Datiz v. International Recovery Associates, Inc.
Filing
168
ORDER ADOPTING REPORT AND RECOMMENDATIONS granting in part and denying in part 113 Motion for Attorney Fees; adopting in part Report and Recommendations as to 151 Report and Recommendations; ORDER re: [161-165]: The R&R is adopted as modified t o award Plaintiff's counsel attorneys' fees in the amount of $120,916.00 plus $400 in costs for a total award of $121,316.00. Defendant's request to modify Judge Spatt's Order is denied and Plaintiff's request for additional attorneys' fees is held in abeyance. See attached Order. Ordered by Judge Denis R. Hurley on 7/7/2020. (Hoon, Megha)
Case 2:15-cv-03549-DRH-AKT Document 168 Filed 07/07/20 Page 1 of 14 PageID #: 1697
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
LISA DATIZ,
Plaintiff,
-against-
ORDER ADOPTING REPORT
AND RECOMMENDATION AS
MODIFIED
15-cv-3549 (DRH)(AKT)
INTERNATIONAL RECOVERY
ASSOCIATES, INC.,
Defendant.
--------------------------------------------------------X
APPEARANCES
BARSHAY SANDERS PLLC
For Plaintiff
100 Garden City Plaza, Suite 500
Garden City, New York 11530
By:
Craig B. Sanders, Esq.
David M. Barshay, Esq.
Jonathan M. Cader, Esq.
ROBERT L. ARLEO
For Defendants
380 Lexington Avenue, 17th Fl.
New York, NY 10168
By:
Robert L. Arleo, Esq.
HURLEY, Senior District Judge:
INTRODUCTION
Presently before the Court is the Report and Recommendation of Magistrate Judge A.
Kathleen Tomlinson, dated March 12, 2020, recommending that Plaintiff’s motion for attorneys’
fees be granted in part and denied in part (“R&R”). (ECF No. 151.) Specifically, Magistrate
Judge Tomlinson recommended that this Court award Plaintiff $80,615.00 in attorneys’ fees and
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$400.00 in costs in connection with her Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et
seq. (“FDCPA”) action against Defendant.
Both Plaintiff and Defendant have filed objections to certain portions of the R&R.
Defendant raises four objections: “1) the Report’s rejection of the Fifth Circuit’s ‘special
circumstances’ exception to the Fair Debt Collection Practice[s] Act (FDCPA) fee shifting
provision (referred to as the ‘unusual circumstances’ exception in the Third and Fourth Circuits);
2) the Report’s refusal to reduce attorneys fees based upon Plaintiff’s frivolous motion for
sanctions against the undersigned attorney for the Defendant; 3) the Report’s refusal to reduce
attorneys fees based upon Plaintiff’s attorneys agreement to proceed to trial by jury, then
retaining an alleged expert, and then withdrawing the agreement to proceed to trial by jury and,
instead, moving for summary judgment; and 4) the Report’s awarding of $80,615 in attorneys
fees to the Plaintiff.” (Def.’s Obj. [ECF No. 157] at 1.) Plaintiff objects to the R&R on the basis
that it was error to reduce her attorneys’ fees by sixty percent and that a reduction in the ten to
thirty percent range would be more appropriate. (Pl.’s Obj. [ECF No. 158] at 1.)
Also before the Court are Defendant’s request for a pre-motion conference in anticipation
of a motion to modify a portion of Judge Arthur D. Spatt’s April 29, 2019 Memorandum
Decision and Order (ECF No. 130) (“Judge Spatt’s Order”) in this case and Plaintiff’s request for
a pre-motion conference in anticipation of a motion for additional attorneys’ fees. (ECF Nos.
161, 163.)
For the reasons stated below: (1) the R&R is adopted, as modified, by changing the
recommended 60% reduction in Plaintiff’s attorneys’ fee request to a demonition of 40%, (2)
Defendant’s request with respect to modifying Judge Spatt’s Order of April 29, 2019 is denied,
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and (3) Plaintiff’s request asking for additional attorneys’ fees for services provided after the
current application was submitted is held in abeyance.
