Union Central Life Insurance Company v. Berger et al

Filing 106

MEMORANDUM OPINION & ORDER: For the reasons stated above, Decedent's Estate is awarded $161,541.00 in attorneys' fees and $8,079.67 in costs. (Signed by Judge Paul G. Gardephe on 12/12/2013) (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SDNY
DOCUMENT
ELECTRONICALL Y FILED
DOC#:
.
J
DATE FILED:

/Z-bJ"

UNION CENTRAL LIFE INSURANCE
COMPANY,
Plaintiff,
- against ­

MEMORANDUM

OPINION & ORDER

10 Civ. 8408 (PGG)

HEA THER A. BERGER,
RISE K. CROSS, and
CYNTHIA STEINMETZ,
Defendants.

PAUL G. GARDEPHE, U.S.D.l:
This is an interpleader action brought by Union Central Life Insurance Company
concerning competing claims to a $700,000 life insurance policy (the "Policy") in the name of
decedent Wayne Cross ("Decedent"). In a September 20, 2012 memorandum opinion and order,
this Court determined that Cynthia Steinmetz is the proper beneficiary, and that Decedent's
former spouse, Rise K. Cross ("Cross"), breached several provisions of a divorce settlement
agreement with Decedent (the "Settlement Agreement") by asserting a claim to the Policy
proceeds. Union Cent. Life Ins. Co. v. Berger, No. 10 Civ. 8408 (PGG), 2012 WL 4217795, at
*12-13 (S.D.N.Y. Sept. 20, 2012) (DktNo. 98).
The Settlement Agreement contains an indemnification provision that requires a
breaching party to
indemnify the other party against or [] reimburse such other party for any [and] all
expenses, costs and attorney's fees resulting from or made necessary by the
bringing of any suit or other proceeding to enforce any of the terms, covenants or
conditions of this Agreement to be performed or complied with by the defaulting
party ... provided such suit or other proceeding results in a judgment, decree or
order in favor of the party seeking to enforce said indemnity.
ld. at * 14 (quoting Del Mauro Cert., Ex. 15 at 34).

Accordingly, in its September 20,2012 decision, this Court ruled that Cross
would be ordered to "reimburse decedent's Estate for its expenses, costs and attorneys' fees
associated with the litigation," id., and directed Steinmetz - acting as the Estate's executor - to
submit documentation supporting the Estate's claim. Id. Steinmetz has done so, but Cross
contends that the amount of attorneys' fees and costs sought by the Estate is unreasonable. See
Stein Mot. (Dkt. No. 99); Cross Opp. Br. (Dkt. No. 100).
DISCUSSION

The Estate seeks an award of $271,211.50 in attorneys' fees l and $8,079.67 in
2

costs. (Steinmetz Mot. (Dkt. No. 99)) The proposed award reflects the work of seven Wiggin
and Dana attorneys and two paralegals. (Prout Aff., Ex. A (Dkt No. 99); Prout Supp. Aff., Ex. A
(Dkt. No. 101)) The Estate has submitted contemporaneous time records that detail the nature of
the work performed, the names of the attorneys and paralegals who worked on the matter, and
the hours they expended. (Prout Aff., Ex. A at 10-51 (Dkt. No. 99)) Cross has raised a number
of objections regarding the reasonableness ofthe proposed fees and costs awards. (Cross Opp
Br. (Dkt. No. 100)) After reviewing the billing records and the other materials submitted by the
parties, the Court concludes that the Estate is entitled to $169,620.67 in attorneys' fees and costs.

I The affidavit submitted in support of the Estate's motion states that the Estate incurred

$271,215.50 in attorneys' fees. (Prout Aff. Ex. A ~7 (Dkt. No 99)) However, the fees reflected

in the records submitted to the Court amount to $271,211.50. (Id.)

2 The amount sought was billed to and paid by the Estate. (Prout Supp. Aff., Ex. A ~ 3(Dkt. No.

101)

2

I.

THE ESTATE'S ENTITLEMENT TO FEES
A.

