Verdier v. Thalle Construction Company, Inc.

Filing 62

ORDER REVIEWING REPORT AND RECOMMENDATION for 60 Report and Recommendations, 52 Motion for Attorney Fees filed by Daniel Verdier. For the foregoing reasons, the Court awards Plaintiff reasonable legal fees in the amountof$24,890.55 (� 36;24,735.75 plus $154.80), and $868.89 in costs, with interest as of January 5, 2017 (the date summary judgement was granted). The Clerk of the Court is respectfully requested to terminate the motions at ECF No. 52 and 61, and to terminate the case. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 2/28/2018) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DANIEL VERDIER,
Plaintiff,
-againstTHALLE CONSTRUCTION COMPANY, INC.,

14-CV-04436 (NSR)(LMS)
ORDER REVIEWING REPORT
AND RECOMMENDATION

Defendant.

NELSON S. ROMAN, United States District Judge:
This case was referred to Magistrate Judge Lisa M. Smith ("MJ Smith") for a Report and
Recommendation ("R&R") on the award of attorneys' fees and costs. In the R&R, dated August
3, 2017, MJ Smith recommends that Plaintiff be awarded attorneys' fees in the amount of
$23,189.77 and costs in the amount of $868.89, for a total amount of $24,057.69. (R. & R. (ECF
No. 60) 16.) Plaintiff objects to the R&R on multiple bases, including that MJ Smith erroneously
applied an across the board discount for legal services rendered. (Pl.'s Obj. to R. & R. (ECF No.
61)

1 4.)

The Court adopts the findings and conclusions of the R&R which Plaintiff has not

objected to on the basis that no clear error has been shown. As to those p01tions of the R&R which
Plaintiff does object to, the Comt conducts a de novo review of MJ Smith's findings and
. conclusions. Based upon the foregoing, the Court awards Plaintiff legal fees in the amount of
$24,890.55 and costs in the amount of$868.89.
BACKGROUND
Plaintiff Daniel Verdier ("Plaintiff') commenced the instant action against his former
employer, Defendant Thalle Construction Company, Inc. ("Defendant"), pursuant to the Employee

.,:".c"":.::~c-c

::Rfilirementln~~)),l~ Se~urity Act ("ERISA") Section 1132, 29 U.S.C. § 1132, seeking to recover
USDC SDNY
~1•

1DOCUMENT

1
t~!~~RUNICALLY FILED

I!

I

•'·:\ ,• ' ·c:~~~~~D:,~/-: ;1,:r~_::J
. ·~ - -~...

benefits due to him under a Deferred Compensation Plan ("the Agreement"). (Am. Comp!. (ECF
No. 17) Ex. A.) During the pendency of the litigation, Defendant conceded liability. 1 However,
the parties could not agree on the amount due to Plaintiff under the Agreement. Plaintiff alleged
he was owed $289,900.00. Defendant alleged Plaintiff was owed $123,202.00. Thus, the only
issue to be determined was the amount of damages, inclusive of legal fees and costs, if any, that
should be awarded to Plaintiff.
Following motion practice, by Opinion and Order dated January 5, 2017, this Court
determined that Plaintiff was entitled to summary judgment in the amount of$123,202.00, which
was the amount Defendant claimed was owed and far less than the $289,900.00 Plaintiff sought.
(Mem. & Op. (ECF No. 44) 17.) This Court also dete1mined, upon weighing all relevant factors,
that Plaintiff was entitled to attorneys' fees.2 By Order of Reference dated January 18, 2017, tl1is
matter was referred to MJ Smith for a determination ofreasonable attorneys' fees and costs. (Order
Referring Case to Magistrate Judge (ECF No. 46) I.) On August 3, 2017, MJ Smith issued the
R&R granting Plaintiff legal fees in the amount of $23,189.77, plus costs in the amount of $868.89.
STANDARD OF REVIEW
In reviewing the R&R of a magistrate judge, a district comt "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).

A district court "must determine de nova any part of the magistrate judge's

disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); see also United States v.

Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). In a de nova review, a district comt must consider

1 Defendant's concession of liability was not treated as an offer of judgement under Fed. R. Civ. P. 68. See
Cabala v. Crowley, 736 F.3d 226, 228-30 (2d Cir. 2013).
2 This Court noted that "Section 502(g) of ERISA provides that 'the court in its discretion may allow a
reasonable attorney's fee and costs ... to either party.' To qualify for an award of attorneys' fees, a party must have
achieved 'some degree of success on the merits."' (Mem. & Op. (ECF No. 44) 13 (citing 29 U.S.C. § 1132(g)(l);
Donachie v. Liberty Life Assurance Co. ofBoston, 745 F.3d41, 46 (2d Cir. 2014) (quoting Hardtv. Reliance Standard
Life Ins. Co., 560 U.S. 242, 254-55 (2010)).) Following the application of the "Chambless factors," see Donachie,
745 F.3d at 46, the Court detennined Plaintiff was entitled to legal fees and costs. (Mem. & Op. 13-14.)

the "[r]eport, the record, [and] applicable legal authorities, along with Plaintiffs and Defendant's
objections and replies." Diaz v. Girdich, 2007 WL 187677, at* 1 (S.D.N.Y. Jan. 23, 2007) (internal
quotation marks and citations omitted).