BACKGROUND
I adopt Magistrate Judge Tomlinson’s very thorough overview of the procedural history
and facts of this case and assume the parties’ familiarity with the same. I state only some of the
very long procedural history as context for the motions before me now.
In short, Plaintiff Lisa Datiz (“Plaintiff”) commenced this action against International
Recovery Associates, Inc. (“Defendant”) for violations of the FDCPA. (Am. Compl. [ECF No.
17].) In particular, Plaintiff’s claims are based on the content of a collection letter that
Defendant delivered to Plaintiff in order to collect a debt. (Id.)
On August 4, 2016, Judge Spatt, who presided over the case at the time, granted
Defendant’s motion to dismiss two of Plaintiff’s FDCPA claims and denied Defendant’s motion
as to two FDCPA claims based on Defendant’s failure to adequately identify the creditor to
whom Plaintiff owed a debt in the collection letter. (Aug. 4, 2016 Mem. Decision and Order
[ECF No. 33].) After a number of intervening applications, which are detailed in the R&R, the
parties filed cross motions for summary judgment. On September 24, 2018, Judge Spatt,
adopting Magistrate Judge Tomlinson’s recommendation, granted summary judgment to Plaintiff
and denied Defendant’s motion. (Sept. 24, 2018 Mem. Decision and Order [ECF No. 97].)
Judge Spatt awarded Plaintiff $1,000 in statutory damages, which was later reduced to $500 after
Defendant moved for reconsideration. (Apr. 29, 2019 Mem. Decision and Order [ECF No.
130].)
In accordance with Judge Spatt’s direction following his decision on summary judgment,
Plaintiff filed a motion for attorneys’ fees and costs on November 30, 2018 to recover fees for
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services provided by her counsel, Barshay Sanders. (ECF No. 113). Judge Spatt referred that
motion to Magistrate Judge Tomlinson, whose report and recommendation on the motion is the
subject of this decision.
Following the summary judgment decision, Defendant attempted to remove Judge Spatt
from the case, both by writing letters to then-Chief Judge Dora L. Irizarry and by filing a motion
for Judge Spatt to recuse himself from the case. Though he initially denied Defendant’s motion,
Judge Spatt ultimately recused himself on December 17, 2019. (Order of Recusal [ECF No.
150].) The case was then randomly reassigned to me. 1
DISCUSSION
I.
Standard of Review
Federal Rule of Civil Procedure 72(b) provides that when a magistrate judge issues a report
and recommendation on a matter “dispositive of a claim or defense of a party,” the district court judge
shall make a de novo determination of any portion of the magistrate judge’s disposition to which
specific written objection has been made. Fed. R. Civ. P. 72(b). If, however, the objecting party
“makes only conclusory or general arguments, or simply reiterates the original arguments, the Court
will review the [report and recommendation] strictly for clear error.” IndyMac Bank, F.S.B. v. Nat’l
Settlement Agency, Inc., 2008 WL 4810043, at *1 (S.D.N.Y. Nov. 3, 2008). For those portions of a
report and recommendation to which no objections are made, the Court also applies a clear error
standard. Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008).
1
The Court is compelled to clarify a statement in Defendant’s objection. Defendant states that
Judge Spatt “reassigned this action to this Court.” (Def.’s Obj. at 2.) Though not clear from the
face of the docket entry noting Judge Spatt’s recusal and the reassignment to me, Judge Spatt did
not assign this action to me. After he recused himself, the case was randomly reassigned to me
through the Court’s standard reassignment process.
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Plaintiff argues that the clear error standard should apply to Defendant’s arguments because,
even though they are not “‘verbatim’ recitations of Defendant’s opposition, they are substantively
identical.” (Pl.’s Obj. at 17.) Defendant argues that the Court should review the objections on a de
novo basis. (Def.’s Obj. at 7-8.) The Court will address the relevant standard of review for each
objection based on whether it asserts a specific objection or conclusory, general arguments.
