Gym Door Repairs, Inc. et al v. Young Equipment Sales, Inc. et al

Filing 1063

MEMORANDUM OPINION AND ORDER: for 977 Report and Recommendations, 1044 Report and Recommendations. The Court has considered all the arguments by the parties. To the extent not specifically discussed, the remaining arguments are either moot or without merit. The Court adopts the Magistrate Judge's Report & Recommendation in its entirety. Accordingly, the objections to the Report and Recommendation of the Magistrate Judge dated March 31, 2023 are overruled. Any motion by Total Gym for Rule 11 sanctions is denied. The Clerk is directed to close all open motions. SO ORDERED. (Signed by Judge John G. Koeltl on 9/29/2023) (kv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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GYM DOOR REPAIRS, ET AL.,
Plaintiffs,
- against TOTAL GYM REPAIRS, ET AL.,

15-cv-4244 (JGK)
MEMORANDUM OPINION AND
ORDER

Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
In a Report and Recommendation, dated February 22, 2021,
Magistrate Judge Ona Wang disposed of various claims and
disputes relating to attorney’s fees and costs. ECF No. 977. In
particular, the Magistrate Judge concluded that the defendant
Total Gym Repairs (“Total Gym” or the “Total Gym Defendant”) was
entitled to an award of attorney’s fees in the amount of
$91,810.00. Id.
The Magistrate Judge also found that the defendant Guardian
Gym Equipment (“Guardian” or the “Guardian Defendants”), was
entitled to an award of attorney’s fees but, because the
Guardian Defendants had failed to submit sufficient
documentation for such an award, their request for such an award
should be denied. The Magistrate Judge also ruled on various
objections to the Bill of Costs that had been determined by the
Clerk of the Court. Id. On March 26, 2021, this Court issued a
Memorandum Opinion and Order that disposed of the objections to

the Magistrate Judge’s February 22, 2021 Report and
Recommendation. ECF No. 989. In particular, this Court
determined that Total Gym was entitled to $91,810 in attorney’s
fees. The Court also determined that the motion by the Guardian
Defendants for attorney’s fees should be remanded to the
Magistrate Judge for a Report and Recommendation on the
appropriate amount of attorney’s fees. Finally, the Court
determined that the Clerk’s Taxation of Costs should be modified
so that the Guardian Defendants, the Total Gym Defendants, and
Defendant Carl T. Thurnau (“Thurnau”) were entitled to the pro
rata share of the costs of an original copy and one copy of each
deposition for which reimbursement was sought. See id.
After remand, which included several rounds of submissions
of billing information from counsel for the Guardian Defendants,
Furgang & Adwar, LLP (“F&A”), the Magistrate Judge issued the
Report and Recommendation that is now at issue. ECF No. 1044. In
that March 31, 2023 Report and Recommendation, the Magistrate
Judge found that F&A’s billing records were unreliable and, in
any event, the request for nearly $700,000 in fees – nearly
eight times the amount awarded to co-defendant Total Gym –
should be reduced for a variety of reasons including excessive
billing, vagueness of billing records, block billing, and
billing for clerical or administrative tasks. The Magistrate
Judge recommended an award of attorney’s fees to Guardian of
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$56,285. The Magistrate Judge also recommended an award of costs
based on the pro rata share of an original and one copy of the
relevant depositions in the amount of $25,420.43 to Thurnau,
$8,717.91 to Total Gym, and $17,626.61 to Guardian ECF. No. 1044
at 34.
The plaintiffs and Guardian have now raised objections to
the Report and Recommendation. See, e.g., ECF Nos. 1048, 1055.
Various parties have responded to those objections and Total Gym
has sought Rule 11 sanctions against the Plaintiffs based on the
Plaintiffs’ allegedly frivolous effort to reduce the amount of
the attorney’s fee awarded to Total Gym and to reduce the amount
of the deposition costs to be awarded to Total Gym. See ECF No.
1052 at 3. Although defendant Tri-State has no pecuniary
interest in the issues determined by the Magistrate Judge, TriState has added its support for the reduction of fees awarded to
Guardian. See ECF No. 1059. For most of the litigation, F&A was
also representing Tri-State.
I.
The Court reviews de novo each of the elements of the
Report and Recommendation to which an objection has been filed.
See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). The Court
may adopt those portions of the Report and Recommendation “to
which no specific written objection is made, as long as the
factual and legal bases supporting the findings and conclusions
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set forth in those sections are not clearly erroneous.” United
States Sec. & Exch. Comm’n v. Collector’s Coffee Inc., 603 F.
Supp. 3d 77, 83 (S.D.N.Y. 2022) (citing Fed. R. Civ. P. 72(b);
Thomas v. Arn, 474 U.S. 140, 149 (1985)). 1 There are no portions
of the Report that were not objected to that are clearly
erroneous.
The Court -- after carefully considering the thorough
Report and Recommendation and the objections -- concludes that
the objections have no merit and the Report and Recommendation,
on de novo review, is amply supported. The Court therefore
adopts the Report and Recommendation.
A.
The plaintiffs have raised two objections to the Report and
Recommendation, the first concerns the issue of the award of
costs for the depositions, and the second relates to a request
for an additional reduction in the attorney’s fees to be awarded
to Total Gym and to Guardian.
i.
The plaintiffs argue that the Magistrate Judge should not
have awarded the pro rata costs of the relevant depositions plus
one copy to defendants Thurnau, Total Gym, and Guardian. See ECF

