Congregation Rabbinical College of Tartikov, Inc. et al v. Village of Pomona et al
Filing
237
OPINION AND ORDER re: 213 MOTION for Attorney Fees for Spoliation of Evidence. filed by Wolf Brief, David A. Menczer, Meilech Menczer, Meir Margulis, Herman Kahana, Chaim Rosenberg, Mordechai Babad, Congregation Rabbinical Coll ege of Tartikov, Inc., Jacob Hershkowitz. For the reasons set forth above, Plaintiffs' Motion is granted in part and denied in part. Plaintiffs' counsel is hereby awarded attorneys' fees of $42,940.56 and costs of $99.90, for a total of $43,040.45. The Clerk of Court is respectfully directed to terminate the pending Motion. (Dkt. No. 213.) (Signed by Judge Kenneth M. Karas on 5/25/2016) (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CONGREGATION RABBINICAL COLLEGE
OF TARTIKOV, INC., et al.,
Case No. 07-CV-6304 (KMK)
Plaintiffs,
OPINION & ORDER
-vVILLAGE OF POMONA, et al.,
Defendants.
Appearances:
Paul Savad, Esq.
Donna C. Sobel, Esq.
Savad│Churgin
Nanuet, NY
Counsel for Plaintiffs
Roman P. Storzer, Esq.
Storzer & Greene, P.L.L.C.
Washington, D.C.
Counsel for Plaintiffs
John G. Stepanovich, Esq.
Stepanovich Law, PLC
Chesapeake, VA
Counsel for Plaintiffs
Andrea Donovan Napp, Esq.
Robinson & Cole LLP
Hartford, CT
Counsel for Defendants
Marci A. Hamilton, Esq.
The Law Office of Marci Hamilton
Washington Crossing, PA
Counsel for Defendants
KENNETH M. KARAS, District Judge:
In an Opinion & Order dated September 29, 2015 (the “Opinion”), the Court granted
Plaintiffs’ Motion for Sanctions due to the spoliation of evidence by Defendants. (Dkt. No. 207.)
Presently before the Court is Plaintiffs’ Motion for Attorneys’ Fees and Costs Due to Spoliation
of Evidence (“Motion”), pursuant to Federal Rule of Civil Procedure 37. (Dkt. No. 213.) For
the reasons explained herein, the Motion is granted in part and denied in part.
I. Background
Assuming the Parties’ familiarity with the background of this case, as discussed in the
Opinion, the Court will briefly summarize only those facts most relevant to resolving the instant
Motion.
In this Action, Plaintiffs challenge as unlawful certain zoning and environmental
ordinances enacted by Defendant Village of Pomona. (See Dkt. No. 27.) Following discovery,
on April 27, 2015, the Court held a pre-motion conference on Plaintiffs’ putative motion for
sanctions for spoliation of evidence. (See Dkt. (minute entry for April, 27, 2015).) Pursuant to a
Scheduling Order of the same date, (Dkt. No. 185), Plaintiffs filed their Motion for Sanctions
and associated documents on June 3, 2015, (Dkt. Nos. 195–97). Plaintiffs requested that the
Court sanction Defendants for destroying a Facebook post (the “Facebook Post”) written by
Defendant Rita Louie (“Louie”) and related text messages between Defendant Brett Yagel and
Louie, and for failing to produce “the non-destroyed portion of those texts,” which Plaintiffs
alleged contained relevant evidence. (See Pls.’ Mem. of Law in Supp. of Pls.’ Mot. for Sanctions
2 (Dkt. No. 196).) Defendants filed their opposition papers on July 1, 2015, (Dkt. Nos. 200–04),
and Plaintiffs filed their reply on July 15, 2015, (Dkt. No. 205).
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In the Opinion, the Court found that “this [was] the rare case where bad faith, and a clear
intent to deprive Plaintiffs of the evidence at issue, is sufficiently clear from the face of the
record.” (Opinion & Order (“Opinion”) 38 (Dkt. No. 207).) Accordingly, the Court imposed an
adverse inference sanction and ordered that Defendants pay the attorneys’ fees and costs incurred
by Plaintiffs in connection with their Motion for Sanctions. (See id. at 44–45.)
On October 29, 2015, Plaintiffs filed the instant Motion and supporting papers, seeking
an order for attorneys’ fees and costs due and payable to Savad Churgin, Stepanovich Law, PLC,
and Storzer & Greene, P.L.L.C. (Dkt. Nos. 213–19.) Defendants filed their opposition on
November 16, 2015. (Dkt. No. 227.)
II. Discussion
A. Applicable Law
A district court has “considerable discretion” in determining what constitutes a
reasonable fee award. Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany, 522
F.3d 182, 190 (2d Cir. 2008). The “presumptively reasonable fee” is “the lodestar—the product
of a reasonable hourly rate and the reasonable number of hours required by the case.” Millea v.
Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (internal quotation marks omitted); see also
Beastie Boys v. Monster Energy Co., 112 F. Supp. 3d 31, 48 (S.D.N.Y. 2015) (same).
Ultimately, “[t]he 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.” Beastie Boys, 112 F. Supp. 3d at 48 (some internal quotation marks
omitted) (quoting Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009)). In
resolving what a reasonable client would pay, the Court must consider the “Johnson factors,”
namely:
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(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 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714,
717–19 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87
(1989)).
