and Greenbaum Rowe’s respective
websites to obtain information regarding each billing attorney’s
status as a partner or associate.
(MAR’s Obj. at 3.)
While the Court, again, is dismayed by Lapolla’s “‘dump
truck’ approach,” (R&R at 8), and failure to submit information
designation of the billing entries that fell within the categories
of work outlined in the 2015 R&R was wholly appropriate.
Shabazz, 2015 WL 7779267, at *4 (in determining the reasonable
number of hours of work, “[t]he Court may also consider its own
familiarity with the case and its experience with the case and its
experience with the case generally”) (internal quotation marks and
Excessiveness of Fee Award
MAR argues that the recommended award of counsel fees is
excessive since the sanctionable conduct only resulted in an award
of $1,020, and avers that “[a]t most, Defendants should only be
awarded fees for a small portion of their time spent drafting the
Motion for Sanctions, because they were only successful on a small
portion of their Motion.” (MAR’s Obj. at 4.) The Court disagrees.
Preliminarily, the Court notes that MAR has not objected
awarded $1,020 in attorneys’ fees for its review of the Maul Emails
and $2,429.28 in costs for the sanctions hearing transcript.
generally MAR’s Obj.; see also R&R at 21.)
The Court has reviewed
the portions of the R&R regarding the award of fees for the Maul
Emails and the award of costs for clear error and finds none.
Urena v. N.Y., 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (where
no timely objections have been made the “court need only satisfy
itself that there is no clear error on the face of the record”)
(internal quotation marks and citation omitted).
$40,661.70 in legal fees for the preparation of the Sanctions
hearing is not excessive.
The Court is mindful that, as noted,
the time spent reviewing the Maul Emails amounted to a small
fraction of the total legal fees for the preparation of the
characterization of the Sanctions Motion as “uncomplicated” is
(MAR’s Obj. at 5.)
As detailed in the 2015
R&R, the Sanctions Motions implicated a number of factual and legal
issues that necessitated a three-day hearing and a lengthy report
and recommendation by Judge Tomlinson.
As a result, the Court
concurs with Judge Tomlinson that the fee award is reasonable.
As noted, MAR also argues that Lapolla should only be
awarded a “small portion” of its time spent on the Sanctions Motion
because it only prevailed on a “small portion” of that motion.
(MAR’s Obj. at 4.)
At the outset, the Court notes that MAR failed
to raise this argument in its underlying opposition to Lapolla’s
(See generally MAR’s Opp., Docket Entry 131.)
The Court has serious concerns as to whether this argument may
even be considered at this juncture.
While the Second Circuit has
not yet determined whether a new legal argument may be raised in
an objection to a report and recommendation, “[m]any district
objections to the R&R, and indeed may not be deemed objections at
Cabrera v. Schafer, No. 12-CV-6323, 2017 WL 1162183, at *2
(E.D.N.Y. Mar. 27, 2017) (internal quotation marks and citation
omitted; collecting cases).
See also Postell v. Bradt, No. 09-
CV-4853, 2017 WL 1214933, at *4 (S.D.N.Y. Mar. 31, 2017) (“[t]he
weight of authority in this district indicates that the Court
Nevertheless, other district courts have utilized a multi-factor
test to determine whether they should exercise their discretion to
consider arguments raised for the first time in an objection.
Cabrera, 2017 WL 1162183, at *2.
However, even if the Court were to consider MAR’s new
argument, it finds that an additional reduction based on the
success of the Sanctions Motion is not warranted. First, the Court
Sanctions Motion’s by declining to permit Lapolla to apply for
sanctions hearing, (2) preparation for Plaintiffs’ depositions,
(3) preparation for and examination of Mr. Maul, (4) time spent on
written discovery related to Mr. Maul and Insight Environmental,
and (5) time spent conducting discovery and defending Plaintiffs’
personal injury claims.
(2016 Aoption Order at 16-18.)
fashioning her recommended counsel fee award, she considered,
inter alia, that “Lapolla’s counsel was not entirely successful on
the sanctions motion.”
