American Honda Motor Co., Inc. v. V.M. Paolozzi Imports, Inc. et al

Filing 61

MEMORANDUM-DECISION and ORDER granting 40 Motion to Strike and granting 48 Motion for Sanctions. Plaintiff's motion to strike the counterclaims is GRANTED and plaintiff's motion to hold defendants in contempt and impose per diem sanctions is GRANTED. The matter is referred to Magistrate Judge Baxter for all further pretrial matters. Signed by Senior Judge Frederick J. Scullin, Jr. on 3/26/2013. (lah)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________________
AMERICAN HONDA MOTOR COMPANY, INC.,
Plaintiff and Counter-Defendant,

v.

7:10-CV-955
(FJS/ATB)

V.M. PAOLOZZI IMPORTS, INC., d/b/a/ Dealmaker
Honda of Watertown; DEALMAKER OF POTSDAM,
LLC, d/b/a/ DealMaker Honda of Potsdam,
Defendants and Counter-Claimants.
______________________________________________________________
APPEARANCES

OF COUNSEL

HOGAN LOVELLS US LLP
875 Third Avenue
New York, New York 13440
Attorneys for Plaintiff

JOHN J. SULLIVAN, ESQ.

MCMAHON, KUBLICK & SMITH, PC
500 South Salina Street
Suite 816
Syracuse, New York
Attorneys for Defendants

JAN S. KUBLICK, ESQ.

SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Currently before the Court are (1) Plaintiff's motion to strike Defendants' counterclaims,
see Dkt. No. 40; and (2) Plaintiff's motion to hold Defendants in contempt and impose sanctions,
see Dkt. No. 48.

II. BACKGROUND
A.

Introduction
Until June 30, 2010, Defendants were authorized Honda dealers pursuant to Honda

Automobile Dealer Sales and Service Agreements entered into on September 14, 2004, and June
21, 2008 (collectively, the "Dealer Agreements"). See Dkt. No. 27 at ¶¶ 12-13. Plaintiff
terminated both Dealer Agreements on June 30, 2010, because of Defendants’ purported
breaches of the agreements. See id. at ¶ 24.
On August 6, 2010, Plaintiff brought an action against Defendants, alleging trademark
infringement and breach-of-contract claims. See Dkt. No. 1. On January 10, 2011, Plaintiff
moved for a preliminary injunction to prevent Defendants from displaying on their properties
Honda trademarks and trade dress design elements as they had done when they were authorized
Honda dealers. See id. at ¶¶ 28-29. Plaintiff further moved for leave to amend the complaint to
add claims relating to Defendants' alleged breaches of sublease agreements for Honda signs and
failure to pay their account balances. See Dkt. No. 16 at 1-2.
In a Memorandum-Decision and Order dated December 13, 2011, the Court granted both
motions. See Dkt. No. 26. On December 14, 2011, Plaintiff filed its amended complaint. See
Dkt. No. 27. Defendants filed an amended answer on January 19, 2012, asserting six additional
counterclaims. See Dkt. No. 33. On February 13, 2012, the Court issued an Order enjoining
Defendants from displaying Honda trademarks and trade designs on their former dealership
properties. See Dkt. No. 37

B.

Defendants' six counterclaims
In their amended answer, Defendants asserted, for the first time, six new counterclaims.

See Dkt. No. 33. Five of the counterclaims alleged that Plaintiff had breached its implied
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contractual duty to exercise good faith and deal fairly with Defendants. See id. According to
Defendants, Plaintiff had breached its implied duty of good faith and fair dealing by (1) forcing
Defendant Potsdam to open its Honda dealership by November 17, 2008, despite the
unprecedented recession in the automotive industry at that time; (2) promising to assist
Defendants in the sale of the Watertown and Potsdam dealerships, which, in turn, caused
Defendant Watertown to cease its efforts to sell its dealership to an undisclosed purchaser; (3)
refusing to approve the sale of the dealerships to Carbone Auto Group, LLC, an existing
qualified Honda dealer; (4) colluding with American Honda Finance Corporation ("Honda
Finance"), an affiliate of Plaintiff, to prevent a "workout agreement" between Defendants and
Honda Finance in 2009; and (5) colluding with Honda Finance to terminate the Watertown and
Potsdam dealerships in a manner that denied Defendants any economic benefit therefrom. See
Dkt. No. 33 at ¶¶ 102, 105, 108, 114, 117. The remaining counterclaim alleged that Plaintiff had
tortiously interfered with Defendant Watertown’s agreement to sell its dealership to an
undisclosed purchaser and, with knowledge of said sale, had dishonestly, unfairly and
improperly induced Defendants to forego the sale. See id. at ¶ 111.

