Kerr v. John Thomas Financial et al

Filing 235

REPORT AND RECOMMENDATION re: 212 MOTION for Summary Judgment . filed by Eubulus J. Kerr, III, By notice of motion dated November 15, 2016, plaintiff moves for summary judgment on his application for attorneys' fees and costs purs uant to Fed.R.Civ.P. 56 (D.I. 211). (As further set forth in this Order.) For the foregoing reasons, I respectfully recommend that plaintiff be awarded $165,544.00 in attorneys' fees and $25,108.02 in costs. Objections to R&R due by 2/14/2017 (Signed by Magistrate Judge Henry B. Pitman on 1/31/2017) Copies Sent By Chambers (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
DR. EUBULUS J. KERR, III,
Plaintiff,

:

JOHN THOMAS FINANCIAL, et al.,
Defendants.

14 Civ. 9168 (KBF)(HBP)

:

-against-

:

REPORT AND
RECOMMENDATION

:
:

-----------------------------------X

PITMAN, United States Magistrate Judge:

TO THE HONORABLE KATHERINE B. FORREST, United States
District Judge,

I.

Introduction

By notice of motion dated November 15, 2016, plaintiff
moves for summary judgment on his application for attorneys' fees
and costs pursuant to Fed.R.Civ.P. 56 (D.I. 211).

For the

reasons set forth below, I respectfully recommend that plaintiff's motion be granted in part and denied in part.

II.

Facts

The facts that give rise to this action are set forth
in detail in the Opinion and Order of the Honorable Katherine B.
Forrest, United States District Judge, dated July 16, 2015 (D.I.

88), granting plaintiff's motion to confirm a Financial Industry
Regulatory Authority ("FINRA") arbitration award against the
defendants.

Familiarity with that opinion is assumed.

I recite

the facts here only to the extent necessary for an understanding
of the dispute before me.
On August 5, 2014, a FINRA arbitration resulted in an
award of $920,107.96 in favor of plaintiff and against the
defendants (the "Award") (Amended Petition to Confirm Arbitration
Award and Entry of Judgment thereon, dated Jan. 8, 2015 (D.I. 12)
("Petition") ¶ 13).

Defendant Anastasios Belesis and two other

defendants were found to be liable, jointly and severally, for
$915,107.96 of the Award; defendant Joseph Castellano was found
to be liable for $5,000.00 of the Award (Petition ¶ 13).

On

October 20, 2014, plaintiff commenced an action in Supreme Court,
New York County, seeking to confirm the Award (Notice of Removal,
filed Nov. 18, 2014 (D.I. 1) ("Notice of Removal") ¶ 1).

The

defendants removed the action to this court on November 18, 2014
(Notice of Removal).
On July 16, 2015, Judge Forrest granted plaintiff's
motion to confirm the Award (Opinion and Order, dated July 16,
2015 (D.I. 88)), and judgment confirming the Award was entered on
July 22, 2015 (the "Judgment") (Judgment, dated July 22, 2015
(D.I. 89)).
2

After approximately a year of unsuccessful efforts to
collect the Judgment, plaintiff and defendant entered into a
General Release Agreement on June 10, 2016 (Motion for Sanctions
and Contempt, filed Oct. 12, 2016 (D.I. 151) ("Motion for Sanctions"), Ex. G, at 1).

The agreement provided that defendant was

to pay plaintiff $1 million -- an amount slightly smaller than
the Judgment plus accrued interest -- by June 30, 2016 (Motion
for Sanctions, Ex. G ¶ 1).

In exchange, plaintiff agreed to

release all claims against defendant (Motion for Sanctions, Ex. G
¶ 2).

The agreement also contained the following provision

regarding attorneys' fees and costs:
In the event of any judicial or arbitral proceeding to construe or enforce any provision of this Agreement or resulting from an alleged breach, default or
misrepresentation in connection with any of the provisions of this Agreement, or to enforce or collect upon
the Award or any judgment thereupon or any award or
judgment resulting from any judicial or arbitral proceeding to construe or enforce any provision of this
Agreement, the prevailing party shall recover from the
non-prevailing party reasonable attorneys' fees and
other costs in addition to all other amounts and relief
the prevailing party is entitled to recover. To the
extent that this provision imposes upon the non-prevailing party an obligation to pay the attorneys' fees
of the prevailing party in a dispute arising from the
enforcement and collection of the Award or any judgment
thereupon, the Parties acknowledge that this is a postdispute attorneys' fee provision and agree to be bound
thereby.
(Motion for Sanctions, Ex. G ¶ 4).

The agreement also provided

that it "shall be in all respects interpreted, enforced and
3

governed by and under the laws of the State of New York" (Motion
for Sanctions, Ex. G ¶ 9).
Defendant did not pay $1 million to plaintiff by June
30, 2016.

Following that breach, plaintiff moved for an amended

judgment stating a sum certain on July 1, 2016 (Letter from Brian
J. Neville, Esq., to Judge Forrest, dated July 1, 2016 (D.I.
99)).