New York Law Applies
It is undisputed that New York law governs the Estate's right to an award of

attorneys' fees and costs. 3 "Under the general rule in New York, attorneys' fees are the ordinary
incidents of litigation and may not be awarded to the prevailing party unless authorized by
agreement between the parties, statute, or court rule." Oscar Gruss & Son. Inc. v. Hollander, 337
F.3d 186, 199 (2d Cir. 2003)). Parties are free, of course, to "agree by contract to permit
recovery of attorneys' fees, and a federal court will enforce contractual rights to attorneys' fees if
the contract is valid under applicable state law." McGuire v. Russell Miller, In£..:., 1 F.3d 1306,
1313 (2d Cir. 1993). In New York, "a contract that provides for an award of reasonable
attorneys' fees to the prevailing party in an action to enforce the contract is enforceable if the
contractual language is sufficiently clear." NetJets Aviation, Inc. v. LHC Communications,
LLC, 537 F.3d 168, 175 (2d Cir. 2008). Moreover, the Second Circuit has held that "where a
contract authorizes an award of attorneys' fees, such an award becomes the rule rather than the
exception." McGuire, 1 F.3d at 1313.
This Court has already determined that Cross and Decedent entered into a valid
contract under New York law when they executed the Settlement Agreement. Union Cent. Life
Ins. Co., 2012 WL 4217795, at * 12 ("It is undisputed here that the Settlement Agreement
constitutes a valid contract."). This Court has likewise ruled that Cross breached "multiple

3 As noted in this Court's September 20,2012 opinion, "[t]he Settlement Agreement provides
that it 'shall be governed by the laws of the State of New York' (Del Mauro Cert., Ex. 15 at Art.
XVIII(4)), and all parties agree that New York [law] applies to issues arising under the
Settlement Agreement. (Union Central Opp. to Steinmetz Br. 14-16; Steinmetz Sum. J. Br. 10­
11; Cross/Berger Sum. J. Br. 19-22 (applying New York law to claims under Settlement
Agreement; Cross/Berger Opp. to Union Central Br. 8-16 (applying New York law))." Uniol!
Cent. Life Ins. Co., 2012 WL 4217795, at *8 n.ll.

3

provisions" ofthat contract by wrongfully claiming entitlement to the Policy's proceeds. Id.
The Court further noted in its summary judgment decision that the Settlement Agreement
provides for an award of "expenses, costs and attorney's fees" to a party who prevails in any
action to enforce its terms. Id. at * 14. Accordingly, the Estate is unquestionably entitled to an
award of attorneys' fees and costs. What remains to determine is the appropriate amount of such
an award.

B.

The Award Must be Reasonable
While the Settlement Agreement does not explicitly impose a reasonableness

limitation on the Estate's potential recovery, "[a] district court's award of attorneys' fees
pursuant to a contractual fee-shifting provision must be reasonably related to the fee arrangement
that the prevailing party would have made with counsel absent a fee-shifting agreement." In
Time Products, Ltd. v. Toy Biz, Inc., 38 F.3d 660,667-68 (2d Cir. 1994). Courts will generally
"order the losing party to pay the amount actually incurred, so long as those amounts are
reasonable." Chinatrust Bank (U.S.A.) v. Pinter, No. 04-CV-5331 (SLT)(KAM), 2008 WL
2987152, at *2 (E.D.N.Y. July 31,2008). However, "[a] party is not entitled to reimbursement
for fees that it would not have agreed to pay if [] there had been no contractual provision for
reimbursement." In Time Products, Ltd., 38 F.3d at 668. The Estate may therefore only recover
those "expenses, costs and attorney's fees" that a reasonable client in like circumstances would
have expended absent an indemnification provision.

4

II.

DETERMINING AN APPROPRIATE AMOUNT
A.

