Robbins & Myers, Inc v. JM Huber Corporation, et al

Filing 359

DECISION AND ORDER awarding attorneys fees. Signed by Hon. Leslie G. Foschio on 6/13/2011. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ROBBINS & MYERS, INC.,
Plaintiff/
Counterclaim Defendant,

DECISION
and
ORDER

v.
01-CV-00201S(F)
J.M. HUBER CORPORATION and
H. MILTON HOFF,
Defendants/Counterclaimants/
Third-Party Plaintiffs,
v.
ROBBINS & MEYERS ENERGY SYSTEMS, INC.,
BERKELEY FORGE & TOOL, INC., and
THOMPSON HINE LLP,
Third-Party Defendants.

APPEARANCES:

THOMPSON HINE LLP
Attorneys for Plaintiff/Counterclaim Defendant
And Third-Party Defendant
LESLIE W. JACOBS,
MATTHEW E. LIEBSON,
KENNETH G. COLE, and
LUKE L. DAUCHOT, of Counsel
3900 Key Center
127 Public Square
Cleveland, Ohio 44114-1291
HODGSON RUSS LLP
Attorneys for Plaintiff/Counterclaim Defendant
And Third-Party Defendant
JEFFREY C. STRAVINO, and
ROBERT J. LANE, JR., of Counsel
The Guaranty Building, Suite 100
140 Pearl Street
Buffalo, New York 14202-4040

DAY PITNEY LLP
Attorneys for Defendants/Counterclaimants/
Third-Party Plaintiffs
DAVID S. SAGER,
DENNIS LaFIURA, and
ELIZABETH J. SHER, of Counsel
P.O. Box 1945
Morristown, New Jersey 07962-1945
PHILLIPS LYTLE LLP
Attorneys for Defendants/Counterclaimants/
Third-Party Plaintiffs
EDWARD S. BLOOMBERG, of Counsel
3400 HSBC Center
Buffalo, New York 14203

JURISDICTION
This action was referred to the undersigned by Honorable William M. Skretny on
December 5, 2007, for determination of non-dispositive motions. The matter is
presently before the court on Defendants’ applications filed October 21, 2010 (Docs.
Nos. 308 and 309), and on May 6, 2011 (Doc. No. 340), for attorneys’ fees and costs
awarded pursuant to this court’s Decisions and Orders respectively filed October 12,
2010 (Doc. No. 305), and March 21, 2011 (Doc. No. 325).1

BACKGROUND and FACTS2
Plaintiff Robins & Myers, Inc. (“Plaintiff”), commenced this fraud action on March
22, 2001, seeking to recover monetary damages allegedly incurred by R&M in
1

The Second Circuit Court of Appeals considers the award of m onetary sanctions pursuant to
Rule 37 for noncom pliance with discovery orders a nondispositve m atter reviewable by the district judge
under the “clearly erroneous or contrary to law” standard. Thomas E. Hoar, Inc. v. Sara Lee Corp., 900
F.2d 522, 525 (2d Cir. 1990).
2