The party seeking attorney’s fees “bear[s] the burden of documenting the hours
reasonably spent by counsel, and the reasonableness of the hourly rates claimed.” Beastie Boys,
112 F. Supp. 3d at 48 (internal quotation marks omitted); see also Hensley v. Eckerhart, 461 U.S.
424, 433 (1983) (explaining that the fee applicant must submit “evidence supporting the hours
worked and rates claimed”). Courts are to exclude requested hours that are “excessive,
redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434; see also Palmer v. Cty. of
Nassau, 977 F. Supp. 2d 161, 170 (E.D.N.Y. 2013) (same). Additionally, “[a]ttorney’s fees must
be reasonable in terms of the circumstances of the particular case.” Alderman v. Pan Am World
Airways, 169 F.3d 99, 102 (2d Cir. 1999). “There is no precise rule or formula for determining a
proper attorney’s fees award; rather, the district court should exercise its equitable discretion in
light of all relevant factors.” Beastie Boys, 112 F. Supp. 3d at 48 (alteration and internal
quotation marks omitted).
B. Attorneys’ Fees
Plaintiffs seek $63,406.15 in attorneys’ fees incurred in connection with Defendants’
spoliation of evidence. (See Pls.’ Mem. of Law in Supp. of Pls.’ Mot. for Attorneys’ Fees and
Costs (“Pls.’ Mem.”) 1 (Dkt. No. 214).)
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1. Reasonableness of Hourly Rate
A reasonable hourly rate is based on “the [current] prevailing market rate for lawyers in
the district in which the ruling court sits.” Anthony v. Franklin First Fin., Ltd., 844 F. Supp. 2d
504, 507 (S.D.N.Y. 2012); see also McDonald ex rel. Prendergast v. Pension Plan of the NYSAILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006) (explaining that a reasonable hourly rate is
one in line with rates “prevailing . . . in the community for similar services by lawyers of
reasonably comparable skill, expertise[,] and reputation” (internal quotation marks omitted)).
The “court may determine the reasonable hourly rate by relying both on its own knowledge of
comparable rates charged by lawyers in the district” and “on evidence proffered by the parties.”
Adorno v. Port Auth., 685 F. Supp. 2d 507, 511 (S.D.N.Y. 2010) (internal quotation marks
omitted), reconsideration granted in part, 2010 WL 727480 (S.D.N.Y. Mar. 2, 2010). Ideally,
included in the fee applicant’s submissions should be affidavits providing information as to the
credentials of each attorney seeking reimbursement and an affidavit by a disinterested local
practitioner attesting to the relevant prevailing market rates. See McDonald, 450 F.3d at 97 n.5.
As co-counsel, all attorneys from the firms of Savad Churgin, Stepanovich Law, and
Storzer & Greene have billed Plaintiffs at a blended rate of $375 per hour, regardless of
seniority. (See Decl. of Paul Savad (“Savad Decl.”) ¶ 20 (Dkt. No. 215); Decl. of Roman Storzer
(“Storzer Decl.”) ¶ 6 (Dkt. No. 217); Decl. of John G. Stepanovich (“Stepanovich Decl.”) ¶ 12
(Dkt. No. 218); cf. Savad Decl. Ex. A.)1 With regard to this requested hourly rate, Plaintiffs have
made a number of submissions, including affidavits from the four attorneys seeking
1
For Savad Churgin, that rate has been in place since October 2007 and has not been
raised over the past nine years. (See Savad Decl. ¶ 20.)
5
reimbursement, Defendants’ retainer agreements with their own counsel, and an affidavit by a
disinterested local practitioner.
As for credentials, Paul Savad (“Savad”) is a member of Savad Churgin and has been
practicing law for 49 years in the areas of complex federal and state litigation, including matters
of religious freedom, civil rights, and New York zoning and land use. (Savad Decl. ¶¶ 1, 6, 10.)
A New-York based lawyer, (see id. ¶¶ 1, 6), he has represented Plaintiffs since 2004 when
Plaintiff Congregation Rabbinical College of Tartikov purchased the property underlying the
dispute in this case, (id. ¶ 11). Donna C. Sobel (“Sobel”) also is an attorney with Savad Churgin.
(Decl. of Donna C. Sobel (“Sobel Decl.”) ¶ 1 (Dkt. No. 216).) She has been practicing complex
federal litigation for 14 years. (Id. ¶¶ 5–7.)
Roman P. Storzer (“Storzer”), an out-of-district attorney with Storzer & Greene, has
significant experience with respect to religious rights litigation and specifically RLUIPA cases.
(Storzer Decl. ¶¶ 1, 3–4.) After serving as Director of Litigation for the nonprofit organization
The Becket Fund for Religious Liberty, he subsequently has represented many religious
organizations in such matters in private practice since 2004. (Id. ¶ 4.)
John G. Stepanovich (“Stepanovich”) is an out-of-district attorney with Stepanovich Law
who has been practicing complex federal religious freedom and civil rights litigation for 20
years. (Stepanovich Decl. ¶¶ 1, 3.) He previously served as Deputy Chief Counsel, Senior
Counsel, and Director of Operations of The American Center for Law and Justice, an
international public interest civil rights legal organization specializing in religious liberties
litigation. (Id. ¶ 4.)