II.
The R&R Is Adopted as Modified
a. The Objection Based on “Special Circumstances” is Rejected
The Court reviews this issue de novo because Defendant’s objection specifically discusses the
perceived errors in Judge Tomlinson’s reasoning. Under a de novo review, the Court adopts
Magistrate Judge Tomlinson’s recommendation on this issue.
A consumer who prevails in a FDCPA action is entitled to recover “the costs of the action,
together with reasonable attorney’s fees as determined by the court.” 15 U.S.C. § 1692k(a)(3). As
Magistrate Judge Tomlinson explained in the R&R, the Second Circuit views the FDCPA attorney’s
fees provision as mandatory for successful plaintiffs. (R&R at 11 (collecting cases).) Nonetheless,
Defendant argues that this Court should follow the Third, Fourth, and Fifth Circuits in finding an
exception to the FDCPA’s mandatory attorneys’ fees provision based on “special” or “unusual
circumstance” because “Plaintiff submitted a grossly intolerable, exaggerated and dishonest fees
request.” (Def.’s Obj. at 8.)
Besides the fact that this Court is not bound by the law of any circuit other than the Second
Circuit, the “special circumstances” exception is not applicable here. Defendant relies primarily on a
Fifth Circuit case, Davis v. Credit Bureau of the South, which notes that it applied the “special
circumstances” exception in that case “largely based on the district court’s finding of bad faith
conduct on the part of plaintiff and her counsel: ‘It appears this cause of action was created by
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counsel for the purpose of generating, in counsel’s own words, an ‘incredibly high’ fee request.’”
908 F.3d 972, 978-979 (5th Cir. 2018). The plaintiff in Davis engaged in objectively outrageous
conduct such as claiming to be from a different state to manufacture her claim, which she did in
conjunction with attorneys who were her former employers. Id. at 980. Though Barshay Sanders’
fee estimate was problematic in certain respects, as will be discussed in more detail below, the
conduct displayed by Plaintiff or her counsel in this case could not be categorized as bad faith such
that their conduct constitutes a “special circumstance.”
Defendant also argues that the cases Judge Tomlinson relied on “did not consider the
special/unusual circumstances argument.” (Def.’s Obj. at 9.) The Court is not persuaded by this
argument because, as Magistrate Judge Tomlinson clearly explained, and the court in Davis
acknowledged, the Second Circuit views the attorney’s fees provision of the FDCPA as mandatory.
(R&R at 11 (collecting cases).) Indeed, even Davis acknowledges that a “complete denial of
otherwise generally mandatory attorney’s fees is a rare and drastic sanction.” 908 F.3d at 981
(emphasis added). In the absence of Second Circuit law to the contrary, I find that the “special
circumstances” exception does not apply and therefore adopt Judge Tomlinson’s R&R on this issue.
b. The Objection Based on the Sanctions Motion is Rejected
Defendant argues that Plaintiff should not be reimbursed for what it views as a “frivolous”
motion for sanctions against its attorney, Robert Arleo. (Def.’s Obj. at 11.) Because Defendant’s
objection on this issue is merely one paragraph that repeats prior arguments advanced in various
submissions to Judge Spatt and Magistrate Judge Tomlinson, the Court reviews this part of the R&R
for clear error.
A review of the relevant docket entries reveals that, although Plaintiff’s motion for sanctions
was not granted, it was certainly not frivolous or baseless. Judge Spatt’s description of Mr. Arleo’s
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conduct suggests the opposite: “much of Mr. Arleo’s conduct over the course of this litigation is
regrettable, and borderline frivolous;” “much of Mr. Arleo’s behavior is unseemly;” “the Court has
serious misgivings about Mr. Arleo’s behavior.” (Judge Spatt’s Order at 17, 18, 19.) Ultimately,
Judge Spatt found that Mr. Arleo’s behavior, while problematic, did not “f[a]ll below ‘the low water
mark’ articulated in [Revson v. Cinque & Cinque P.C., 221 F.3d 71 (2d Cir. 2000)].” (Judge Spatt’s
Order at 19.) Accordingly, the Court does not agree with Defendant that Plaintiff’s motion was
frivolous or baseless. Defendant presents no other argument as to why the fees associated with the
sanctions motion should be excluded from the attorneys’ fees in this case. The Court therefore
rejects Defendant’s objection and adopts the R&R with respect to this issue.