Unless otherwise noted, this Memorandum Opinion and Order omits
all internal alterations, citations, footnotes, and quotation
marks in quoted text.
1

4

No. 1048 at 7-9. The plaintiffs argue that the defendants used a
court reporting service that provided electronic copies of the
depositions to the defendants and therefore it was improper to
provide the relevant defendants with the pro rata costs of each
deposition and one copy. See ECF No. 1048 at 9.
This objection is overruled for many reasons. The
plaintiffs originally argued to the Magistrate Judge that the
defendants should be provided with the pro rata costs of the
relevant depositions and one copy before the Magistrate Judge
issued the Report and Recommendation on February 2, 2021. See
ECF No. 979 at 16. That request was consistent with the Local
Civil Rule 54.1, which was carefully followed by the Magistrate
Judge. See ECF No. 977 at 26-28.
The plaintiffs provide no legal basis for their new request
to limit the recoverable costs for the depositions. The request
is also foreclosed by the fact that there was no objection filed
by the plaintiffs to that portion of the Magistrate Judge’s
February 2, 2021 Report and Recommendation, as indeed there
could not be, because the Magistrate Judge followed the request
of the plaintiffs. All that the Magistrate Judge did in the
March 31, 2023 Report and Recommendation was to calculate the
pro rata share of the relevant depositions with one copy to
assess the costs recoverable by Thurnau, Total Gym, and
Guardian. The plaintiffs have not suggested that those
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calculations are in any way inaccurate. Therefore, the
plaintiffs’ objection to the Magistrate Judge’s calculation of
the costs recoverable by Thurnau, Total Gym, and Guardian for
the relevant depositions and copies is overruled.
ii.
The plaintiffs also argue that the attorney’s fees awarded
to the Guardian Defendants should be reduced to reflect the fact
that attorney’s fees are recoverable in this case only for the
Patent, Copyright, and Lanham Act Claims (the “Recoverable
Claims”) that were rejected, but not for the tortious
interference with business claims for which attorney’s fees were
not recoverable. See ECF No. 1048. The plaintiffs argue that the
prior award of the attorney’s fees to Total Gym in the amount of
$91,810 should be reduced by some percent to reflect that only
the amount of fees spent on defending against the Recoverable
Claims are eligible for reimbursement by the plaintiffs. Id. at
9. The plaintiffs also argue that the fee award to the Guardian
Defendants should also be reduced by some percentage to reflect
that only reimbursement for the fees attributable to defending
against the Recoverable Claims should be awarded. These
objections are overruled. Id.
With respect to the attorney’s fees awarded to Total Gym,
those fees were determined by the Magistrate Judge in the
February 22, 2021 Report and Recommendation. ECF No. 977. While
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the plaintiffs objected to that Report and Recommendation on the
grounds that the fees sought by Total Gym were excessive, see
ECF No. 979 at 15-16, the plaintiffs did not argue that the fees
should be apportioned between the Recoverable Claims and the
fees necessary to defend against the claim of tortious
interference with business relations. That objection is
therefore waived, and there is no jurisdiction to review it now.
See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension
Fund v. Herrmann, 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, 58 (2d Cir. 1988); McCarthy v. Manson, 714
F.2d 234, 237–38 (2d Cir. 1983).
Moreover, this Court adopted the Report and Recommendation
with respect to the award of fees to Total Gym: “Because the
Magistrate Judge’s Report and Recommendation is persuasive,
reasonable, and legally correct with respect to the amount of
fees owed to Total Gym, and because the plaintiffs’ objections
are without merit, the Court adopts the portion of the Report
and Recommendation awarding Total Gym $91,810.00.” ECF No. 989
at 11. While the Court remanded several issues to the Magistrate
Judge, including the proper amount of attorney’s fees to be
awarded to the Guardian Defendants and the pro rata amounts of
the deposition costs, the amount of attorney’s fees to be
awarded to Total Gym was not among them. See id. at 17-18. The
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plaintiffs did not move for reconsideration of that decision and
there is no basis for reconsideration now. Indeed, for the
reasons explained below, the argument that fees should be
reduced because fees are only recoverable on the Recoverable
Claims is without merit.
The plaintiffs also argue that the amount of fees awarded
to the Guardian Defendants should be reduced by some percentage
to reflect the fact that only fees incurred in defending against
the Recoverable Claims are recoverable and not fees for
defending against the claim for intentional interference with
business relations claims. However, the Magistrate Judge
explained that the vagueness of the F&A billing records made it
