Oleg Cassini, Inc. v. Electrolux Home Products, Inc.

Filing 53

MEMORANDUM AND ORDER: Electrolux Home Products, Inc. is ordered to pay Oleg Cassini, Inc. $6,255.00 pursuant to the June 19 Order. Payment shall be made within one week of the date of this Order. (Signed by Magistrate Judge James C. Francis on 7/26/2013) Copies Mailed By Chambers. (mt)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OLEG CASSINI,

(ECF)

INC.

11 Civ. 1237 (LGS)

Plaintiff,

MEMORANDUM
AND ORDER
')U:) SDNY

- against ­

,)OCUMENT
: ; ELECTRONICALLY FILED

ELECTROLUX HOME PRODUCTS, INC.,

!\ DOC #: _ _- - - - ­

Defendant.

IDATE FILED:
i

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

On May 29, 2013, Oleg Cassini, Inc.
motion

for

(JCF)

sanctions

against

1

1

I

;:!.l;

I

("Oleg Cassini U

Electrolux

Home

•

)

:I

filed a

Products,

Inc.

("Electrolux"), arguing that Electrolux had failed in its discovery
obligations and seeking compliance with those obligations.

On June

19, 2013, I granted the motion in part, finding that Electrolux had
not timely produced three categories of discovery responses:

(I)

responses to Oleg Cassini's Third Set of Interrogatories and Third
Request for Production of Documents';

(2) documents Electrolux had

agreed to produce from an action captioned Donegal Mutual Insurance
Co.

alslo

Vanessa

Schantz

v.

Electrolux

1:08-cv-2171 (M.D. Pa. Dec. 3, 2008)
under-the-counter

dryer

models

i

North

America,

No.

and (3) discovery related to

other

than

the

specific

model

involved in the 2008 fire upon which this litigation is based.
(Order dated June 19,

2013

{"June 19 Order,,)).l

I awarded Oleg

cassini the attorneys' fees and costs it incurred in bringing the
motion, subject to submission of contemporaneous time records from

1

Familiarity with the June 19 Order is presumed.
1

counsel.
June

25,

Rendered,

(June 19 Order at 14-15).
2013.

(Itemized

Those records were provided on

Listing

and Not Previously Billed,

of

Professional

Services

for the Period from May I,

2013 through June 25, 2013 ("Billing Records"), attached as Exh. A
to Declaration of Nicholas A.

Based on those records,

Vytell Decl.")).
$6,255.00

Vytell dated June 25,

in attorneys'

fees,

to

be

I

2013

("1st

award Oleg Cassini

paid by

Electrolux as

a

sanction pursuant to the June 19 Order.
Discussion
Before I consider Oleg Cassini's submission, I must address an
issue raised in Electrolux's papers.
the

Court

has

already

(Electrolux Home
Application

on

decided

Products,
Motion

that

Inc.' s

for

While "underst[anding] that
a

fee

Response

Sanctions

award
to

("Def.

is

merited,"

Plaintiff's

Fee

Memo.

3),

lf

)

at

Electrolux nevertheless spends two pages of its three-page response
re-arguing

its

opposition

to Oleg

Cassini's

sanctions

motion,

including asking me to revisit my finding that Electrolux had not
timely produced required discovery related to other under-the­
counter dryer models
calculation of
ent

(Def. Memo. at 1).

A submission concerning

the monetary sanction to which Oleg Cassini

led is not the proper vehicle to re-argue the merits

underlying sanctions motion.

is
the

See Local Rules of the United States

District Courts for the Southern and Eastern Districts of New York,
Civil Rule 6.3.

Therefore, I will not entertain these arguments. 2

2
If I were to address them, I would adhere to my earlier
finding, as Electrolux has not "demonstrate [d] that the Court
overlooked the controlling dec ions or factual matters that were

2

Oleg Cassini seeks $7,215 in sanctions, which comprises fees
for 23.30 hours of work by two attorneys.3
2nd Vytell Decl. at 6 n.4).

(Billing Records at 4;

J. Vincent Reppert is a named partner
to practice

in the firm Reppert Kelly, LLC, was admi

1989,

and has represented Oleg Cassini for approximately 15 years.
Vytell Decl.,

~

6).

In the period running from May 24,

(1st
2013,

through June 24, 2013, Mr. Reppert performed 1.5 hours of service
at a

rate of $450 per hour.

Records at 4).

(1st Vytell Decl.,

per hour.

7;

Billing

Nicholas A. Vytell is an associate of the law firm

Carroll McNulty & Kull,
2008.

~

(1st Vytell Decl.,

LLC,
~~

who has been practicing law since

I, 3).

(1st Vytell Decl.,

~

7;

He billed 21.80 hours at $300
lling Records at 4; 2d Vytell

Declo at 6 n.4) .
Electrolux has not challenged the hourly rates charged, and I
find them reasonable.
Produce Sales,
(stating,

Inc.,

"Counsel's

prevailing market
Capital,

Inc.

v.

See Mister Sprout, Inc. v. Williams Farms
881 F.

Supp.

billing

rates,"

and

2d 482,490

rates

are

collecting

ACT Lending Corp.,

5517589, at *8 (S.D.N.Y. Dec. I, 2008)

No.