On July 6, 2016, Judge Forrest granted plaintiff's motion

(Order, dated July 6, 2016 (D.I. 102)), and the Clerk of the
Court subsequently entered an amended judgment in the amount of
$1,017,140.75 (Amended Judgment, dated July 7, 2016 (D.I. 103)).
Defendant finally paid the full amount owed, plus interest, in
November 2016 (Order, dated Nov. 14, 2016 (D.I. 209)).
Plaintiff now seeks his attorneys' fees and costs
incurred since the start of this action, pursuant to the General
Release Agreement.1

Specifically, plaintiff seeks a total of

1

As an alternative basis for his recovery of attorneys' fees
and costs, plaintiff cites a purported agreement reached with
defendant in October 2016 for the payment of the amount owed,
plus costs and fees (Motion for Summary Judgment and Incorporated
Memorandum of Law, dated Nov. 15, 2016 (D.I. 212) ("Pl.'s Mem."),
at 6-7, 14-15). However, the documentary evidence submitted by
plaintiff consists of an exchange of offers and counteroffers set
out in several emails (Affirmation in Support of Motion for
Summary Judgment and Renewal of Motion for Sanctions, dated Nov.
15, 2016 (D.I. 213) ("Lax Aff."), Ex. A). On their face, these
emails do not demonstrate the existence of an agreement.
As a second alternative, plaintiff claims he is entitled to
(continued...)
4

$216,575 in fees and $25,108.02 in costs and has submitted an
"invoice listing the fees charged daily by each attorney and firm
member, as well as each individual cost" (Lax Aff. ¶ 5).

III.

Analysis

A.

Applicable Principles

1.

Summary Judgment

The standards applicable to a motion for summary
judgment are well-settled and require only brief review.
Summary judgment may be granted only where there is no
genuine issue as to any material fact and the moving
party . . . is entitled to a judgment as a matter of
law. Fed.R.Civ.P. 56(c). In ruling on a motion for
summary judgment, a court must resolve all ambiguities
and draw all factual inferences in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). To grant the motion, the court must determine that
there is no genuine issue of material fact to be tried.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.
Ct. 2548, 91 L. Ed. 2d 265 (1986). A genuine factual
issue derives from the "evidence [being] such that a
reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. 2505.
The nonmoving party cannot defeat summary judgment by

1

(...continued)
his costs and fees as a sanction for defendant's alleged perjury,
failure to comply with subpoenas and frustration and delay in
paying the amount owed (Pl.'s Mem., at 15-17). These arguments
are currently the subjects of plaintiff's pending motion for
contempt and sanctions (Motion for Sanctions and Contempt, dated
Sept. 19, 2016 (D.I. 119)) and will be addressed separately.
5

"simply show[ing] that there is some metaphysical doubt
as to the material facts," Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct.
1348, 89 L. Ed. 2d 538 (1986), or by a factual argument
based on "conjecture or surmise," Bryant v. Maffucci,
923 F.2d 979, 982 (2d Cir. 1991). The Supreme Court
teaches that "all that is required [from a nonmoving
party] is that sufficient evidence supporting the
claimed factual dispute be shown to require a jury or
judge to resolve the parties' differing versions of the
truth at trial." First Nat'l Bank of Ariz. v. Cities
Serv. Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575, 20 L.
Ed. 2d 569 (1968); see also Hunt v. Cromartie, 526 U.S.
541, 552, 119 S. Ct. 1545, 143 L. Ed. 2d 731 (1999).
It is a settled rule that "[c]redibility assessments,
choices between conflicting versions of the events, and
the weighing of evidence are matters for the jury, not
for the court on a motion for summary judgment."
Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).
McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (ellipsis
added; brackets in original); accord Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150-51 (2000)2; Estate of Gustafson
ex rel. Reginella v. Target Corp., 819 F.3d 673, 675 (2d Cir.
2016); Cortes v. MTA N.Y.C. Transit, 802 F.3d 226, 230 (2d Cir.
2015); Deep Woods Holdings, L.L.C. v. Savings Deposit Ins. Fund
of Republic of Turk., 745 F.3d 619, 622-23 (2d Cir. 2014); Hill
v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011).

2

Although the Court in Reeves was reviewing the denial of a
motion for judgment as a matter of law pursuant to Fed.R.Civ.P.
50, the same standards apply to a motion for summary judgment
pursuant to Fed.R.Civ.P. 56. Reeves v. Sanderson Plumbing
Prods., Inc., supra, 530 U.S. at 150-51.
6

"Material facts are those which 'might affect the
outcome of the suit under the governing law' . . . ."

Coppola v.

Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007), quoting
Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248.

"'[I]n

ruling on a motion for summary judgment, a judge must ask himself
not whether he thinks the evidence unmistakably favors one side
or the other but whether a fair-minded jury could return a
verdict for the [non-movant] on the evidence presented[.]'"

Cine

SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 788 (2d Cir. 2007)
(second alteration in original), quoting Readco, Inc. v. Marine
Midland Bank, 81 F.3d 295, 298 (2d Cir. 1996).

2.

Attorneys' Fees

Although the prevailing party in litigation is not
ordinarily entitled to recover its attorneys' fees under the
"American Rule," it may do so when there is a contractual provision authorizing such recovery.