By way of comparison, the $375 hourly rate charged by Savad, Stepanovich, and Storzer
falls below that found to be reasonable for attorneys of comparable experience in complex
6
litigation in the Southern District of New York. See, e.g., Coakley v. Webb, No. 14-CV-8438,
2016 WL 1047079, at *6 (S.D.N.Y. Mar. 10, 2016) (concluding “that a $575 hourly rate credits
the extensive experience and qualifications of [the attorneys seeking reimbursement]”); Munoz v.
Manhattan Club Timeshare Ass’n, Inc., No. 11-CV-7037, 2014 WL 4652481, at *4 (S.D.N.Y.
Sept. 18, 2014) (finding $400 per hour to be a reasonable rate for an experienced litigator with
nearly 20 years of experience), aff’d, 607 F. App’x 85 (2d Cir. 2015); LV v. N.Y.C. Dep’t of
Educ., 700 F. Supp. 2d 510, 519 (S.D.N.Y. 2010) (finding “$600 [to be] a reasonable rate” for
two senior lawyers) Adorno, 685 F. Supp. 2d at 513 (“A rate of $550 is . . . consistent with rates
awarded in this district for experienced civil rights lawyers.”). The same is true for Sobel. See,
e.g., LV, 700 F. Supp. 2d at 519 (reviewing rate for an attorney with 10 years of experience and
finding $375 per hour “consistent with rates recently awarded to comparably experienced
lawyers in this district”); Imbeault v. Rick’s Cabaret Int’l Inc., No. 08-CV-5458, 2009 WL
2482134, at *4 (S.D.N.Y. Aug. 13, 2009) (finding “a rate of $400 per hour . . . reasonable” for a
litigator with 13 years of experience).2
Moreover, as set forth in the declaration of Russell M. Yankwitt, a local practitioner
without interest in the present case, (see Decl. of Russell M. Yankwitt (“Yankwitt Decl.”) ¶¶ 4,
6–7), the requested rate is actually lower than the prevailing hourly rates charged for legal
services rendered in comparable cases by experienced federal court litigators, (id. ¶ 10). In fact,
the blended hourly rate of $375 is the same rate billed to Defendants by their litigation counsel,
Robinson & Cole, in 2007 and 2008, (Savad Decl. ¶ 21; see also id. Ex. I), and well below the
$700 per hour that Defendants’ RLUIPA counsel, Marci Hamilton, charges Defendants, (Savad
2
Notably, Defendants do not object to the blended rate as a concept, and nor do they
object to the particular rate charged by Plaintiffs’ counsel. (See generally Defs.’ Mem. of Law in
Opp’n to Pls.’ Mot. for Attorneys’ Fees and Costs (“Defs.’ Opp’n”) (Dkt. No. 227).)
7
Decl. ¶ 22; see also id. Ex. J).3 The requested rate is also lower than that billed by Plaintiffs’
counsel to some other clients in similar matters. (See Savad ¶ 18; Sobel ¶ 8; Storzer ¶ 6.)
Finding no reason to question the reasonableness of the requested rate in light of
counsels’ extensive experience and the prevailing rates in the Southern District of New York, the
Court will calculate the presumptively reasonable fee based off the hourly rate of $375. See
Makinen v. City of N.Y., No. 11-CV-7535, 2016 WL 1451543, at *3 (S.D.N.Y. Apr. 12, 2016)
(calculating “the presumptively reasonable fee based off the rates requested” in the absence of
any challenge to the general reasonableness of the billing rates); Balu v. City of N.Y., No. 12-CV1071, 2016 WL 884666, at *5 (S.D.N.Y. Mar. 8, 2016) (explaining that “the [c]ourt will not
adjust the rate sought” because the defendants “do not challenge the reasonableness of the hourly
rate [the plaintiff’s attorney] seeks”).
2. Reasonableness of Hours Requested
The fee applicant also bears the burden of demonstrating the number of hours expended
and the type of work performed through contemporaneous time records that “specify, for each
attorney, the date, the hours expended, and the nature of the work done.” N.Y. State Ass’n for
Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). “A court evaluating the
reasonableness of the number of hours claimed must examine the attorney’s records that detail
the time expended,” Matteo v. Kohl’s Dep’t Stores, Inc., No. 09-CV-7830, 2012 WL 5177491, at
*4 (S.D.N.Y. Oct. 19, 2012), aff’d, 533 F. App’x 1 (2d Cir. 2013), but must also check those
Though Plaintiffs presume that “Robinson & Cole currently charges more because the
retainer provided that after the end of 2008 ‘the blended rate will be adjusted consistent with rate
changes,’” (Pls.’ Mem. 6–7 (quoting Savad Decl. Ex. I)), the Court does not consider such
speculation in resolving the instant Motion, see Farbotko v. Clinton Cty., 433 F.3d 204, 209 (2d
Cir. 2005) (“[T]he fee applicant has the burden of showing by satisfactory evidence—in addition
to the attorney’s own affidavits—that the requested hourly rates are the prevailing market rates.”
