Rivera v. Home Depot U.S.A, Inc.
Filing
270
MEMORANDUM OPINION AND ORDER re: 265 MOTION for Report and Recommendations Special Master . MOTION for Report and Recommendations Objections. filed by Bryan's Home Improvement Corp.. The Court has considered all of th e arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the reasons explained above, the Report is adopted in full and Home Depot's motion for fees and costs is granted, in the amount of $256,239.65, reflecting $254,736.25 in attorney's fees and $1,503.40 in costs. The Clerk is directed to enter judgment accordingly. The Clerk is also directed to close all pending motions and to close this case. SO ORDERED. (Signed by Judge John G. Koeltl on 4/19/2021) (ks) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
───────────────────────────────────
DANIEL RIVERA,
Plaintiff,
- against -
16-cv-7552 (JGK)(OTW)
MEMORANDUM OPINION AND
ORDER
HOME DEPOT, U.S.A., INC.,
Defendant.
───────────────────────────────────
HOME DEPOT, U.S.A., INC.,
Third-Party Plaintiff,
- against BRYAN’S HOME IMPROVEMENT CORP.,
Third-Party Defendant.
───────────────────────────────────
JOHN G. KOELTL, District Judge:
The Court has reviewed the Report and Recommendation
(“Report”) of Magistrate Judge Wang dated February 10, 2021.
Home
Depot U.S.A., Inc. (“Home Depot”), the third-party plaintiff,
brought an indemnification action against Bryan’s Home Improvement
Corp. (“BHIC”), the third-party defendant, for an award of
attorney’s fees, costs, and expenses.
The Report recommends that
the Court grant Home Depot’s motion and that Home Depot be awarded
$256,239.65, reflecting $254,736.25 in attorney’s fees and
$1,503.40 in costs.
Report.
BHIC has raised various objections to the
For the reasons that follow, BHIC’s objections are
overruled, and the Report and Recommendation is adopted in full.
I.
The Court assumes familiarity with the facts of this case,
the Report, and the Court’s previous Orders.
On August 22, 2015, the plaintiff, Daniel Rivera, was gravely
injured after he fell from a ladder and was electrocuted in
Yonkers, New York. See ECF No. 120, at 1.
These injuries were
sustained at a construction site for which BHIC was the
subcontractor and the plaintiff’s employer, and Home Depot was the
general contractor. Id.
The relationship between Home Depot and
BHIC was governed by a Master Service Provider Agreement (“MSPA”).
See ECF No. 14, Ex. C; ECF No. 199, Ex. B.
Rivera sued Home
Depot, and Home Depot filed a third-party complaint, seeking
indemnification from BHIC. See ECF Nos. 1, 14.
Through a series
of rulings, Judge Katherine B. Forrest determined that Home Depot
could seek indemnification from BHIC for the damages resulting
from the plaintiff’s injuries and awarded the plaintiff future
economic damages totaling $6,593,495.00. See ECF No. 120.
A jury,
in a subsequent trial, awarded the plaintiff non-economic damages
of $135,000.00 for past pain and suffering, and $1,710,000.00 for
future pain and suffering. See ECF No. 151.
The Court entered
judgment for Mr. Rivera against Home Depot for $8,669,126.44,
which also included an award of $230,631.44 for past economic
damages, and a corresponding judgment in favor of Home Depot
against BHIC in the same total amount “plus allowable interests
and costs,” based on the Court “having granted [Home Depot’s]
2
motion for summary judgment on its contractual and common law
indemnification claims as against” BHIC. ECF No. 152, at 2.
BHIC appealed the judgment in favor of Home Depot, arguing
that Judge Forrest erred by granting Home Depot summary judgment
on its claims for common-law and contractual indemnification.
Specifically, BHIC argued that Judge Forrest erred by concluding
that Rivera suffered a “grave injury,” sufficient to support
liability under New York Worker’s Compensation Law § 11. 1
Further,
BHIC argued that Home Depot could not seek indemnification from
BHIC under the MSPA.
