Fertitta, III et al v. Knoedler Gallery, LLC et al
Filing
187
OPINION AND ORDER: re: 178 MOTION for Attorney Fees Notice of Plaintiffs' Application for Attorneys' Fees, Costs, and Disbursements filed by Eykyn Maclean, LP, Frank J. Fertitta, III. For the foregoing reasons, Plaintiffs' peti tion for fees is GRANTED IN PART and DENIED IN PART. Plaintiffs are hereby awarded attorney's fees in the amount of $149,181.13, costs in the amount of $400.00, and disbursements in the amount of $3,965.99 from the Defaulting Defendants, jointly and severally. The Clerk of Court is directed to close the motion at Docket Number 178. SO ORDERED. (Signed by Judge J. Paul Oetken on 10/15/2018) (ama) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FRANK J. FERTITTA, III, et al.,
Plaintiffs,
14-CV-2259 (JPO)
-vOPINION & ORDER
KNOEDLER GALLERY, LLC, et al.,
Defendants.
J. PAUL OETKEN, District Judge:
This opinion addresses Plaintiffs’ application for attorney’s fees and costs incurred in
connection with their claims against Jose Carlos Bergantiños Diaz, Jesus Angel Bergantiños
Diaz, and Glafira Rosales (collectively, “the Defaulting Defendants”). (Dkt. No. 178.) In the
Report and Recommendation of June 8, 2018, Magistrate Judge Pitman concluded that Plaintiffs
are entitled to costs and reasonable attorney’s fees from the Defaulting Defendants under 18
U.S.C. § 1964(c), and recommended that such reasonable attorney’s fees, costs, and
disbursements be awarded. (Dkt. No. 169 at 20–21.) The Court adopted the Report and
Recommendation in full, and directed Plaintiffs to submit documentation supporting their fees
request. (Dkt. No. 175.) In response, Plaintiffs filed a motion for attorney’s fees, costs, and
disbursements, with a supporting memorandum and declaration. (Dkt. Nos. 178–180.) The
Defaulting Defendants have not filed any opposition. For the following reasons, the motion is
granted in part and denied in part. Fees, costs, and disbursements are awarded as set forth below.
I.
Discussion
The statutory provision creating a civil cause of action under the Racketeer Influenced
and Corrupt Organizations Act (“RICO”) provides that a successful plaintiff “shall recover
threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.”
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18 U.S.C. § 1964(c). Plaintiffs seek $164,244.44 in attorney’s fees, $400.00 in costs, and
$3,965.99 in disbursements in connection with their successful default judgment against the
Defaulting Defendants for racketeering in violation of 18 U.S.C. § 1962(c) and related fraud
offenses. (Dkt. No. 179.)
A.
Attorney’s Fees
“The district court retains discretion to determine . . . what constitutes a reasonable fee.”
Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (alteration in original)
(quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir. 1998)). The fee award
should be based on the court’s determination of a “presumptively reasonable fee,” calculated as
“the product of a reasonable hourly rate and the reasonable number of hours required by the
case.” Id. (quoting Arbor Hill Concerned Citizens Neighborhood Assoc. v. Cty. of Albany, 522
F.3d 182, 183 (2d Cir. 2008)). This presumptively reasonable fee may be adjusted only in the
“rare circumstances” where it “does not adequately take into account a factor that may properly
be considered in determining a reasonable fee.” Id. at 167 (quoting Perdue v. Kenny A., 559 U.S.
542, 554 (2010)).
1.
Hourly Rate
A reasonable hourly rate is determined by the “prevailing market rate,” that is, the rate
“prevailing in the community for similar services by lawyers of reasonably comparable skill,
experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). “The relevant
community, in turn, is the district in which the court sits.” Farbotko v. Clinton Cty. of New York,
433 F.3d 204, 208 (2d Cir. 2005) (citation omitted).
Plaintiffs’ request for attorney’s fees involves a range of hourly rates for various
attorneys from three large law firms in New York City that worked on the case: Patterson,
Belknap, Webb & Tyler LLP; Fried, Frank, Harris, Shriver & Jacobson LLP; and Norton Rose
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Fulbright US LLP. (Dkt. No.179 at 7–8.) To support these claimed rates, Plaintiffs have
provided evidence of the background and experience of the lead partner handling the case (Dkt.
No. 180-10), as well as data from a National Law Journal report on hourly rates for associates
and partners at comparable law firms in New York City (Dkt. No. 180-6).
