Pu v. Russell Publishing Group, Ltd.

Filing 93

MEMORANDUM AND OPINION: For the foregoing reasons, Defendant's motion for contractual attorney's fees and costs, (Doc. 60), is GRANTED, and Defendant is awarded $49,367.64 in attorneys fees and costs ($48,068 attorney's fees and $1,299.64 in costs). The Clerk of Court is respectfully directed to terminate the open motion at Document 60. (Signed by Judge Vernon S. Broderick on 9/30/2017) (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
RICHARD PU,
:
:
Plaintiff,
:
:
- against :
:
RUSSELL PUBLISHING GROUP, LTD.,
:
:
Defendant. :
:
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9/30/2017

15-CV-3936 (VSB)
MEMORANDUM & OPINION

Appearances:
Richard Pu
New York, New York
Plaintiff Pro Se
Alexander D. Widell
Moritt Hock & Hamroff LLP
Garden City, New York
Counsel for Defendant

VERNON S. BRODERICK, United States District Judge:
Before me is the motion of Russell Publishing Group, Ltd. (“Defendant” or “RPG”) for
contractual attorney’s fees and costs, (Doc. 60), as well as the parties’ briefs filed at my request
concerning whether or not I should impose attorney’s fees and costs for sanctionable conduct
under Rule 11. For the reasons that follow, Defendant’s motion for contractual attorney’s fees
and costs, (Doc. 60), is GRANTED, and the total recovery is $49,367.64. Because I grant
Defendant’s motion for contractual attorney’s fees and costs, I do not separately decide whether
fees and costs would be warranted under Rule 11.

Background1
Plaintiff, an attorney proceeding pro se, represented Defendant in a previous litigation
which settled, and in which he received attorney’s fees pursuant to and from that settlement.
Plaintiff also received reimbursement for expenses from Defendant. After the settlement,
Plaintiff initiated this action (1) alleging that he was owed an additional amount for a previously
undisclosed unpaid reimbursement in connection with the prior litigation, and also (2) requesting
reformation of the terms of the Retainer Agreement such that he would receive an additional
payment of $100,000.
On September 2, 2016, I issued a decision granting Defendant’s motion for judgment on
the pleadings. (Doc. 52.) In the September 2016 Decision, I noted that Plaintiff’s claims were
“frivolous, and the prosecution of the case undertaken in an effort to harass his former client.”
(Id. at 23.) In accordance with Rule 11, I therefore ordered Plaintiff to show cause as to why I
should not award costs and fees to Defendant. (Id.) I further noted that Defendant is entitled to
costs and fees by the terms of the Retainer Agreement, and explained that my ruling that Plaintiff
show cause as to why Defendant should not be awarded costs and fees as a Rule 11 sanction does
not preclude Defendant, as the prevailing party, from seeking enforcement of the fees provision
in the Retainer Agreement. (Id. at 23 n.18.)
Procedural History
Following the September 2016 Decision, on September 8, 2016, Plaintiff filed his “initial
brief” in response to my order to show cause as to why sanctions should not be imposed, (Doc.
58), as well as a declaration in support thereof, (Doc. 59). Defendant filed its brief in support of

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Capitalized terms not otherwise herein defined are given the meaning ascribed to them in my September 2, 2016
decision (the “September 2016 Decision”). (Doc. 52.) A more detailed background of this action can be found in
the September 2016 Decision.