(S.D.N.Y.

strong
cases)

07 Civ.

i

2012)

evidence

of

DLJ Mortgage
10318,

2008 WL

{collecting cases approving

put before the Court in the underlying motion." Chepilko v. Cigna
Life Insurance Co. of New York,
F. Supp. 2d
,
,2013 WL
3387832, at *1 (S.D.N.Y. 2013) (setting out standarclfor motion for
reconsideration) .
3 Originally,
the plaintiff sought $7,335.00 for 23.70 hours.
(Billing Records at 4). However, counsel conceded in their reply
declaration that 0.40 hours billed on June 13, 2013, should not
have been included in the application. (Declaration of Nicholas A.
Vytell dated July 9, 2013 at 6 n.4 ("2nd Vytell Declo") at 6 n.4).

3

hourly

rates

of

up

to

$725

for

senior partners

and

$350

for

associates) .
Electrolux does object to the number of hours billed.

The

defendant argues that the following time is not recoverable:

(1)

hours spent reviewing Electrolux's (untimely) production; (2) hours
spent on Oleg Cassini's reply brief which complained about the size
of Electrolux's (untimely) production; and (3) hours spent on June
17 and 18, 2013, holding office conferences, reviewing discovery,
planning for depositions, and preparing a brief that was not filed.
(Def.

Memo.

attorneys'

at
time

3).

Finally,

entries

are

Electrolux

complains

block-billed and

judgment the determination of whether the ent

that

"leaves

the

to

[my]

s of May 28 and 29

reflect a reasonable amount of time spent on the motion."

(Def.

Memo. at 3) .
I agree that time spent reviewing the untimely production is
not

recoverable.

Oleg

Cassini

would

have

had

to

review

discovery even if it had not filed its motion; therefore,
fees were not "incurred in making the motion."
37 (a) (5) (A) .

Therefore,

I

will

deduct

the

those

Fed. R. Civ.
3.20

hours

the

P.

spent

reviewing the production on June 6, 2013.
The rest of the fees requested are recoverable.

Oleg Cassini

had a right to file its reply papers (even though Electrolux failed
to timely file its opposition), and so the time spent on June 10,
2013 1 drafting and filing that submission is recoverable.

The fact

that it primarily complained about a "document dumpll rather than
addressed

the

substantive arguments

4

in

the original motion is

the documents and

largely due to Electrolux's late production

It would be inequitable

its failure to file a timely opposition.

to deny Oleg Cassini's request for the fees related to that filing
on the basis that "[t]he plaintiff did not prevail on that part of
motion."

(Def. Memo. at 3 (emphasis omitted)).

Indeed, "that

part of its motion" -- really a request in Oleg Cassini's reply
ctrolux's recalcitrance, which is

submission - - was motivated by

the basis for the award of sanctions.
Contrary to Electrolux's representation, the entries for June
17 and 18, 2013, do not include charges for reviewing discovery.
They

do

include

opposition,

as

opposition.

hours

well

as

spent

reviewing

preparing

Preparation of

that

to

Electrolux's

file

response

a
was

untimely

response

to

that

necessitated by

Electrolux's untimely opposition, and, although the response was
not

filed,

that was because my June

unnecessary.

There

19 Order made

the

filing

, the fees charged for work on June 17 and

18 are properly included in the sanctions against Electrolux.
Finally,

I find that it was reasonable to spend 10.4 hours

spent preparing the initial motion during the period from May 24 to
May 29, 2013.

To be sure, block-billing can make it more difficult

to determine reasonableness.

But,

block [-] billing is not automatically
favored by courts
in this district.
Thus, courts have generally limited
across-the [-]board reductions to situations where there
was evidence that the hours billed were independently
unreasonable or that the block-billing was mixing
together tasks that were not all compensable, or not all
compensable at the same rate.
Adusumelli v. Steiner, Nos.

08 civ.

5

6932,

09 Civ. 4902,

10 Civ.

4549, 2013 WL 1285260, at *4

(S.D.N.Y. March 28,

2013)

(internal

quotation marks and citations omitted).

Here, it does not appear

that the block-billing has "obscured.

. unreasonable billing."

Id.

at

*5

omitted).

(alteration

in

original)

(internal

quotation

marks

Therefore, I will not reduce the hours charged in these

time entries.
Conclusion
Electrolux Home Products, Inc. is ordered to pay Oleg Cassini,
Inc.

$6,255.00 pursuant to the June 19 Order.

Payment shall be

made within one week of the date of this Order.
SO ORDERED.

l'~~J!FRANCIS IV

~

AMES C.
UNITED STATES MAGISTRATE JUDGE

Dated:

New York, New York
July 26, 2013

Copies mailed this date:
Timothy B. Parlin, Esq.
Nicholas A. Vytell, Esq.
Carroll, McNulty & Kull L.L.C.
120 Mountain View Boulevard
Basking Ridge, NJ 07920
J. Vincent Reppert, Esq.
Christopher P. Kelly, Esq.
Reppert Kelly & Satriale, LLC
120 Mountain View Boulevard
Basking Ridge, NJ 07920
John P. Freedenberg, Esq.
Goldberg Segella LLP
665 Main street, Suite 400
Buffalo, New York 14203

6

Marianne Arc
Esq.
Goldberg Segalla LLP
11 Martine Avenue, Suite 750
White Plains, NY 16060
I

7