American Exhchange Time LLC

Filing 88

ORDER for 86 REPORT & RECOMMENDATION re: 78 MOTION for Attorney Fees filed by American Exchange Time LLC. For the reasons discussed above, it is hereby ORDERED that the Report and Recommendation of Magistrate Judge Ona T. Wang dated November 3 , 2022 (Dkt. No. 86) is adopted in its entirety. It is further ORDERED that Plaintiff's motion for attorneys' fees (Dkt. No. 78) is GRANTED; and it is further ORDERED that this action is dismissed. Accordingly, the Clerk of Court is directed to terminate any pending motions and to close this case. SO ORDERED. (Signed by Judge Victor Marrero on 12/5/2022) (jca)

Case 1:17-cv-04737-VM-OTW Document 88 Filed 12/05/22 Page 1 of 17

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

12/5/2022

AMERICAN EXCHANGE TIME LLC,

17 CV 4737 (VM)

Plaintiff,

ORDER

- against TISSOT S.A.,
Defendant.

VICTOR MARRERO, United States District Judge.
I.

BACKGROUND

On June 22, 2017, Plaintiff American Exchange Time LLC
(“American Exchange”) filed this action against defendant
Tissot S.A. (“Tissot”) pursuant to 28 U.S.C. §§ 2201 and 2202,
seeking a declaratory judgment under 15 U.S.C. § 1051 that
its

trademark

trademark.

was

American

not

confusingly

Exchange

also

similar
sought

to
an

Tissot’s
award

of

attorneys’ fees and costs.
On August 23, 2019, the Court entered default judgment
in

favor

Exchange’s

of

American

Motion

for

Exchange
Attorneys’

and

referred

Fees

and

American

Costs

(the

“Motion,” see Dkt. No. 78) to Magistrate Judge Ona T. Wang
for

a

report

and

recommendation.

On

November

3,

2022,

Magistrate Judge Wang issued a Report and Recommendation (the
“Report,” see Dkt. No. 86), a copy of which is attached and

Case 1:17-cv-04737-VM-OTW Document 88 Filed 12/05/22 Page 2 of 17

incorporated herein, recommending that the Motion be granted.
As of the date of this Order, no objections to the Report
have

been

filed,

nor

has

any

request

been

made

for

an

extension of time to object. For the reasons stated below,
the Court adopts the recommendations of the Report in their
entirety.
II.

STANDARD OF REVIEW

A district court evaluating a magistrate judge’s report
may adopt those portions of the report to which no “specific
written objection” is made, as long as the factual and legal
bases supporting the findings and conclusions set forth in
those sections are not clearly erroneous or contrary to law.
Fed. R. Civ. P. 72(b); see also Thomas v. Arn, 474 U.S. 140,
149 (1985); Wilds v. United Parcel Serv., Inc., 262 F. Supp.
2d 163, 169 (S.D.N.Y. 2003). The Court is not required to
review any portion of a magistrate judge’s report that is not
the subject of an objection. See Thomas, 474 U.S. at 149. A
district judge may accept, set aside, or modify, in whole or
in part, the findings and recommendations of the magistrate
judge. See Fed. R. Civ. P. 72(b).
III. DISCUSSION
Upon

a

review

of

the

full

factual

record

in

this

litigation, including the papers submitted in connection with
the underlying motion and in this proceeding, as well as the

Case 1:17-cv-04737-VM-OTW Document 88 Filed 12/05/22 Page 3 of 17

Report and applicable legal authorities, the Court reaches
the same conclusions as Magistrate Judge Wang. The Court
further concludes that the findings, reasoning, and legal
support for the recommendations made in Report are not clearly
erroneous

or

Accordingly,

contrary
for

to

law

and

substantially

the

are

thus

reasons

set

warranted.
forth

in

Magistrate Judge Wang’s Report, the Court adopts in their
entirety

the

Report’s

factual

and

legal

analyses

and

determinations, as well as its substantive recommendations,
as the Court’s ruling on American Exchange’s Motion.
IV.

ORDER

For the reasons discussed above, it is hereby
ORDERED that the Report and Recommendation of Magistrate
Judge Ona T. Wang dated November 3, 2022 (Dkt. No. 86) is
adopted in its entirety. It is further
ORDERED

that

Plaintiff’s

motion

for

attorneys’

fees

(Dkt. No. 78) is GRANTED; and it is further
ORDERED that this action is dismissed. Accordingly, the
Clerk of Court is directed to terminate any pending motions
and to close this case.

