Kizer v. Abercrombie & Fitch Co. et al

Filing 52

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION - Judge Tomlinson's R&R (Docket Entry 51) is ADOPTED in its entirety. Defendants' motion for attorneys' fees and costs (Docket Entry 47) is GRANTED IN PART and DENIED IN PART. Spe cifically, Defendants are awarded $12,225.00 in fees and $81.12 in costs. The parties are directed to file a status report within fourteen (14) days of the date of this Memorandum and Order outlining the outstanding discovery items, along with proposed deadlines for the completion of discovery (if necessary), the commencement of dispositive motion practice and the filing of the pre-trial order. So Ordered by Judge Joanna Seybert on 8/9/2017. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CHRISTINA KIZER,
Plaintiff,

MEMORANDUM & ORDER
12-CV-5387(JS)(AKT)

-againstABERCROMBIE & FITCH CO., ABERCROMBIE
& FITCH STORES, INC., ABERCROMBIE
& FITCH TRADING CO., d/b/a Abercrombie
and Fitch, d/b/a Hollister and Ruehl,
Defendants.
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APPEARANCES
For Plaintiff:
Robert D. Salaman, Esq.
Zafer Adem Akin, Esq.
Emre Polat, Esq.
Akin Law Group PLLC
45 Broadway, Suite 2650
New York, NY 10006
For Defendants:

Barbara Vita Cusumano, Esq.
Bond Schoeneck & King PLLC
600 Third Avenue, 22nd Floor
New York, NY 10016
Hilary L. McHugh, Esq.
Bond, Schoeneck & King
1399 Franklin Ave, Suite 200
Garden City, NY 11530
Thomas McCormick, Esq.
Tyler Pensyl, Esq.
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street
Columbus, OH 43216

SEYBERT, District Judge:
Pending before the Court are: (1) Abercrombie & Fitch
Company, Abercrombie & Fitch Stores, Incorporated, and Abercrombie

& Fitch Trading Company’s (collectively “Defendants”) motion for
attorneys’ fees and costs (Fee Mot., Docket Entry 47) and (2)
Magistrate Judge A. Kathleen Tomlinson’s Report and Recommendation
(“R&R”) (R&R, Docket Entry 51) recommending that this Court grant
Defendants’ motion in part and deny it in part.
Judge

Tomlinson

recommends

that

the

Court

Specifically,

award

Defendants

$12,225.00 in attorneys’ fees and $81.12 in costs incurred as a
result of Plaintiff’s failure to comply with discovery orders.
(R&R at 34.)

For the following reasons, the Court ADOPTS Judge

Tomlinson’s R&R in its entirety.
BACKGROUND
Defendants removed this employment discrimination and
wage and hour action to this Court on October 24, 2012.
of Removal, Docket Entry 1.)

(Notice

The Amended Complaint alleges that

Defendants discriminated against Plaintiff in violation of 42
U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, New York
State Human Rights Law, and New York City Human Rights Law and
failed to pay the overtime wages and spread of hours pay required
by the Fair Labor Standards Act and the New York Labor Law.

(Am.

Compl., Docket Entry 7, ¶¶ 1-2.)
On December 2, 2015, Defendants filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 41(b), arguing that
Plaintiff had failed to diligently prosecute the action and failed
to comply with court orders.

(Mot. to Dismiss, Docket Entry 33.)
2

The motion was referred to Judge Tomlinson, and on August 5, 2016,
Judge Tomlinson recommended that the motion to dismiss be denied.
2016 R&R, Docket Entry 40, at 22.)

However, in light of counsel’s

conduct, she recommended that the Court issue an order precluding
Plaintiff from offering an expert report to support her claims.
(2016 R&R at 22.)
Tomlinson’s

On September 23, 2016, this Court adopted Judge

Report

and

Recommendation

(Mem. & Order, Docket Entry 46.)

in

its

entirety.

Further, the undersigned granted

Defendants leave to file a motion for attorneys’ fees and costs
pursuant to Federal Rule of Civil Procedure 37(b)(2)(C).

(Order

at 4-6.)
On October 12, 2016, Defendants filed their motion for
attorneys’ fees and costs.
referred

the

motion

to

On April 12, 2017, the undersigned
Judge

Tomlinson

for

a

Report

and

Recommendation on whether the motion should be granted, and if
necessary, to determine the appropriate amount of fees and costs
to be awarded.

(Referral Order, Docket Entry 50.)
The R&R

On

July

24,

2017,

Judge

recommending

that

the

Court

award

attorneys’ fees and $81.12 in costs.

Tomlinson
Defendants

issued

her

R&R

$12,225.00

(R&R at 34.)

in

Defendants

initially sought $17,666.50 in attorneys’ fees for 49.7 hours of
work by two attorneys of Vorys, Sater, Seymour and Pease LLP-Thomas McCormick (“McCormick”) and Tyler Pensyl (“Pensyl”).
3

(R&R

at 12-13.)

However, Judge Tomlinson found that the requested

hourly rates were unreasonable.

(R&R at 17-18.)

Accordingly, she

recommends reduced hourly rates of $350.00 for McCormick and
$300.00 for Pensyl. (R&R at 17-18.) Additionally, Judge Tomlinson
found 49.7 hours to be excessive and recommends that the number of
hours be reduced by 25 percent.

(R&R at 23, 28.)

As for costs,

Judge Tomlinson reasoned that Defendants were not entitled to
recover expenses for travel when local counsel could have appeared
for

court

conferences.

(R&R

at

33-34.)

As

a

result,

she

recommends that the costs award be limited to $81.12 for the cost
of a transcript.

(R&R at 34.)
DISCUSSION

In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations

in

made

by

whole
the

or

in

part,

magistrate

the

judge.”

findings
28

and

U.S.C.

§ 636(b)(1)(C). If no timely objections have been made, the “court
need only satisfy itself that there is no clear error on the face
of the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (internal quotation marks and citation omitted).
Objections were due within fourteen (14) days of service
of the R&R.

The time for filing objections has expired, and no

party has objected.

Accordingly, all objections are hereby deemed

to have been waived.

4

Upon careful review and consideration, the Court finds
Judge Tomlinson’s R&R to be comprehensive, well-reasoned, and free
of clear error, and it ADOPTS the R&R in its entirety.
CONCLUSION
Judge Tomlinson’s R&R (Docket Entry 51) is ADOPTED in
its entirety.

Defendants’ motion for attorneys’ fees and costs

(Docket

47)

Entry

is

GRANTED

IN

PART

and

DENIED

IN

PART.

Specifically, Defendants are awarded $12,225.00 in fees and $81.12
in costs.

The parties are directed to file a status report within

fourteen (14) days of the date of this Memorandum and Order
outlining the outstanding discovery items, along with proposed
deadlines for the completion of discovery (if necessary), the
commencement of dispositive motion practice and the filing of the
pre-trial order.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

August
9 , 2017
Central Islip, New York

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