C.

The Court's Order to Show Cause
On March 12, 2012, Plaintiff filed a motion to hold Defendants in contempt and impose

sanctions because they have continued to display Honda trademarks on their former dealership
properties. See Dkt. No. 48. In a Memorandum-Decision and Order dated September 1, 2012,
the Court granted Plaintiff's motion and ordered Defendants to show cause why the Court should
not hold them in contempt and impose per diem sanctions until their full compliance with the
Court’s February 13, 2012 Order. See Dkt. No. 56 at 7-8. Additionally, the Court granted

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Plaintiff's request for attorney's fees and costs incurred in bringing its motion and instructed
Plaintiff to submit documents supporting its proposed attorney’s fees and costs. See id. at 8-9.

III. DISCUSSION
A.

Plaintiff's motion to strike the counterclaims
Rule 16(b) of the Federal Rules of Civil Procedure provides that a court must issue a

pretrial scheduling order that, among other things, limits the time to amend the pleadings. See
Fed. R. Civ. P. 16(b)(3)(A); see also N.D.N.Y. L.R. 16.1(e) (mirroring Rule 16(b)). "By limiting
the time for amendments, the rule is designed to offer a measure of certainty in pretrial
proceedings, ensuring that 'at some point both the parties and the pleadings will be fixed.'"
Parker v. Columbia Pictures Indus., 204 F.3d 326, 339-40 (2d Cir. 2000) (quoting Fed. R. Civ.
P. 16 advisory committee's note (1983 amendment, discussion of subsection (b))). "Deadlines
imposed under a Rule 16 scheduling order are not mere suggestive guideposts; they are
meaningful deadlines established by the court, in consultation with the litigants, intended to
insure that the ends of justice and the need for prompt and efficient adjudication of controversies
are met." Syracuse Univ. v. Otis Elevator Co., No. 5:09-CV-0172, 2010 U.S. Dist. LEXIS
66396, *5-*6 (N.D.N.Y. July 1, 2010); see also Kassim v. City of Schenectady, 221 F.R.D. 363,
365 (N.D.N.Y. 2003) (stating that a scheduling order "'is not a frivolous piece of paper, idly
entered, which can be cavalierly disregarded by counsel without peril'" (quotation omitted)).
Moreover, Rule 16(b)(4) provides that "[a] schedule may be modified only for good
cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4); see N.D.N.Y. L.R. 16.1(f) (stating
that "[t]he Court shall strictly enforce any deadlines that it establishes in any case management
order, and the Court shall not modify these, even upon stipulation of the parties, except upon a