General Principles

"When determining a fee award based upon a contractual attorneys' fees
agreement between the parties, ... courts have 'broad discretion' and need not follow a specific
formula. As such, the Court need not pore over every hour and minute billed but only make
adjustments for any unnecessary, unreasonable, or excessive fees." Clarendon Nat. Ins. Co. v.
Advance Underwriting Managers Agency. Inc., No. 06 Civ. 15361,2011 WL 6153691, at *2
(S.D.N.Y. Dec. 8,2011) (quoting U.S. Fidelity & Guaranty Co. v. Braspetro Oil Servs. Co., 369
F.3d 34, 74 (2d Cir. 2004». "'Both the evaluation of reasonable attorneys' fees and the
reduction of such fees lies within the sound discretion of the Court.'" ArnaproP..1td. v.
Indiabulls Fin. Srvs. Ltd., No. 10 Civ. 1853 (PGG), 2011 WL 1002439, at *4 (S.D.N.Y. Mar. 16,
2011) (quoting ACE Ltd. v.

CIGNA~,

No. 00 Civ. 9423 (WK), 2001 WL 1286247, at *2

(S.D.N.Y. Oct. 22,2001) (citing Shannon v. Fireman's Fund Ins. Co., 156 F. Supp. 2d 279, 298
(S.D.N.Y. 2001»); see also Suchodolski Assocs., Inc. v. Cardell Fin. Corp., Nos. 03 Civ. 4148
(WHP), 04 Civ. 5732 (WHP), 2008 WL 5539688, at *2 (S.D.N.Y. Dec. 18,2008) (citing Reed v.
A. W. Lawrence & Co., Inc., 95 F.3d 1170, 1183 (2d Cir. 1996».
"The starting point for an award of attorneys' fees is the "presumptively
reasonable fee." Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522
F.3d 182, 183 (2d Cir. 2008). This "initial estimate" is calculated by multiplying "the number of
hours reasonably expended on the litigation ... by a reasonable hourly rate." Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983).
"In determining a reasonable rate, a court 'may rely on its own knowledge of
comparable rates charged by lawyers in the district.'" Merck Eprova AG v. Brookstone Pharrn.,

5

LLC, No. 09 Civ. 9684 (RJS), 2013 WL 3146768, at *1 (S.D.N.Y. June 10,2013) (quoting
Morris v. Eversley, 343 F. Supp. 2d 234, 245 (S.D.N.Y. 2004)). In exercising its discretion, the
Court must "bear in mind all of the case-specific variables that ... courts have identified as
relevant," including "[t]he reasonable hourly rate ... a paying client would be willing to pay,"
"bear[ing] in mind that a reasonable, paying client wishes to spend the minimum necessary to
litigate the case effectively." Arbor Hill, 522 F.3d at 190 (emphasis in original). Courts should
also consider "the complexity and difficulty of the case, ... the resources required to prosecute
the case effectively ... , the timing demands of the case, ... and other returns (such as
reputation, etc.) that an attorney might expect from the representation." Id. at 184.
"Following the determination of the presumptively reasonable fee, the court must
then consider whether an upward or downward adjustment of the fee is warranted based on
factors such as the extent of [the party's] success in the litigation." Robinson v. City ofN.Y.,
No. 05 Civ. 9545 (GEL), 2009 WL 3109846, at *3 (S.D.N.Y. Sept. 29, 2009). Work on claims
that were not successful is compensable as long as those claims are not "wholly unrelated" to the
claims on which the prevailing party succeeded. Lunday v. City of Albany, 42 F.3d 131, 134 (2d
Cir. 1994) (quoting Grant v. Martinez, 973 F.2d 96,10] (2d Cir. 1992)). A downward
adjustment may still be appropriate, however, where a party "succeeded on only some of his
claims for relief." Hensley, 461 U.S. at 434. A court need not '''become enmeshed in a
meticulous analysis of every detailed facet of the professional representation'" to determine a
proper award, Seigal v. Merrick, 619 F.2d 160, 165 n.8 (2d Cir. 1980) (quoting Lindy Bros.
Builders, Inc. ofPhila. v. Am. Radiator & Standard Sanitary Corp., 540 F.2d 102, 116 (3d Cir.
1976)), nor should "[a] request for attorney's fees ... result in a second major litigation."