United States Fid. & Guar. Co.

v. Braspetro Oil Servs. Co., 369 F.3d 34, 75 (2d Cir. 2004).
In federal practice the general rule -- known as
the "American Rule" -- is that each party bears its own
attorneys' fees. See, e.g., Chambers v. NASCO, Inc.,
501 U.S. 32, ––––, 111 S. Ct. 2123, 2133, 115 L. Ed. 2d
27 (1991); Hensley v. Eckerhart, 461 U.S. 424, 429, 103
S. Ct. 1933, 1937, 76 L. Ed. 2d 40 (1983); Alyeska
Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240,
247, 95 S. Ct. 1612, 1616, 44 L. Ed. 2d 141 (1975); 6
James W. Moore et al., Moore's Federal Practice ¶
7

54.78[1] (2d ed. 1993). However, parties may 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. See Alland v. Consumers Credit Corp., 476
F.2d 951, 956 (2d Cir. 1973); United States v. Carter,
217 U.S. 286, 322, 30 S. Ct. 515, 526, 54 L. Ed. 769
(1910). Although a district court has broad discretion
in awarding attorneys' fees, and an award of such fees
may be set aside only for abuse of discretion, see,
e.g., ARP Films, Inc. v. Marvel Entertainment Group,
Inc., 952 F.2d 643, 651 (2d Cir. 1991); Lerman v. Flynt
Distributing Co., 789 F.2d 164, 166 (2d Cir.), cert.
denied, 479 U.S. 932, 107 S. Ct. 404, 93 L. Ed. 2d 357
(1986), where a contract authorizes an award of attorneys' fees, such an award becomes the rule rather than
the exception. See Engel v. Teleprompter Corp., 732
F.2d 1238, 1241 (5th Cir. 1984) (reversing district
court's denial of attorneys' fees with instructions to
determine an appropriate award).
McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1312-13 (2d Cir.
1993); see also Baker Botts L.L.P. v. ASARCO LLC, 135 S. Ct.
2158, 2164 (2015); Zurich Am. Ins. Co. v. Team Tankers A.S., 811
F.3d 584, 590 (2d Cir. 2016).
Because this matter is before the court on the basis of
diversity of citizenship (Petition ¶ 7), and because the General
Release Agreement provides that New York law would govern the
agreement, New York law governs the standard for determining
plaintiff's entitlement to attorneys' fees.

Mid-Hudson Catskill

Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168,
177 (2d Cir. 2005); Grand Union Co. V. Cord Meyer Dev. Co., 761
F.2d 141, 147 (2d Cir. 1985); Campbell v. Mark Hotel Sponsor,

8

LLC, 09 Civ. 9644 (WHP), 2012 WL 4360011 at *1 (S.D.N.Y. Sept.
13, 2012) (Pauley, D.J.).

New York enforces contractual provi-

sions regarding recovery of attorneys' fees.

Mount Vernon City

Sch. Dist. v. Nova Cas. Co., 19 N.Y.3d 28, 39, 968 N.E.2d 439,
447, 945 N.Y.S.2d 202, 210 (2012); Hooper Assocs., Ltd. v. AGS
Computs., Inc., 74 N.Y.2d 487, 491, 548 N.E.2d 903, 904, 549
N.Y.S.2d 365, 366 (1989).
The General Release Agreement provides that the prevailing party in "any judicial or arbitral proceeding to construe
or enforce any provision of [the General Release
Agreement] . . . or to enforce or collect upon the Award or any
judgment thereupon" is entitled to his reasonable attorneys'
fees.

Under New York law, "the touchstone for an award of

attorneys' fees pursuant to a contract is reasonableness."

CARCO

GRP., Inc. v. Maconachy, 718 F.3d 72, 86 (2d Cir. 2013) (per
curiam).

"The reasonableness of plaintiff's request for fees and

costs [arising under a contract] can be measured by the standards
that are used to evaluate fee awards under statutory provisions
directing the court to award a 'reasonable' attorney's fee."
Sidley Holding Corp. v. Ruderman, 08 Civ. 2513 (WHP)(MHD), 2009
WL 6047187 at *16 (S.D.N.Y. Dec. 30, 2009) (Dolinger, M.J.)
(Report & Recommendation), adopted by, 2010 WL 963416 (S.D.N.Y.
Mar. 15, 2010) (Pauley, D.J.).

I shall, therefore, analyze the
9

reasonableness of plaintiff's fee request with reference to cases
awarding fees pursuant to federal statutory provisions.
The starting point for determining presumptively
reasonable fees is the "lodestar" method, pursuant to which "the
hours reasonably spent by counsel, as determined by the Court,
[are] multiplied by the reasonable hourly rate."

F.H. Krear &

Co. v. Nineteen Named Trs., 810 F.2d 1250, 1263 (2d Cir. 1987)
(alteration in original; internal quotation marks omitted)
(applying New York law); see Flemming v. Barnwell Nursing Home &
Health Facilities, Inc., 56 A.D.3d 162, 165, 865 N.Y.S.2d 706,
708 (3d Dep't 2008), aff'd, 15 N.Y.3d 375, 938 N.E.2d 937, 912
N.Y.S.2d 504 (2010).

