Bentley Laboratories LLC v. TPR Holdings LLC

Filing 39

OPINION AND ORDER re: 36 BRIEF On Behalf Of Bentley Laboratories LLC In Support Of Its Application For An Award Of Attorneys Fees And Costs Pursuant To The Parties' Settlement Agreement. I write to resolve plaintiff's application to re cover the attorney's fees it incurred as a result of defendant's breach of the parties' settlement agreement. Accordingly, plaintiff is entitled to recover the total sum of $14,171.20 in fees and $688.48 in costs from defen dant, calculated as follows: (See document.) For the foregoing reasons, defendant shall pay the total sum of $14,859.68 to plaintiff within thirty (30) days of the date of this Order and as further set forth herein. (Signed by Magistrate Judge Henry B. Pitman on 9/28/2017) Copies Transmitted By Chambers. (ras) Modified on 9/28/2017 (ras).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x
BENTLEY LABORATORIES LLC,
Plaintiff,

14 Civ. 6306

-against-

(HBP)

OPINION
AND ORDER

TPR HOLDINGS LLC,
Defendant.

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

PITMAN, United States Magistrate Judge:

I write to resolve plaintiff's application to recover
the attorney's fees it incurred as a result of defendant's breach
of the parties' settlement agreement.

The parties have agreed to

my exercising plenary jurisdiction over this matter pursuant to
28 U.S.C.

§

636 (c).

This is an action by a seller for the purchase price of
skin care products specially manufactured for defendant.

The

parties entered into a confidential settlement agreement in 2015
under which defendant agreed to make certain installment payments
and plaintiff would make partial deliveries if the installment
payments were made in accordance with the settlement agreement.
Among other things, the agreement provided that:

(1 )

" [t ] i

me 1 y

and full payments" of the installments were a material consideration of the settlement agreement;

(2)

if a default with respect

to an installment payment was not cured within the time period
permitted in the settlement agreement, all subsequent payments
would be accelerated and become immediately due and (3)

if there

was an uncured default, defendant would pay plaintiff ''all
reasonable attorneys' fees and costs which [plaintiff] may incur
in an effort to collect the balance owed" under the settlement
agreement.

The parties also stipulated that the Court would

retain jurisdiction for the purposes of enforcing the settlement
agreement.
There is no dispute that defendant failed to make full
payment of the $75,000 installment due on September 1, 2015.
Plaintiff agreed to extend defendant's time to make this payment
until September 25, 2015.

Although defendant made a number of

partial payments up to September 25, it was unable to make the
full $75,000 payment by that date, and plaintiff declared a
default and accelerated the remaining payments.

Among other

things, plaintiff moved on December 16, 2015 for the entry of a
judgment against defendant for the full amount of the then
outstanding amounts due under the settlement agreement and
attorney's fees.
I held oral argument on the motion on March 22, 2016
and concluded that defendant had breached the settlement agreement by not completing payment of the September 2015 installment
2

by September 25, 2015.

Happily, defendant was able pay all

amounts due under the settlement agreement

(other than attorney's

fees) promptly after the March 22 conference, and it was not
necessary to enter judgment against defendant for the principal
amount due (see Order dated Mar. 28, 2016
35).

(Docket Item ("D.I.")

Thus, the only issue remaining in the case is plaintiff's

application for the attorney's fees it incurred as a result of
defendant's breach of the settlement agreement.
The reasonableness of an award of attorney's fees is
committed to the discretion of the court.
Fruits

&

Vegetables Inc., 12 Civ. 6852

at *23

(S.D.N.Y. Oct. 23, 2015)

(RA) (HBP), 2015WL 10353140

(Pitman, M.J.)

mendation), adopted .Qy, 2016 WL 554843
(Abrams, D.J.).

Melgadejo v. S & D

(Report

&

Recom-

(S.D.N.Y. Feb. 9, 2016)

The party seeking fees bears the burden of

establishing that the hourly rates and the number of hours for
which compensation is sought are reasonable.
Eckerhart, 461 U.S. 424, 437

Hensley v.