SO ORDERED.
Dated:

5 December 2022
New York, New York

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------x
AMERICAN EXCHANGE TIME LLC,
Plaintiff,
-againstTISSOT S.A.,
Defendant.
-------------------------------------------------------------x

:
:
:
:
:
:
:
:
:
:

17-CV-4737 (VM) (OTW)
REPORT & RECOMMENDATION

ONA T. WANG, United States Magistrate Judge:
To the Honorable Victor Marrero, United States District Judge:
Plaintiff American Exchange Time LLC (“Plaintiff”) brought this action pursuant to
28 U.S.C. §§ 2201 and 2202, seeking a declaratory judgment under 15 U.S.C. § 1051 (the
“Lanham Act”) that its trademark was not confusingly similar to Defendant Tissot S.A.’s
(“Defendant”) trademark. (ECF 16, Amended Complaint ¶ 1,) (“Am. Compl.”). On August 23,
2019, the Honorable Victor Marrero entered default judgment in favor of Plaintiff and referred
Plaintiff’s motion for attorneys’ fees and costs to me for a report and recommendation. (ECF
71). After a careful review of the submissions in this case, I recommend that Plaintiff’s motion
for attorneys’ fees be GRANTED, and that Plaintiff be awarded $95,746.50 1 in attorneys’ fees
occasioned by Defendant’s sanctionable conduct in this litigation.

1

This amount is reduced from Plaintiff’s requested amount of $96,446.50, for reasons explained infra, Section II.C.

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I.

BACKGROUND
Plaintiff is a watch company based in the United States. (Am. Compl. ¶ 7). Defendant is a

watch company based in Switzerland. (Am. Compl. ¶ 17). On or about May 29, 2012, Plaintiff
filed an application for the trademark “itouch” in International Class 14 in connection with
“Jewelry and watches” (U.S. Trademark Serial No. 85637640) (the “AE Mark”). (Am. Compl. ¶
16). Plaintiff had been utilizing the AE Mark in commerce since December 1, 2009. (Am. Compl.
¶ 8). On or about March 27, 2013, Defendant filed a Notice of Opposition against the AE Mark
asserting that it was confusingly similar to Defendant’s trademark “T-TOUCH” in connection
with “Horological and chronometric instruments” (U.S. Trademark Registration No. 3653565)
(the “Tissot Mark”). (Am. Compl. ¶ 29).
Plaintiff subsequently filed the instant action on June 22, 2017, seeking (i) a declaration
that the AE Mark is not confusingly similar to the Tissot Mark; (ii) a declaration that AE, in using
the AE Mark, had not engaged in any acts of registered or unregistered trademark
infringement, false designation of origin, common law unfair competition, or common law
trademark infringement, under Federal or State Law; and (iii) an award of Plaintiff’s attorneys’
fees and all costs. (Am. Compl. ¶¶ 42-44).
The parties began settlement discussions in January 2018. (Declaration of Aaron J.
Solomon, Esq., dated July 15, 2021, ¶ 7) (“Solomon Decl.”). On August 20, 2018, Plaintiff sent
Defendant a draft settlement agreement. (Solomon Decl. ¶ 7). Despite Plaintiff’s myriad
attempts to obtain responsive comments from Defendant to this settlement agreement,
Defendant did not provide a fulsome response for several months. (Solomon Decl. ¶ 9). In order
to save time and relying on Defendant’s good faith representations that the settlement
2

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structure Plaintiff proposed would likely be approved, Plaintiff filed a new trademark
application in accordance with the terms of the proposed settlement agreement. (Solomon
Decl. ¶ 11). Defendant finally sent its comments to the settlement agreement on February 20,
2019, six months after it received Plaintiff’s draft and only after it was ordered to do so by this
Court. (Solomon Decl. ¶ 12). These comments included a representation from Defendant that it
would agree to not interfere with Plaintiff’s new trademark application. (Solomon Decl. ¶ 14).
On April 11, 2019, approximately two months after Defendant made the above
representation, the United States Patent and Trademark Office (“USPTO”) suspended Plaintiff’s
newest trademark application because Defendant’s affiliate, Swatch A.G., had already filed an
application for the exact same mark, in contravention of the settlement language that
Defendant had earlier accepted. (Solomon Decl. ¶ 15-16). After Plaintiff attempted to meet and
confer to resolve this new dispute without Court intervention, Defendant requested a
conference with the Court, scheduled for July 9, 2019. (ECF 53, 55).
At the July 9 conference, Defendant did not appear, and counsel did not sit at counsel’s
table until invited to do so by the Court. (ECF 69 at 2). At that time, counsel informed the Court
that he had been instructed by his client to default, and was appearing only as an “observer.”
(ECF 69 at 2). After considerable questioning by the Court, counsel for Defendant admitted that
his client had instructed him not to take any action in this case, including filing a motion to
withdraw as counsel. (ECF 69 at 8). Following the conference, the Court ordered Defendant to
show cause why sanctions should not be imposed for violating a Court order to appear and for
not participating in settlement discussions in good faith. (ECF 56). Defendant subsequently
utilized its same counsel to file an opposition to the Court’s order to show cause. (ECF Nos. 623