6

Hensley, 461 U.S. at 437. The party seeking an attorneys' fee award must demonstrate the
reasonableness of the hours spent and the rates billed. See id.
While a court may adjust the presumptively reasonable fee amount, there remains
throughout the fee determination process "[a] strong presumption that [this initial
calculation] ... represents a 'reasonable' fee." Pennsylvania v. Del. Valley Citizens' Council for
Clean Air, 478 U.S. 546, 565 (1986); accord Lunday, 42 F.3d at 134.

B.

Hourly Rates
Attorneys in the New Haven office of Wiggin and Dana, L.L.P. represent

Steinmetz and the Estate in this litigation. (Prout Aff., Ex. A ~~ 5, 7 (Dkt. 99)) The Estate seeks
$271,211.50 in fees for the work of (1) three Wiggin and Dana partners - William H. Prout, Jr.,
Kim E. Rinehart, and Mark E. Haranzo; (2) four associates - Michael L. Kenny, Jr., Bradley W.
Moore, Julie Loughran, and John Gregory Robinson; and (3) two paralegals identified as R.
Stewart and R. Celano. (Id.

~~

4,5; Prout Supp. Aff., Ex. A ~~ 4-6 & attachments (Dkt. 101))

As explained below, the Court concludes that fees are recoverable only for the
work of the lead partner, the lead associate, and the paralegals. The senior partner on the case ­
William H. Prout, Jr. - billed 235.4 hours, more than any other lawyer who worked on the case.
(Prout Aff., Ex. A.

~

7 (Dkt. No. 99)) Prout

who has been a member of the bar for forty years

and is a highly experienced business and probate litigator -works in Wiggin and Dana's New
Haven office. His billing rate during the relevant period was $580 to $595 per hour, and his
billings amount to $139,788.50. (ld.) (Id.

~

4)

Bradley W. Moore billed 71.5 hours, by far the most of any associate involved in
the case. (ld. ~ 7) He is also assigned to Wiggin and Dana's New Haven office, and his bil1ing
rate during the relevant period was $235 per hour. His billings total $16,802.50. (Id. ~ 7; Prout

7

Supp. Aff., Ex. A ~ 5 & attachments (Dkt. No. 101)) R. Celano billed 29.9 hours to the case at a
rate of $185 per hour. The other paralegal- R. Stewart - billed 5.4 hours at a rate of $220 to
$225 per hour. The paralegals' fees amount to $6,744.00. (Prout Aff., Ex. A ~ 7 (Dkt. No. 99);
Prout Supp. Aff., Ex. A ~ 6 (Dkt. No. 101))
"[D]istrict courts should use the 'prevailing [hourly rate] in the community' in
calculating ... the presumptively reasonable fee." Arbor Hill, 522 F .3d at 190 (second alteration
in original). "[T]he'community' for purposes of this calculation is the district where the district
court sits." Id. (citing Polk v. New York State Dep't of CoIT. Servs., 722 F.2d 23, 25 (2d Cir.
1983)).
The billing rates for Prout and Moore are within the range that courts in this
District have found reasonable in comparable cases for attorneys with similar experience. See,