The Second Circuit Court of Appeals affirmed the judgment on
the “theory of contractual indemnity,” but decided it would “not
address the district court’s findings that Rivera suffered a
‘grave injury’ as a matter of law.” Rivera v. Home Depot USA,
Inc., 776 F. App'x 4, 6-7 (2d Cir. 2019) (“[S]ummary judgment was
properly granted on the record here and . . . BHIC is required to
indemnify Home Depot based on the terms of its contract and
Under New York law, an employer can be liable to a third party for
indemnification only when its employee suffers a “grave injury,” as specifically
defined by the statute. N.Y. Workers’ Comp. Law § 11. Notwithstanding this
limitation on an employer’s liability, an employer still can be held liable, if
the employer and the third party had a contract in place prior to the employee’s
accident, in which the employer agreed to indemnify the third party. See id.
(“For purposes of this section the terms ‘indemnity’ and ‘contribution’ shall
not include a claim or cause of action for contribution or indemnification based
upon a provision in a written contract entered into prior to the accident or
occurrence by which the employer had expressly agreed to contribution to or
indemnification of the claimant or person asserting the cause of action for the
type of loss suffered.”); Rivera v. Home Depot USA, Inc., 776 F. App’x 4, 6 (2d
Cir. 2019) (citing Rodrigues v. N & S Bldg. Contractors, Inc., 5 N.Y.3d 427
(2005)).
1
3
regardless whether Rivera sustained a statutorily defined ‘grave
injury.’”). 2
On remand, this Court ordered judgment against Home Depot, in
the amounts of $230,631.44 in “Economic Damages (past),”
$6,593,495.00 in “Economic Damages (future),” $135,000.00 in “Pain
and Suffering (past),” and $1,710,000.00 in “Pain and Suffering
(future).” ECF No. 217. 3
Home Depot paid the plaintiff
$8,993,119.15 ($8,669,126.44 plus interest) in satisfaction of the
judgment. See ECF No. 226.
Home Depot filed a motion for fees in 2018, which was
administratively terminated by Judge Forrest, pending BHIC’s
appeal. See ECF No. 177. Home Depot now seeks reimbursement for
its fees defending against the plaintiff’s personal injury action
(“Phase 1”) and pursuing indemnity claims against BHIC, including
BHIC’s appeal (“Phase 2”). See ECF No. 197, at 7-8.
On August 23,
2019, the case was referred to Magistrate Judge Wang for all postjudgment proceedings. See ECF No. 207.
Before Magistrate Judge Wang, Home Depot clarified that it
sought indemnification from BHIC for Phase 1 fees based solely on
the theory of common law indemnity and sought Phase 2 fees from
BHIC based on a theory of contractual indemnity, pursuant to the
MSPA. See ECF No. 197, at 8-10; Report at 4.
The parties have
2
Unless otherwise noted, this Memorandum Opinion and Order omits all
alterations, citations, footnotes, emphasis, and internal quotation marks in
quoted text.
3
This case was reassigned to Judge Koeltl in June 2019, following Judge
Forrest’s resignation from the bench.
4
represented that BHIC has a policy with the New York State
Insurance Fund (“NYSIF”), but that this policy only covers
liability for common-law indemnity claims, not contractual
indemnity.
Further, as relevant for Phase 2, New York common-law
indemnity claims do not permit the collection of fees associated
with pursuing the indemnification claim.
See Chapel v. Mitchell,
642 N.E.2d 1082 (N.Y. 1994) (holding that while the “common-law
right of indemnification against the party actually at fault
encompasses the right to recover attorneys’ fees, costs, and
disbursements incurred in connection with defending the suit
brought by the injured party, . . . [a]s to the third-party
action, however, we conclude that the legal expenses incurred in
its prosecution are not recoverable”).