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63). Plaintiff then filed a declaration in reply seeking sanctions. (ECF 68). On August 23, 2019,
Judge Marrero granted a default judgment against Defendant and referred the question of
sanctions and attorneys’ fees to this Court. (ECF No. 71).
Plaintiff filed its motion for attorneys’ fees on July 16, 2021, arguing that it is entitled to
attorneys’ fees under both Fed. R. Civ. P. 16(f) and under 15 U.S.C. § 1117(a). (ECF 79).
Defendant has not filed an opposition, or made any other communication with the Court since
its counsel informed the Court of default on July 9, 2021.
II.

DISCUSSION
A. Attorneys’ Fees Under Rule 16
Fed. R. Civ. P. 16(f)(1) authorizes a court to impose sanctions on parties for: (i) failing to

appear at a scheduling or other pretrial conference; (ii) failing to participate in the conference
in good faith; or (iii) failing to obey a scheduling or other pretrial order. See Martinez v. New
York City Health and Hosps. Corp., 15-CV-515 (ALC) (GWG), 2017 WL 6729296, at *3 (S.D.N.Y.
Dec. 28, 2017) (quoting Fed. R. Civ. P. 16(f)(1)). Rule 16(f)(2) states that in addition to any other
sanction imposed, the Court must order the non-complying party, its attorney, or both to pay
the reasonable expenses, including attorneys’ fees, incurred as a result of non-compliance. Fed.
R. Civ. P. 16(f)(2). Sanctions may be awarded under Rule 16(f) without a finding of bad faith.
Mahoney v. Yamaha Motor Corp., 290 F.R.D. 363, 366–67 (quoting Fed. R. Civ. P. 16(f)(1)) (citing
Wright, Miller, Kane & Marcus, § 1531). “The decision to impose sanctions ‘is committed to the
sound discretion of the district court and may not be reversed absent an abuse of discretion.’”
Advanced Analytics, Inc. v. Citigroup Glob. Mkts., Inc., 301 F.R.D. 31, 37 (S.D.N.Y. 2014) (quoting
Luft v. Crown Publishers, Inc., 906 F.2d 862, 865 (2d Cir. 1990)).
4

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Courts regularly impose sanctions when a party fails to appear for a scheduled
conference before the Court. See Del Rio v. 257 SG Pizza Corp., No. 19-CV-3426 (OTW), 2021 WL
1907413, at *2 (S.D.N.Y. Apr. 6, 2021) (awarding attorneys’ fees under Rule 16(f) against party
that was absent at court conference and who provided no substantial justification for its failure
to appear); Petrisch v. JP Morgan Chase, 789 F. Supp. 2d 437, 455 (S.D.N.Y. 2011) (awarding
Rule 16(f) sanctions for various misconduct, including failing to appear at a scheduled
conference); Durant v. Traditional Invs., Ltd., No. 88-CV-9048 (PKL), 1992 WL 51557, at *7-9
(S.D.N.Y. Mar. 12, 1992) (imposing Rule 16(f) sanctions for party’s failure to appear at a
scheduled conference, where attorney present at the conference on behalf of the party
indicated that he had not been retained as counsel). Defendant failed to appear in any respect
for the July 9, 2019 conference, despite it being scheduled more than a month in advance and
at Defendant’s own request. (ECF 55). Indeed, the Court stated at the conference that “failure
to appear is violation of a court order which I take very seriously.” (ECF 69 at 3).
Sanctions are also warranted where a party does not participate in a Court conference
or in settlement negotiations in good faith. Fed. R. Civ. P. 16(f)(1)(B). At the July 9 conference,
Defendant explicitly instructed its counsel to inform the Court that Defendant would be in
default, and in fact instructed its counsel to not formally appear at the conference, while at the
same time putting counsel in a difficult position by also instructing them not to file a motion for
withdrawal. (ECF 69 at 3, 8). Defendant’s conduct therefore frustrated the entire purpose of a
conference that Defendant itself had requested (see ECF 53 at 2), wasting both the Court and
Plaintiff’s time and resources. This conduct came at the heels of nearly a year’s worth of
settlement discussions, and after Plaintiff had made a final settlement offer that generated no
5