c. The Objection Based on Plaintiff’s Refusal to Proceed to Jury Trial is Rejected
Defendant argues that Plaintiff’s counsel should not be paid for fees caused by its “refusal…to
proceed to trial by jury after [Mr. Barshay] committed to trial by jury in court before Magistrate
Judge Tomlinson.” (Def.’s Obj. at 11.) The Court reviews this issue for clear error because, as with
the objection based on the motion for sanctions, Defendant has not presented any new arguments but
rather rehashed his previous submissions on this issue.
Defendant has previously attempted to enforce an alleged stipulation between the parties to
forego summary judgment and proceed to a jury trial. As discussed in Magistrate Judge Tomlinson’s
May 1, 2017 Order regarding the alleged stipulation, which order was issued after both parties had
the opportunity to present arguments, “nowhere…does Plaintiff, through counsel, explicitly indicate a
desire to waive summary judgment motion practice and instead proceed directly to trial. Nor is there
any dialogue concerning the parties’ intent to enter a stipulation concerning this issue.” (May 1, 2017
Order [ECF No. 60] at 5 (emphasis in original).) Thus, the Court rejects Defendant’s argument,
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which is a thinly veiled attempt to simply reargue Magistrate Judge Tomlinson’s previous decisions
regarding the alleged stipulation and adopts the R&R on this issue.
d. The Objections to the Attorneys’ Fees Award are Granted in Part and Rejected
in Part
Both parties object to the amount of attorneys’ fees that Magistrate Judge Tomlinson awarded
Plaintiff, though, predictably, for opposing reasons—Plaintiff argues that the award is too low while
Defendant argues it is too high. The Court reviews this issue, which goes to the heart of the R&R, de
novo.
Defendant argues that because “Magistrate Judge Tomlinson referenced [] two FDCPA
decisions which reduced fees by 75% and 90%, respectively,” that “the maximum which should have
been recommended is 10% of the total requested.” (Def.’s Obj. at 12-13.) Beyond that, Defendant
does not point to any specific errors in Magistrate Judge Tomlinson’s ruling on the amount of fees.
Plaintiff, on the other hand, argues that the recommended sixty percent reduction in fees is excessive
and not supported by the cases cited in the R&R, most of which reduce attorneys’ fees by ten to thirty
percent.
As has been noted in the R&R and the various submissions, “[t]he most useful starting point
for determining the amount of a reasonable fee is the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct.
1933, 1939, 76 L. Ed. 2d 40 (1983). This amount is also referred to as the “lodestar” and creates “a
presumptively reasonable fee.” Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany
& Albany Cty. Bd. of Elections, 522 F.3d 182, 183 (2d Cir. 2008). A reasonable hourly rate is the
“prevailing market rate,” or the rate “prevailing in the [relevant] community for similar services by
lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886,
895 n.11, 104 S. Ct. 1541, 79 L. Ed. 2d 1981 (1984). The number of reasonable hours is calculated
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by taking the hours actually expended less any “excessive, redundant, or otherwise unnecessary”
time. Hensley, 461 U.S. at 433. “Hours that are ‘excessive, redundant, or otherwise unnecessary,’ are
to be excluded, and in dealing with such surplusage, the court has discretion simply to deduct a
reasonable percentage of the number of hours claimed ‘as a practical means of trimming fat from a
fee application.’” Dagostino v. Computer Credit, Inc., 238 F. Supp. 3d 404, 413 (E.D.N.Y. 2017)
(quoting Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998)).
