Shim-Larkin v. City of New York

Filing 578

MEMORANDUM AND ORDER granting in part and denying in part 554 Motion for Attorney Fees. For the reasons set forth above, pursuant to Fed. R. Civ. P. 37(a)(5) and the Court's inherent authority, Shim-Larkin is awarded $114.90, the reaso nable expenses she incurred in connection with the February 32, 2019 spoliation motion for: (1) printing ($41.40); (2) traveling to the courthouse ($66.00); and (3) preparing courtesy copies of documents for deposit at the courthouse (&# 036;7.50). The defendant is directed to tender $114.90 to Shim-Larkin within fourteen (14) days of the date of this order. SO ORDERED. (Signed by Magistrate Judge Kevin Nathaniel Fox on 1/3/2020) (ks) Transmission to Finance Unit (Cashiers) for processing.

declaration, disclosed that relevant information on his cellular telephone had been lost
permanently. It is that lost electronically stored information that was the focus of Shim-Larkin’s
Rule 37 spoliation motion. The pages Shim-Larkin printed comprise, in whole or in part, letters,
letter motions, formal motions, replies and court orders. According to Shim-Larkin, on occasion,
the materials she printed were for her benefit solely; however, on other occasions she printed
materials twice, one copy for her and another for submission, as a courtesy copy, to the Court.
Shim-Larkin contends that she traveled on nine occasions: August 7, 2017; October 17,
2017; November 30, 2017; December 6, 2017; January 9, 2019; March 12, 2019; March 25,
2019; March 27, 2019, and September 23, 2019, to and from the courthouse law library to
conduct “legal research concerning the communication records between Kravitz and [Miguel]
Morel,” another DPR employee. In addition, Shim-Larkin maintains that on six occasions:
November 6, 2017; December 11, 2017; October 19, 2018; January 28, 2019; March 29, 2019;
and September 27, 2019, she visited the NYLAG Pro Se Legal Clinic, which is located in the
courthouse, seeking “legal advice concerning the communication records between Kravitz and
Morel.” Shim-Larkin contends that each one-way trip, via public transportation, cost her $2.75.
According to Shim-Larkin, she also made nine additional visits to the courthouse to
deliver, to the Court, courtesy copies of various documents she filed with the Clerk of Court.
However, four of those visits predate the February 23, 2019 spoliation motion. Shim-Larkin
maintains that the courtesy copies she delivered to the courthouse were encased in envelopes and
she employed “multiple tabs” with the courtesy copy documents she prepared for the Court.
Shim-Larkin estimates that on each of the nine occasions when she delivered courtesy copies to

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the courthouse, she expended $1.50 on the envelope and the tabs. Therefore, she seeks to
recover $13.50 for this expenditure.
The defendant contends that the “Plaintiff’s request for expenses is unreasonable.”
According to the defendant, the “Plaintiff may only be compensated for identifiable, out-ofpocket disbursements for items such as photocopying, travel, and telephone costs.” The
defendant asserts that Shim-Larkin estimates that 35 cents is the cost per page for the printing she
undertook; however, Shim-Larkin “fails to provide any proof of that cost, including receipts.” In
like manner, the defendant maintains that Shim-Larkin “fails to provide any evidence of her
transportation and service costs including metro card statements, receipts, bank statements, or
similar documents to demonstrate the actual cost of her alleged expenditures on transportation,
envelopes and tabs.”
In addition, the defendant notes that Shim-Larkin “offers no evidence that the dates upon
which she traveled to the law library or the pro se clinic were solely for research and advice
related to her February 23, 2019 motion, inasmuch as plaintiff has filed numerous letter motions
and formal motions on a variety of issues in this action between August 2017 and March 2019,
not merely limited to the issue raised in her February 23, 2019 motion.” The defendant contends
that “Plaintiff seeks reimbursement for travel to the law library and pro se clinic on dates after
her February 23, 2019 motion was fully submitted and after the decision on the motion was
entered. Such costs are not a reasonable expense related to the filing of the motion and should not
be awarded.”
The defendant urges that no award be made with respect to Shim-Larkin’s request to
recoup expenses associated with her internet usage, laptop usage and her telephone bill because,

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as Shim-Larkin acknowledges, the assigned district judge “previously held that Plaintiff’s request
for these types of fees is unreasonable.” The court reasoned, in that instance, that these types of
fees were not directly related to the defendant’s failure to meet its discovery obligations, the
conduct that occasioned the award of expenses to Shim-Larkin at that time. The defendant
maintains that “here, Plaintiff’s claims for reimbursement related to internet usage, laptop usage
and her phone bill are not a direct result of the motion practice related to the motion for sanctions
filed on February 23, 2019.” Thus, no award for these expenses is warranted. In summary, the
defendant contends that, in the absence of: (1) documentary evidence supporting Shim-Larkin’s
claimed expenses, and (2) evidence establishing a correlation between the February 23, 2019
spoliation motion and Shim-Larkin’s internet, laptop and telephone usage and all her visits to the
courthouse library to conduct research and to the pro se clinic to obtain legal advice, Shim-Larkin
has failed to establish that the expenses she seeks to recoup are related to the February 23, 2019
spoliation motion and are reasonable.
When a motion made pursuant to Rule 37 of the Federal Rules of Civil Procedure is
granted, “the Court must, after giving an opportunity to be heard, require the party . . . whose
conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the
movant’s reasonable expenses incurred in making the motion, including attorney’s fees.” Fed. R.
Civ. P. 37(a)(5). A court may draw upon its own knowledge and experience when assessing the
reasonableness of an attorney’s fee application. See Schoolcraft v. City of New York, No. 10
Civ. 6005, 2016 WL 4626568, at *4 (S.D.N.Y. Sept. 6, 2016). In addition, when a court finds
that excessive fees are being sought through a fee application, it may exercise its discretion and
employ a percentage reduction to trim fat from the fee application. See Marvin S. Mishkin Law