To determine a reasonable hourly rate,

courts look to "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

Additionally,

[a] variety of factors informs the court's determination of whether a requested amount of attorneys'
fees is reasonable or unreasonable, including "the
difficulty of the questions involved; the skill required to handle the problem; the time and labor required; the lawyer's experience, ability and reputation; the customary fee charged by the Bar for similar
services; and the amount involved."
F.H. Krear & Co. v. Nineteen Named Trs., supra, 810 F.2d at 1263,
quoting In re Schaich, 55 A.D.2d 914, 914, 391 N.Y.S.2d 135, 136

10

(2d Dep't 1977); see Executive Risk Indem., Inc. v. Fieldbridge
Assocs. LLC, 642 F. App'x 25, 26 (2d Cir. 2016) (summary order);
see also Terra Energy & Res. Tech., Inc. v. Terralinna Pty. Ltd.,
12 Civ. 1337 (KNF), 2014 WL 6632937 at *4 (S.D.N.Y. Nov. 24,
2014) (Fox, M.J.).

"Courts 'should also bear in mind that a

reasonable, paying client wishes to spend the minimum necessary
to litigate the case effectively.'"

Campbell v. Mark Hotel

Sponsor, LLC, supra, 2012 WL 4360011 at *2, quoting Arbor Hill
Concerned Citizens Neighborhood Ass'n v. County of Albany, 522
F.3d 182, 190 (2d Cir. 2008).
"In determining whether a requested fee is justified by
the time and labor expended, the New York courts make their own
assessments of the reasonableness of the amount of time spent on
the case."

F.H. Krear & Co. v. Nineteen Named Trs., supra, 810

F.2d at 1265, citing Zauderer v. Barcellona, 130 Misc.2d 234,
236, 495 N.Y.S.2d 881, 882-83 (Civ. Ct. N.Y. Cty. 1985).

Counsel

must "keep and present records from which the court may determine
the nature of the work done, the need for it, and the amount of
time reasonably required."

F.H. Krear & Co. v. Nineteen Named

Trs., supra, 810 F.2d at 1265.

Failure to keep such records will

result in a reduction in the amount of attorneys' fees awarded.

11

F.H. Krear & Co. v. Nineteen Named Trs., supra, 810 F.2d at
1265.3

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 League 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 (LAP), 00
Civ. 7750 (LAP), 2002 WL 498631 at *3 (S.D.N.Y. Mar. 29, 2002)
(Preska, D.J.); see F.H. Krear & Co. v. Nineteen Named Trs.,
supra, 810 F.2d at 1265; Terra Energy & Res. Tech., Inc. v.

3

When fees are sought under a federal fee-shifting statute,
an attorney's failure to keep contemporaneous time records
generally precludes the recovery of any fees. New York State
Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1147 (2d
Cir. 1983). Where, as here, fees are sought under state law, the
failure to keep contemporaneous time records results in the
reduction of a fee award but does not preclude the award entirely. Marion S. Mishkin Law Office v. Lopalo, 767 F.3d 144,
147-48 (2d Cir. 2014). Thus, Carey is inapplicable here. Marion
S. Mishkin Law Office v. Lopalo, supra, 767 F.3d at 147-48;
Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 53 (2d
Cir. 1992).
12

Terralinna Pty. Ltd., supra, 2014 WL 6632937 at *6; Campbell v.
Mark Hotel Sponsor LLC, supra, 2012 WL 4360011 at *3; RMP Capital, Corp. v. Victory Jet, LLC, 40 Misc.3d 1243(A), 977 N.Y.S.2d
670 (Table), 2013 WL 5303582 at *10 (Sup. Ct. Suffolk Cty. Sept.
11, 2013), aff'd as modified, 139 A.D.3d 836, 32 N.Y.S.3d 231 (2d
Dep't 2016).
"The question of how much to award as attorneys' fees
is left to the discretion of the district court."

Campbell v.

Mark Hotel Sponsor, LLC, supra, 2012 WL 4360011 at *2, citing
Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1183 (2d Cir. 1996).
The burden of establishing the reasonableness of attorneys' fees
is on the party seeking fees.

Executive Risk Indem., Inc. v.

Fieldbridge Assocs. LLC, supra, 642 F. App'x at 26.

B. Application of
the Foregoing Principles

Defendant makes three arguments in opposition to
plaintiff's motion for attorneys' fees.4

First, while defendant

concedes that "fees incurred from July 1, 2016 to the date of
[plaintiff's motion for summary judgment] are recoverable pursuant to the terms of the Release Agreement" (Memorandum of Law,

4

Defendant does not challenge the amount of costs sought by
plaintiff.
13

dated Dec. 2, 2016 (D.I. 222) ("Def.'s Mem."), at 3 (internal
quotation marks omitted)), he argues that the language of the
General Release Agreement does not permit the recovery of costs
and fees incurred prior to that date (Def.'s Mem., at 3-4).
Second, defendant argues that plaintiff waived his right to
recover fees and costs by not moving to collect them within the
time limits set forth in Federal Rule of Civil Procedure 54(d)
and Local Civil Rule 54.1 (Def.'s Mem., at 5, 11).

Third,

defendant argues that the attorneys' fees plaintiff seeks are
unreasonable (Def.'s Mem., at 5-10).

1.

Scope of General
Release Agreement

The parties disagree as to whether the General Release
Agreement covers the period prior to July 1, 2016.