The Facts are taken from the pleadings and m otion papers filed in this action.
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connection with its 1997 purchase of a wholly-owned subsidiary of Defendant J.M.
Huber Corporation (“Huber”), of which Defendant H. Milton Hoff (“Hoff”), was president
(together, “Defendants”). In connection with this action, the court has resolved
numerous discovery disputes and motions to compel discovery including, relevant to
the instant motions, motions to compel and for sanctions filed by Defendants on
September 18, 2009 (Doc. No. 247) (“the first sanctions motion”), February 24, 2010
(Doc. No. 275) (“the second sanctions motion”), and October 6, 2010 (Doc. No. 304)
(“the third sanctions motion”). In a Decision and Order filed June 24, 2010 (Doc. No.
292) (“June 24, 2010 D&O”), the undersigned granted the first and second sanctions
motions, including Defendants’ request for costs and attorneys’ fees incurred in
connection with the motions.
As directed in the June 24, 2010 D&O, Defendants filed affidavits in support of
the award of costs and attorneys’ fees incurred preparing the first and second sanctions
motion (“first fee application”) and Plaintiff filed opposing affidavits. In a Decision and
Order filed October 12, 2010 (Doc. No. 305) (“October 12, 2010 D&O”), the
undersigned granted the first fee application and awarded Defendants a total of $
34,858.53 in attorneys’ fees and costs relative to the first and second sanctions
motions, advising that Plaintiff was also responsible for the costs and attorneys’ fees
Defendants incurred preparing and defending the first fee application.
Accordingly, on October 21, 2010, Defendants filed papers seeking attorneys’
fees totaling $ 8,771.94 for preparing and defending the first fee application, (“second
fee application”), including the Declaration of Edward Bloomberg, Esq. Pursuant to the
Court’s Decision and Order Dated October 12, 2010 (Doc. No. 308) (“Bloomberg
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Declaration”), seeking attorneys’ fees of $ 595.44, and the Declaration of David S.
Sager, Esq. Pursuant to the Court’s Decision and Order Dated October 12, 2010 (Doc.
No. 309) (First Sager Declaration”), seeking attorneys’ fees of $ 8,716.50, for total fees
of $ 9,311.94 for the second fee application. On October 22, 2010, Plaintiff filed
objections to the October 12, 2010 D&O (Doc. No. 310) (“October 12, 2010 D&O
Objections”), arguing, inter alia, the attorneys’ fees and costs awarded by the October
12, 2010 D&O was excessive and contrary to law. In opposition to the first fee
application, Plaintiff filed on October 28, 2010, the Opposition to Defendants’ Third
Attorney’s Fees Application (Doc. No. 314) (“Plaintiff’s Second Fee Application
Response”).
In a Decision and Order filed March 21, 2011 (Doc. No. 325) (“March 21, 2011
D&O”), the undersigned granted the third sanctions motion, including Defendants’
request for costs and attorneys’ fees incurred in connection with the sanctions motion.
In accordance with the March 21, 2011 D&O, Defendants filed affidavits in support of
the award of costs and attorneys’ fees for the third sanctions motion (“third fee
application”), which were opposed by Plaintiff. In a Decision and Order filed April 27,
2011 (Doc. No. 337) (“April 27, 2011 D&O”), the undersigned granted the third fee
application and awarded Defendants a total of $ 38,821.40 in attorneys’ fees and costs.
The undersigned further reminded the parties that Plaintiff was responsible for and
costs, including attorneys’ fees, Defendants incurred preparing and defending the third
fee application, and granted Defendant ten days to file affidavits in support of such
costs and fees, with Plaintiff given an additional ten days to file any response. April 27,
2011 D&O at 15 n. 5. On May 11, 2011, Plaintiff filed objections to the April 27, 2011
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D&O (Doc. No. 343) (“April 27, 2011 D&O Objections”), challenging as clearly
erroneous the undersigned’s April 27, 2011 D&O granting Defendants third fee
application, thereby awarding Defendants costs and attorneys’ fees incurred in
connection with the third sanctions motion.
Accordingly, on May 6, 2011, Defendants filed the Declaration of David S. Sager,
Esq. Pursuant to the Court’s Decision and Order Dated April 27, 2011 (Doc. No. 340)
(“Second Sager Declaration”), seeking attorneys’ fees of $ 5,422.50 for preparing and
defending the third fee application pertaining to the third sanctions motion (“fourth fee
application”). In opposition, Plaintiff, by letter dated May 26, 2011 (Doc. No. 348) (“May
26, 2011 Letter”), advised that Plaintiff would rely on the arguments presented in
Plaintiff’s Objections to the April 27, 2011 D&O in opposing the fourth fee application. In
reply, Defendants, by letter dated May 27, 2011 (Doc. No. 357) (“May 27, 2011 Letter”),
advised that Plaintiff’s May 26, 2011 Letter was untimely as it was not filed within 10
days of the Sager Declaration, as the April 27, 2011 D&O directed.
Pending before the court are Defendants’ second and fourth fee applications
seeking attorneys fees incurred preparing and defending, respectively, the first and third
fee applications. Oral argument was deemed unnecessary.
Based on the following, Defendants’ second and fourth fee applications are
GRANTED.