(R&R at 17.)
Judge Tomlinson’s meticulous
review of Lapolla’s invoices resulted in a drastic reduction of
attorneys’ fees and costs from Lapolla’s requested amount of
$233,058.46, (see Lapolla’s Mot.), to the recommended award of a
total of $41,681.70 in attorneys’ fees and $2,429.28 in costs,
(see R&R at 21.)
Moreover, the recommended award is approximately
eighteen percent of Lapolla’s total requested award.
the Court concludes that Judge Tomlinson aptly accounted for lack
While the Court acknowledges that courts in this
Circuit routinely make across-the-board reductions, (see MAR’s
Obj. at 4-5), it declines to make an additional reduction.
MAR’s objections to the R&R are OVERRULED.
application and essentially objects to the R&R insofar as it failed
to recommend that Lapolla be provided an opportunity to remedy
(Lapolla’s Obj. at 4-6.)
Lapolla submits an
exhibit highlighting additional relevant fees and seeks to submit
a revised motion for counsel fees that “thoroughly explains the
reasons those fees and costs should also be awarded in addition to
those already identified by the Court, as well as addressing the
deficiencies identified by this Court.”
(Lapolla’s Obj. at 8.)
Lapolla also posits a general objection to the R&R “since it does
not recommend awarding Lapolla for certain fees and expenses that
are within the relevant categories.”2
(Lapolla’s Obj. at 8.)
However, the Court declines to permit Lapolla a second
bite of the apple.
While the Court is mindful that courts in this
District have, on occasion, permitted litigants an opportunity to
correct deficient fee applications, (see Lapolla’s Obj. at 7
(collecting cases)), the Court is under no obligation to do so.
Additionally, while Lapolla notes that neither the 2015 R&R nor
the 2015 Adoption Order “directed Lapolla to submit affidavits or
include legal authorities in support of its Fee Application,”
To the extent Lapolla argues that it was required to file its
fee application prior to the issuance of the Adoption Order and,
as a result, it “attempt[ed] to present the necessary
information and documentation in the most logical and
comprehensive format it could under the circumstances,” such an
argument is founded in a fundamental misreading of the 2015 R&R.
(See Lapolla’s Obj. at 5-6.)
The 2015 R&R recommended that the
District Court direct Lapolla to file its fee application within
a maximum of thirty days, (see 2015 R&R at 57); it did not
direct Lapolla to file a fee application within thirty days of
the 2015 R&R.
(Lapolla’s Obj. at 7), the Court was not obligated to provide
Lapolla with detailed instructions on how to support a cognizable
Similarly, the Court acknowledges Lapolla’s
letter motions requesting an opportunity to submit “additional
information or clarification” and set a status conference on the
(Docket Entries 133, 134.)
Lapolla is not automatically entitled to an opportunity to present
additional information after a motion has been fully submitted.
The Court declined to exercise its discretion to permit Lapolla to
essentially amend and/or supplement its fee application while it
was sub judice, and it continues to decline to exercise its
discretion to grant Lapolla an opportunity to file a revised
Accordingly, Lapolla’s objections are OVERRULED.
For the foregoing reasons, Judge Tomlinson’s R&R (Docket
Entry 136) is ADOPTED in its entirety, MAR’s Objections (Docket
OVERRULED, and Lapolla’s fee application (Docket Entry 129) is
GRANTED IN PART and DENIED IN PART.
Lapolla is awarded the
following attorneys’ fees and costs: $40,935 in attorneys’ fees to
Hoover Slovacek ($1,020 for review of the Maul Emails and $39,915
for time spent drafting the Sanctions Motion and post-hearing
brief), $746.70 in attorneys’ fees to Greenbaum Rowe, and $2,429.28
in costs to Hoover Slovacek.
Lapolla’s pending letter motions
(Docket Entries 133 and 134) are TERMINATED AS MOOT.
The Clerk of
the Court is directed to enter judgment accordingly and mark this
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
26 , 2017
Central Islip, New York
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