Further, BHIC and Home
Depot entered into an “Assignment Agreement,” by which BHIC
assigned its claims to Home Depot, including its rights against
the NYSIF.
Home Depot filed an action in the New York Court of
Claims, seeking recovery from the NYSIF for the judgment paid to
Rivera. See ECF No. 262, at 4-5; Report at 5 & n.4.
BHIC’s
counsel in this action, and as listed in the Assignment Agreement,
also represents the NYSIF, defending against Home Depot’s claim in
the New York Court of Appeals. See ECF No. 262 at 13-14; Report at
5.
Magistrate Judge Wang issued the Report on February 10, 2021,
recommending that Home Depot’s motion for fees, costs, and
expenses be granted, and that Home Depot be awarded $256,239.65,
5
reflecting $254,736.25 in attorney’s fees and $1,503.40 in costs.
See Report at 1.
II.
When reviewing objections to a Magistrate Judge's Report and
Recommendation, the district court must “make a de novo
determination of those portions of the report . . . to which
objection is made” and “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P.
72(b)(3).
The district court “may also receive further evidence
or recommit the matter to the magistrate judge with instructions.”
28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3).
“[I]t is sufficient that the court arrive at its own independent
conclusion regarding those portions of the report to which
objections are made,” and the court “need not conduct a de novo
hearing on the matter.” In re Hulley Enters. Ltd., 400 F. Supp. 3d
62, 69 (S.D.N.Y. 2019) (quoting Nelson v. Smith, 618 F. Supp.
1186, 1189-90 (S.D.N.Y. 1985)).
III.
BHIC has raised four objections to the Report.
First, BHIC
argues that Home Depot is entitled only to contractual indemnity
(and not common-law indemnity), and that Magistrate Judge Wang
misconstrued the mandate from the Second Circuit Court of Appeals.
Second, BHIC asserts that in light of BHIC’s financial condition,
the terms of the NYSIF policy, and the Assignment Agreement, Home
6
Depot’s request for Phase 1 and Phase 2 fees are both moot.
Third, BHIC suggests that Magistrate Judge Wang either should not
have applied, or misapplied, Georgia law to interpret the MSPA.
Finally, BHIC objects on the grounds that the requested hourly
rates for Home Depot’s Atlanta-based counsel were unreasonable.
A.
First, BHIC argues that Home Depot cannot seek common-law
indemnification from BHIC, because the Second Circuit Court of
Appeals affirmed the judgment in favor of Home Depot against BHIC
solely on the grounds of contractual indemnification and did not
reach Judge Forrest’s holding that BHIC was also liable to Home
Depot under common-law indemnification.
BHIC asserts that the
Court of Appeals “eliminated and nullified” the common-law
indemnification grounds of Judge Forrest’s judgment, and thus Home
Depot should not be entitled to any fees on the basis of commonlaw indemnification.
This assertion is incorrect.
As Magistrate Judge Wang correctly noted, the law of this
Circuit is clear that when the Court of Appeals has not reached an
issue on appeal, the undisturbed portions of the underlying order
remain the law of the case. In re PCH Assocs., 949 F.2d 585, 593
(2d Cir. 1991) (“Given our silence” in an earlier appeal, the
“decision” of a legal issue in a lower court proceeding
“technically remained the law of the case”). See e.g., Robinson v.
Sanctuary Rec. Grps., Ltd., 763 F. Supp. 2d 629, 631 (S.D.N.Y.
2011) (“[A] finding of a district court that was properly
7
challenged on appeal though not expressly or implicitly addressed
by an appellate court remains the law of the case.”); Am. Hotel
Int’l Grp., Inc. v. OneBeacon Ins. Co., 611 F. Supp. 2d 373, 378
(S.D.N.Y. 2009) (determining counterclaim under Pennsylvania law,
briefed but left unaddressed by Court of Appeals, remained law of
the case, because “if an appellate court reviewed a trial court’s
decision, but did not address an issue that the trial court
decided, the trial court’s decision remains the law of the case”),
aff’d, 374 F. App’x 71, 74 (2d Cir. 2010) (affirming, because the
prior decision “did not purport to address the district court’s
alternative holding” and thus “[t]he district court did not err in
determining that our order left that holding undisturbed”).