Upon a de novo review, the Court agrees with Magistrate Judge Tomlinson as to the rates to
be charged per attorney in this case: $370 per hour for partners David M. Barshay and Craig B.
Sanders; $240 per hour for senior associate Jonathan M. Cader; $150 per hour for junior associate
Eric A. Curtis; and $85 per hour for paralegal-equivalent work. These rates are supported by
Plaintiff’s submissions, and Plaintiff does not dispute these rates in her objection. (Pl.’s Mot. for
Attorneys’ Fees [ECF No. 117] at 4-5; Pl.’s Obj.)
This Court, again upon a de novo review, generally agrees with, and therefore adopts,
Magistrate Judge Tomlinson’s findings with respect to Barshay Sanders’ billing practices in this
action. In particular, the Court agrees with the characterization of factors that led to the decision to
reduce Plaintiff’s requested fees, viz.: (1) work performed by senior attorneys for “basic or
intermediate tasks which could have been undertaken by a junior associate or paralegal at a
significantly reduced hourly rate;” (2) “the work performed in this action is duplicative of that which
counsel has undertaken in similar FDCPA cases,” thereby lessening the need for additional research
and analysis; (3) “a significant portion of the hours billed by Plaintiff’s counsel are excessive when
compared to the straightforward nature of the case and the collective experience of counsel;” (4) “the
time records are replete with redundant internal consultations as well as overstaffing, either by
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multiple attorneys or by overly qualified attorneys, in addition to reflecting duplicative work;” (5)
numerous instances of block billing; and (6) limited success by Plaintiff. (R&R at 24-30.)
Nonetheless, as Plaintiff points out, the vast majority of cases cited in the R&R found
reductions in the ten to thirty percent range. See, e.g., Litkofsky v. P & L Acquisitions, LLC, 2016 WL
7167955, at *12 (E.D.N.Y. Aug. 19, 2016), report and recommendation adopted sub nom. Litkofsky
v. P & L Acquisitions LLS, 2016 WL 7168069 (E.D.N.Y. Dec. 8, 2016) (reducing Barshay Sanders’
fees in FDCPA action by twenty-five percent); Seeger v. Ross & Assocs., 2019 WL 5695944, at *6
(E.D.N.Y. Aug. 6, 2019) (reducing Barshay Sanders’ fees in FDCPA action by twenty percent);
Nicaisse v. Stephens & Michaels Assocs., Inc., 2016 WL 4367222, (E.D.N.Y. June 9, 2016), report
and recommendation adopted, 2016 WL 4275687 (E.D.N.Y. Aug. 12, 2016), (reducing fees by ten
percent); Barshay v. Specified Credit Assocs. I, Inc., 2016 WL 3578993, at *5 (E.D.N.Y. June 3,
2016) (reducing Barshay Sanders’ fees in FDCPA action by twenty percent); Chavez v. MCS Claim
Servs., Inc., 2016 WL 1171586 (E.D.N.Y. Mar. 23, 2016) (reducing Barshay and Sanders’ fees in
FDCPA action by thirty percent); De La Paz v. Rubin & Rothman, LLC, 2013 WL 6184425
(S.D.N.Y. Nov. 25, 2013) (reducing fees by thirty percent); Dickey v. Allied Interstate, Inc., 2013 WL
4399212 (S.D.N.Y. Aug. 1, 2013) (reducing fees by twenty percent); Microsoft Corp. v. Computer
Care Ctr., Inc., 2008 WL 4179653 (E.D.N.Y. Sept. 10, 2008) (reducing fees by one third); Gatti v.
Cmty. Action Agency of Greene Cty., Inc., 263 F. Supp. 2d 496, 523 (N.D.N.Y. 2003), aff'd sub nom.