Objections must be "specific and clearly aimed at

particular findings" in the R&R. Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487
(S.D.N.Y. 2009).
To accept those portions of the R&R to which no timely objection has been made, however,
a district court need only satisfy itself that there is no clear error on the face of the record. See,

e.g., Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). The "clearly
e1rnneous" standard also applies when a party makes only conclusory or general objections, or
simply reiterates his original arguments. See, e.g., Ortiz v. Barkley, 558 F. Supp. 2d 444, 451
(S.D.N.Y. 2008).
In the present case, the R&R advised the parties that they had 14 days from service of the
R&R to file any objections, and warned that failure to timely file such objections would result in
waiver of any right to object. In addition, it expressly called the parties' attention to Fed. R. Civ.
P. 72 and 28 U.S.C. § 636(b)(l). In accordance with the statutes cited, Plaintiff filed a timely
objection to the R&R, dated August 17, 2017. 3 Thus, the Comt reviews the R&R to determine
whether there is "clear error on the face of the record" as to those pmtions not objected to, and
conducts a de novo review only as to those issues Plaintiff raised a "clear and specific" objection
to.
DISCUSSION
A review of the R&R reveals that MJ Smith determined Plaintiffs current counsel,
Corbally, Gartland and Rappleyea, LLP ("CG&R"), billed (1) $13,530.00 for legal services
performed from the filing of Plaintiffs complaint through August 2015, when Defendant conceded

3

Defendant did not file an objection to the R&R.

liability, (2) $2,000.00 for legal services provided in preparation of the instant fee application, and
(3) $15,389 for legal fees accumulated "litigating the amount owed under the agreement." (R. &
R. 9.) Thus, MJ Smith determined that Plaintiff established entitlement to $30,919.69 (excluding
interest) in legal fees for services provide by CG&R.
The $30,919.69 amount was based upon a $300.00 hourly rate as charged by Allan
Rappleyea, Esq. ("Rappleyea") and Vincent DiBiase, Esq. ("DiBiase"), partners at CG&R. (Id.
6.) Plaintiff's objection suggests that MJ Smith reduced counsels' fees from a $425.00 hourly rate
to a $300.00 hour rate. Such suggestion is misleading and lacks merit. MJ Smith merely noted
that in a case of similar impmt, the court deemed a $425.00 hourly rate reasonable for paitners that
had litigated an ERISA case wherein their client prevailed. (Id.) See N. Y. Dist. Council of
Carpenters Pension Fund v. Perimeter Interiors, Inc., 657 F. Supp. 2d 410, 424 (S.D.N.Y. 2009).

MJ Smith similarly found that the rate at issue in this case was reasonable. (R. & R. 6.) Likewise,
this Court determines de novo that the $300.00 hourly rate for services provided by CG&R partners
Rappleyea and DiBiase is reasonable.
MJ Smith determined that a 25% across the board reduction in legal fees was warranted on
the basis that Plaintiff recovered far less the $289,900.00 amount he originally sought in his
pleadings and throughout the litigation. (Id. 9.) Plaintiff objects to this reduction, arguing that it
is not equitable. Under ERISA, an attorneys' fees claimant must show some degree of success on
the merits before a court may award attorneys' fees under the statute's general fee-shifting
standard. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 255 (2010). In determining the
amount ultimately to be awarded, a court ordinai·ily considers the following five factors: "(l) the
degree of the offending party's culpability or bad faith, (2) the ability of the offending party to
satisfy an award of attorney's fees, (3) whether an award of fees would deter other persons from
acting similarly under like circumstances, (4) the relative merits of the parties' positions, and (5)

whether the action conferred a common benefit on a group of pension plan participants." Sheehan
v. Metro. Life Ins. Co., 450 F. Supp. 2d 321, 325 (S.D.N.Y. 2006) (citing Chambless v. Masters,
Mates & Pilots Pension Plan, 815 F.2d 869,871 (2d Cir. 1987)).

While it is clear that Plaintiff achieved some measure of success, he did not demonstrate
entitlement to recovery of the full amount he originally claimed he was due. When a plaintiff
achieves "only pa1tial or limited success," full compensation for attorneys' fees may not be
reasonable. Sheehan, 450 F. Supp. 2d. at 329 (citing Hensley v. Eckerhart, 461 U.S. 424, 436
(1983)). Under such circumstances, courts are permitted to "reduce the award to account for the
limited success." Id. (internal citations omitted); see also U.S. Football League v. Nat 'l Football
League, 887 F.2d 408,414 (2d Cir. 1989) (internal citations omitted). The Comt determines that

Plaintiff has demonstrated entitlement to attorneys' fees in the amount of $30,919.69. However,
based upon Plaintiffs limited success, the Court applies a 20% reduction, resulting in an award of
$24,735.75 in legal fees.
Plaintiff seeks to recover an additional $1,223.00 in legal fees incurred in the 1990's for
services provided by two oilier law firms. 4 MJ Smith determined Plaintiff was not entitled to the
recovery of the $1,223.00 on the basis that Plaintiff lacked support for the granting of said relief.
(R. & R. 10-11.) Plaintiff objects to MJ Smith's analysis and recommendation.