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imposing Rule 11 sanctions on October 11, 2016, (Doc. 73), along with an accompanying
declaration with exhibits, (Doc. 74). Plaintiff filed his reply on October 31, 2016, (Doc. 85),
along with a declaration and exhibit, (Doc. 84).
On October 7, 2016, Defendant filed its motion papers for attorney’s fees and costs under
the terms of the Retainer Agreement. (Docs. 60–62.) Plaintiff filed his opposition papers on
October 12, 2016, (Docs. 77–78), and Defendant filed its reply papers on October 14, 2016,
(Docs. 79–80). On October 14, 2016, Plaintiff requested leave to file a sur-reply, (Doc. 81), and
I denied his request on October 17, (Doc. 82).
Contractual Attorney’s Fees and Costs
Applicable Law
Under New York law, a prevailing party may collect attorney’s fees if the “award is
authorized by agreement between the parties, statute or court rule.” U.S. Bank Nat’l Ass’n v.
Dexia Real Estate Capital Mkts., No. 12 Civ. 9412 (PAE), 2016 WL 4368377, at *3 (S.D.N.Y.
Aug. 12, 2016) (quoting Hooper Assocs. Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 491
(1989)). Courts infer a party’s intention to provide for attorney’s fees in relation to litigation
arising out of a breach of contract only if “the intention to do so is unmistakably clear from the
language of the contract.” Id. (quoting Bank of N.Y. Trust Co., N.A. v. Franklin Advisors, Inc.,
726 F.3d 269, 283 (2d Cir. 2013)). If there is an enforceable contractual fee-shifting provision,
“the court will order the losing party to pay whatever amounts have been expended by the
prevailing party, so long as those amounts are not unreasonable.” Id. (quoting F.H. Krear & Co.
v. Nineteen Names Trs., 810 F.2d 1250, 1263 (2d Cir. 1987)).
Application and Calculation
Here, the Retainer Agreement explicitly provides that “[i]n the event that [Richard Pu,

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Esq.] maintains an action or proceeding to enforce [his] rights hereunder, the prevailing party
shall be entitled to recover its reasonable attorney[’s] fees and disbursements.” (Retainer
Agreement ¶ 10.)2 The language of the Retainer Agreement is clear that RPG as the prevailing
party is entitled to an award of attorney’s fees and costs. See Lockheed Martin Corp. v. Retail
Holdings, N.V., 639 F.3d 63, 69 (2d Cir. 2011) (“When an agreement is unambiguous on its face,
it must be enforced according to the plain meaning of its terms.”). Indeed, Plaintiff’s opposition
does not appear to dispute that the Retainer Agreement evinces a clear intention to provide for
fees and costs. (See generally Pl.’s Opp.)3
I therefore turn to whether the requested $48,893 in attorney’s fees and $1,299.64 in costs
is reasonable. (See Def.’s Mem. 3; Widell Decl. ¶ 13.)4 In support of the requested attorney’s
fees, defense counsel outlines his extensive experience, details the relatively low hours in
comparison to the length of time the case has been pending, and cites the amount at issue in the
litigation as well as the ultimate results achieved. (Def.’s Mem. at 6–8).
Fee awards in the Second Circuit are generally calculated “‘under the lodestar method’–
sometimes referred to as the ‘presumptively reasonable fee’ method.” Amaprop Ltd. v.
Indiabulls Fin. Servs. Ltd., No. 10 Civ. 1853 (PGG), 2011 WL 1002439, at *4 (S.D.N.Y. Mar.
16, 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany and
Albany Cty. Bd. of Elections, 522 F.3d 182, 183 (2d Cir. 2008)), aff’d, 483 F. App’x 634 (2d Cir.
2012). In applying the lodestar method, courts first calculate the “lodestar” amount by
multiplying the reasonable number of hours worked on the case by a reasonable hourly rate of

2

“Retainer Agreement” refers to the Retainer Agreement entered into by Plaintiff and RPG, attached as Exhibit B to
the Declaration of Alexander D. Widell. (Doc. 61-2.)
3

“Pl.’s Opp.” refers to Plaintiff’s Opposing Brief. (Doc. 78.)

4
“Def.’s Mem.” refers to the Memorandum of Law in Support of Defendant’s Motion for an Award of Contractual
Attorneys’ Fees. (Doc. 62.) “Widell Decl.” refers to the Declaration of Alexander D. Widell. (Doc. 61.)