impossible to segregate the time entries related solely to the
Recoverable Claims. See ECF No. 1044 at 27-29. Accordingly, the
Magistrate Judge took a 20% reduction for the vagueness of the
entries. Given the number of reductions justified in this case,
and the interrelatedness of the claims (in particular, the
Lanham Act claims and the tortious interference claims), this
was a reasonable reduction, and no further reduction on this
basis would be reasonable. Kirsch v. Fleet St., Ltd., 148 F.3d
149, 173 (2d Cir. 1998)(affirming a reduction of 20%); see also
Raja v. Burns, 43 F.4th 80 (2d Cir. 2022); Ritchie v. Gano, 756
F. Supp. 2d 581, 583 (S.D.N.Y. 2010); Congregation Rabbinical
Coll. of Tartikov, Inc. v. Vill. of Pomona, 188 F. Supp. 3d 333,
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344 (S.D.N.Y. 2016). Therefore, the plaintiffs’ objections that
the Magistrate Judge should have imposed an additional reduction
on the Guardian fees is overruled.
B.
The Guardian Defendants object to the Magistrate Judge’s
reduction of their claimed fees from almost $700,000 to $56,285.
ECF No. 1055, ECF No. 1044 at 34. These objections are
overruled. The Magistrate Judge detailed the reasons that the
billing records submitted by F&A were highly unreliable. ECF No.
1044 at 14-23. The Magistrate Judge then detailed numerous
specific objections to the billing records and took appropriate
discounts for excessive billing, vagueness, block billing, and
charges for clerical and administrative tasks. Id. at 23-33. In
response, the Guardian Defendants challenge a few of the
examples used by the Magistrate Judge, see ECF No. 1055 at 2124, but do not come close to challenging the numerous examples
cited by the Magistrate Judge that led the Magistrate Judge to
distrust the billing records supplied, and to reject individual
entries. See ECF No. 1044 at 14-23.
Indeed, it is breathtaking that the Guardian Defendants
sought almost $700,000 for the work of its counsel who, for most
of the period, was also representing a co-defendant – Tri-State.
F&A represented that it was splitting the time charged between
the Guardian Defendants and Tri-Sate, with each bearing half the
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cost of representation. ECF Nos. 1017 at 13:5-21, 1044 at 36.
That would mean that F&A charged nearly $1.6 million while its
co-defendant was awarded about $91,000 in attorney’s fees for
similar representation. F&A provides no persuasive explanation.
One particular objection by the Guardian Defendants
warrants mention. The Magistrate Judge determined to exclude
time entries for attorney’s fees after October 30, 2018 because
by that time, the Guardian Defendants had succeeded in having
the claims against them dismissed and the Magistrate Judge
concluded that the subsequent work was in connection with
obtaining a fee award and such work was not reasonably
compensable. ECF No. 1044 at 24; see Comm’ns Imp. Exp. S.A. v.
Republic of the Congo, 19 MISC. 195 (KPF), 2021 WL 4991716, at
*7 (S.D.N.Y. Oct. 27, 2021) (“While the Court has awarded [fees
on fees] in the past, it will not do so here.”). The Guardian
Defendants do not contend that they are entitled to fees for the
collection of fees, but object that there was other work after
October 31, 2018 that was not in connection with recovering
attorney’s fees. ECF No. 1055 at 3-4, 15-20; ECF No. 1060 at 45. However, a review of the docket sheet reflects that the vast
amount of the work was in connection with the attempted recovery
of fees and was caused by the problems in obtaining reasonably
accurate billing records from F&A. The additional work that is
reflected in the docket appears to address matters such as
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sanctions motions related to the production of documents, but
the Guardian Defendants do not explain how that work was
substantial or how it was compensable in connection with the
specific Recoverable Claims.
Therefore, the Court overrules the objections by the
Guardian Defendants to the Report and Recommendation with
respect to the award of $56,285 for attorney’s fees to the
Guardian Defendants. The Report and Recommendation is thorough
and well-reasoned and should be adopted.
Finally, Total Gym seeks Rule 11 sanctions against the
plaintiffs for having sought to reduce the attorney’s fees
awarded to Total Gym and for attempting to reduce the costs
awarded to Total Gym. ECF No. 1052 at 15-18. The application is
plainly improper under Rule 11. It is not made in a separate
motion and there is no indication that the required notice and
opportunity to withdraw was provided to the plaintiffs. See Fed.
R. Civ. P. 11(c)(2). Moreover, while extremely misguided, it
could not be said that the plaintiffs’ objections violated Rule
11. The request for Rule 11 sanctions is denied.
Conclusion
The Court has considered all the arguments by the parties.
To the extent not specifically discussed, the remaining
arguments are either moot or without merit. The Court adopts the
Magistrate Judge’s Report & Recommendation in its entirety.
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