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response from either Defendant or its counsel. (ECF 56 at 2). Defendant’s failure to participate
in the Court’s scheduled conference and its failure to meaningfully engage in settlement
discussions is sanctionable. Grenion v. Farmers Ins. Exch., No. 12-CV-3219 (JS) (GRB), 2014 WL
1284635, at *7 (E.D.N.Y. Mar. 14, 2014) (finding offending party, rather than its outside
counsel, responsible for frustrating settlement and awarding sanctions under Rule 16(f)(2));
Hamilton Int'l Ltd. v. Vortic LLC, No. 17-CV-5575 (AJN) (OTW), 2018 WL 5292128, at *3 (S.D.N.Y.
Oct. 25, 2018) (awarding fees and costs under Rule 16(f) where party determined on its own,
without disclosure to the Court or opposing counsel, that party’s counsel did not have to
appear for conference). Accordingly, I recommend that Defendant should pay Plaintiff’s
attorneys’ fees under Rule 16(f)(2).
B. Attorneys’ Fees Under 15 U.S.C. § 1117(a)
Plaintiff seeks a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 to
establish its rights under the Lanham Act. (Am. Compl. ¶ 4). That statute authorizes courts to
award reasonable attorney fees to the prevailing party in “exceptional cases.”
15 U.S.C.A. § 1117(a). In addition to sanctions under Fed. R. Civ. P. 16(f), Plaintiff asserts that it
is independently entitled to recover its attorneys’ fees under the Lanham Act. The Court
therefore examines whether Plaintiff is a prevailing party under the Lanham Act, and if so,
whether the instant action is an “exceptional case” within the meaning of that statute.
Plaintiff has successfully obtained a declaratory judgment of non-infringement under
the Lanham Act, and has done so as a result of Defendant’s default. (ECF 71). Plaintiff is
accordingly a prevailing party within the meaning of the Lanham Act. Antetokounmpo v.
Costantino, No. 21-CV-2198 (JMF) (JLC), 2021 WL 5916512, at *7 (S.D.N.Y. Dec. 15, 2021), report
6

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and recommendation adopted sub nom. Antetokounmpo v. Constantino, No. 21-CV-2198 (JMF),
2022 WL 36232 (S.D.N.Y. Jan. 4, 2022) (awarding Lanham Act damages to plaintiff as the
prevailing party where court had granted default judgment against defendants); Cap. One Fin.
Corp. v. Cap. One Certified Inc., No. 18-CV-580 (ARR) (RML), 2019 WL 1299266, at *7 (E.D.N.Y.
Mar. 5, 2019), report and recommendation adopted, No. 18-CV-580 (ARR) (RML), 2019 WL
1299661 (E.D.N.Y. Mar. 21, 2019) (finding that plaintiff had established itself as prevailing party
for purposes of Lanham Act where defendant had defaulted).
In order to examine whether a case is “exceptional” under the Lanham Act, the Court
must follow the rubric set forth under Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572
U.S. 545 (2014). See Sleepy’s LLC v. Select Comfort Wholesale Corp., 909 F.3d 519, 529-31 (2d
Cir. 2018); 4 Pillar Dynasty LLC v. N.Y. & CO., 933 F.3d 202, 215 (2d. Cir. 2019). An “exceptional
case” under Octane Fitness is one that stands out from others with respect to (i) the
substantive strength of the party’s litigating position, or (ii) the unreasonable manner in which
the case was litigated. 4 Pillar Dynasty LLC, 933 F.3d at 215. Octane Fitness gives courts “wide
latitude” to engage in a “case-by-case exercise of their discretion, considering the totality of the
circumstances,” including factors such as “frivolousness, motivation, objective
unreasonableness (both in the factual and legal components of the case) and the need in
particular circumstances to advance considerations of compensation and deterrence.” 4 Pillar
Dynasty LLC, 933 F.3d at 215 (quoting Octane Fitness, 572 U.S. at 554 n.6). “As in the
comparable context of the Copyright Act, there is no precise rule or formula for making these
determinations, but instead equitable discretion should be exercised . . .” Octane Fitness, LLC,
572 U.S. at 554 (internal citations and quotations omitted).
7