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showing of good cause"). To establish good cause, '"the moving party must, at a minimum,
make a showing of diligence.'" Murphy v. Snyder, No. CV 10-1513, 2013 U.S. Dist. LEXIS
32997, *59 (E.D.N.Y. Mar. 8, 2013) (quotation and other citations omitted). "'Good cause
requires a greater showing than excusable neglect'" and "may be established by 'demonstrating
that reasonably unforeseeable events occurring after the entry of the scheduling order precluded
compliance with the deadlines'" therein. Syracuse Univ., 2010 U.S. Dist. LEXIS 66396, at *6-*7
(quotations omitted).
In this case, Plaintiff argues that the Court should strike Defendants' counterclaims
because (1) the Uniform Pretrial Scheduling Order ("Scheduling Order") deadline of March 19,
2011, for amending the pleadings expired long before Defendants filed the amended answer on
January 19, 2012; and (2) they have not shown good cause to excuse this delay. See Dkt. No. 15
at ¶ 5; Dkt. No. 40 at 1; Dkt. No. 41 at 1-2, 9. Although Defendants admit that the Scheduling
Order deadline had expired when they filed the counterclaims, they argue that the counterclaims
reflect facts unknown to them on or before the Scheduling Order deadline of March 9, 2011. See
id. at ¶¶ 7-8, 11; Dkt. No. 49 at ¶ 4. Notwithstanding, Defendants also argue that they filed their
amended answer within the timeframe for responding to the amended complaint. See id. at ¶ 3.
The Court grants Plaintiff's motion to strike the counterclaims because Defendants have
not shown, as they must, that they diligently sought to comply with the Scheduling Order and,
therefore, they lack the requisite good cause. As an initial matter, Defendants concede that the
Scheduling Order deadline to amend had expired when they filed the counterclaims. See Dkt.
No. 49 at ¶ 4. In such circumstances, Rule 16(b)(4) required Defendants to move to modify or
extend the March 19, 2011 deadline in the Scheduling Order before filing the amended answer.

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See Fed. R. Civ. P. 16(b)(4). Defendants, however, neither sought the Court’s consent to modify
the Scheduling Order nor to extend the deadline to file amended pleadings therein.
Additionally, Defendants fall short of demonstrating good cause to extend the deadline to
permit their late amended answer. To show good cause, Defendants principally rely on the
affidavit of Jan S. Kublick, Esq., Defendants' attorney, which avers that Philip J. Simao,
President of Defendants ("Simao"), learned in late 2011 that Plaintiff was "actively discussing
granting a franchise" to existing Honda dealers in other markets and that Carbone Auto Group
ultimately purchased property in Watertown for a dealership. See Dkt. No. 49 at ¶ 7. Not only is
this conclusory contention unpersuasive to demonstrate Defendants' diligence in complying with
the Scheduling Order, but Defendants have advanced it in their attorney's affidavit, not in their
memorandum of law. Compare Dkt. No. 49 with Dkt. No. 49-3. This violates Local Rule
7.1(a)(2)'s proscription against affidavits containing legal arguments. See N.D.N.Y. L.R.
7.1(a)(2) (stating that "[a]n affidavit must not contain legal arguments but must contain factual
and procedural background that is relevant to the motion the affidavit supports"); see also
Oneida Indian Nation of N.Y. State v. Cnty. of Oneida, 802 F. Supp. 2d 395, 424 n.24 (N.D.N.Y.
2011); Topliff v. Wal-Mart Stores East LP, No. 6:04-CV-0297, 2007 U.S. Dist. LEXIS 20533,
*90 (N.D.N.Y. Mar. 22, 2007) (stating that, "to the extent that Plaintiff's counsel is attempting to
present arguments in refutation of the arguments advanced by Defendant . . ., the place for those
arguments is in Plaintiff's opposition memorandum of law" (citation omitted)). Finally,
Defendants fail to claim, let alone demonstrate, that it was reasonably unforeseeable that Plaintiff
would negotiate with Carbone Auto Group regarding the sale of the Watertown dealership after
the Scheduling Order deadline. See Syracuse Univ., 2010 U.S. Dist. LEXIS 66396, at *7
(citation omitted).