The rates charged by Plaintiffs’ attorneys in this case are consistent with prevailing rates
charged by similar New York City firms identified by Plaintiffs. (See Dkt. No. 180-6.)
Furthermore, they are consistent with reasonable rates approved in other cases in this district
involving complex civil litigation. See MSC Mediterranean Shipping Co. Holding S.A. v. Forsyth
Kownacki LLC, No. 16 Civ. 8103, 2017 WL 1194372, at *3 (S.D.N.Y. Mar. 30, 2017);
Regeneron Pharm., Inc. v. Merus N.V., No. 14 Civ. 1650, 2018 WL 3425013, at *4–5 (S.D.N.Y.
June 25, 2018). Therefore, the Court concludes that these rates fall within the “range of
reasonableness” for fees in this district for similar services by comparable lawyers. Danaher
Corp. v. Travelers Indem. Co., No. 10 Civ. 121, 2015 WL 409525, at *4, *9 (S.D.N.Y. Jan. 16,
2015), adopted in full, No. 10 Civ. 121, 2015 WL 1647435 (S.D.N.Y. Apr. 14, 2015).
2.
Number of Hours Worked
“After establishing the appropriate hourly rate, a court must determine how much time
was reasonably expended in order to arrive at the presumptively reasonable fee.” Id. at *3.
Plaintiffs seek compensation for 234 total hours of attorney work. (Dkt. No. 179 at 6.) To
support this claim, they have submitted a redacted spreadsheet listing the number of hours billed
and the tasks performed by each attorney on this matter. (Dkt. No. 180-1.)
In determining the reasonable number of hours to use in calculating the presumptively
reasonable fee, however, “the number of hours spent on a case should include only those hours
spent on claims eligible for fee-shifting.” Millea, 658 F.3d at 168. The substantial majority of
the hours listed by Plaintiffs were clearly in service of obtaining a default judgment against the
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Defaulting Defendants on the RICO claims and intertwined fraud claims. But a portion of hours
listed pertains to Plaintiffs’ involvement in the criminal case against Defendant Rosales. (Dkt.
No. 180-1 at 8–9.) And these activities were undertaken after the Court had entered a default
and the damages filings had been submitted to Magistrate Judge Pitman. (Dkt. Nos. 146, 152–
155.) The Court concludes that the hours devoted to the victim impact statement, restitution, and
other actions in relation to the separate criminal case were not “spent on claims eligible for feeshifting” under 18 U.S.C. § 1964(c). Millea, 658 F.3d at 168.
With that time subtracted, Plaintiffs’ counsel spent 216.31 hours pursuing their civil
RICO claims against defendants. This amount is consistent with the number of hours worked in
other civil RICO cases involving a default judgment. See Ross v. Jenkins, No. 17 Civ. 2547,
2018 WL 2335853, at *25–27 (D. Kan. May 23, 2018) (402.3 hours); Fed. Ins. Co. v. Campbell,
No. 3:13 Civ. 429, 2014 WL 1922847, at *6 (N.D. Fla. May 14, 2014) (243.4 hours); Thomas v.
Burg, No. 10 Civ. 01108, 2012 WL 2065533, at *3 (D. Colo. June 8, 2012) (393.1 hours). The
Court concludes that this number of hours was reasonably justified given the complexity of the
case.
3.
Presumptively Reasonable Fee
The reasonable hourly rates multiplied by the adjusted number of hours results in a
presumptively reasonable attorney’s fees amount of $149,181.13. Seeing no basis for adjustment
in this case, see Millea, 658 F.3d at 167, the Court awards Plaintiffs attorneys’ fees in the amount
of $149,181.13.
B.
Costs and Disbursements
Plaintiffs seek an additional $400.00 in costs from filing and index fees, and $3,965.99 in
disbursements from serving process upon the Bergantiños brothers in Spain. (Dkt. Nos. 180-7,
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180-8.) The Court concludes that these additional costs and disbursements—which are minimal
in relation to the overall fee award—are reasonable.
II.
Conclusion
For the foregoing reasons, Plaintiffs’ petition for fees is GRANTED IN PART and
DENIED IN PART. Plaintiffs are hereby awarded attorney’s fees in the amount of $149,181.13,
costs in the amount of $400.00, and disbursements in the amount of $3,965.99 from the
Defaulting Defendants, jointly and severally.
The Clerk of Court is directed to close the motion at Docket Number 178.
SO ORDERED.
Dated: October 15, 2018
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge
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