(emphasis added) (internal quotation marks omitted)).
3
8
records against “its own familiarity with the case and its experience generally,” DiFilippo v.
Morizio, 759 F.2d 231, 236 (2d Cir. 1985). In determining whether hours should be excluded,
the inquiry is not based on what effort appears necessary in hindsight, but rather on 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 Coakley, 2016 WL
1047079, at *6 (same). A court may apply an across-the-board reduction to effectuate the
reasonable imposition of fees. See, e.g., Marisol A. ex rel. Forbes v. Giuliani, 111 F. Supp. 2d
381, 389 (S.D.N.Y. 2000) (“[R]ather than reducing a certain number of unreasonably billed
hours, the [c]ourt will make an across-the-board percentage cut in [the] plaintiffs’ fee award as is
necessary and appropriate.”). For example, “[c]ourts look unfavorably on block billing and
vagueness in billing because imprecise entries limit [their] ability to decipher whether the time
expended has been reasonable.” Matteo, 2012 WL 5177491, at *4.
In support of the instant Motion, Plaintiffs have submitted records indicating that counsel
expended approximately 173 hours in connection with their Motion for Sanctions. (See Savad
Decl. Ex. A.) Defendants, in response, set forth a number of grounds on which they contend the
requested fees should be reduced. (See Defs.’ Mem. of Law in Opp’n to Pls.’ Mot. for
Attorneys’ Fees and Costs (“Defs.’ Opp’n”) 3–11 (Dkt. No. 227).)
a. Excessive Hours
First, Defendants argue that the “hours expended by Plaintiffs in connection with this
narrow discovery issue are excessive.” (Id. at 4.) Although Plaintiffs contend that “[t]his is a
complex case,” and “[t]he spoliation motion itself was a complex motion,” (Pls.’ Mem. 10),
deletion of a Facebook post and a handful of related text messages was the sole factual issue
relevant to the Motion for Sanctions, (see Dkt. No. 195). Nonetheless, the submitted time
9
records indicate that Plaintiffs’ counsel spent over 80 hours drafting the motion and reply brief,
over 20 hours on research and fact review relating to the spoliation issue, another 36 hours
preparing for and attending a pre-motion conference, and approximately 16 hours conferring
with one another. (See Savad Decl. Exs. B, C, D.)4 The limited nature of the issue leads the
Court to find the number of claimed hours excessive. See Matteo, 2012 WL 5177491, at *4–5
(reducing claimed hours for spoliation motion and related discovery where counsel “expended an
unreasonable amount of time” on the “limited issue” of the destruction of one video); Whitney v.
Jetblue Airways Corp., No. 07-CV-1397, 2009 WL 4929274, at *4, *9 (E.D.N.Y. Dec. 21, 2009)
(reducing fees for litigation surrounding a spoliation issue because, in part, the claimed hours
were “excessive in light of the nature of the issue” involving the disposal of a single document);
Rahman v. Smith & Wollensky Rest. Grp., Inc., No. 06-CV-6198, 2008 WL 1899938, at *4
(S.D.N.Y. Apr. 29, 2008) (reducing claimed hours by 33% because “counsel devoted far more
hours to the sanctions issue than was justified by the work product”).
Defendants further contend that the claimed hours include “considerable time spent
reviewing irrelevant discovery.” (Defs.’ Opp’n 6.) According to Plaintiffs, it was “necessary for
Plaintiffs’ counsel to cull through the discovery in order to present the Court with evidence of
Defendants’ other failures to properly preserve evidence.” (Pls.’ Mem. 12.) However, in the
Opinion, this Court deemed “consideration of the alleged ‘pattern’ of misconduct unnecessary in
determining the appropriate sanction for the primary misconduct alleged in Plaintiffs’ Motion
These figures represent a rough approximate based on the Court’s review of the time
records submitted by Plaintiffs. More exact calculations were impossible in light of certain
instances of vague descriptions and block billing.
4
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[for Sanctions].” (Opinion 42 n.28.)5 In other words, notwithstanding Defendants’
representation that the destruction of the Facebook Post was an “isolated incident,” (see Savad
Decl. Ex. F, at 3–5), Plaintiffs’ efforts to prove other failures to preserve evidence had no bearing
on the relevant determination by the Court.
While the costs of fruitless efforts should not be borne by Defendants, see Ruggiero v.
Krzeminski, 928 F.2d 558, 564 (2d Cir. 1991) (affirming reduction in claimed hours based on
“irrelevant research”); Penta v. Costco Wholesale Corp., No. 14-CV-3587, 2016 WL 1171612, at
*8 (E.D.N.Y. Mar. 25, 2016) (deeming claimed hours to be excessive where “much of the time
was spent” on research “not relevant to the discovery disputes that were at the center of th[e]
[sanctions] motion”), Plaintiffs also assert that review of “the voluminous discovery” was
necessary “to prove that Defendants’ arguments were contrary to the fact that they had produced
documents similar to the destroyed document,” (Pls.’ Mem. 11). In finding “that sanctions of
some type [were] warranted for Defendants[’] destruction of—and failure to produce—this
evidence,” the Court noted, inter alia, that “Defendants previously produced a Facebook post
from the day after the offending post,” citing to an exhibit submitted by Plaintiffs. (Opinion 40.)