£.:.&., Sidley Holding Corp. v. Ruderman, No. 08 Civ. 2513 (WHP) (MHD), 2009 WL 6047187,
at *26 (S.D.N.Y. Dec. 30,2009), adopted, 2010 WL 963416 (S.D.N.Y. Mar. 15,2010) (citing
Edmonds v. Seavey, No. 08 Civ. 5646 (HB) (JCF), 2009 WL 1598794, at *2 (S.D.N.Y. June 5,
2009), adopted, 2009 WL 2150971 (S.D.N.Y. July 20, 2009); RBFC One, LLC v. Zeeks, Inc.,
No. 02 Civ. 3231 (DFE), 2005 WL 2105541, at *2 (S.D.N.Y. Sept. 1,2005)) ("In terms of the
market rate for representation in the Southern District of New York, recent fee awards within the
district reflect hourly rates in the range of$450.00 to $600.00 for experienced partners, $350.00
for senior associates, $250.00 for junior associates, and $125.00 to $170.00 for paralegals.").
The paralegal billing rates of $220 to $225 and $185 per hour are, however,
considerably higher than the rate that is generally approved in this District. See, £.:.&., Lucerne
Textiles, Inc. v. H.C.T. Textiles Co., Ltd., No. 12 Civ. 5456 (KMW) (AJP), 2013 WL 174226, at
*6 (S.D.N.Y. Jan. 17,2013), adopted, 2013 WL 1234911 (S.D.N.Y. Mar. 26, 2013) (finding

8

$140 paralegal billing rate reasonable and $265 hourly rate unreasonable); N.Y.C. Dist. Council
of Carpenters v. Rock-It Contracting, Inc., No. 09 Civ. 9479 (JOK) (AlP), 2010 WL 1140720, at
*4 (S.D.N.Y. Mar. 26,2010), adopted, 2010 WL 1558568 (S.D.N.Y. Apr. 19,2010) ($125 per
hour is a reasonable paralegal billing rate); Sidley Holding Corp, 2009 WL 6047187, at *25-26
(rejecting $195 paralegal billing rate and setting the reasonable rate at $125 per hour); VFS Fin.,
Inc. v. Pioneer Aviation, LLC, No. 08 Civ. 7655 (OBD) (AlP), 2009 WL 2447751, at *4
(S.D.N.Y. Aug. 11,2009) (finding $125 paralegal billing rate to be reasonable). Accordingly,
the paralegals' rates will be reduced to $125 per hour.

C.

Staffing and Time Expended
After determining appropriate hourly rates, courts must calculate the reasonable

number of hours billed in order to determine the presumptively reasonable fee. See Arbor Hill,
522 F.3d at 190. The Court will exclude any hours included in the fee application that were not
"reasonably expended." Hensley, 461 U.S. at 434. As with the determination of a reasonable
rate, the Court must consider both the "contemporaneous time records ... [that] specify, for each
attorney, the date, the hours expended, and the nature of the work done," New York State Ass'n
for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983), and "'its own
familiarity with the case ... and its experience generally.'" Clarke v. Frank, 960 F.2d 1146,
1153 (2d Cir. 1992) (quoting DiFilippo v. Morizio, 759 F.2d 231, 236 (2d Cir 1985)).
Here, Cross argues that the Wiggin and Dana billing records are "rife with
overstaffing, duplication of effort and failure to economize." (Cross Objections at 1, 7 (Dkt. No.
100)) Courts may, of course, exclude "excessive, redundant or otherwise unnecessary hours"
from the calculation, Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999), or may make
an across-the-board reduction to address the unnecessary expenditure of time. See Luciano v.

9

Olsten Corp., 109 F.3d 111, 117 (2d Cir. 1997) (no abuse of discretion where district court
reduced counsel's requested hours by 15%).
As noted above, three Wiggin and Dana partners, four associates and two
paralegals billed time on this litigation. While '" [t]he use of multiple attorneys ... is not
unreasonable ~ se,'" Simmonds v. N.Y.C. Dep't ofCorr., No. 06 Civ. 5298 (NRB), 2008 WL
4303474, at *6 (S.D.N.Y. Sept. 16,2008) (quoting Williamsburg Fair Hous. Comm. v. RossRodney Hous. Corp., 599 F. Supp. 509, 518 (S.D.N.Y. 1984)) (second alteration in original),
assigning numerous attorneys to a straightforward matter presents a risk of inefficiency,
duplication, and unnecessary billing. See id. at *6-7.
As the Second Circuit has recognized:
[i]n assessing the extent of staffing and background research appropriate for a
given case, a district court must be accorded ample discretion .... [A] trial judge
may decline to compensate hours spent by collaborating la\\'yers or may limit the
hours allowed for specific tasks, but for the most part such decisions are best
made by the district court on the basis of its own assessment of what is
appropriate for the scope and complexity of the particular litigation.
New York State Ass'n for Retarded Children, Inc., 711 F.2d at 1146. The guiding principle to
determine whether redundancy has occurred is the "degree of effort reasonably needed to prevail
in the litigation." Id.; see also Sullivan v. Syracuse Hous. Auth., No. 89-CV -1205, 1993 WL
147457, at *3 (S.D.N.Y. May 3, 1993) (district court must ensure that fee award reflects only
work that was "necessary to the litigation" and "a cost efficient use of co-counsel and outside
counsel").
This case is a routine interpleader action in which two parties made conflicting
claims to the proceeds of an insurance policy. In resolving the dispute, the Court was confronted
with a relatively common problem in divorce and estate law, namely "the interplay between a
written divorce agreement - in which rights to an insurance policy's death benefit are addressed ­