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In an apparent attempt to show good cause, Defendants also allege that the counterclaims
contained in the amended answer are based on facts unknown to them before the Scheduling
Order deadline expired. See Dkt. No. 49 at ¶ 7-8, 11. The record, however, does not support this
argument and does not establish good cause for Defendants' failure to comply with the
Scheduling Order. In one of their counterclaims, Defendants allege that Plaintiff breached its
implied duty of good faith and fair dealing by forcing Defendant Potsdam to open its dealership
in 2008, despite the economic recession. See Dkt. No. 33 at ¶ 102. This allegation on its face
establishes that Defendants knew about this counterclaim before the Scheduling Order deadline.
In another counterclaim, Defendants allege that Plaintiff colluded with Honda Finance to prevent
a settlement agreement between Defendants and Honda Finance. See id. at ¶ 105. Defendants,
however, were aware of this claim because they raised it in a previous suit with Honda Finance.
Consequently, Defendants have not shown good cause to excuse their late filing on this basis.
Moreover, Defendants admit that all of the "[c]ounterclaims are grounded on allegations
that Plaintiff was aware of Defendants' financial difficulties, its negotiations with [Honda
Finance], and that Defendants' only alternative was to remain open while negotiating to sell."
See Dkt. No. 49 at ¶ 16. Defendants, however, knew these facts surrounding the counterclaims
before the Scheduling Order deadline expired on March 9, 2011, and thus cannot demonstrate
good cause. See e.g., Oppenheimer & Co. Inc. v. Metal Mgmt., Inc., No. 08 Civ. 3697, 2009
U.S. Dist. LEXIS 71608, *9-*10 (S.D.N.Y. July 31, 2009) (denying motion to amend answer
filed seven months after scheduling order deadline where defendant was on notice of its
proposed amendments at the time original answer was filed). In fact, in a letter to the Court
dated February 9, 2011, Defendants' attorney wrote, "My clients do not have the funds to
undertake the removal of those signs . . . . Due to the different ownership of the Landlords, and

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especially the bank mortgages on the buildings, alterations of the buildings would not be within
the power of the Defendants." See Dkt. No. 21 at 1-2.
Accordingly, the record in this case shows that Defendants were certainly aware of the
facts giving rise to their counterclaims well before the Scheduling Order deadline. However,
rather than assert these counterclaims in the original answer on September 30, 2010, or move to
amend prior to the Scheduling Order deadline on March 9, 2011, Defendants waited until
January 19, 2012, to assert these counterclaims. See Parker, 204 F.3d at 341 (finding no good
cause where the plaintiff "had all the information necessary" to support the claim at the outset of
the case). Since Defendants knew the facts surrounding the counterclaims before the Scheduling
Order deadline expired, they cannot demonstrate good cause to excuse their late filing. See
Wilcox v. RBS Citizens, N.A., No. 3:08-CV-0571, 2009 U.S. Dist. LEXIS 54088, *11-*12
(N.D.N.Y. June 25, 2009) (finding that defendants "disclose[d] no circumstances that were not
contemplated or could not reasonably have been foreseen by the parties at the time the schedule .
. . was issued, at the time of the stipulated extension, or during the many conferences with the
court").
Moreover, to the extent that Defendants argue that they properly filed their amended
answer in response to the amended complaint, such an argument has no merit. Under Rule
15(a)(3) of the Federal Rules of Civil Procedure, Defendants had fourteen days after service of
the amended complaint to file an amended answer. See Fed. R. Civ. P. 15(a)(3) (stating that
"any required response to an amended pleading must be made within the time remaining to
respond to the original pleading or within 14 days after service of the amended pleading,
whichever is later"). Here, Defendants filed the amended answer on January 19, 2012, which is
well outside the permitted fourteen-day window. See Dkt. No. 33. In any event, even assuming

8

Defendants timely filed the amended answer under Rule 15(a)(3), they were not permitted to
include the counterclaims. See Unigene Labs., Inc. v. Apotex, Inc., No. 06 CV 5571, 2010 U.S.
Dist. LEXIS 67444, *15 (S.D.N.Y. July 6, 2010) (stating that, "'if an amended complaint does
not change the scope or theory of a case, then the responsive pleading cannot add new theories
either'" (quotation and footnote omitted)). Defendants' counterclaims clearly added new issues
to the case that were not within the scope of the amended complaint. See Dkt. No. 33. As such,
they are improper.
Accordingly, for the foregoing reasons, the Court grants Plaintiff's motion to strike the
counterclaims from the amended answer.

B.