It is certainly true that a lower court’s findings can be
vacated and “cease[] to be the law of the case,” even when “a
finding [is] not expressly addressed but [instead is] necessarily
rejected by an appellate court’s reasoning.” Am. Hotel Int’l Grp.,
Inc., 374 F. App’x at 74. 4
this case.
But, such a situation does not apply in
The Court of Appeals affirmed the judgment, and
declined to reach—thus leaving unaltered—Judge Forrest’s finding
of a “grave injury” such that common-law indemnity applied.
There
is nothing inconsistent between the Court of Appeals’ reasoning
Further, a lower court’s prior determination remaining undisturbed does not
preclude the Court of Appeals from “conclusively determining [an] issue left
unanswered” in an earlier appeal. In re PCH Assocs., 949 F.2d at 593.
Nevertheless, “[i]n the case in which the mandate of the appellate court does
not address a particular issue, the appellate judgment, on this issue, does not
establish the law of the case,” and when “the issue was decided by the district
court in an earlier case and was not disapproved by the appellate court,” such
decision “is, therefore, the law of the case.” Id. (quoting 1B JAMES WM. MOORE ET
AL., MOORE’S FEDERAL PRACTICE ¶ 0.404[4.-3], at 131 (2d Ed. 1991)).
4
8
and Judge Forrest’s finding that BHIC was liable to Home Depot for
common-law indemnity, as well as contractual indemnity. Cf.
Rivera, 776 F. App’x at 6-7.
Further, BHIC has offered no reason that would warrant
revisiting Judge Forrest’s earlier judgment.
BHIC has not
presented any “compelling circumstances,” such as an intervening
change in controlling law, new evidence, or the need to correct
clear error, that would warrant departure from the “law of the
case.” Bank Leumi USA v. Ehrlich, 98 F. Supp. 3d 637, 646–47
(S.D.N.Y. 2015); see also United States v. Carr, 557 F.3d 93, 102
(2d Cir. 2009).
The fact that Home Depot might also be able to
seek Phase 1 costs on the basis on contractual indemnity, but has
chosen not to do so for practical considerations, does not negate
the scope and force of its judgment against BHIC based on commonlaw indemnity.
Because Judge Forrest granted Home Depot summary judgment on
its common-law indemnification claim in a judgment that the Second
Circuit affirmed on other grounds and BHIC has offered no
compelling reasons to revisit this earlier finding, Home Depot is
entitled to its Phase 1 fees and costs, based on common-law
indemnification.
B.
BHIC has objected to the Report’s recommendation that Phase 1
and Phase 2 fees be awarded to Home Depot, contending that such
claims are moot. First, with respect to Phase 1 fees, BHIC argues
9
that any claims for Phase 1 fees are moot, because Home Depot
agreed under the Assignment Agreement not to enforce its judgment
against BHIC.
Second, with respect to Phase 2 fees, BHIC argues
that any claim for such fees is moot, both because of the
Assignment Agreement and because such fees would be predicated
solely on a contractual indemnification claim, which is not
covered by the NYSIF policy, and BHIC is “essentially judgment
proof.” 5
This objection is incorrect on all counts.
First, BHIC misconstrues the import of the Assignment
Agreement.
Although Section 2 of the Assignment Agreement
prohibits Home Depot from enforcing its judgment against BHIC,
Section 5 provides that the Assignment Agreement shall become
“rescinded, null and void” upon 30 days written notice, if any
court “rules that any aspect of this [Assignment] Agreement either
(1) has the effect of defeating or preventing Home Depot’s efforts
to enforce any of the assigned rights; or (2) provides any
defendant to an assigned claim with a defense, or a potential
defense, to any of the assigned claims brought by Home Depot.” ECF
No. 265, Ex. A, §§ 2, 5.