Plaintiff

argues that the unambiguous language of the agreement permits him
to recover costs and fees incurred to enforce or collect the
Award, without any limitation in time (Pl.'s Mem., at 12-13).
Defendant does not believe the General Release Agreement covers
the period prior to July 1, 2016.

He argues that "[t]he Award

was subsumed in the Judgment which was duly entered on July 1,

14

2016.5

References to the Award . . . must therefore be disre-

garded because any work performed by [plaintiff's] attorneys upon
the breach of the Release Agreement was related to the enforcement of the [Amended] Judgment and unrelated to the Award"
(Def.'s Mem., at 3).

He further argues that "the qualifying

phrase 'resulting from any judicial or arbitral proceeding to
construe or enforce any provision of this Agreement' denotes that
it is the legal fees incurred to enforce the Release Agreement
which are subject to collection . . . and not the legal fees
incurred to enforce the Award which predated" the Amended Judgment (Def.'s Mem., at 4).
The existence of an ambiguity in a contract is a
question of law to be determined by the district court.

First

Mercury Ins. Co. v. 613 N.Y. Inc., 609 F. App'x 664, 666 (2d Cir.
2015) (summary order) (applying New York law); see JA Apparel
Corp. v. Abboud, 568 F.3d 390, 396 (2d Cir. 2009).
"[W]here the language [of the contract] and the inferences to be drawn from it are unambiguous . . . a
district court [may] construe a contract as a matter of
law and grant summary judgment accordingly." Alexander
& Alexander Servs., Inc. v. These Certain Underwriters
at Lloyd's, London, 136 F.3d 82, 86 (2d Cir. 1998)
(internal quotation marks omitted). Where, however,

5

The Judgment was entered on July 22, 2015 (D.I. 89). The
Amended Judgment was entered on July 7, 2016 (D.I. 103). Thus,
although defendant refers to the Judgment, I understand him to
mean the Amended Judgment.
15

"the terms of a contract could suggest 'more than one
meaning when viewed objectively by a reasonably intelligent person who has examined the context of the
entire integrated agreement and who is cognizant of the
customs, practices, usage and terminology as generally
understood in the particular trade or business,'"
ambiguity exists. Id. (quoting Lightfoot v. Union
Carbide Corp., 110 F.3d 898, 906 (2d Cir. 1997)).
First Mercury Ins. Co. v. 613 N.Y. Inc., supra, 609 F. App'x at
666 (alterations and emphasis in original).

In contrast,

"[c]ontract language is not ambiguous if it has 'a definite and
precise meaning, unattended by danger of misconception in the
purport of the [contract] itself, and concerning which there is
no reasonable basis for a difference of opinion.'"

JA Apparel

Corp. v. Abboud, supra, 568 F.3d at 396 (second alteration in
original), quoting Breed v. Insurance Co. of N. Am., 46 N.Y.2d
351, 355, 385 N.E.2d 1280, 1282, 413 N.Y.S.2d 352, 355 (1978).
I conclude that the contract is unambiguous and allows
for the recovery of attorneys' fees and costs that have accrued
since the commencement of this action.

In interpreting a con-

tract, a court is to give effect to all of its provisions so that
none are rendered meaningless.

United States v. International

Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers, 970 F.2d
1132, 1136 (2d Cir. 1992) ("We must avoid an interpretation of an
agreement that renders one of its provisions superfluous.");
Capital Ventures Int'l v. Verenium Corp., 09 Civ. 4261 (GBD),

16

2011 WL 70227 at *5 (S.D.N.Y. Jan. 4, 2011) (Daniels, D.J.);
Serdarevic v. Centex Homes, LLC, 760 F. Supp. 2d 322, 332-33
(S.D.N.Y. 2010) (Karas, D.J.).

Here, the General Release Agree-

ment provides that "[i]n the event of any judicial or arbitral
proceeding . . . to enforce or collect upon the Award or any
judgment thereupon," the prevailing party is entitled to his
reasonable attorneys' fees and costs (Motion for Sanctions, Ex. G
¶ 4 (emphasis in original)).

The plain language of the agreement

permits recovery of fees and costs in a judicial or arbitral
proceeding to enforce or collect the Award, which is precisely
the situation here.

Were I to disregard "Award" in the General

Release Agreement because it was "subsumed in the [Amended]
Judgment," as defendant argues, "Award" would be rendered superfluous.
Moreover, the phrase 'resulting from any judicial or
arbitral proceeding to construe or enforce any provision of this
Agreement' does not qualify the phrase "to enforce or collect
upon the Award or any judgment thereupon."

As used in the

agreement, "resulting from any judicial or arbitral proceeding to
construe or enforce any provision of this Agreement" means that a
prevailing party in any judicial or arbitral proceeding to
construe or enforce any provision of the General Release Agreement would be entitled to his costs and fees in a proceeding to
17

enforce or collect that award or judgment.

Were the General

Release Agreement limited to the legal fees incurred in proceedings to enforce the General Release Agreement, as defendant
argues, the agreement would simply provide for costs and fees in
such actions and there would be no need to reference the Award.
This interpretation of the contract is also confirmed by the last
sentence of the General Release Agreement:

"To the extent that

this provision imposes upon the non-prevailing party an obligation to pay the attorneys' fees of the prevailing party in a
dispute arising from the enforcement and collection of the Award
or any judgment thereupon . . ." (emphasis added).
Therefore, the General Release Agreement permits
plaintiff to recover his attorneys' fees and costs that he has
incurred since the commencement of this action.