Gatti v. Cmty. Action of Greene Cty., Inc., 86 F. App'x 478 (2d Cir. 2004) (reducing fees for
individual attorneys between ten and thirty-five percent); Sea Spray Holdings, Ltd. v. Pali Fin. Grp.,
Inc., 277 F. Supp. 2d 323, 324 (S.D.N.Y. 2003) (reducing fees by ten percent); and Video Aided
Instruction, Inc. v. Y & S Express, Inc., 1996 WL 711513 (E.D.N.Y. Oct. 29, 1996) (reducing fees for
one of three attorneys by fifty percent). While these cases may not have exhibited the full suite of all
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six factors identified in the R&R and listed above, many of these cases did involve some combination
of similar billing inegularities.
Nonetheless, the Comi is mindful that much of the work Plaintiffs counsel was required to
perfo1m in connection with this action was prompted by Defendant 's litigation strategy. As has been
noted in the R&R and the paii ies ' submissions, this seemingly simple FDCPA case has almost 170
docket entries at the time of this decision, in lai·ge part because of Defendant's zealous defense. As
the R&R notes, a paiiy '"cannot litigate tenaciously and then be heai·d to complain about the time
necessarily spent by [its adversa1y ] in response."' Bleecker Charles Co. v. 350 Bleecker Street
Apartment C01p. , 2 12 F. Supp. 2d 226,229 (S.D.N.Y. 2002) (quoting City of Riverside v. Rivera, 477
U.S. 561, 580, n.11, 106 S. Ct. 2686, 91 L.Ed.2d 466 (1986)).
While Barshay Sanders' billing practices may have driven up the attorneys ' fees here, they
would not have had occasion to bill so many hours had defense counsel not made numerous,
sometimes problematic, submissions to the comi that they were required to review and respond to.
On the other hand, I am mindful that Bai·shay Sanders has been admonished in other FDCPA actions
for many of the same billing practices at issue here, and that counsel cannot continue to submit
inflated fee estimates to this or any other comi. Accordingly, in light of the above considerations and
upon a de novo review, I find that fo1 percent is an appropriate reduction to Bai·shay Sanders's
iy
attorneys ' fees.
The Court therefore awai·ds Plaintiff's counsel $120,916.00 in attorneys ' fees as follows:
Individual
David Barshay
Hours
Requested
335.7
Hours Awarded Hourly Rate
(40% Reduction)
$370
201.4
Craig Sanders
169.0
101.4
$370
$37,518.00
Jonathan Cader
52. 1
31.26
$240
$7,502.40
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Total
$74,518.00
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Eric Cmt is
11.0
6.6
$150
$990.00
Paralegal
7.6
4. 56
$85
$387.60
Total Attorneys' $120,916.00
Fees:
e. Defendant's Request Regarding New Evidence is Denied
Defendant argues that the Comt should consider new evidence along with its objections to the
R&R because it was denied the opportunity to present said evidence to Magistrnte Judge Tomlinson.
(Def. 's Obj . at 14.) Plaintiff argues that the Comt should not consider the new evidence because it is
not "new" in that most of the infonnation presented predated the motion for attorneys ' fees and that it
does not show any eITor in the R&R. (Pl. 's Obj . at 18.)
Defendant acknowledges that "[c]omts generally do not consider new evidence presented for
the first time in objections to a repo1 and recommendation without a compelling justification for the
t
failure to first present the evidence to the Magistrate Judge" but argues that "impediment is not
present" here because it was denied the opportnnity to subrnit additional evidence. (Def. 's Obj. at 14
(citing New York City Dist. Council of Ca,penters Pension Fund v. Forde, 341 F. Supp. 3d 334, 338
(S.D.N.Y. 2018)).) Indeed, Magistrate Judge Tomlinson ordered the paities to "CEASE and DESIST
making any furt her submissions in connection with the pending motion for attorneys ' fees" because
the paities made subinissions after the motion was fully briefed without obtaining leave from the
comt . (Docket Enny dated July 15, 2019.)