Thus, the Court cannot say that the “time culling through produced documents and discovery
responses” was unnecessary for Plaintiffs’ Motion for Sanctions. (See Pls.’ Mem. 13.)
b. Duplicative Entries
Further challenging Plaintiffs’ fee request, Defendants allege “a large amount of
duplicative time and effort.” (Defs.’ Opp’n 8.) Although Plaintiffs’ counsel made efforts to
avoid duplicative work, (see, e.g., Savad Decl. ¶ 26 (averring that Savad did not bill for his
5
Moreover, Plaintiffs have given no reason to believe that there were other instances of
suppressed or destroyed evidence.
11
participation in conferences regarding the Motion for Sanctions or for his final review of the
submissions in support of that motion); Stepanovich Decl. ¶ 14 (averring that Stepanovich did
not bill for services “if less than .25 hours was spent on any task”)), “duplication of effort” and
“inefficiencies” arising from the co-counsel relationship were likely “inevitable, if
unintentional,” LV, 700 F. Supp. 2d at 525.
For example, the submitted records reveal that Savad, Sobel, Storzer, and Stepanovich
spent approximately 16 hours conferring with one another, (see Savad Decl. Exs. B, C, D), yet it
is not clear that such staffing was objectively necessary, see Hop Hing Produces Inc. v. X & L
Supermarket, Inc., No. 12-CV-1401, 2013 WL 1232919, at *7 (E.D.N.Y. Mar. 4, 2013)
(reducing requested fees by 15% for, inter alia, “excessive time spent on conferences between
attorneys”), adopted by 2013 WL 1232483 (E.D.N.Y. Mar. 27, 2013); Allende v. Unitech
Design, Inc., 783 F. Supp. 2d 509, 515 (S.D.N.Y. 2011) (reducing fee award by 7% to account
for, inter alia, “some duplicative billing for conferences” among attorneys); Retained Realty, Inc.
v. Spitzer, 643 F. Supp. 2d 228, 241 (D. Conn. 2009) (reducing claimed hours “[w]here multiple
attorneys . . . billed time for the same conference beyond what the court considers to be
reasonable”). In addition, three attorneys, totaling over 20 hours of billed time, were all present
at the pre-motion conference on April 27, 2015, (see Savad Decl. Exs. B, C, D), despite the fact
that only Stepanovich addressed the Court, (see Savad Decl. F).6 Notwithstanding the value of
Of these hours, 11 cover Storzer’s and Stepanovich’s travel time to and from the premotion conference. (See Savad Decl. Exs. C, D.) As discussed in detail below, these travel
expenses are not to be borne by Defendants. See Dzugas-Smith v. Southold Union Free Sch.
Dist., No. 07-CV-3760, 2010 WL 3852003, at *3 (E.D.N.Y. Sept. 27, 2010) (reducing fee award
on the basis that “[t]here is no reason why [the] [d]efendants should incur greater liability simply
because [the] [p]laintiffs inexplicably retained a[n] [out-of-district] attorney, when legions of
competent . . . [d]istrict lawyers could have represented them”). The billing records indicate that
Storzer and Stepanovich each charged one half of the hourly rate for the hours of travel. (See
6
12
collaboration, this, too, appears unnecessarily duplicative. See Valley Hous. Ltd. P’ship v. City
of Derby, No. 06-CV-1319, 2012 WL 1077848, at *10 (D. Conn. Mar. 30, 2012)
(“Notwithstanding the value of having the ‘team’ present for depositions and other major
activities, such as oral argument, a minor deduction is warranted to account for the
duplication.”); Sabatini v. Corning-Painted Post Area Sch. Dist., 190 F. Supp. 2d 509, 521
(W.D.N.Y. 2001) (finding the attendance of two attorneys at oral argument to constitute
“duplication of effort warrant[ing] a modest reduction in the hours claimed”); Ragin v. Harry
Macklowe Real Estate Co., 870 F. Supp. 510, 521 (S.D.N.Y. 1994) (deeming the attendance of
three attorneys at oral argument to constitute “duplicative efforts”).7 In recognition of these
inefficiencies relating to a mere pre-motion conference, the Court finds that a reduction of hours
is warranted.8
c. Block Billing and Vague Entries
Lastly, Defendants contend that Plaintiffs’ requested fees should be reduced due to
“block billing” and overly vague billing descriptions. (See Defs.’ Opp’n 9–11.) While it is
“unnecessary for [fee applicants] to identify with precision the amount of hours allocated to each
individual task,” Rahman v. Smith & Wollensky Rest. Grp., Inc., No. 06-CV-6198, 2009 WL
Savad Decl. Ex. C-1, at 6; Savad Decl. Ex. D.) Accordingly, this Court will subtract $2,062.50,
the product of 11 hours and $187.50, from the fee award.
This is particularly true given Storzer’s self-proclaimed role as co-counsel “focus[ed] on
the federal and state constitutional and civil rights issues presented,” (Storzer Decl. ¶ 5), and the
pre-motion conference’s limited purpose of addressing Plaintiffs’ putative motion for sanctions
for spoliation of evidence, (see Letter from Plaintiffs to Court (Mar. 26, 2015) (Dkt. No. 165)).
