Nimkoff Rosenfeld & Schechter, LLP v. RKO Properties, Ltd. et al

Filing 138

ADOPTION OF REPORT AND RECOMMENDATION: for 88 Report and Recommendations, having conducted the appropriate levels of review of the Report and Recommendation of United States Magistrate Judge Henry B. Pitman dated April 7, 2011, the Court APPROVES, ADOPTS, and RATIFIES the Report as modified herein. NRS shall pay Defendant RKO $1,234.48 in costs within thirty (30) days of the date of this Order. As NRS has not made a strong showing that it is likely to succeed on appeal, nor put forward any other sufficient justification for a stay, NRS's request to stay the award pending appeal is DENIED. SO ORDERED. (Signed by Judge Deborah A. Batts on 9/6/2012) (ja)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------------x

NIMKOFF ROSENFELD & SCHECHTER, LLP,
Plaintiff,

07 Civ. 7983 (DAB)
ADOPTION OF REPORT
AND RECOMMENDATION

-against-

RKO PROPERTIES, LTD. AND FIDELITY
INVESTMENTS,
Defendants.

------------------------------------x

DEBORAH A. BATTS, United States District Judge.
On December 16, 2009, thib Court ordered Plaintiff Nimkoff
Rosenfeld

&

Schechter, TL?

Properties, Ltd.

("~)RC")

("RKO") cost:.-

7:0l~

to pay Defendant RKO
the expenses involved in

jurisdictional discovery, and referred the matter to Magistrate
Judge Henry B. Pitman for an iIlq'l,;,est as to costs.
the "December 16 Order. H

)

(Docket # 56,

Now before the Court are NRS's

objections to Judge Pitman's Report and Recommendation (Docket #
88, the "Report"), which recommends that this Court award
Defendant RKO $53,807.00 in attorney's fees and $1,234.48 in
costs, for a total of $55,041.48.

Defendant RKO has filed a

"limited objection," in which it argues that it should be awarded
additional attorney's fees.

The factual history of this matter

is set forth in detail in the December 16 Order and the Report

and will not be repeated here.

This Court having conducted the appropriate levels of

r@vi@w. the Report is adopted as modified herein.

I.

DISCUSSION

"within fourteen days after being served with a copy [of a
Magistrate Judge's Report and Recommendation], a party may serve
and file specific written objections to the proposed findings and
recommendations."
636{b) (1) (C).

Fed. R. Civ. P. 72{b) (2); accord 28 U.S.C.

§

The court may adopt those portions of the report

to which no timely objection has been made, as long as there is
I

no clear error on the face of the record.

Wilds v. United Parcel

, ,.

Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003).
,

A district

,

court must review de novo "those portions of the report or
specified proposed findings or recommendations to which objection
is made."

28 U.S.C.

§

636{b) (1) (C).

"To the extent, however,

that the party makes only conclusory or general arguments, or
simply reiterates the original arguments, the Court will review
the Report strictly for clear error."

Indymac Bank, F.S.B. v.

Nat'l Settlement Agency, Inc., No. 07-CV-6865, 2008 WL 4810043,
at *1 (S.D.N.Y. Nov. 3, 2008); see also Ortiz v. Barkley, 558
F.SUpp.2d 444, 451 (S.D.N.Y. 2008)

{"Reviewing courts should

review a report and recommendation for clear error where
objections are merely perfunctory responses, argued in an attempt
2

to engage the district court in a rehashing of the same arguments
set forth in the original petition.")
quotation marks omitted).

(citation and internal

After conducting the appropriate

levels of review, the Court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
Magistrate.

28 U.S.C.

§

636(b) (1) (C).

In its timely submission, Plaintiff NRS raises two
objections to the Report:

(1) that this Court's December 16, 2009

Order (the "December 16 Order") provided only for an award of
"costs" and not for an award of attorney's fees; and (2) that the
Report erred in calculating costs.
The December 16 Order stated only that "the Court awards RKO
costs for its expenses incurred during jurisdictional discovery
and in filing its opposition to Plaintiff's Motion for an
Evidentiary Hearing."

(December 16 Order, p. 14.)

Plaintiff NRS

is correct that "a district court cannot, under Rule 11, award
attorney's fees on its own initiative."

Perpetual Sec., Inc. v.

Tang, 290 F.3d 132, 141 n.2 (2d Cir. 2002)

(citing Fed. R. Civ.

P. 11(c) (2) for the proposition that attorney's fees may be
awarded on motion only} .
Nor could this Court award attorney's fees under its
inherent power or under 28 U.S.C.
circuit, the Court may impose

§

§

1927, because "[i]n this

1927 or inherent-power sanctions
3

only if there is 'clear evidence that (1) the offending party's
claims were entirely without color, and (2) the claims were
brought in bad faith-that is, motivated by improper purposes such
as harassment or delay.'" Pacific E1ec. Wire & Cable Co. v. Set
Top Int'l Inc., 2005 WL 2036033, at *5 (S.D.N.Y. Aug. 23, 2005)
(quoting Eisemann v. Greene, 204 F.3d 393, 396 (2d Cir. 2000)}.
"The test is conjunctive and neither meritlessness alone nor
improper purpose alone will suffice."

Id.

(quoting Sierra Club

v. u.S. Army Corp of Enq'rs, 776 F.2d 383, 390 (2d Cir. 1985}).
This Court did not make the finding of bad faith in its December
16 Order that would have been necessary to impose sanctions under
Section 1927 or this Court's inherent power.
Accordingly, NRS's objection regarding the imposition of
attorney's fees is SUSTAINED.

For the same reasons, RKO's

limited objection that it should have been awarded additional
attorney's fees is OVERRULED.
NRS's objection regarding the calculation of costs simply
restates NRS's position that no sanctions should have been
awarded in this Court's December 16 Order, and that a proper
affidavit from Defendant early on would have made these costs
unnecessary.

Reviewing de novo the costs recommended by the

Magistrate Judge, this Court agrees that the cost incurred were

4

reasonable and necessary to resolve the jurisdictional issue.
NRS's objection regarding the calculation of costs is OVERRULED.

II.

CONCLUSION

Having conducted the appropriate levels of review of the
Report and Recommendation of United States Magistrate Judge Henry
B. Pitman dated April 7, 2011, the Court APPROVES, ADOPTS, and
RATIFIES the Report as modified herein.

NRS shall pay Defendant

RKO $1,234.48 in costs within thirty (30) days of the date of
this Order.

As NRS has not made a strong showing that it is

likely to succeed on appeal, nor put forward any other sufficient
justification for a stay, NRS's request to stay the award pending
appeal is DENIED.

SO ORDERED.

Dated:

New York, New York

Deborah A. Batts
United States District Judge

5