Because NYSIF is contesting Home Depot’s
efforts to collect upon BHIC’s assigned rights in New York State
Court (represented by the same counsel as BHIC in this action),
there is a possibility that the Assignment Agreement may be
5
At a teleconference held on November 10, 2020, counsel for Home Depot noted
that BHIC appears to be “essentially judgment proof.” ECF No. 262, at 4; Report
at 4, 6 n.5. Nevertheless, Home Depot never completed post-judgment discovery,
because it withdrew its Motion to Compel Discovery without prejudice, in light
of the Assignment Agreement. See ECF No. 251.
10
rescinded. Report at 5 & n.4.
Given this contingent right of Home
Depot to enforce its judgment against BHIC, BHIC has failed to
demonstrate that the parties lack a “practical personal stake in
the dispute,” such that the court would be “incapable of granting
a judgment that will affect the legal rights as between the
parties.” ABN Amro Verzekeringen BV v. Geologistics Ams., Inc.,
485 F.3d 85, 94 (2d Cir. 2007); see also Mission Prod. Holdings,
Inc. v. Tempnology, LLC, 139 S. Ct. 1652, 1660 (2019); Chafin v.
Chafin, 568 U.S. 165, 172 (2013).
Further, even though the Phase 2 fees cannot be collected
from the NYSIF, BHIC’s precise financial condition has not been
established, as Home Depot has not exhausted post-judgment
discovery. 6
Further, “courts often adjudicate disputes whose
‘practical impact’ is unsure at best, as when ‘a defendant is
insolvent.’” Mission Prod. Holdings, Inc., 139 S. Ct. at 1661
(quoting Chafin, 568 U.S. at 175).
While Home Depot may “be
unable to convert any judgment [for Phase 2 fees] in its favor to
hard cash,” such a fact is not dispositive; the dispute “remains a
live controversy—allowing us to proceed.” Id.
Thus, depending on the outcome of the New York State Court
action, the Assignment Agreement could be rescinded, and Home
Depot may still attempt to collect its Phase 1 and Phase 2 claims
BHIC’s arguments in its Objections that Home Depot’s claims are moot appear
to be contrary to representations made by BHIC to Magistrate Judge Wang at the
November 10, 2020 teleconference. ECF No. 262, at 13-14.
6
11
against BHIC directly.
Therefore, the parties’ fees dispute is
not moot, and BHIC’s objection on mootness grounds is overruled.
C.
Next, BHIC objects to the Magistrate Judge’s application of
Georgia Law to Home Depot’s claim for Phase 2 fees, pursuant to
the MSPA’s indemnification clause.
BHIC argues that because Home
Depot allegedly first mentioned the application of Georgia law in
its reply memorandum of law, Home Depot “waived” the MSPA’s choice
of law provision and the application of Georgia law.
Further,
BHIC argues the Magistrate Judge misapplied Georgia law, because
BHIC contends that Georgia law does not permit recovery of
attorney’s fees incurred when seeking the fees themselves.
First, the MSPA, which was attached to Home Depot’s ThirdParty Complaint, contains an express choice of law clause, stating
that Georgia law “shall govern any dispute arising out of or
relating to the [M]SPA.” ECF No. 14, Ex. C, ¶ 18.17; ECF No. 199,
Ex. B, ¶ 18.17.
Under the New York choice of law rules, which
govern questions in diversity actions in this Court, see Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 498 (1941), “[a]bsent
fraud or violation of public policy, a court is to apply the law
selected in the contract as long as the state selected has
sufficient contacts with the transaction,” Hartford Fire Ins. Co.
v. Orient Overseas Containers Lines (UK) Ltd., 230 F.3d 549, 556
(2d Cir. 2000).