2.

Waiver of
Right to Recover

Federal Rule of Civil Procedure 54(d)(2)(B)(i) provides
that a motion for attorneys' fees must "be filed no later than 14
days after the entry of judgment."

Relatedly, Local Civil Rule

54.1 provides that a party seeking costs must file a notice of
taxation of costs within 30 days after the entry of final judg-

18

ment; it also provides that failure to do so constitutes a waiver
of costs.
Neither rule is applicable here.

Federal Rule of Civil

Procedure 54(d) and Local Civil Rule 54.1 concern efforts by a
party to seek costs and fees incurred in connection with its
underlying claim on which a judgment has been entered.

Cf.

Advisory Committee Notes to 1993 Amendment to Fed.R.Civ.P. 54.
Here, however, plaintiff seeks costs and fees in connection with
a proceeding to confirm and enforce an arbitration award and the
resulting judgment.

Such proceedings can last years, and, thus,

Rule 54(d) and Local Civil Rule 54.1 cannot apply here.

3.

Reasonableness of Fees

Lastly, defendant argues that plaintiff's attorneys'
fees are unreasonable because several attorneys were assigned to
work on the matter at the same time, the attorneys "spent considerable time on fairly routine matters" and the attorneys' time
records are "overly vague" (Def.'s Mem., at 7-9).

Defendant

contends that plaintiff's attorneys' fees should be reduced by
30% (Def.'s Mem., at 10).
As explained below, there are a few instances in
counsel's time records of redundant staffing.

Additionally, it

is difficult to assess whether plaintiff's attorneys "spent
19

considerable time on fairly routine matters" because the attorneys block-billed their time and their time entries are vague.

A

reduction in the attorneys' fees plaintiff seeks, therefore, is
warranted due to these billing practices.

a.

Multiple Attorneys

While the use of multiple attorneys is not unreasonable
per se, "assigning numerous attorneys to a simple and straightforward matter presents a serious risk of inefficiency, duplication, and unnecessary billing."

Tackney v. WB Imico Lexington

Fee, LLC, 10 Civ. 2734 (PGG), 10 Civ. 2735 (PGG), 2015 WL 1190096
at *6 (S.D.N.Y. Mar. 16, 2015) (Gardephe, D.J.) (citations
omitted).

"[T]he work rendered by multiple attorneys is recover-

able so long as the party seeking fees can show that the attorneys engaged in distinct tasks on the case."

Douyon v. NY Med.

Health Care, P.C., 49 F. Supp. 3d 328, 350 (E.D.N.Y. 2014); see
Kapoor v. Rosenthal, 269 F. Supp. 2d 408, 414 (S.D.N.Y. 2003)
(Ellis, M.J.).
Defendant has identified a few instances of the potential duplication of effort in plaintiff's time records.6

6

For

I have limited my review of plaintiff's time record entries
to the specific entries defendant has identified as deficient.
As the party challenging plaintiff's fee application, it is up to
(continued...)
20

example, a partner and two associates attended the same deposition and court conference regarding discovery on September 26,
2016; the three charged a total of 27 hours (Lax Aff., Ex. E, at
15).

On November 14, 2016, the same three attorneys attended

another court conference and billed a total of 16.2 hours (Lax
Aff., Ex. E, at 20).

The presence of one partner and two associ-

ates at a deposition and a court conference is excessive.

A

reduction in the amount of fees plaintiff seeks is warranted
under these circumstances.

See Congregation Rabbinical Coll. of

Tartikov, Inc. v. Village of Pomona, 188 F. Supp. 3d 333, 342
(S.D.N.Y. 2016) (Karas, D.J.); Valley Housing Ltd. P'ship v. City
of Derby, No. 3:06CV1319 (TLM), 2012 WL 1077848 at *10 (D. Conn.
Mar. 30, 2012) ("Notwithstanding the value of having the 'team'
present for depositions and other major activities, such as oral
argument, a minor deduction [5%] is warranted to account for the
duplication."); Rostolder v. Life Energy & Tech. Holdings, Inc.,
No. 03-CV-3375 (SMG), 2006 WL 5838184 at *4 (E.D.N.Y. Sept. 20,
2006); In re Excess Value Ins. Coverage Litig., 598 F. Supp. 2d
380, 391 (S.D.N.Y. 2005) (Berman, D.J.), aff'd sub nom., McCoy v.
United Parcel Serv., 222 F. App'x 87 (2d Cir. 2007) (summary

6

(...continued)
defendant -- not the court -- to identify alleged deficiencies in
plaintiff's billing records.
21

order); Metropolitan Lofts of NY, LLC v. Metroeb Realty 1, LLC,
46 Misc.3d 1222(A), 17 N.Y.S.3d 383 (Table), 2015 WL 894869 at
*10 (Sup. Ct. Kings Cty. Feb. 27, 2015).
There are other instances of duplication, such as two
to four attorneys reviewing or editing the same document (Lax
Aff., Ex. E, at 14, 16, 17-18) and three to four attorneys
attending inter-office conferences (Lax Aff., Ex. E, at 14, 17).7
I am aware of the practicalities of litigation and the prudence
and need for collaboration; I am also aware of the frustration
plaintiff has experienced in trying to enforce the Award.
Nevertheless, the issues in this case are not complex and are
relatively narrow in scope.