DISCUSSION
Courts have permitted parties to recover attorneys’ fees incurred in connection
with preparing and defending applications for the expenses, including costs and
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attorneys’ fees associated with either successfully making or opposing a motion to
compel discovery. See Metrokane, Inc. v. Built, NY, Inc., 2009 WL 637111, at * 3
(S.D.N.Y. Mar. 6, 2009) (granting defendant’s fee application seeking attorneys’ fees
incurred preparing and defending fee application for expenses related to defendant’s
discovery motions); Rahman v. Smith & Wollensky Restaurant Group, Inc., 2009 WL
72441, at * 7 (S.D.N.Y. Jan. 7, 2009) (awarding defendants 41.2 hours of attorneys’
fees incurred in connection with fee application for successfully opposing plaintiff’s
motion to compel discovery). Similarly, in the instant case, the undersigned has
permitted Defendants to recover attorneys’ fees incurred in connection with preparing
and defending their fee applications for the costs incurred in connection with the first,
second, and third sanctions motions.
Traditionally, “in determining a fee award, the typical starting point is the socalled lodestar amount, that is ‘the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.’” Healey v. Leavitt, 485 F.3d 63, 71 (2d
Cir. 2007) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Second
Circuit recently “undertook to simplify the complexities surrounding the attorney’s fees
awards that had accumulated over time” in the district and circuit courts. Simmons v.
New York City Transit Authority, 575 F.3d 170, 174 (2d Cir. 2009). In particular, the
Second Circuit sought to reconcile the lodestar method with the method, set forth in
Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974) (“the Johnson
method”), and describing “a one-step inquiry that considered twelve specific factors to
establish a reasonable fee.” Simmons, 575 F.3d at 174 (citing Arbor Hill Concerned
Citizens Neighborhood Ass’n v. County of Albany, 493 F.3d 110, 114 (2d Cir. 2007)
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(“Arbor Hill”). The Supreme Court, however, has since considered the issue of
attorneys’ fees, approving the traditional lodestar method over the more subjective
Johnson method, explaining
Although the lodestar method is not perfect, it has several important virtues.
First, in accordance with our understanding of the aim of fee-shifting statutes, the
lodestar looks to “the prevailing market rates in the relevant community.”
Developed after the practice of hourly billing had become widespread, the
lodestar method produces an award that roughly approximates the fee that the
prevailing attorney would have received if he or she had been representing a
paying client who was billed by the hour in a comparable case. Second, the
lodestar method is readily administrable, and unlike the Johnson approach, the
lodestar calculation is “objective,” and thus cabins the discretion of trial judges,
permits meaningful judicial review, and produces reasonably predictable results.
Perdue v. Kenny A., __ U.S. __, 130 S.Ct. 1662, 1672 (2010) (italics in original;
citations omitted).
Nevertheless,
The lodestar method was never intended to be conclusive in all circumstances.
Instead, there is a ‘strong presumption’ that the lodestar figure is reasonable, but
that presumption may be overcome in those rare circumstances in which the
lodestar does not adequately take into account a factor that may properly be
considered in determining a reasonable fee.
Id. at 1673.
Accordingly, the court first determines according to the lodestar method the amount of
attorneys’ fees to award on the pending second and fourth fee applications, and then, if
necessary, adjusts the resulting lodestar figure to reflect consideration of any special
circumstances.
In calculating the lodestar amount, the initial burden is on the requesting party to
submit evidence supporting the number of hours worked and the hourly rate claimed.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The “lodestar” calculation should
exclude fees for work that is “excessive, redundant or otherwise unnecessary,” as well
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as hours dedicated to severable unsuccessful claims. Quarantino v. Tiffany & Co., 166
F.3d 422, 425 (2d Cir. 1999) (citing Hensley, 461 U.S. at 433-35). To prevent the court
from reviewing and ruling on each item for which reimbursement is requested, courts
have permitted a percentage-based reduction from the number of hours submitted as a
means of trimming excess time from the fee request. McDonald v. Pension Plan of the
NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96 (2d Cir. 2006) (“A district court may
exercise its discretion and use a percentage deduction as a practical means of trimming
fat from a fee application.” (internal quotation marks and citation omitted)); see
Greenway v. Buffalo Hilton Hotel, 951 F.Supp. 1039, 1070 (W.D.N.Y. 1997)
(recognizing that rather than evaluating and ruling on each time entry for which
Defendants seek attorneys’ fees, courts are permitted to make a percentage-based
reduction in the number of claimed hours “as a means of trimming the fat from the fee
request.” (citing Walker v. Coughlin, 909 F.Supp. 872, 881 (W.D.N.Y. 1995) (reducing
by 15 % the total hours requested))). Courts have permitted up to a 50% reduction in
the fees sought where the supporting documentation is so vague as to render it unclear
whether time entries are redundant or unnecessary. See Matusick v. Erie County
Water Authority, __ F.Supp.2d __, 2011 WL 796510, at * 16 (W.D.N.Y. March 1, 2011)
(applying “50% across-the-board reduction in claimed hours” where documentation
included “numerous entries about unspecified conferences, telephone calls, e-mail
correspondence, and ‘reviews.’”).
In the instant case, with regard to the second and fourth fee applications,
Defendants seek reimbursement of attorneys’ fees according to the following schedules
listing the hours each attorney worked at the various hourly rates in connection with
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each pending fee application.
SECOND FEE APPLICATION
Bloomberg3