10

and an insurance policy referenced in the divorce agreement." Union Cent. Life Ins. Co., 2012
WL 4217795, at * 10. As this Court found in its September 20,2012 memorandum opinion and
order, "[c]onsidering the Settlement Agreement as a whole, it is clear that Cross bargained for a
death benefit of $1 million after Decedent reached age 62, and waived her right to additional life
insurance benefits." Id. at *11. It is likewise clear that Cross breached "mUltiple provisions" of
the Settlement Agreement by asserting a claim to additional benefits upon Decedent's death. Id.
at *13. Given that this litigation turned on issues of contract interpretation, neither the scope nor
the complexity of the issues presented justifies the number of lawyers who billed time to this
case.
There are several other aspects of the Wiggin and Dana bills that counsel against
granting the fee application in whole. As an initial matter, the senior partner billed more time to
the case than any of his six colleagues. Indeed, the senior partner billed more than three times
the number of hours logged by the lead associate. Courts frequently reduce fee requests where
work that could have been handled by more junior lawyers was instead performed by a senior
partner. See,.M,., Shannon v. Fireman's Fund Ins. Co., 156 F. Supp. 2d 279,301-02 (S.D.N.Y.
2001) ("[T]he billing records for Graff, a senior partner at KKF, show numerous entries for tasks
more appropriately handled by younger associates.") (citing Plummer v. Chemical Bank 592 F.
J

Supp. 1168, 1172 (S.D.N.Y.l984) (reducing fee request by one-half because of numerous
inefficiencies, including "$175 per hour partners doing work easily and ordinarily performed by
junior associates"); Beech Cinema, Inc. v. Twentieth Century Fox Film Corp., 480 F. Supp.
1195, 1197 (S.D.N.Y.1979), affd, 622 F.2d 1106 (2d Cir.I980) ("Many of the functions
performed by the partners could have been satisfactorily accomplished by associates, with a
considerable saving in fees.")).

11

The Estate has also not explained what role the other two partners played in the
case and why it was necessary to staffthe case with three partners. Similarly, there is no
explanation as to why four associates performed work on this case. Because the Estate has not
met its burden to demonstrate that the staffing here did not lead to inefficiency, duplication, and
unnecessary billing, the attorneys' fee award will reflect only the services provided by the lead
partner, the lead associate, and the paralegals.
Cross objects not only to the number of hours billed, however, but also to the
"vague" nature of the billing entries. (Cross Objections at 1, 7 (Dkt. No. 100)) Deficient or
incomplete billing records may result in a reduced fee award. See Hensley, 461 U.S. at 437 n.l2
(fee applications must "identify the general subject matter of ... time expenditures"). Because
entries or records lacking sufficient detail "cannot be evaluated for reasonableness," they are not
sufficient to justify a fee award. Ursa Minor Ltd. v. Aon Fin. Prods., Inc., No. 00 Civ. 2474
(AGS), 2001 WL 1842042, at *6 (S.D.N.Y. May 30, 2001).
Here, the Estate's attorneys supplied time records for approximately eleven
months of litigation. (Prout Afr, Ex. A (Dkt No. 99)) These records include redacted copies of
invoices itemizing the time spent by Wiggin and Dana personnel on specific services in
connection with the interpleader litigation. (Id.) Contrary to Cross's objection, these billing
records are sufficiently detailed to demonstrate the number of hours expended by the Wiggin and
Dana attorneys and paralegals, and the tasks performed. Accord Raniola v. Bratton, No. 96 Civ.
4482 (MHD), 2003 WL 1907865, at *4 (S.D.N.Y. Apr. 21, 2003) (finding that although certain
time entries were "fairly general, terms such as 'case preparation' or 'meeting' ... are
sufficiently concrete, when viewed in context, to permit the court to make a judgment about the
reasonableness of the total hours claimed"); id. (citing Tran v. Tran, 166 F. Supp. 2d 793, 800