7
The cited cases found a “modest” or “minor reduction” warranted as a result of
duplicative efforts relating to oral argument. See Valley Hous. Ltd. P’ship v, 2012 WL 1077848,
at *10; Sabatini, 190 F. Supp. 2d at 521. Here, Plaintiffs’ counsel duplicated their efforts at a
pre-motion conference. A more significant discount is thus in order.
8
13
72441, at *7 (S.D.N.Y. Jan. 7, 2009), attorneys seeking reimbursement “must provide enough
information for the [c]ourt, and the adversary, to assess the reasonableness of the hours worked
on each discrete project,” Themis Capital v. Dem. Rep. of Congo, No. 09-CV-1652, 2014 WL
4379100, at *7 (S.D.N.Y. Sept. 4, 2014), reconsideration denied, 2014 WL 4693680 (S.D.N.Y.
Sept. 22, 2014). Though courts disfavor block billing in general, it “is most problematic where
large amounts of time (e.g., five hours or more) are block billed,” thereby “meaningfully
cloud[ing] a reviewer’s ability to determine the projects on which significant legal hours were
spent.” Beastie Boys, 112 F. Supp. 3d at 53 (italics omitted); see also Abdell v. City of N.Y., No.
05-CV-8453, 2015 WL 898974, at *4 (S.D.N.Y. Mar. 2, 2015) (finding block billing acceptable
“for temporally short entries combining related tasks”); Adorno, 685 F. Supp. 2d at 515 (“While
block-billing is disfavored and may lack the specificity required for an award of attorneys’ fees,
it is not prohibited as long as the [c]ourt can determine the reasonableness of the work
performed.” (internal quotation marks omitted)).
Here, the majority of the block-billed entries were for fewer than five hours. (See Savad
Decl. Ex. B.)9 Additionally, for the most part, the block-billed entries, particularly the longer
ones, contain sufficient detail and specificity so as to afford reasonable confidence that the time
billed was productively spent, even if it is impossible to reconstruct the precise amounts of time
allocable to each specific task listed in the block entry. For example, on June 3, 2015, Sobel
billed 6.75 hours for: “Revise and finalize spoliation memo of law, Savad Dec., exhibits for
same and notice of motion; file and arrange for service of same.” (See Savad Decl. Ex. B-2, at
17.) Such an entry, though block-billed, sufficiently enumerates the work completed in the
Among Plaintiffs’ three law firms, only the billing records for Savad Churgin include
block billing. (Compare Savad Decl. Ex. B, with Savad Decl. Ex. C, and Savad Decl. Ex. D.)
9
14
designated amount of time and encompasses a series of related tasks. See U.S., ex rel. Fox Rx,
Inc. v. Omnicare, Inc., No. 12-CV-275, 2015 WL 1726474, at *3 (S.D.N.Y. Apr. 15, 2015)
(finding “[t]he use of ‘block billing’ . . . perfectly reasonable” where “the specific tasks in each
‘block’ are described with sufficient detail and clarity to confirm the reasonableness of the work
performed” (some internal quotation marks omitted)); Aurora Commercial Corp. v. Approved
Funding Corp., No. 13-CV-230, 2014 WL 3866090, at *6 (S.D.N.Y. Aug. 6, 2014) (declining to
reduce fees based on block billing where the “entries [were] sufficiently detailed to convey to the
reader the tasks for which [the attorneys] billed”). Thus, because the “commingling of activities
within one time entry” does not “impede[] the [C]ourt’s efforts to evaluate the reasonableness of
any of the listed activities,” Berry v. Deutsche Bank Tr. Co. Am., 632 F. Supp. 2d 300, 306
(S.D.N.Y. 2009) (internal quotation marks omitted), the use of block billing by some of
Plaintiffs’ attorneys does not provide a basis for reducing the fee award here.
On the other hand, the vague nature of many of the entries throughout the records
effectively prevents the Court, and Defendants, from independently assessing whether the time
spent on each task was reasonable and necessary. The billing records submitted by Plaintiffs are
replete with examples of work identified in mere generalities, such as “Team Meeting, etc.,”
(Savad Decl. Ex. B-1, at 1), “Review spoliation facts,” (Savad Decl. Ex. B-2, at 8), and “Work
on Spoliation Issue,” (Savad Decl. Ex. D). Such vague descriptions are precisely the sort that
courts have deemed impermissible in the context of fee awards. See, e.g., Abeyta v. City of N.Y.,
No. 12-CV-5623, 2014 WL 929838, at *5 (S.D.N.Y. Mar. 7, 2014) (finding entries entitled
“Trial Preparation” and “Supervision/Management” to be impermissibly vague), aff’d, 588 F.
App’x 24 (2d Cir. 2014); Barney v. Edison, No. 99-CV-823, 2010 WL 8497627, at *3 (E.D.N.Y.