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The record contains ample evidence of the unreasonable manner in which the case was
litigated, establishing it as an exceptional case under the Lanham Act. The “unreasonable
manner” of litigation was almost exclusively the province of Defendant. Specifically:
•

Defendant filed an opposition to Plaintiff’s trademark application, forcing Plaintiff to
commence the instant action seeking declaratory judgments of non-infringement
(ECF 39, Defendant’s Answer to Amended Complaint ¶¶ 1-2 (“Answer”);

•

Appearing in the action and then opposing Plaintiff’s request for a declaratory
judgment (Answer ¶ 22);

•

Asking the Court for a conference, directing its counsel to attend the conference as
an “observer” instead of formally appearing, and then intentionally declaring default
(ECF 69 at 2-8);

•

Filing a new trademark application that led to Plaintiff’s other application being
suspended, after nearly a year of settlement discussions between the parties. (ECF
69 at 2).

There is no question that Defendant’s conduct has resulted in an enormous waste of the
Court’s time and resources, and has incurred substantial expense on Plaintiff. The totality of the
circumstances in this case evinces exactly the kind of “unreasonable” litigation that justifies an
award of attorneys’ fees under the Octane Fitness test. See, e.g., Cognex Corp. v. Microscan
Sys., Inc., No. 13-CV-2027 (JSR), 2014 WL 2989975, at *4 (S.D.N.Y. June 30, 2014) (finding patent
case exceptional and awarding attorneys’ fees where defendants engaged in “unreasonable
litigation tactics that have wasted the Court’s time and have required plaintiffs to expend
significant resources”); Venus By Maria Tash, Inc. v. Prinatriam Ltd., No. 21-CV-2098 (LGS)
(RWL), 2022 WL 4085747, at *6 (S.D.N.Y. Aug. 24, 2022), report and recommendation adopted,
No. 21-CV-098 (LGS), 2022 WL 5110594 (S.D.N.Y. Oct. 4, 2022) (finding case exceptional in part
because defendants “frustrated the litigation process” by failing to appear in the case);
Experience Hendrix, L.L.C. v. Pitsicalis, No. 17-CV-1927 (PAE) (GWG), 2020 WL 3564485, at *15
8

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(S.D.N.Y. July 1, 2020), report and recommendation adopted sub nom. Experience Hendrix, LLC
v. Hendrix, No. 17-CV-1927 (PAE) (GWG), 2020 WL 4261818 (S.D.N.Y. July 24, 2020) (finding
case exceptional and awarding attorneys’ fees for defendants’ misconduct throughout the
litigation, which included disobeying court orders, refusing to participate in discovery, and
defaulting).
C. Calculation of a Reasonable Fee Award
Plaintiff requests an attorneys’ fees 2 award of $96,446.50. (ECF 81 at 6). The Court finds
that while Plaintiff’s fees and hours are generally reasonable, Plaintiff has not provided full
information regarding the names and qualifications of each attorney or staff that worked on
this matter, and thus recommends that Plaintiff’s requested amount be reduced by $700.
Courts determine fee awards through the “lodestar” calculation, which is “the number
of hours expended multiplied by a reasonable hourly rate.” Venus By Maria Tash, Inc., 2022 WL
4085747 at *6. The Second Circuit has held that the lodestar creates a presumptively
reasonable fee. See Millea v. Metro-North Railroad Co., 658 F.3d 154, 166 (2d Cir. 2011)
(quoting Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany, 522 F.3d
182, 183 (2d Cir. 2008). To provide a lodestar calculation, the party seeking an award of
attorneys’ fees should submit evidence “supporting the hours worked and rates claimed.”
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983). Plaintiff has properly
submitted this evidence, including a declaration from counsel and contemporaneously-

Although Plaintiff styles its application as one for “attorneys’ fees and costs” (ECF 81 at 20) (emphasis added),
Plaintiff’s supporting papers do not specify the costs incurred in the action. (See ECF 82-11). Accordingly, the Court
takes Plaintiff’s supporting papers as evidence of attorneys’ fees incurred only and does not address the question
of costs.
2