Hourly
Rate:

Sager

Marino

Deulks

330.80

530

365

275

1.8

Attorney:

3.1

18.4

1.3

595.44

$ 1,643.00

$ 6,716.00

$ 357.50

$

Hours:
Sub-Total:

$

Total Second Fee Application:

$ 9,311.94

FOURTH FEE APPLICATION
Attorney:
Hourly
Rate:

Sager
$

Marino

Sub-Total:

375

2.7

Hours:

550

10.5

$ 1,487.00

$ 3,937.50

Total Fourth Fee Application:

$ 5,422.50

GRAND TOTAL:

$14,734.44

Plaintiff challenges the attorney’s fees and costs Defendants seek for the second
and fourth fee applications on several grounds, including that the hourly rates used to
calculate attorneys’ fees are excessive, that the time entries submitted in support of the
fees applications are too vague to determine whether the work was necessary or
duplicative, and that much of the work for which Defendants seeks attorneys fees could

3

Although Bloom berg’s hourly rate was $ 355, for unexplained reasons, Defendants were billed
for Bloom berg’s services in connection with preparing and defending the second fee application at the
hourly rate of $ 330.80. Bloom berg Declaration ¶ 3.
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have been performed by a junior associate attorney, a paralegal, or even clerical staff.
Plaintiff’s Second Fee Application Response at 1-5. Plaintiff urges the court to award
Defendants no more than $ 3,400 in attorneys fees in connection with the second fee
application. Id. at 5.4
Preliminarily, insofar as Plaintiff challenges Defendants’ attorneys’ hourly rates
as excessive, the undersigned, for the same reasons discussed in the October 12,
2010 D&O and the April 27, 2011 D&O, does not agree. Briefly, in the October 12,
2010 D&O, the undersigned found no merit to Plaintiffs’ argument that the prevailing
hourly attorney rate in Buffalo should be used to calculate the fees to be awarded to
Defendants’ lead counsel, located in northern New Jersey, not far from New York City
given that Defendants had retained their regular counsel to represent them in this
action. October 12, 2010 D&D at 13-14. Nor were Defendants required to have local
counsel, whose hourly rate is lower than Defendants’ lead counsel, prepare and defend
Defendants’ fee application. Id. at 14-15. Further, the hourly rates charged by both
Defendants’ lead and local counsel were reasonable for the respective geographic
areas based on hourly rates approved in other actions in those same geographic areas,
of which the undersigned took judicial notice. Id. at 15-17. Accordingly, in the instant
case, the court finds that the hourly rates claimed by Defendants in connection with
both the second and fourth fee applications are reasonable, and the hourly rates will not
be reduced. The number of hours Defendants claim to have expended preparing and

4

Because Plaintiff has not filed a separate response regarding the fourth fee application, Plaintiff
has not specified the am ount of attorneys’ fees that should be awarded in connection with the fourth fee
application.
10

defending the second and fourth fee applications are, however, excessive, and are
reduced in accordance with the following discussion.
In particular, having already decided that Defendants were entitled to an award
of costs, including attorneys’ fees on the first, second, and third sanctions motions,
June 24, 2010 D&O at 26 and 31; March 21, 2011 D&O at 94, the only issues before
the court on the first and third fee applications were whether the claimed hourly rates
and the number of hours Defendants’ attorneys expended preparing and defending the
first, second and third sanctions motions were reasonable. That little legal research
was required to prepare the first and third fee applications is evident from the papers
Defendants submitted in support of the first and third fee applications. Moreover,
although the issues presented in the first, second and third sanctions motions were
somewhat unusual, the first and third fee applications were not complex, involving only
issues routinely confronted on fee applications.
Specifically, with regard to the second fee application seeking attorneys’ fees
relative to the first fee application, in support of the first fee application, Defendants
submitted declarations from local counsel Edward Bloomberg, Esq. (Doc. No. 299), and
lead counsel David S. Sager (Doc. No. 300-2), summarizing the number of hours for
which attorneys’ fees were requested in connection with the first fee application, and
providing the fee charged by each attorney who worked on the first fee application.
Attached to both declarations were redacted copies of invoices showing the relevant
time entries from each firm’s billing records to support the summarized hours claimed
by each firm. An additional attachment to the declaration from Sager is an article from
the December 23, 2002 issue of New Jersey Law Journal discussing current prevailing
11