Jan. 29, 2010) (concluding that “a reduction in the time expended [was] warranted” based on
15
vague billing like “Attorney Communication,” “Communication,” and “Research”), adopted sub
nom. Barney v. Consol. Edison Co., 2012 WL 911821 (E.D.N.Y. Mar. 16, 2012); Rosso v. Pi
Mgmt. Assocs., L.L.C., No. 02-CV-1702, 2006 WL 1227671, at *4 (S.D.N.Y. May 3, 2006)
(reducing fee award for vague entries, such as “Review of documents,” that prevented the court
from determining “whether the attorney who performed the work spent his or her time
effectively”); Amato v. City of Saratoga Springs, 991 F. Supp. 62, 65–66 (N.D.N.Y. 1998)
(reducing fee award for vague entries, which included “review research,” “review deposition
transcripts,” and “prepare deposition questions”). Therefore, in light of the vague nature of
certain billing entries, the Court finds an across-the-board reduction to be warranted. See
Kreisler v. Second Ave. Diner Corp., No. 10-CV-7592, 2013 WL 3965247, at *3 (S.D.N.Y. July
31, 2013) (“[A] court has discretion to impose an across-the-board reduction for vague billing
entries that prevent the court from determining if the hours billed were excessive.”); cf. Abeyta,
2014 WL 929838, at *5 (“[G]iven the vague nature of certain entries in the spreadsheet
documenting the hours worked by [the] defendants’ counsel, the [c]ourt hereby decreases the
total number of hours for which compensation is sought by 10%.”); Wise v. Kelly, 620 F. Supp.
2d 435, 452 (S.D.N.Y. 2008) (reducing fee award by 25% because certain entries were too vague
to enable the court to assess their reasonableness).
d. Aggregate Fee Reduction
Considering all of the above factors, the Court will impose a 30% reduction of the total
number of hours for which compensation is sought. As noted, the Court is not to compensate
counsel for “excessive, redundant, or otherwise unnecessary” hours, Hensley, 461 U.S. at 434,
and “in sizing the appropriate reduction, the [C]ourt has discretion simply to deduct a reasonable
percentage of the number of hours claimed as a practical means of trimming fat from [Plaintiffs’]
16
fee application,” Beastie Boys, 112 F. Supp. 3d at 57 (internal quotation marks omitted). “It is
common practice in this Circuit to reduce a fee award by an across-the-board percentage where a
precise hour-for-hour reduction would be unwieldy or potentially inaccurate.” Ass’n of
Holocaust Victims for Restitution of Artwork & Masterpieces v. Bank Austria Creditanstalt AG,
No. 04-CV-3600, 2005 WL 3099592, at *7 (S.D.N.Y. Nov. 17, 2005), reconsideration denied,
2009 WL 3816976 (S.D.N.Y. Nov. 10, 2009); see also Beastie Boys, 112 F. Supp. 3d at 57 (“Fee
reductions around 30% are . . . common in this District to reflect considerations of whether work
performed was necessary, leanly staffed, or properly billed.”).
Such is the case here, where the factors most influential to the Court’s determination
were the excessive hours and vague entries. After subtracting $2,062.50 from the requested
$63,406.15 to eliminate unwarranted travel time by Stepanovich and Storzer, (see supra n.6), the
30% reduction leaves fees of $42,940.56 to be paid by Defendants.
C. Costs
Plaintiffs also request $1,840.56 in costs, (see Pls.’ Mem. 1), which consist of travelrelated expenses and a transcript of the pre-motion conference, (see id. at 15 (citing Savad Decl.
¶ 30; id. Exs. A, B, C, D)). Fee awards include “reasonable out-of-pocket expenses incurred by
attorneys and ordinarily charged to their clients.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748,
763 (2d Cir. 1998) (internal quotation marks omitted). While “[e]xpenditures for photocopies,
postage, binding, filing, and travel are routinely recoverable,” Libaire v. Kaplan, No. 06-CV1500, 2011 WL 7114006, at *9 (E.D.N.Y. June 17, 2011), adopted in part and modified in part
by 2012 WL 273080 (E.D.N.Y. Jan. 30, 2012); see also Westport Ins. Corp. v. Hamilton
Wharton Grp. Inc., 483 F. App’x 599, 605 (2d Cir. 2012) (describing “in-house duplication
costs, telephone charges, meals, overtime, local transportation, postage, electronic legal research,
17
and messenger service” as “the sort of expenses that may ordinarily be recovered as part of a fee
award” (internal quotation marks omitted)), “[t]ravel costs may be denied where a party chooses
out-of-district attorneys,” Pall Corp. v. 3M Purification Inc., No. 03-CV-92, 2012 WL 1979297,
at *8 (E.D.N.Y. June 1, 2012). Defendants underscore this latter point, challenging the costs
requested by Plaintiffs on the basis that they should not be required to pay for the staffing
decision necessitating Storzer’s and Stepanovich’s out-of-state travel to and from court. (See
Defs.’ Opp’n 9.)
The vast majority of Plaintiffs’ attorneys’ costs were incurred in relation to travel for the
pre-motion conference before this Court on April 27, 2015; indeed, of the $1,840.56 requested,
$1,740.66 covered Storzer’s and Stepanovich’s trips to White Plains. (See Savad Decl. Ex. C
(listing $541.55 as Storzer’s travel-related expenses for the pre-motion conference); Savad Decl.