BHIC has not argued that the application of
Georgia law to interpret the parties MSPA involves fraud, violates
12
public policy, or that Home Depot having its principal place of
business in Georgia is not a sufficient contact for purposes of
the MSPA. Cf. Compl. ¶ 2; Home Depot Answer ¶ 2.
Further, although a party technically can waive a “choice-oflaw” argument, courts generally will not make such a determination
without some showing of prejudice, such as when a party waits
until after discovery has closed to raise the issue. See, e.g.,
Reed Const. Data Inc. v. McGraw-Hill Cos., Inc., 49 F. Supp. 3d
385, 423 (S.D.N.Y. 2014), aff’d, 638 F. App’x 43 (2d Cir. 2016).
However, BHIC has not shown how it was “prejudiced by the late
argument,” id., especially because the MSPA has been known to the
parties the entire time, the MPSA is clear, and Magistrate Judge
Wang gave BHIC the opportunity to file a sur-reply specifically on
the application of Georgia law.
Further, in its sur-reply, BHIC
conceded that it did “not believe there is a conflict with Georgia
law” and New York law. ECF No. 218, at 5.
Second, BHIC argues that if Georgia law applies to the MSPA,
then Home Depot should not have been able to bring a common-law
indemnification claim against BHIC, because such claims are
prohibited under Georgia law.
But this argument misunderstands
the source of law for Home Depot’s indemnification claims at issue
and misconstrues the applicable choice of law analysis.
The
source of Home Depot’s “common-law indemnification claim” is the
New York Worker’s Compensation Law, not the MSPA; whereas Home
Depot’s contractual indemnification claim arises from the terms of
13
the MSPA itself.
Thus, New York Law applies to the common-law
indemnification claim, because the relevant injury occurred on a
worksite in New York and BHIC is a New York corporation, subject
to New York Worker’s Compensation Law. See, e.g., Casey ex rel.
Casey v. Ryder Truck Rental, Inc., No. 00-CV-2856, 2005 WL
1150228, at *4–5 (E.D.N.Y. May 16, 2005); Fiske v. Church of St.
Mary of the Angels, 802 F. Supp. 872, 879 (W.D.N.Y. 1992) (noting
that “when faced with choice-of-law issues, New York courts will
favor the application of [New York Labor Laws] to construction
accidents occurring within New York State so as to protect injured
workers”).
By contrast, because the contractual indemnification
claim arose from the MSPA itself, which contains an express clause
specifying that the contract’s interpretation is governed by
Georgia law, courts applying New York choice of law rules would
defer to the parties’ decision to apply Georgia law. 7
Finally, BHIC cites to one case under Georgia law which found
that under the terms of the specific agreement at issue, the
plaintiff was not entitled to fees incurred while pursuing an
indemnification claim. See Citadel Corp. v. All-S. Subcontractors,
Inc., 458 S.E.2d 711 (Ga. Ct. App. 1995).
BHIC argues this case
stands for the proposition that “fees on fees” are not permitted
under Georgia law.
However, the case pronounces no such rule.
7 BHIC appears to have understood this distinction well in its sur-reply to
Magistrate Judge Wang, in which BHIC argued that the “Choice of Law Contract
Provision Does Not Apply To The Third-Party Claim For Common-Law Indemnity” and
“Under New York Choice of Law Rules, New York Law, Not Georgia Law Governs All
Issues Concerning Common-Law Indemnity.” ECF No. 218, at 2, 4-5.
14
Instead, the court interpreted the terms of the indemnification
clause in the contract, to see whether certain fees were within
its scope.
Georgia courts, like New York courts, allow parties to
enter into indemnity contracts and look to the express terms of a
contract to determine its scope. See Gibbs-Alfano v. Burton, 281
F.3d 12, 19 (2d Cir. 2002) (“It is axiomatic that an indemnity
contract is interpreted to effectuate the intention of the parties
as expressed in the unequivocal language of the contract.”);
Milliken & Co. v. Georgia Power Co., 829 S.E. 2d 111, 115-16 (G.A.