A review of the record reveals that other than Plaintiffs asse1tion that the two firms sought
to "enforce his rights," there is no delineation of the actual legal services provided or the nature of
the services provided. One invoice, however, indicates that Plaintiff was billed $193.50 for

4

Plaintiff provides an invoice, dated December 13, 1995, from the firm ofHoffinan, Wachtell, Koster, Maier
& Mandel, indicating payment of$279.50 for a previous balance due, plus $193.50 for a telephone conference call.
(Alf. In Supp. of Mot. (ECF No. 53) Ex. 3.) Other than the reference to a telephone conference, the invoice does not
specify what services were provided. Likewise, Plaintiff provides an invoice from Danziger & Markhoff, dated
November 12, 1993, which reflects payment of a $750.00 retainer for "legal services rendered in connection with
Thalle Construction Company non-qualified deferred compensation agreement." (Id.) No other information is
provided.

services rendered by an attorney during a telephone conference requesting the "present value of
the defell"ed compensation plan." (Aff. in Supp. of Mot. (ECF No. 53) Ex. 3.) While it is true that
"ERISA's attorney's fee provisions must be liberally construed to protect the statutory purpose of
vindicating" employee benefits rights, see Chambless, 815 F .2d at 872, the paity seeking attorneys'
fees must nevertheless demonstrate the reasonableness and necessity of hours spent, and that the
fees sought to be recovered were directly related to Plaintiffs effo1ts to recover benefits due to
him. Plaintiffs mere conclusory statements lack specificity with regard to what tasks, if any, were
performed, the dates the services were perfo1med, and the amount of time allotted to the task(s),
and are thus insufficient. See Bricklayers Ins. & Welfare Fund v. Precise Brick, Inc., 2009 WL
4891821, at *8 (E.D.N.Y. Dec. 17, 2009) (citing New York State Assoc. for Retarded Children,
Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)). Accordingly, upon de nova review, the Court

determines Plaintiff has not demonstrated entitlement to recovery for the fees he alleges he
incu1Ted in the 1990's, with the exception of $193.50. Applying a 20% reduction based on
Plaintiffs limited success, the Court finds that Plaintiff has demonstrated entitlement to an
additional $154.80 in legal fees.
Lastly, the Comt awards Plaintiff interest on the recovered legal fees and costs as of the
date summary judgement was granted.

Generally, the granting of prejudgment interest on

attorneys' fees is not the nmm. Klepeis v. J & R Equip., Inc., 2012 WL 2849390, at *5 (S.D.N.Y.
May 31, 2012), report and recommendation adopted, 2012 WL 2849750 (S.D.N. Y. July 11, 2012)
(citing Koon Chun Hing Kee Soy & Sauce Factory, Ltd. v. Kun Fung USA Trading Co, 2012 WL

1414872, at *10 (E.D.N.Y. Jan. 20, 2012) (citation omitted)). The awarding of prejudgment
interest on attorneys' fees may be permissible where the claimant demonstrates the legal invoices
were not only issued but actually paid. See Klepeis v. J & R Equip., Inc., 2012 WL 2849390, at
*5 (S.D.N.Y. May 31, 2012), report and recommendation adopted, 2012 WL 2849750 (S.D.N.Y.

July 11, 2012) (no prejudgment interest awarded because defendant "[was] not accountable to
Plaintiffs counsel for Plaintiffs failure to remit timely legal payments"); United States ex rel.

ATC Distrib. Grp., Inc. v. Read~Built Transmissions, Inc., 2007 WL 2522638, at *7 (S.D.N.Y.
Sept. 7, 2007) (where plaintiff paid legal invoices throughout course of litigation, plaintiff was
entitled to recover prejudgment interest on those payments); Harris Trust Sav. Bank v. John

Hancock Mut. Life Ins. Co., 137 F. Supp. 2d 351, 361 (S.D.N.Y. 2001) (awarding prejudgment
interest on attorneys' fees already paid in an ERISA suit "running from [the date] the invoice was
issued and paid"). Lacking from Plaintiffs submission, in support of his request for legal fees and
prejudgment interest, is any evidence, such as an affidavit from Plaintiff or from counsel,
demonstrating actual payment.

Thus, Plaintiff has failed to demonstrate entitlement to

prejudgment interest.
CONCLUSION
For the foregoing reasons, the Court awards Plaintiff reasonable legal fees in the amount
of$24,890.55 ($24,735.75 plus $154.80), and $868.89 in costs, with interest as of January 5, 2017
(the date summary judgement was granted). The Clerk of the Court is respectfully requested to
terminate the motions at ECF No. 52 and 61, and to terminate the case.

Dated:

February 28, 2018
White Plains, New York

~

NE
S.ROMAN
United States District Judge