The new "evidence" that Defendant proffers is essentially other cases in which Barshay
Sanders has made subrnissions regai·ding its billing practices, which Defendant inti·oduces to prove
the point that Barshay Sanders regularly requests an hourly rate higher than the one it is often
awarded by the comts in this district and that it bills more time than necessaiy to complete ce1
tain
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tasks. (Def.’s Obj. at 13-23.) Defendant also introduces additional cases to bolster its arguments
about the amount of fees Plaintiff should be awarded.
The Court rejects this presentation of “new evidence” for what it is—a backdoor attempt to
present additional case law and reargue the merits of the motion for attorneys’ fees. The allegedly
new evidence is simply further support for points Defendant has already made in its briefs, and
allowing this type of submission flies in the face of judicial economy and fairness to the parties. See
Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998) (“Considerations of efficiency and fairness
militate in favor of a full evidentiary submission for the Magistrate Judge’s consideration, and we
have upheld the exercise of the district court’s discretion in refusing to allow supplementation of the
record upon the district court’s de novo review.”) Accordingly, the Court does not consider
Defendant’s new evidence.
III.
Mr. Arleo’s Request to Modify Judge Spatt’s Order Is Denied
Mr. Arleo makes the highly unusual request that this Court modify Judge Spatt’s Order to
“clarify certain incorrect findings set forth” in a portion of that decision regarding “judicial
comments” made by other judges, including myself, about Mr. Arleo. 2 (Def.’s Pre-Mot. Conf. Req.
[ECF No. 161] at 1.) In particular, Mr. Arleo appears to contend that Judge Spatt incorrectly
attributed language from one case, Thomasson v. GC Servs., L.P., 2007 WL 2317111 (S.D. Cal. Aug.
9, 2007), to one of my cases, Ohlson v. Cadel Co., 2009 WL 5167651 (E.D.N.Y. Dec. 18, 2009).
As an initial matter, the Court is compelled to note that Defendant’s pre-motion request was
duplicative of arguments it made in its objection to the R&R and is precisely the type of unnecessary
2
With respect to Defendant’s reply to Plaintiff’s opposition to the request to modify Judge
Spatt’s order (ECF No. 164), I remind Mr. Arleo that my individual practice rules state “[u]nless
otherwise directed, no replies shall be served or filed.” (Individual Practice Rule 3B). Mr. Arleo
is directed to abide by all applicable rules and to seek leave from the Court before making
unauthorized filings.
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filing discussed so frequently in Judge Spatt and Judge Tomlinson’s decisions in this case. In
addition to being duplicative, the request is inappropriate and, more importantly, unwarranted. Judge
Spatt properly quoted the language of the Thomasson case referenced in Defendant’s letter and
properly attributed that language to the Thomasson case. Further, Mr. Arleo’s contention that Judge
Spatt “ignored” Defendant’s motion for reconsideration is incorrect. The docket reflects that Judge
Spatt addressed the request, which he denied for failure to present “controlling decisions or data that
the court overlooked.” (Docket Entry dated May 2, 2019). Accordingly, Mr. Arleo’s request that I
modify Judge Spatt’s order is denied.
IV.
Plaintiff’s Request to Move for Additional Fees Is Held in Abeyance
On May 28, 2020, Plaintiff filed a letter requesting a pre-motion conference in anticipation of
moving for additional attorneys’ fees incurred in the time since she filed her initial motion for
attorneys’ fees. Given that there may be additional motion practice in this case, see Docket Entry
dated June 4, 2019, the Court will hold Plaintiff’s request in abeyance until the parties represent to the
Court that there will be no further motion practice or other submissions in this case.
CONCLUSION
For the foregoing reasons, the R&R is adopted as modified to award Plaintiff’s counsel
attorneys’ fees in the amount of $120,916.00 plus $400 in costs for a total award of $121,316.00.
Defendant’s request to modify Judge Spatt’s Order is denied and Plaintiff’s request for additional
attorneys’ fees is held in abeyance.
Dated: Central Islip, New York
July 7, 2020
s/ Denis R. Hurley
Denis R. Hurley
United States District Judge
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