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Office v. Lopalo, 767 F.3d 144, 150 (2d Cir. 2014). The Court discerns no reason why these
same precepts should not be applicable when a court is charged with assessing an application for
reasonable expenses made by a pro se litigant because, in both instances, ultimately, “it is for the
court to decide what amount is proper” to award. 8B Charles Alan Wright, Arthur R. Miller &
Richard L. Marcus, Federal Practice and Procedure § 2288 (3d ed. 2010). In determining what
amount is proper to award a pro se litigant for expenses incurred in connection with litigation, a
court can “relax the documentation requirements” it might normally demand of an attorney,
owing to the pro se status of the applicant for expenses. Luna v. Harris, 691 F. Supp. 624, 629
(E.D.N.Y. 1988). In the case at bar, the Court has determined not to exercise its discretion and
employ a percentage reduction to trim fat from Shim-Larkin’s expenses request; instead, the
various categories of expenses are analyzed below.
Printing Costs
Shim-Larkin estimates that a reasonable per-page cost for printing the 276 pages
referenced in her declaration is 35 cents. Shim-Larkin did not provide any facts to the Court
respecting the ground(s) upon which her estimate of the per page printing cost was based.
Absent knowing what factual information informed the estimate, the Court is unable to conclude
that the estimate is reasonable and not arrived at arbitrarily. The estimated per page printing cost
proffered by Shim-Larkin is also peculiar because the Court is aware that within walking distance
of the courthouse, two commercial entities: FedEx Office® and Staples® offer copying services
at 15 cents per page. Given the frequency with which Shim-Larkin visited the courthouse, as
recounted in her declaration, she could have availed herself of the much less costly printing
services offered by either of these commercial establishments. Using 15 cents as a per page

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printing cost would reduce Shim-Larkin’s estimated printing costs from $178.50 to $41.40.
Based on: 1) Shim-Larkin’s failure to provide information about the basis(es) for her 35 cents per
page printing cost estimate; and 2) the Court’s own knowledge of the per page copying fee
charged by commercial printing establishments located near the courthouse, the Court finds that
Shim-Larkin’s 35 cents per page printing cost estimate is not reasonable.
Travel and Service Costs
Shim-Larkin traveled to the courthouse on 23 occasions to: (a) do research in the
courthouse library; (b) obtain advice from the NYLAG Pro Se Legal Clinic; and (c) deliver to the
courthouse courtesy copies of documents she filed with the Clerk of Court. Seven of the dates on
which Shim-Larkin traveled to the courthouse: August 7, 2017; October 17, 2017; November 6,
2017; November 16, 2017; November 30, 2017; December 6, 2017; and December 11, 20171
precede January 18, 2018, the date of Kravitz’s declaration disclosing that relevant electronically
stored information had been lost: the fact upon which the spoliation motion was predicated.
Shim-Larkin failed to explain why expenses she incurred for her trips to the courthouse in 2017,
before the foundation upon which her spoliation motion rested – the permanent loss of Kravitz’s
relevant electronically stored information – was made known to her, are reasonably related to the
February 23, 2019 spoliation motion and should be awarded to her. The Court finds that
requiring the defendant to reimburse Shim-Larkin for these expenses, is not reasonable.

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On December 11, 2017, Shim-Larkin visited the pro se clinic at the courthouse and
deposited a courtesy copy of a document at the courthouse. It appears from Shim-Larkin’s
submission to the Court that she seeks to be compensated for visiting the courthouse twice on
that day, but her declaration does not state definitively that two trips were made to the courthouse
on December 11, 2019. In any event, it would not be reasonable to compensate Shim-Larkin
twice for traveling to the courthouse on December 11, 2019, if visiting the pro se clinic and
depositing the courtesy copy document were accomplished during one courthouse visit.
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The record before the Court establishes that on four dates: November 6, 2017; December
11, 2017; October 26, 2018; and November 22, 2018, Shim-Larkin deposited at the courthouse,
envelopes containing courtesy copies of tabbed documents. Each of the above-noted occasions
precedes February 23, 2019, the date of Shim-Larkin’s spoliation motion. The expenses ShimLarkin incurred in connection with these envelopes and their tabbed contents are not expenses
she incurred making the spoliation motion. Therefore, directing the defendant to reimburse
Shim-Larkin for these expenses is not reasonable and, thus, not warranted.
Internet Usage, Laptop Usage and Telephone Service
The assigned district judge denied Shim-Larkin’s request for an award of expenses for
internet usage, laptop usage and telephone service, in connection with a discovery-related
sanctions award made previously during this litigation. Notwithstanding that determination,
Shim-Larkin has made a similar request for an award of such expenses in connection with her
February 23, 2019 spoliation motion. According to Shim-Larkin, she has done so to preserve a
potential issue to be raised on appeal to the Second Circuit Court of Appeals. The Court notes
that the majority of the expenses Shim-Larkin incurred for internet usage, laptop usage and
telephone service are for the period August 2017 through December 2017, a period that predates
Kravitz’s January 18, 2018 declaration: (1) revealing the permanent loss of his relevant
electronically stored information; and (2) providing the basis for Shim-Larkin’s February 23,
2019 spoliation motion. Shim-Larkin attributes the expenses she seeks related to her internet
usage, laptop usage and telephone service to activities she performed “regarding communication
records between Kravitz and Morel.” Shim-Larkin never provided the Court with evidence that
connects these expenses to her February 23, 2019 spoliation motion with particularity. As a

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