Plaintiff's motion to hold Defendants in contempt and impose sanctions
1. Contempt
"There can be no question that courts have inherent power to enforce compliance with

their lawful orders through civil contempt." Shillitani v. United States, 384 U.S. 364, 370 (1966)
(citations omitted). A court may hold a party in civil contempt "'if (1) the order the contemnor
failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and
convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable
manner.'" Cold Stone Creamery, Inc. v. Gorman, 361 F. App'x 282, 287 (2d Cir. 2010)
(quotation omitted). Furthermore, the moving party need not establish that the violation was
willful. See id. (quotation omitted).
In this case, Defendants have failed to show cause why the Court should not hold them in
contempt because the Order is unambiguous, Defendants’ noncompliance is clear, and
Defendants have not diligently attempted to comply with the Order in a reasonable manner.

9

Defendants assert that they removed, destroyed, and disposed of all Honda trademarks between
March 8, 2012, and March 29, 2012, except for the Honda trademark "barrel and wave sign" on
the exterior of the Potsdam dealership building. See Dkt. No. 57 at ¶¶ 3-6. Without offering
new or persuasive evidence in support, Defendants allege the same "justifications" for not
complying with the Order in full as they raised previously. See id. at ¶¶ 4-5. These justifications
are (1) their alleged lack of funds, (2) their inability to make building design alterations to the
Potsdam dealership building under their lease with Prime, LLC, and (3) their lack of consent
from Protective Life Insurance Company to make material alterations as required by the
mortgage on the Potsdam dealership. See id. These are the same justifications that the Court
previously rejected. See Memorandum-Decision and Order dated September 1, 2012.
For instance, the Court continues to reject Defendants' justification that they lacked the
funds necessary to comply with the Order because Defendants have neither filed for bankruptcy,
nor offered sufficient documentation supporting their alleged financial inability to comply with
the Order. See Dkt. No. 57 at ¶ 4; see also Huber v. Marine Midland Bank, 51 F.3d 5, 10 (2d
Cir. 1995) (stating that "[t]he alleged contemnor bears the burden of producing evidence of this
inability to comply" and must "establish his inability clearly, plainly, and unmistakably" (citation
omitted)). To support this alleged justification, Defendants merely submit the affidavit of Dale
E. Roberts, a licensed Certified Public Accountant and an employee of Defendants. See Dkt. No.
57-4. Roberts neglects to attest that Defendants are insolvent or lack assets against which they
can borrow. See id. Rather, Roberts summarily alleges that Defendants have no money or cash
liquidity, operated at an annual loss in 2010, and have not filed federal income tax returns since
2007. See Dkt. No. 57-4 at ¶¶ 2-4. Furthermore, Defendants have offered no financial
documents to bolster Roberts’ affidavit; and, therefore, the Court finds Defendants in contempt

10

on this ground. See Capital Servs. of New York, Inc. v. E-Proxy Indus., Inc., No 1:00 CV 873,
2005 WL 2033494, *7 (N.D.N.Y. Aug. 17, 2005) (granting the plaintiff's request for sanctions
due to the defendants' failure to pay their contempt judgment because the contemnors had not
offered sufficient documentation supporting their alleged financial inability to comply where
they submitted "one tax return, one bill of sale, and one transcript of judgment").
In short, on September 1, 2012, the Court issued "a show cause order, rather than order
contempt and impose sanctions outright, in an abundance of caution to ensure that Defendants
receive[d] notice and an opportunity to be heard.” See Dkt. No. 56 at 7 n.3 (citations omitted).
Defendants have squandered their opportunity to show cause why the Court should not hold
them in contempt and impose sanctions.

2. Per diem sanctions
"[A] sanction imposed on a party held in civil contempt generally may serve either or
both of two purposes: to coerce the contemnor into complying in the future with the court's
order, or to compensate the complainant for losses resulting from the contemnor's past
noncompliance." Perfect Fit Indus., Inc. v. Acme Quilting Co., Inc., 673 F.2d 53, 56 (2d Cir.
1982) (citations omitted); see also Utica Coll. v. Gordon, No. 6:08-CV-88, 2009 U.S. Dist.
LEXIS 96414, *6 (N.D.N.Y. Oct. 16, 2009) (stating, "[i]f found in contempt, monetary sanctions
may be awarded to either compensate the moving party for harm resulting from the
noncompliance or to deter further disobedience" (citation omitted)). Where, as here, "the
purpose is coercive, the district court has broad discretion to design a remedy that will bring
about compliance." Perfect Fit, 673 F.2d at 57 (citations omitted). When imposing sanctions, a
court should consider several factors, including (1) the character and magnitude of the harm