(1983); accord Cruz v. Local Union

No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1160

(2d Cir.

1994).
In determining the amount of reasonable attorney's
fees,

"[b]oth [the Second Circuit] and the Supreme Court have

held that the lodestar -- the product of a reasonable hourly rate
and the reasonable number of hours required by the case -3

creates a 'presumptively reasonable fee.'"

Millea v. Metro-North

R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011), quoting Arbor Hill
Concerned Citizens Neighborhood Ass'n v. County of Albany, 522
F.3d 182, 183

(2d Cir. 2008).

The hourly rates used in determin-

ing a fee award should be "what a reasonable, paying client would
be willing to pay."

Arbor Hill Concerned Citizens Neighborhood

Ass'n v. County of Albany, supra, 522 F.3d at 184.

This rate

should be "in line with those [rates] prevailing in the community
for similar services by lawyers of reasonably comparable skill,
experience and reputation."
n.11 (1984).

Blum v. Stenson, 465 U.S. 886, 895

"[C]ourts should generally use 'the hourly rates

employed in the district in which the reviewing court sits' in
calculating the presumptively reasonable fee."

Arbor Hill

Concerned Citizens Neighborhood Ass'n v. County of Albany, supra,
522 F.3d at 192, quoting In re "Agent Orange" Prods. Liab.
Litig.

I

818 F. 2d 226

I

232

(2d Cir. 1987) .

In so doing, the court

is free to rely on its own familiarity with the prevailing rates
in the district.

See Miele v. New York State Teamsters Confer-

ence Pension & Ret. Fund, 831 F.2d 407, 409

(2d Cir. 1987).

The Honorable Loretta A. Preska, United States District
Judge, has summarized the factors to be considered in assessing
the reasonableness of the hours claimed in a fee application:

4

------

- ------

---------------~-

To assess the reasonableness of the time expended
by an attorney, the court must look first to the time
and work as they are documented by the attorney's
records.
See Forschner Group, Inc. v. Arrow Trading
Co., Inc., No. 92 Civ. 6953 (LAP), 1998 WL 879710, at
*2 (S.D.N.Y. Dec. 15, 1998). Next the court looks to
"its own familiarity with the case and its experience
generally .
. Because attorneys' fees are dependent
on the unique facts of each case, the resolution of the
issue is committed to the discretion of the district
court." AFP Imaging Corp. v. Phillips Medizin Sys.,
No. 92 Civ. 6211 (LMM), 1994 WL 698322, at *l (S.D.N.Y.
Dec. 13, 1994) (quoting Clarke v. Frank, 960 F.2d 1146,
1153 (2d Cir. 1992) (quoting DiFilippo v. Morizio, 759
F.2d 231, 236 (2d Cir. 1985))).

*

*

*

Finally, billing judgment must be factored into
the equation. Hensley, 461 U.S. at 434; DiFilippo, 759
F.2d at 235-36.
If a court finds that the fee applicant's claim is excessive, or that time spent was
wasteful or duplicative, it may decrease or disallow
certain hours or, where the application for fees is
voluminous, order an across-the-board percentage reduction in compensable hours.
In re "Agent Orange" Products Liab. Litig., 818 F.2d 226, 237 (2d Cir. 1987)
(stating that "in cases in which substantial numbers of
voluminous fee petitions are filed, the district court
has the authority to make across-the-board percentage
cuts in hours 'as a practical means of trimming fat
from a fee application'" (quoting Carey, 711 F.2d at
1146)); see also United States Football Leaque v.
National Football League, 887 F.2d 408, 415 (2d Cir.
1989) (approving a percentage reduction of total fee
award to account for vagueness in documentation of
certain time entries) .
Santa Fe Natural Tobacco Co. v. Spitzer, 00 Civ. 7274
Civ. 7750

(LAP), 2002 WL 498631 at *3

(S.D.N.Y. Mar. 29, 2002);

accord Hensley v. Eckerhart, supra, 461 U.S. at 434.