2019) (Under Georgia law, indemnification depends on “the language
of the contract or agreement itself”).
In this case, Magistrate Judge Wang correctly noted the broad
sweep of the indemnification clause in the MSPA, which contained
no limitations on fees incurred pursuing indemnification.
The
MSPA’s fee provision states that “If a Party prevails in any legal
or equitable action against the other Party, the other Party will
pay the prevailing Party’s costs and expenses, including
reasonable attorney[’s] fees.” ECF No. 199, Ex. B, ¶ 17.5.
Because Home Depot’s contractual and common-law indemnification
claims against BHIC were “legal or equitable actions,” and Home
Depot prevailed, Home Depot is entitled to costs and expenses,
including reasonable attorney’s fees.
Therefore, BHIC’s
objections to the application of Georgia law are overruled.
15
D.
BHIC objects to the Magistrate Judge’s conclusion in the
Report that the attorney’s fees, requested by Home Depot’s
Atlanta-based counsel were reasonable.
BHIC argues that the fees
were unreasonable because the Atlanta-based counsel billed at
higher hourly rates than Home Depot’s trial counsel, and because
the case is “essentially a negligence claim” and “warrants no
more” than the “market rates” of “personal injury defense lawyers
generally.”
Home Depot requested rates from $75 per hour for
paralegals to $130-170 per hour for lawyers (both partners and
associates) for trial counsel, as well as hourly rates of $300-450
for associates and $730 for partners for Atlanta-based counsel.
When determining the appropriate amount for an award of
attorney’s fees, courts must calculate the “presumptively
reasonable fee.” Simmons v. N.Y.C. Transit Auth., 575 F.3d 170,
172 (2d Cir. 2009).
“The starting point for determining the
presumptive reasonable [fee] is the lodestar amount, which is the
product of a reasonable hourly rate and the reasonable number of
hours required by the case.” Charles v. City of New York, No. 13CV-3547, 2014 WL 4384155, at *2 (S.D.N.Y. Sept. 4, 2014).
“The
presumptively reasonable fee boils down to what a reasonable,
paying client would be willing to pay, given that such a party
wishes to spend the minimum necessary to litigate the case
effectively.” Simmons, 575 F.3d at 174.
To arrive at a reasonable
fee, courts consider, among other factors, the twelve factors set
16
forth in Johnson v. Ga. Highway Express Inc., 488 F.2d 714, 717–
719 (5th Cir. 1974). See Arbor Hill Concerned Citizens
Neighborhood Ass’n v. County of Albany and Albany Cnty. Bd. of
Elections, 522 F.3d 182, 190 (2d Cir. 2008). 8 “In ruling on
applications for fees, district courts must examine the hours
expended by counsel and the value of the work product of the
particular expenditures to the client’s case.” DiFilippo v.
Morizio, 759 F.2d 231, 235 (2d Cir. 1985).
Billed hours that are
“excessive, redundant, or otherwise unnecessary, are to be
excluded, and in dealing with such surplusage, the court has
discretion simply to deduct a reasonable percentage of the number
of hours claimed as a practical means of trimming fat from a fee
application.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d
Cir. 1998).
Courts do not ask “whether hindsight vindicates an
attorney’s time expenditures, but whether, at the time the work
was performed, a reasonable attorney would have engaged in similar
time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.
1992); see also Walker v. City of New York, No. 11-CV-314, 2015 WL
4568305, at *8 (E.D.N.Y. July 28, 2015).
The fee applicant
The twelve Johnson factors are: “(1) the time and labor required; (2) the
novelty and difficulty of the questions; (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; (5) the attorney’s customary hourly
rate; (6) whether the fee is fixed or contingent; (7) the time limitations
imposed by the client or the circumstances; (8) the amount involved in the case
and the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the undesirability of the case; (11) the nature and length of
the professional relationship with the client; and (12) awards in similar
cases.” Arbor Hill, 522 F.3d at 186 & n.3; see also Gym Door Repairs, Inc. v.