Ex. D (listing $1,199.11 as Stepanovich’s travel-related expenses for the pre-motion conference);
cf. Savad Decl. B-3 (listing $99.90 as the cost of the hearing transcript).) However, “the Second
Circuit has instructed that defendants should not be penalized for a plaintiff’s choice of out-ofdistrict counsel, unless ‘the case required special expertise beyond the competence of forum
district law firms.’” Dzugas-Smith v. Southold Union Free Sch. Dist., No. 07-CV-3760, 2010
WL 3852003, at *3 (E.D.N.Y. Sept. 27, 2010) (alteration omitted) (quoting Simmons, 575 F.3d
at 175); see also Makinen, 2016 WL 1451543, at *8 (“Courts in this Circuit have routinely
denied travel expenses for counsel where [a party] retained out-of-district counsel, particularly
where out-of-district counsel charged rates similar to those charged in-district.”). There is no
reason why Defendants should incur greater liability simply because Plaintiffs retained out-ofdistrict attorneys (notably, at the same rate as New York-based Savad Churgin) and insisted that
both attend the pre-motion conference, despite the fact that Plaintiffs had retained competent
18
local counsel, (see Pls.’ Mem. 4 (“Savad Churgin has extensive experience in complex federal
and state litigation as well as in zoning and land use law. Savad Churgin . . . is the primary firm
responsible for case strategy and for reviewing discovery in this [A]ction and synthesizing that
information.”)), who also appeared before the Court on April 27, 2015, (see Savad Decl. ¶ 26; id.
Ex. B-1, at 1 (billing for Savad’s “Federal Court Appearance re Spoliation” on April 27,
2015).)10 Moreover, it bears mentioning once again that Storzer did not even speak at the premotion conference, (see Savad Decl. Ex. F), despite having made the trip from Washington, D.C.
and incurring $541.55 in travel-related expenses, (see Savad Decl. Ex. C). While it was
Stepanovich who did address the Court at that conference, (see Savad Decl. Ex. F), Plaintiffs
have not demonstrated the necessity of his attendance, especially given the availability of Savad
Churgin and the fact that the outcome of this case would not turn on a single pre-motion
conference.11
Accordingly, the Court denies reimbursement for these travel-related expenses. See Ryan
v. Allied Interstate, Inc., 882 F. Supp. 2d 628, 638 (S.D.N.Y. 2012) (awarding transcript costs
but denying travel-related expenses that were “a result of [the] plaintiffs’ choice to litigate the[ir]
cases in the Southern District of New York while being represented by a firm based [in another
state]”); Concrete Flotation Sys., Inc. v. Tadco Constr. Corp., No. 07-CV-319, 2010 WL
10
As discussed above, it was unnecessary and excessive for three attorneys, one from
each of Plaintiffs’ law firms, to attend the pre-motion conference regarding a discovery issue.
This, alone, would merit a reduction in the compensable costs. See Clarke v. Hudson Valley
Fed. Credit Union, No. 14-CV-5291, 2016 WL 884667, at *8 (S.D.N.Y. Mar. 8, 2016) (reducing
“fees charged in relation to counsels’ travel time” by 60% because “it was excessive and
unnecessary for an attorney from each of [the plaintiff’s] two law firms to travel [out-of-state]
for the deposition”).
Indeed, it was Sobel, an attorney with Savad Churgin, who was “the person most
familiar with the facts” and “performed a majority of the work on the spoliation motion.” (Sobel
Decl. ¶ 7.)
11
19
2539771, at *7 (E.D.N.Y. Mar. 15, 2010) (denying costs for airfare, meals, and lodging where
there was "no reason these expenses needed [to] be incurred instead of using counsel in New
York"), adopted by 20 I 0 WL 2539661 (E.D.N .Y. June 17, 201 0); Motorola, Inc. v. Abeckaser,
No. 07-CV-3963 , 2009 WL 2568529, at *7 (E.D.N.Y. Aug. 5, 2009) (denying reimbursement of
"travel expenses because it is not clear that out-of-state counsel ' s attendance was necessary at the
proceedings, especially in light of the fact that [the] plaintiff had local counsel"), adopted in part
and modified in part by 2009 WL 2568526 (E.D.N.Y. Aug. 19, 2009). The compensable costs
thus amount to $99.90, the expense associated with obtaining the hearing transcript. See
Apolinario v. Luis Angie Deli Grocery Inc. , No. 14-CV-2328, 2015 WL 4522984, at *4
(S .D.N.Y . July 27, 2015) (awarding transcript expenses); Cho v. Koam Med. Servs. P.C. , 524 F.
Supp. 2d 202, 211-12 (E.D.N.Y. 2007) (reimbursing costs related to "deposition/hearing
transcripts").
III. Conclusion
For the reasons set forth above, Plaintiffs ' Motion is granted in part and denied in part.
Plaintiffs ' counsel is hereby awarded attorneys ' fees of$42,940.56 and costs of$99.90, for a
total of$43 ,040.45. The Clerk of Court is respectfully directed to terminate the pending Motion .
(Dkt. No. 213.)
SO ORDERED.
Dated:
Mayas , 20 16
White Plains, New York
20
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