5

(LAP), 00

Plaintiff seeks a total of $16,029.30 in fees and
$688.48 in costs, broken down as follows:
Name

Position

Rate

Hours

Total

Brian Molloy

Partner

$600.00

4.1

$2,460.00

Brian Molloy

Partner

$620.00

6.7

$4,154.00

James Tonrey

Partner

$410.00

29.7

$12,177.00

Robert Selvers

Counsel

$335.00

0.2

$67.00

Total

$18,858.00

Less 15% Discount

($2,828.70)

Grand Total

$16,029.30

The costs are sought for courier services, photocopying, legal research and parking charges and are not in serious
dispute.

Reasonable Hourly Rate

As the chart above indicates and applying the 15%
"Courtesy Discount" that counsel afforded to plaintiff, plaintiff
is seeking fees based on effective hourly rates ranging from
$284.75 to $527.00 per hour for the attorneys who worked on this
matter.
As noted above, the Second Circuit has adopted a
'''forum rule'

[which] generally requires use of 'the hourly rates

employed in the district in which the reviewing court sits in
calculating the presumptively reasonable fee.'"
6

Bergerson v.

N.Y. State Office of Mental Health, Cent. N.Y. Psychiatric Ctr.,
652 F.3d 277, 290

(2d Cir. 2011), quoting Simmons v. N.Y.C.

Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009); accord Restivo
v. Hessemann, 846 F.3d 547, 590

(2d Cir. 2017), pet. for cert.

filed, No. 17-355 (Aug. 31, 2017).

In determining a reasonable

hourly rate, the Second Circuit also instructed district courts
to consider the factors set forth in Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714

(5th Cir. 1974), abrogated on other

grounds, Blanchard v. Bergeron, 489 U.S. 87, 92-93

(1989).

Arbor

Hill Concerned Citizens Neighborhood Ass'n v. County of Albany,
supra, 522 F.3d at 190.

The factors set forth in Johnson are:

(1) the time and labor required;
of the questions;

(2) the novelty and difficulty

(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;
customary hourly rate;
gent;

(5) the attorney's

(6) whether the fee is fixed or contin-

(7) the time limitations imposed by the client or the

circumstances;

(8) the amount involved in the case and the

results obtained;
the attorneys;

(9) the experience, reputation, and ability of

(10) the "undesirability" of the case;

(11) the

nature and length of the professional relationship with the
client; and (12) awards in similar cases.

7

Although plaintiff's counsel's office is located in
Woodbridge, New Jersey, the Second Circuit's forum rule requires

me to consider the rates charged in the Southern District of New
York in assessing reasonableness.
Plaintiff has provided professional biographies for
Messrs. Molloy, Tonrey and Selvers.

Mr. Molloy is a seasoned

commercial litigator, admitted to practice in 1978.

Mr. Tonrey

is also a seasoned commercial litigator, first admitted to
practice in 1994.

In addition to his experience as a practitio-

ner, Mr. Tonrey clerked for both a Bankruptcy Judge and a federal
District Judge.

Mr. Selvers has 15 years of experience in

litigation and was admitted to practice in 2002.

Mr. Selvers

The only other

also clerked for a federal magistrate judge.

evidence submitted by plaintiff concerning the reasonableness of
the fees charged are the assertions by Messrs. Molloy and Tonrey
that the hourly rates sought are consistent with the fees charged
by similarly experienced attorneys in New Jersey.
Based on my knowledge of the fees charged in this
District and prior fee application approved in this Court, the
hourly rates sought by Messrs. Tonrey and Selvers are reasonable.
See Nautilus Neurosciences,
2014 WL 1492481 at *2

Inc. v. Fares, 13 Civ. 1078

(S.D.N.Y. Apr. 16, 2014)

D.J.); Barcolitsas v. 86th & 3rd Owner, LLC,
8

(SAS),

(Scheindlin,

09 Civ. 7158

(PKC),

2013 WL 10620139 at *2

(S.D.N.Y. Apr. l, 2013)

(Castel, D.J.)