Thus, a reduction in fees is appro-

priate for these instances of duplication.

See Ng v. King Henry

Realty, Inc., 16 Civ. 13 (PAE)(JCF), 2016 WL 6084074 at *7

7

The most egregious examples of redundancy include three
attorneys working on a motion for contempt, totaling 8.9 hours
(Lax Aff., Ex. E, at 14); four attorneys reviewing and/or drafting an order to show cause over two days, totaling 38 hours (Lax
Aff., Ex. E, at 16); three attorneys reviewing and/or drafting
subpoenas, totaling 8.6 hours (Lax Aff., Ex. E, at 17-18); and
three to four attorneys preparing for a hearing over two days,
totaling 56.5 hours (Lax Aff., Ex. E, at 20).
A few of the tasks identified above appear in block-billed
records. I cannot guess or estimate how much time counsel spent
on the matters above, as opposed to the other items in the
entries; instead, I have used the total time billed in the blockbilled entries. See infra Section III.B.3.b (explaining blockbilling).
22

(S.D.N.Y. Oct. 7, 2016) (Francis, M.J.); M.C. ex rel. E.C. v.
Department of Educ. of City of N.Y., 12 Civ. 9281 (CM)(AJP), 2013
WL 2403485 at *14 & n.19 (S.D.N.Y. June 4, 2013) (Peck, M.J.)
(Report & Recommendation), adopted by, 2013 WL 3744066 (S.D.N.Y.
June 28, 2013) (McMahon, D.J.); Auscape Int'l v. National Geographic Soc'y, 02 Civ. 6441 (LAK)(HBP), 2003 WL 21976400 at *4-*5
(S.D.N.Y. Aug. 19, 2003) (Pitman, M.J.), aff'd, 2003 WL 22244953
(S.D.N.Y. Sept. 29, 2003) (Kaplan, D.J.).

b.

Block-Billing
and Vague Time Entries

Although "block-billing," "the practice of aggregating
multiple tasks into one billing entry, is not prohibited, . . .
[the practice] can make it exceedingly difficult for courts to
assess the reasonableness of the hours billed."

LV v. New York

City Dep't of Educ., 700 F. Supp. 2d 510, 525 (S.D.N.Y. 2010)
(Holwell, D.J.) (internal quotation marks omitted); see Adusumelli v. Steiner, 08 Civ. 6932 (JMF), 09 Civ. 4902 (JMF), 10 Civ.
4549 (JMF), 2013 WL 1285260 at *4 (S.D.N.Y. Mar. 28, 2013)
(Furman, D.J.) ("[A] single billing entry might mix tasks that
are compensable with those that are not, or mix together tasks
that are compensable at different rates," making it difficult to
"attempt[] to parse out whether the number of hours spent on the

23

work performed was reasonable." (internal quotation marks omitted)); Association of Holocaust Victims for Restitution of
Artwork & Masterpieces v. Bank Austria Creditanstalt AG, 04 Civ.
3600 (SWK), 2005 WL 3099592 at *5 (S.D.N.Y. Nov. 17, 2005) (Kram,
D.J.).

"The use of the block-billing format in billing records

has prompted some courts in New York to reduce the amount of
attorneys' fees requested . . . because of the obfuscating effect
that block billing has on a court's ability to ascertain precisely how" counsel used his or her time.

Terra Energy & Res.

Tech., Inc. v. Terralinna Pty. Ltd., supra, 2014 WL 6632937 at
*5, citing Silverstein v. Goodman, 113 A.D.3d 539, 540, 979
N.Y.S.2d 308, 310 (1st Dep't 2014).
The court is also permitted to reduce fees if time
entries are too vague to explain sufficiently the hours claimed.
F.H. Krear & Co. v. Nineteen Named Trs., supra, 810 F.2d at 1265,
1268-69; Terra Energy & Res. Tech., Inc. v. Terralinna Pty. Ltd.,
supra, 2014 WL 6632937 at *5-*6.

"[S]ome specificity is required

in time entries to enable the court to determine whether a
reasonable amount of time was spent on each activity, and to
determine whether the particular activity is compensable."
Miroglio S.P.A. v. Conway Stores, Inc., 629 F. Supp. 2d 307, 313
(S.D.N.Y. 2009) (Jones, D.J.) (adopting report and recommendation).
24

Defendant cites time entries which he claims show that
plaintiff's "attorneys spent considerable time on fairly routine
matters" (Def.'s Mem., at 8-9).

A number of these entries are

block-billed, making it difficult to assess whether counsel spent
a reasonable number of hours on each task.

For example, a time

entry for September 27, 2016 reads "Research, drafting, meetings"
and totals 4.2 hours (Lax Aff., Ex. E, at 15).

A time entry on

October 13, 2016 reads "More service, Chase emails, prepping for
hearing, calls" and totals 7.9 hours (Lax Aff., Ex. E, at 17).
One attorney's entry on October 14, 2016 reads "Redacting documents, filing, preparing for hearing, email to Tofel with attachments, bank follow up" and totals 8.1 hours (Lax Aff., Ex. E, at
17).
Defendant has not identified specific time records
which he claims contain vague descriptions of services rendered;
rather, he quotes several descriptions without citing to specific
records (Def.'s Mem., at 9).