Young Equip. Sales, Inc., No. 15-CV-4244, 2021 WL 1172335, at *2 & n.2 (S.D.N.Y.
Mar. 26, 2021).
8
17
“bear[s] the burden of documenting the hours reasonably spent by
counsel, and the reasonableness of the hourly rates
claimed.” Allende v. Unitech Design, Inc., 783 F. Supp. 2d 509,
512 (S.D.N.Y. 2011).
Home Depot supplied detailed records supporting the number of
hours billed. See ECF No. 199, Ex. A.
Before the Magistrate
Judge, BHIC objected to the fee award, arguing that Home Depot was
not entitled to appellate fees and that Home Depot’s trial counsel
overbilled and block-billed.
However, as the Magistrate Judge
correctly found in the Report, BHIC merely provided vague,
conclusory statements that the number of hours billed was too
high, the rates charged were not appropriate given the complexity
of the case, and noting nine alleged incidents of block billing.
Accordingly, the Magistrate Judge found the number of hours billed
was properly supported by Home Depot and rejected BHIC’s request
to reduce the Atlanta-based counsel’s hourly rates to $350 for
partners and $275 for associates.
To the extent BHIC argues that the comparative complexity of
the case does not warrant the amounts billed, such an argument is
unpersuasive.
Home Depot is seeking to enforce a judgment of over
$8 million, after several years of litigation, several dispositive
motions, a trial, and an appeal.
The supplied records are
sufficiently detailed and thorough to support the hours requested,
and, as the Magistrate Judge found, the hourly rates requested are
not outside of the range of reasonable rates within this District
18
for similarly experienced lawyers. See Report at 8-9 (citing
Broad. Music, Inc. v. Pamdh Enters., Inc., No. 13-CV-2255, 2014 WL
2781846, at *7 (S.D.N.Y. June 19, 2014)); see also, e.g., Errant
Gene Therapeutic, LLC v. Sloane-Kettering Inst. for Cancer Rsch.,
286 F. Supp. 3d 585, 588 (S.D.N.Y. 2018) (accepting partner hourly
rate of $765), aff’d, 768 F. App’x 141 (2d Cir. 2019); MSC
Mediterranean Shipping Co. Holding S.A. v. Forsyth Kownacki LLC,
No. 16-CV-8103, 2017 WL 1194372, at *3 (S.D.N.Y. Mar. 30, 2017)
(accepting hourly rates between $569.02 and $753.42 per hour for
associates depending on seniority, and $874.60 to $1,048.47 for
partners); Union of Orthodox Jewish Congregations of Am. v. Royal
Food Distribs. Ltd. Liab. Co., 665 F. Supp. 2d 434, 437 (S.D.N.Y.
2009) (finding partner and associate rates of $735 and $445,
respectively, reasonable).
Finally, the decision to hire
additional Atlanta-based counsel “to litigate the case
effectively,” especially on questions of Georgia contract law, was
reasonable. Simmons, 575 F.3d at 174.
Accordingly, BHIC’s
objection to the reasonableness of the requested attorney’s fees
is overruled.
CONCLUSION
The Court has considered all of the arguments of the parties.
To the extent not specifically addressed above, the remaining
arguments are either moot or without merit.
For the reasons
explained above, the Report is adopted in full and Home Depot’s
motion for fees and costs is granted, in the amount of
19
$256,239.65, reflecting $254,736.25 in attorney’s fees and
$1,503.40 in costs.
accordingly.
The Clerk is directed to enter judgment
The Clerk is also directed to close all pending
motions and to close this case.
SO ORDERED.
Dated:
New York, New York
April 19, 2021
____/s/ John G. Koeltl_______
John G. Koeltl
United States District Judge
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?