The rate sought by Mr. Molloy is a slightly different matter.
The underlying dispute was very simple.

The settlement agreement

required the payment of a sum certain by a date certain, and that
sum was not paid.

Such a simple case was well within the abili-

ties of Mr. Tonrey, as is evidenced by the fact that he did the
vast majority of the work on this matter.

Although I do not

question Mr. Molloy's excellence as an attorney, given the equal
skill and ability on the part of Mr. Tonrey,

I do not believe

that Mr. Molloy's participation added substantial value to
plaintiff's representation.
simple facts in this case,

Stated differently, on the extremely
I am confident that the outcome would

have been the same had Messrs. Tonrey and Selvers handled the
case entirely on their own.

See Lesser v. U.S. Bank, N.A.,

CV - 2 3 6 2 (KAM) ( MDG) , 2 0 13 WL 19 5 2 3 0 6 at * 11
2013)

09-

( E . D . N . Y . May 1 0 ,

(reducing rate of senior attorney with more than 40 years

of experience who functioned in "of counsel" capacity) .

Accord-

ingly, I conclude that Mr. Molloy's hourly rate should be reduced
to the same rate sought for Mr. Tonrey, namely $348.50
15%) per hour.

9

($410 less

---------·-----------

Reasonable
Number of Hours

Plaintiff has submitted time records for the attorneys
who worked on this matter that set forth the date on which
services were performed, the hours spent and the nature of the
work performed.
I have reviewed each of the entries in the time records, and I find that the total number of hours for which
compensation is sought is reasonable.

Plaintiff seeks compensa-

tion fo approximately 40 hours of attorney time during which
counsel prepared a motion for the entry of judgment based on
defendant's default, engaged in settlement discussions with
defendant, attended an oral argument before me and prepared the
fee application.

The total number of attorney hours spent on the

matter is reasonable given the number of tasks performed and,
therefore, no adjustment to the hours for which compensation is
required.

Costs
The amount sought for costs -- $688.48
reasonable.

is also

Approximately 75% of this figure is attributable to

Lexis costs.

10

Defendant's Arguments

Defendant does not challenge the hourly rate sought by
plaintiff nor does it challenge the number of hours for which
compensation is sought.

Rather, defendant's primary objection is

that plaintiff has itself breached the settlement agreement by
failing to surrender certain raw materials and all of the finished products for which defendant has paid.

Because the parties

have stipulated that the Court retains jurisdiction to enforce
the settlement agreement, defendant may make a motion for relief
based on this ground if it so chooses.

Defendant's argument does

not, however, provide a basis for challenging the amount of fees
plaintiff is entitled to recover.

Summary

Accordingly, plaintiff is entitled to recover the total
sum of $14,171.20 in fees and $688.48 in costs from defendant,
calculated as follows:
Name

Position

Rate

Hours

Total

Brian Molloy

Partner

$410.00

4.1

$1,681.00

Brian Molloy

Partner

$410.00

6.7

$2,747.00

James Tonrey

Partner

$410.00

29.7

$12,177.00

Robert Selvers

Counsel

$335.00

0.2

$67.00

$16,672.00

Total

11

------------------- --------·

-

-----------------------------------

Less 15% Discount

($2,500.80)

Grand Total

$14,171.20

IV.

Conclusion

For the foregoing reasons, defendant shall pay the
total sum of $14,859.68 to plaintiff within thirty (30) days of
the date of this Order.
Dated:

New York, New York
September 28, 2017
SO ORDERED

HENRY PITMAN
United States Magistrate Judge
Copies transmitted to:

All Counsel of Record

12