11

threatened by the party's continued noncompliance, (2) the efficacy of the sanction in bringing
about compliance, and (3) the contemnor's ability to pay. See id. "Ultimately, however, the
overriding consideration is whether the coercive fine was reasonably set in relation to the facts
and was not arbitrary." Id.
Accordingly, the Court imposes per diem sanctions of $2,000.00 to accrue daily
beginning ten (10) days from the date of this Memorandum-Decision and Order until Defendants
have complied in full with this Court's February 13, 2012 Order. See Perfect Fit, 673 F.2d at 57;
see also Dkt. No. 56 at 7 (stating, "the purpose of the contempt order and sanction would be
coercive as it does not appear Defendants will otherwise comply with the Court's Order").

C.

Plaintiff's application for attorney's fees and disbursements
In the Second Circuit, attorney's fees are typically awarded based on a "presumptively

reasonable fee" calculated by multiplying a reasonable hourly rate by the number of hours
reasonably expended. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of
Albany, 522 F.3d 182, 183-84 (2d Cir. 2007). To determine the reasonable hourly rate, a court
considers "what a reasonable, paying client would be willing to pay," Arbor Hill, 522 F.3d at
184, and assesses "case-specific considerations," see McDaniel v. Cnty. of Schenectady, 595 F.3d
411, 420 (2d Cir. 2010). In determining reasonable hourly rates, the following factors are useful:
(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
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professional relationship with the client; and (12) awards in similar
cases.
Arbor Hill, 522 F.3d at 186 n.3 (citing Johnson [v. Ga. Highway Express, Inc.], 488 F.2d [714,]
717-19 [(5th Cir. 1974)]).
Additionally, "[w]here, as here, the services are performed by counsel based in another
district, there is a presumption in favor [of] the hourly rates employed in the district in which the
reviewing court sits." Broad. Music, Inc. v. Metro Lounge & Cafe LLC, No. 5:10-CV-1149, 2013
U.S. Dist. LEXIS 9934, *15 (N.D.N.Y. Jan. 24, 2013) (citation omitted); see also Bosket v. NCO
Fin. Sys., Inc., No. 3:11-CV-00678, 2012 U.S. Dist. LEXIS 132239, *7 (N.D.N.Y. Sept. 17,
2012) (stating that, "[o]rdinarily, the relevant rate is the prevailing hourly rate in the community"
(citation omitted)). "To overcome th[is] presumption, the applicant 'must make a particularized
showing, not only that the selection of out-of-district counsel was predicated on experiencebased, objective factors, but also of the likelihood that use of in-district counsel would produce a
substantially inferior result.'" Broad. Music, Inc., 2013 U.S. Dist. LEXIS 9934, at *15 (quotation
omitted).
In this case, Plaintiff requests $21,030.50 in attorney's fees based on New York City
hourly rates it paid its attorneys for the 50.5 hours of work they expended in connection with the
motion to hold Defendants in contempt and impose sanctions. See Dkt. No. 59 at ¶ 4.
Specifically, Plaintiff's counsel included John J. Sullivan, Esq., an experienced partner; David R.
Michaeli, Esq. a third-year associate; and Constance M. Rincon, a senior paralegal from Hogan
Lovells US LLP. See id. at ¶¶ 4, 8, 13-14.
After carefully considering the relevant factors, reviewing Plaintiff's submissions, and
based on the Court's experience and knowledge of billing rates attorneys in the Northern District
of New York customarily charge, the Court concludes that the reasonable hourly rates in this
13