9

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recorded billing entries for services rendered to Plaintiff after settlement negotiations began
between the parties.
Courts consider the reasonableness of an hourly rate by comparing it to the prevailing
market rate for attorneys in the district in which the Court sits. Reiter v. MTA New York City
Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006). Plaintiff is represented by Oved & Oved LLP
(“Oved”) and seeks reimbursement of fees for the work of 15 attorneys and staff from that
firm. (ECF 82-11). Lead counsel, Terrence A. Oved, is a partner with nearly 30 years of
experience. (Solomon Decl. ¶ 33). Mr. Oved billed at an hourly rate of $795/$895 per hour. (Id.
¶ 32). Aaron J. Solomon, also a partner, has advised clients in intellectual property and
commercial litigation for over 15 years, and billed at an hourly rate of $595 per hour. (Id. ¶¶ 3233). Jacob Imir was formerly a partner at Oved who similarly billed at $545 per hour. (Id.).
Christopher Rados is an associate at Oved who is an experienced litigator and who billed at
$495 per hour. (Id.). Ryan MgNagny and Benjamin Ratner were former associates at Oved who
billed at $395 per hour. (Id.). Jeremy Weinsten is another former associate who billed at $350
per hour. (Id.). Judi Swartz is an associate who billed at $295/$395 per hour. (Id.). Steven
Appelbaum is a former associate who billed at $250/$350 per hour. (Id.). Elizabeth Uphaus is an
associate who billed at $295/$325 per hour. (Id.). Daniel Adessky is a former associate who
billed at $250 per hour. (Id.). Jennifer Pierce is an associate who billed at $195 per hour. (Id.).
The Court finds the above rates requested for Plaintiff’s attorneys to be reasonable. The
Court has reviewed the qualifications of each attorney for whom such rates are sought, as well
as the work they completed in this case, and finds the rates charged appropriate for attorneys
of their background and experience. The rates sought here are within the range of those
10

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approved by courts in this district. See Carrington v. Graden, No. 18-CV-4609 (KPF), 2020 WL
5758916, at *12-13 (S.D.N.Y. Sept. 28, 2020) (approving hourly fees of $900 and $850 in
complex commercial litigation case); MSC Mediterranean Shipping Co. Holding S.A. v. Forsyth
Kownacki LLC, No. 16-CV-8103 (LGS), 2017 WL 1194372, at *3 (S.D.N.Y. Mar. 30, 2017) (stating
that rates ranging from $569.02 to $753.42 per hour for associates and rates ranging from
$874.60 to $1,048.47 were reasonable in complex commercial litigation context); Serin v. N.
Leasing Sys., Inc., No. 7:06-CV-1625, 2011 WL 1467560, at *11 (S.D.N.Y. Apr. 19, 2011), aff'd,
501 F. App'x 39 (2d Cir. 2012) (holding that it is “inevitable” for more senior attorneys to
complete work that would be handled by junior associates at a larger firm).
In order to determine the compensable hours, “the court must examine the hours
expended by counsel and the value of the work product of the particular expenditures to the
client's case.” Tlacoapa v. Carregal, 386 F. Supp. 2d 362, 371 (S.D.N.Y. 2005) (citing Gierlinger v.
Gleason, 160 F.3d 858, 876 (2d Cir. 1998)). “In making this examination, the district court does
not play the role of an uninformed arbiter but may look to its own familiarity with the case and
its experience generally as well as to the evidentiary submissions and arguments of the
parties.” Gierlinger, 160 F.3d at 876. Here, Oved’s attorneys billed a total of 187.30 hours for
work performed between December 14, 2017 and July 15, 2021. (ECF 82-11). The Court has
reviewed Plaintiff’s supporting records and finds the time spent to be reasonable. The work
performed is of the nature and type that would be expected for a trademark infringement case
such as this one, including client consultations and briefings; discussions with opposing counsel
regarding settlement; drafting and revising the settlement agreement; and researching and
moving for court relief under the Lanham Act. Notably, Plaintiff does not seek fees for work
11