12

(S.D.N. Y. 2001) ("Although attorneys must record the general nature of their work, they need
not include detailed descriptions of the exact work performed.").
Because a determination as to the reasonableness of the number of hours
expended on a case is invariably fact and context specific, the inquiry is "committed to the
discretion of the district court." Clarke, 960 F.2d at 1153. Here, the descriptions of the services
provided are sufficient, in context, to allow the Court to evaluate the reasonableness of the time
expended. Accordingly, the Estate's fee request will not be further reduced on this basis.

D.

Lack of Success
"The product of reasonable hours times a reasonable rate does not end the

inquiry." Hensley, 461 U.S. at 434. "There remain other considerations that may lead the
district court to adjust the fee upward or downward, including the important factor of 'results
obtained. '" Id.
In their summary judgment motion, Steinmetz and the Estate sought an order: (1)
granting Steinmetz death benefits under the Policy; (2) granting the Estate summary judgment on
its cross-claim for breach of contract against Cross; (3) granting Steinmetz and the Estate
summary judgment on their unjust enrichment cross-claims against Cross; (4) granting Steinmetz
summary judgment on her cross-claim against Cross for tortious interference; (5) granting
Steinmetz and the Estate summary judgment on their counterclaims against Union Central for
equitable estoppel, negligence, negligent misrepresentation, and reformation; (6) granting the
Estate summary judgment on its counterclaim against Union Central for breach of contract; and
(7) granting Steinmetz summary judgment on her counterclaim against Union Central for third­

party beneficiary breach of contract.

13

Steinmetz and the Estate prevailed only on claims one and two. Union Cent. Life
Ins. Co., 2012 WL 4217795, at *5. Having determined that Steinmetz was entitled to the Policy
proceeds, this Court deemed her claims against Union Central moot. Id. at *12. Similarly,
having ruled in favor of the Estate on its breach of contract claim against Cross, the Court
dismissed as moot Steinmetz and the Estate's unjust enrichment claim. Id. at * 14 n.14. Finally,
the Court denied Steinmetz summary judgment on her tortious interference claim. Id. at * 14 and
n.13. Because the Estate only prevailed on some of its claims, this Court must decide whether a
reduction of the fee award is warranted.
"[T]wo questions must be addressed" in determining whether mixed results
require a reduced attorneys' fee award: "First, did the plaintiff fail to prevail on claims that were
unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of
success that makes the hours reasonably expended a satisfactory basis for making a fee award?"
Hensley, 461 U.S. at 434. Where claims are unrelated, "work on an unsuccessful claim cannot
be deemed to have been 'expended in pursuit of the ultimate result achieved.'" Id. at 435
(quoting Davis v. Cnty. of Los Angeles, No. 73-63-WPG, 1974 WL 180, at *3 (C.D. Cal. June 5,
1974)). However, where a party's claims "involve a common core of facts or [are] based on
related legal theories," the "lawsuit cannot be viewed as a series of discrete claims. Instead the
district court should focus on the significance of the overall relief obtained ... in relation to the
hours reasonably expended on the litigation." Hensley, 461 U.S. at 435.
Here, the Court did not rule against the Estate, but merely found it unnecessary to
reach the merits of certain of its claims. Moreover, these claims were not "unrelated to the
claims on which [the Estate] succeeded." Id. at 434. All of the claims here relate to the interplay
between the Policy and the Settlement Agreement.