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compensation, and then adjust the lodestar based upon case-specific considerations. See Barfield
v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 151 (2d Cir. 2008). “The determination of
reasonable hourly rates is a factual issue committed to the court’s discretion, and is typically
defined as the market rate a ‘reasonable, paying client would be willing to pay.’” Amaprop,
2011 WL 1002439, at *6 (quoting Arbor Hill, 522 F.3d at 184). “In determining what rates are
reasonable, a court should rely both on evidence as to the rates counsel typically charges, and its
own knowledge of comparable rates charged by lawyers in the district.” Id. (internal quotation
marks and citation omitted). The size of the firm may be a factor “if it would affect the hourly
rate, ‘primarily due to varying overhead costs.’” Id. (citation omitted).
I turn first to defense counsel’s customary rate, as well as the market rates “prevailing in
the community for similar services by lawyers of reasonably comparable skill, experience, and
reputation.” Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998) (quoting Blum v. Stenson,
465 U.S. 886, 896 n.11 (1984)). Defense counsel requests fees ranging from $550 per hour to
$570 per hour for work completed by counsel, who has practiced for over twenty five years and
is a partner in a law firm, as well as $105 per hour for 2.9 hours of work completed by a
paralegal. (Def.’s Mem. 5–6.) As per Defendant’s engagement letter with defense counsel,
defense counsel’s firm charges rates ranging from $290 per hour for junior associates to $695 per
hour for senior partners; defense counsel’s rate was identified as a “current rate” of $550 per
hour. (See Widell Reply Dec. Ex. C.)5 Defense counsel further states that his rates were “at or
below [the firm’s] customary rates,” (Widell Decl. ¶ 15), and attaches his biography detailing his
years of experience, (id. ¶ 16, Ex. D). Finally, Defendant cites to myriad cases in this District
awarding partners similar or higher hourly rates. (Def.’s Mem. 5–6.) Therefore, and upon

5

“Widell Reply Decl.” refers to the Reply Declaration of Alexander D. Widell. (Doc. 80.)

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considering the relevant factors, I find defense counsel’s hourly rate of $550 per hour to $570 per
hour reasonable. See, e.g., Amaprop, 2011 WL 1002439, at *5–6 (fees of $616 per hour
approved for partner with less than twenty five years of experience at larger firm); Merck Eprova
AG v. Gnosis S.P.A., No. 07 Civ. 5898 (RJS), 2011 WL 114929, at *9 (S.D.N.Y. Mar. 17, 2011)
(“Seasoned trial attorneys have been routinely awarded fees at rates of between $250 and $600 in
this District.”).
I turn next to the reasonableness of the hours billed. Here, defense counsel billed 89.5
hours in a ten-month period, including 2.9 hours of paralegal time. (See Def.’s Mem. 7–8.) In
examining the contemporaneous time records submitted in support of Defendant’s application,
(Widell Decl. Ex. C), it is clear that, with one exception, defense counsel’s hours were
reasonable and commensurate to the tasks completed.6 Defense counsel candidly acknowledges
that he erroneously billed Defendant for 1.5 hours. (Def.’s Reply 9 n.4.)7 As such, I exclude the
amount billed for that 1.5 hours of time—$825—from Defendant’s total requested award of
attorney’s fees, leading to a total recovery of $48,068. See Amaprop, 2011 WL 1002439, at *7
(excluding “‘excessive, redundant or otherwise unnecessary hours’ from the calculation”
(quoting Quarantino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999))).
Finally, Defendant seeks $1,299.64 in costs, which includes photocopying costs, mailing
costs, court filing and transcript fees, and legal research charges. (Widell Decl. Ex. C.) Plaintiff
challenges the costs charged for legal research services and photocopying. (See Pl.’s Opp. 7.)
“Attorney’s fees awards include those reasonable out-of-pocket expenses incurred by

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In this sense, I disagree with Plaintiff’s argument that “the number of hours spent on some projects was excessive.”
(Pl.’s Opp. 7.)