District are $250.00 for an experienced attorney, $150.00 for a junior associate, and $80.00 for a
paralegal.1 See e.g., Jimico Enters., Inc. v. Lehigh Gas Corp., No. 1:07-CV-0578, 2011 U.S.
Dist. LEXIS 112514, *37 (N.D.N.Y. Sept. 30, 2011) (finding "that a reasonable hourly rate for
paralegal work in this district is $80" (citing Van Echaute v. Law Office of Thomas Landis, Esq.,
09-CV-1071, 2011 U.S. Dist. LEXIS 34463, 2011 WL 1302195, at *4 (N.D.N.Y. Mar. 31, 2011)
(stating that "[t]he paralegals referenced in plaintiff's billing records will be billed at $80 per
hour in accordance with the Northern District of New York's lodestar figure"))); Overcash v.
United Abstract Group, Inc., 549 F. Supp. 2d 193, 197 (N.D.N.Y. 2008) (awarding attorney's
fees at an hourly rate of $250 to a local attorney (citations omitted)); Doe v. Kaiser, No. 6:06CV-1045, 2007 U.S. Dist. LEXIS 49647, *31-*32 (N.D.N.Y. July 9, 2007) (calculating
attorney's fees at an hourly rate of $250 based on consideration of what a reasonable client of the
Syracuse, New York, community would pay and the experience of the attorney). Additionally,
after reviewing the time records Plaintiff submitted, which show the date, the hours, and the
nature of the work counsel performed, the Court finds that Plaintiff's attorneys reasonably billed
a total of 50.5 hours for the work that Mr. Sullivan (13.4), Mr. Michaeli (34.8), and Ms. Rincon
(2.3) performed. See Dkt. No. 59 at ¶ 5; see also New York State Ass'n for Retarded Children,
Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983) (stating that a court determines the hours
reasonably expended by reviewing contemporaneous time records that show "for each attorney,
1

The Court declines to grant Plaintiff out-of-district hourly rates because it is not
convinced that, under the circumstances, "a reasonable client would have selected out-of-district
counsel because doing so would likely (not just possibly) produce a substantially better net
result." Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 172 (2d Cir. 2009). Although the
Court recognizes Mr. Sullivan's expertise and experience in representing motor vehicle
manufacturers and distributors in dealer disputes and litigation nationwide, see Dkt. No. 59 at
¶¶ 9-11, it is not persuaded that Mr. Sullivan's specialized expertise helped Plaintiff win its
motion to hold Defendants in contempt and impose sanctions. "To the contrary, the issue of
[contempt and sanctions is] relatively straightforward[.]" Jimico Enters., Inc. v. Lehigh Gas
Corp., No. 1:07-CV-0578, 2011 U.S. Dist. LEXIS 112514, *27 (N.D.N.Y. Sept. 30, 2011).
14

the date, the hours expended, and the nature of the work done"). For all these reasons, the Court
awards Plaintiff a total of $8,754.00 in attorney's fees, calculated as follows:

Attorney

Hours

Hourly Rate

Total

John J. Sullivan, Esq.

13.4

$250.00

$3,350.00

David R. Michaeli, Esq.

34.8

$150.00

$5,220.00

Constance M. Rincon

2.3

$80.00

$184.00

TOTAL

50.5

$8,754.00

Finally, the Court awards Plaintiff $485.32 in reasonable disbursements for counsels'
Westlaw research.
Accordingly, the Court awards Plaintiff a total of $9,239.32 in attorney's fees and
disbursements.

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion to strike the counterclaims is GRANTED; and the
Court further
ORDERS that Plaintiff's motion to hold Defendants in contempt and impose per diem
sanctions is GRANTED; and the Court further
ORDERS that Defendants are sanctioned $2,00.00 per day beginning ten (10) days from
the date of this Memorandum-Decision and Order until they have complied in full with this
Court's Order dated February 13, 2012; and the Court further
15

ORDERS that Defendants shall pay Plaintiff $9,239.32 in attorney's fees and
disbursements incurred in connection with its motion to hold Defendants in contempt and impose
sanctions; and the Court further
ORDERS that this matter is referred to Magistrate Judge Baxter for all further pretrial
matters.

IT IS SO ORDERED.
Dated: March 26, 2013
Syracuse, New York

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