I shall not go through all of

plaintiff's time records to find vague entries; that is a task
defendant should have undertaken.

Instead, I shall examine the

specific entries identified by defendant in which he claims
plaintiff's attorneys spent "considerable time on fairly routine
matters" (Def.'s Mem., at 8-9).

Those time records contain vague

entries, such as "letter motion," "[r]esearch, prep work,"
25

"[r]esearch, drafting, meetings," "drafting, compiling," "calls,"
"[r]edacting documents," "filing" and "bank follow up."

Such

descriptions make it impossible to determine whether the attorneys' time was reasonably spent.

The vagueness of these entries,

in conjunction with plaintiff's block-billing, warrant a further
reduction in fees.

See Kirsch v. Fleet St., Ltd., 148 F.3d 149,

172 (2d Cir. 1998) (upholding reduction of fees for entries such
as "letter to court," "staff conference" and "work on motion");
Terra Energy & Res. Tech., Inc. v. Terralinna Pty. Ltd., supra,
2014 WL 6632937 at *5 (reducing fees because of entries such as
"[t]elephone [c]onference with counsel," "[r]eview efiling" and
"[r]eview email"); LV v. New York City Dep't of Educ., supra, 700
F. Supp. 2d at 526 ("Many of [the attorney's] entries are stated
in the sparest of terms."); Soler v. G & U, Inc., 658 F. Supp.
1093, 1098-99 (S.D.N.Y. 1987) (Tenney, D.J.) (reducing fees
because of entries such as "[c]all to District Court Cashier,"
"[o]utline" and "writing, research"); Matter of Estate of
Passuello, 184 A.D.2d 108, 111-12, 591 N.Y.S.2d 542, 544-45 (3d
Dep't 1992).

c.

Reduction in Fees

Under New York law, "a general contract provision for
the shifting of attorneys' fees does not authorize an award of
26

fees for time spent in seeking the fees themselves."

F.H. Krear

& Co. v. Nineteen Named Trs., supra, 810 F.2d at 1266; see
Campbell v. Mark Hotel Sponsor, LLC, supra, 2012 WL 4360011 at
*3.

The time charges attributable to plaintiff's fee application

total $9,645 (Lax Aff., Ex. E, at 20-21).8

Deducting this figure

from the $216,575 in fees sought leaves a balance of $206,930.
A further reduction of 20% is appropriate under these
circumstances.

To arrive at this amount, I reduced the fees

plaintiff seeks by 15% due to redundant staffing.

See Ng v. King

Henry Realty, Inc., supra, 2016 WL 6084074 at *7 (15% reduction
for redundant staffing).

An additional 5% reduction is warranted

due to plaintiff's attorneys' block–billing and vague time
entries.

See TufAmerica Inc. v. Diamond, 12 Civ. 3529 (AJN),

2016 WL 1029553 at *4 (S.D.N.Y. Mar. 9, 2016) (Nathan, D.J.) (5%
reduction for block-billing and vague entries), partially reconsidered, 2016 WL 3866578 (S.D.N.Y. July 12, 2016) (Nathan, D.J.);
Pilitz v. Incorporated Village of Freeport, No. CV 07-4078 (ETB),
2011 WL 5825138 at *6 (E.D.N.Y. Nov. 17, 2011) (5% reduction for
block-billing).

8

Some of the entries for work on plaintiff's summary judgment motion for fees appear in block-billed entries. I cannot
tell how much time counsel spent on the fee application as
opposed to the other items in the entries. Therefore, the fees
in those block-billed entries will be entirely disallowed.
27

These adjustments yield the following remainder:
Total Fees Sought
Fees Attributable to
Fee Application
Balance
20% Adjustment
Remainder

IV.

$216,575
($9,645)
$206,930
($41,386)
$165,544

Conclusion

For the foregoing reasons, I respectfully recommend
that plaintiff be awarded $165,544.00 in attorneys' fees and
$25,108.02 in costs.

V.

Objections

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from receipt of this Report to file written
objections.

See also Fed.R.Civ.P. 6(a).

Such objections (and

responses thereto) shall be filed with the Clerk of the Court,
with courtesy copies delivered to the Chambers of the Honorable
Katherine B. Forrest, United States District Judge, 500 Pearl
Street, Room 2230, and to the Chambers of the undersigned, 500
Pearl Street, Room 1670, New York, New York 10007.

Any requests

for an extension of time for filing objections must be directed
to Judge Forrest.

FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS

28

WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE

REVIEW.

Thomas v. Arn,

474 U.S. 140, 155 (1985); United States

v. Male Juvenile, 121 F. 3d 34, 38
Pension Fund v. Herrmann,

(2d Cir. 1997); IUE AFL-CIO

9 F. 3d 1049, 1054

(2d Cir. 1993); Frank

v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair
Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714
F.2d 234, 237-38

Dated:

(2d Cir. 1983)

(per curiam).

New York, New York
January 31, 2017
Respectfully submitted,

HENRY PITM
United States Magistrate Judge

Copies transmitted to:
All counsel

29