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performed after the commencement of settlement discussions, underscoring the fact that the
request for fees here is minimal compared to the actual time Plaintiff expended on this case.
While the Court finds the hours and rates of Plaintiff’s attorneys reasonable, there are
three entries on Plaintiff’s supporting records that do not correspond to the list of attorneys
that Plaintiff provided to the Court. These three entries are from July 24, 2019, and list work
performed by “JR” and “JL,” identifiers that do not appear on the list of attorney names in
Plaintiff’s supporting declaration. (ECF 82-11 at 14). Because Plaintiff has not provided the
names, qualifications, or hourly rates of these individuals, the Court cannot determine if the
fees listed in their billing records are reasonable. In such cases, courts in this district apply a
single, blended rate to legal work. Joe Hand Promotions, Inc. v. Martinez, No. 07-CV-6907, 2008
WL 4619855, at *7 (S.D.N.Y. Oct. 17, 2008) (noting that “[w]hen more than one attorney and/or
other staff members such as paralegals renders legal services for the same case, the court can
use a single blended hourly rate or separate rates for the contributions of each of the legal
practitioners their staff members”); Jackson Hewitt Inc. v. Excellent Pro. Servs. LLC, No. 08-CV5237 (JG) (RER), 2010 WL 5665033, at *4 (E.D.N.Y. Nov. 8, 2010), report and recommendation
adopted, No. 08-CV-5237 (JG) (RER), 2011 WL 317969 (E.D.N.Y. Jan. 31, 2011) (applying blended
rate of $350 for partners and $225 for associates where application did not provide names of all
attorneys who worked on the case, in light of prevailing rates in the Eastern District);
Suchodolski Assocs., Inc. v. Cardell Fin. Corp., No. 03-CV-4148, 2008 WL 5539688, at *3 (S.D.N.Y.
Dec. 18, 2008) (applying blended rate of $300 to fee request for partners and associates where
movant “failed to provide information regarding the experience levels of the attorneys who
worked on the case”). The Court finds that a blended rate of $300 is appropriate to attach to
12

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the work of “JR” and “JL,” Oved staff whose names and qualifications were not provided to the
Court.3 Accordingly, the dollar amounts on their respective entries are reduced to $690, $150,
and $180. See Streamlight, Inc. v. Gindi, No. 18-CV-987 (NG), 2019 WL 6733022, at *19 (E.D.N.Y.
Oct. 1, 2019), report and recommendation adopted, No. 18-CV-987 (NG) (RLM), 2019 WL
6726152 (E.D.N.Y. Dec. 11, 2019) (rejecting hourly rates of $725 and $650 where plaintiff failed
to submit adequate description of attorneys’ experience and qualifications). In light of the
above, the Court recommends that Plaintiff’s request for attorneys’ fees be granted, but
reduced from Plaintiff’s requested amount of $96,446.50 to $95,746.50.
III.

CONCLUSION
For the foregoing reasons, I recommend that the Court GRANT Plaintiff’s request for

attorneys’ fees from Defendant in the amount of $95,746.50.
IV.

OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure,

the parties shall have fourteen (14) days (including weekends and holidays) from service of this
Report to file written objections. See also Fed. R. Civ. P. 6 (allowing three (3) additional days for
service by mail). A party may respond to any objections within fourteen (14) days after being
served. Such objections, and any responses to objections, shall be addressed to the Honorable

An hourly rate of $300 is within the range that Courts find reasonable for law firm associates in cases such as the
one at bar. See, e.g., Travel Leaders Grp., LLC v. Corley, No. 19-CV-1595 (GBD) (JLC), 2019 WL 6647319, at *16
(S.D.N.Y. Dec. 5, 2019), report and recommendation adopted, No. 19-CV-1595 (GBD) (JLC), 2022 WL 950957
(S.D.N.Y. Mar. 30, 2022) (determining that rates of $375 and $300 were reasonable for associates in intellectual
property cases and noting that courts in this district have awarded between $200–$450 to associates in similar
cases); Genger v. Genger, No. 14-CV-5683 (KBF), 2015 WL 1011718, at *2 (S.D.N.Y. Mar. 9, 2015) (“New York
district courts have ... recently approved rates for law firm associates in the range of $200 to $450 per hour.”).
3

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Case 1:17-cv-04737-VM-OTW Document 88 Filed 12/05/22 Page 17 of 17

Victor Marrero, United States District Judge. Any requests for an extension of time for filing
objections must be directed to Judge Marrero.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER
OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 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).
SO ORDERED.

s/ Ona T. Wang
Ona T. Wang
United States Magistrate Judge

Dated: New York, New York
November 3, 2022

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