7
“Def.’s Reply” refers to Defendant’s Reply Memorandum of Law in Further Support of its Motion for an Award of
Contractual Attorneys’ Fees. (Doc. 79.)

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attorneys and ordinarily charged to their clients.” Amaprop, 2011 WL 1002439, at *9 (citation
omitted). Computer research fees are compensable if a firm regularly bills its clients for the use
of those services, although a court may deny compensation if defendants fail to adequately
document the legal research charges, such as by failing to provide invoices from the service. See
id. (citation omitted). Photocopying costs are also recoverable as long as the party “make[s]
clear what documents were copied, how many copies were made, the cost per page charged for
copying, and why the copies were necessary.” Id. (citation omitted).
I find the entirety of Defendant’s requested costs reasonable. Here, Defendant’s
engagement letter with counsel clearly notes that the firm charges for certain costs and expenses,
including, but not limited to, “computerized legal research” and “copying.” (Widell Reply Decl.
Ex. C.) Furthermore, in the contemporaneous billing records provided, defense counsel includes
the invoice numbers for the legal research charges, as well as the quantity of pages and price per
page for the photocopying costs. (Widell Decl. Ex. C.) Additionally, although Defendant has
not made clear “what documents were copied” or “why the copies were necessary,” Plaintiff
does not contend that the photocopies were made for any purpose other than in furtherance of
this litigation, and defense counsel further provides the dates on which these photocopies were
made, most of which correspond precisely to the dates identified in the billable time charges.
(See id.) As such, Defendant’s requested costs of $1,299.64 are approved, leading to a total of
$49,367.64 in attorney’s fees and costs.8

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Plaintiff also argues that Defendant’s motion is untimely. (Pl.’s Opp. 2–3.) Putting to the side the issue of whether
a timeliness argument is proper in the context of a motion for contractual attorney’s fees, I find Plaintiff’s position
unmeritorious, given my order that the parties agree to a briefing schedule as to the order to show cause and
subsequent notation as to Defendant’s right to move for contractual attorney’s fees, (Doc. 52 at 23 & n.18),
Plaintiff’s submission of an agreed-upon briefing schedule for the order to show cause on September 7, 2016, (Doc.
54), and Defendant’s later confirmation with Chambers that, given the related nature of the issues involved, it should
follow the same briefing schedule on its motion for attorney’s fees.

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Rule 11 Sanctions
Federal Rule of Civil Procedure 11 “permits the imposition of sanctions when an attorney
signs a pleading that is interposed for an improper purpose without reasonable inquiry or without
grounds justifying the argument advanced.” Fox v. Boucher, 794 F.2d 34, 37–38 (2d Cir. 1986).
“Courts look with disfavor on [any] sort of unfounded spite action.” Id. at 38. Additionally,
when the litigant is an attorney, as here, sanctions are “particularly appropriate.” Id. (citing
Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980)). Although I find here that Plaintiff
acted “in bad faith, vexatiously, wantonly, and for oppressive reasons,” Alyeska Pipeline Serv.
Co. v. Wilderness Soc’y, 421 U.S. 240, 258–59 (1975) (quoting F.D. Rich Co. v. U.S. for Use of
Indus. Lumber Co., 417 U.S. 116, 129 (1974)), given that I award attorney’s fees and costs under
the parties’ Retainer Agreement, I need not reach the question of attorney’s fees and costs under
Rule 11.
Conclusion
For the foregoing reasons, Defendant’s motion for contractual attorney’s fees and costs,
(Doc. 60), is GRANTED, and Defendant is awarded $49,367.64 in attorney’s fees and costs
($48,068 attorney’s fees and $1,299.64 in costs). The Clerk of Court is respectfully directed to
terminate the open motion at Document 60.
SO ORDERED.
Dated: September 30, 2017
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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