14

Cross objects, however, to the inclusion of fees related to the counterclaims the
Estate filed against Union Central. She complains that "had Union Central not violated the
Policy the only litigation that would have possibly ensued would presumably have been a
straightforward claim by the Estate for breach of contract against Cross," (Cross Opp, Br, at 5)
This argument misses the point Whatever responsibility Union Central might bear for its
negligence in failing to seek Cross's approval for the beneficiary change, the critical fact is that
this entire action would have been unnecessary had Cross not breached her obligations under the
Settlement Agreement. It is disingenuous for Cross to argue that she bears no responsibility for
the expenses the Estate incurred vis ~ vis its claims against Union Central, when those claims
were made necessary by Cross's refusal to provide her assent to the change in beneficiary as
required by her Settlement Agreement with Decedent.

*

*

*

*

The fees billed by Prout, Moore, and the paralegals - at the Court-adjusted rate ­
total $161,541.00. The Estate is awarded attorneys' fees in this amount.

III.

COSTS
The Estate seeks a costs award of$8,079.67.

A.

Legal Standard
In addition to attorneys' fees for time reasonably expended, a party may be

entitled to compensation for "those reasonable out-of-pocket expenses incurred by attorneys and
ordinarily charged to their clients." U.S, Football League v. Nat'l Football League, 887 F.2d
408,416 (2d Cir. 1989); see also Kuzma v. I.R.S., 821 F.2d 930, 933-34 (2d Cir. 1987)
(providing a non-exclusive list of recoverable costs, including "photocopying, travel, and
telephone costs"); Anderson v. City of New York, 132 F. Supp. 2d 239,245-47 (S.D.N,Y. 2001)

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(allowing for recovery of service, filing, photocopying, and witness fees, as well as computerized
legal research costs). Recovery is not permitted, however, for costs associated with routine
office overhead. See Kuzmi:!, 821 F.2d at 934 ("[N)onrecoverable routine office overhead ...
must normally be absorbed within the attorney's hourly rate.").
B.

Analysis

The Estate seeks to recover expenses related to online legal research, travel,
photocopy services, overnight delivery, and deposition transcript fees. (Prout Aff., Ex. A ~8
(Dkt. No. 99)) Such expenses are properly included in a fee award.

See,~,

Anderson, 132 F.

Supp. 2d at 245-47. In support of its application, the Estate has submitted detailed records
reflecting disbursements for these expenses. ld.,
Cross contests the online legal research expenses and the photocopy charges.
With respect to the online research expenses, Cross complains that the Estate has not included
invoices from the service providers, and has not disclosed "whether [Wiggin and Dana) was
charging the [Estate) only what the computer service was charging." (Cross Opp. Br. at 7) As
to photocopy expenses, Cross argues that the records are deficient because the Estate does not
identify "what [) documents were copied, how many copies were made, the cost per page
charged for copying, and why the copies were necessary." (Id. at 8)
In response, the Estate's attorneys attest that the Estate was billed for online legal
research "at Wiggin and Dana's costs, without markup." (Prout Supp. Aff., Ex. A ~ 7) As to
photocopy services, they explain that "[p)hotocopies were charged to the Estate at the rate of
$.10 per copy." (Id. at ~ 8) The Court concludes that the Estate has offered sufficient proof of
its costs and has demonstrated that the costs it seeks are reasonable. Accordingly, $8,079.67 in
costs is allowed.

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CONCLUSION

For the reasons stated above, Decedent's Estate is awarded $161,541.00 in
attorneys' fees and $8,079.67 in costs.
Dated: New York, New York
December 12, 2013

SO ORDERED.

Paul G. Gardephe
United States District Judge

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