attorney hourly rates in the largest New Jersey law firms, including Day Pitney.
Defendants also filed a memorandum of law (Doc. No. 300), consisting of four pages of
legal argument, three of which discuss the reasonableness of Defendants’ counsel’s
hourly rates and referencing a handful of cases supporting Defendants’ assertion that
its hourly rates are reasonable within the relevant market, and the fourth page
explaining why the number of hours expended by defense counsel preparing and
defending the first fee application was reasonable, without referencing any caselaw.
Although Plaintiff filed a memorandum of law opposing Defendants’ first fee application
(Doc. No. 303), Defendants did not file reply papers in further support of the first fee
application.
Upon reviewing Defendants’ papers submitted in support of the second fee
application, the court finds the claimed hours should be substantially reduced.
Bloomberg seeks reimbursement for five entries totaling 1.8 hours, including three
entries totaling 1.4 hours redacting bills, and telephoning and emailing Marino regarding
the redactions. The redacted invoices (Doc. No. 299-2) to which Bloomberg refers,
however, are not voluminous and the vast majority of the invoice entries are brief, for
example, a September 9, 2009 entry for “Telephone P Marino re motion for sanctions,”
and a January 25, 2010 entry for “Review notice from Court re R&M objections.” In
total, Bloomberg redacted only four of the invoice entries and, given the brief nature of
most of the entries, identifying those to be redacted should not have required much
time or discussion. Furthermore, the five entries for which Bloomberg seeks
reimbursement lack detail, rendering it difficult to discern whether any time Bloomberg
spent on the first fee application was duplicative of another attorney’s work.
12

Accordingly, the court reduces the 1.8 hours claimed by Bloomberg in connection with
the second fee application by 50%, with Bloomberg being reimbursed for the difference
of .9 hours at the hourly rate $ 330.80 for a total of $ 297.72 to be awarded for
Bloomberg’s work on the first fee application.
Similarly, Defendant’s lead counsel seeks with regard to the second fee
application reimbursement for a total of 22.8 hours expended by three attorneys,
including Sager, Marino and Duelks, preparing and defending the first fee application.
As discussed, however, Discussion, supra, at 11, the only legal research involved in
connection with the first fee application was to establish that Defendants were entitled
to be reimbursed for their lead counsel at the prevailing rates in northern New Jersey
where Day Pitney is located, rather than at the prevailing rate in the Buffalo market, and
that the hourly rates claimed by both lead and local counsel were reasonable in their
respective markets. Indeed, Defendants reference only a handful of cases, and attach
a then eight-year old article in support of its argument, evidencing that the legal
research involved was not substantial. Nor is it likely that Sager’s brief declaration
detailing the hourly rates for Sager, Marino and Duelks, or redacting the invoices
submitted in support of the second fee application required much time.
Given the lack of details in the time entries for which reimbursement is sought,
the paucity of legal research involved in preparing the first fee application, and the
rather routine nature of the legal argument, the court will reduce Defendants’ lead
counsel’s hours by the same 50% reduction by which Defendants’ local counsel’s hours
were reduced. Accordingly, Defendants seek a total of $ 8,716.50 for its lead counsel,
from which 50% or $ 4,358.25 is deducted to account for vague time entries that render
13

it impossible to discern whether reimbursement is sought for duplicative efforts and
unnecessary time.
As such, Defendants are reimbursed the difference of $ 4,358.25 for its lead
counsel. Together with the $ 297.72 awarded for local counsel, Defendants are
awarded on the second fee application a total of $ 4,655.97 for attorneys’ fees incurred
preparing and defending the first fee application.
Similarly, with regard to the fourth fee application seeking attorneys’ fees relative
to the third fee application, in support of the third fee application, Defendants submitted
declarations from local counsel Bloomberg (Doc. No. 330), and lead counsel Sager
(Doc. No. 229), summarizing the number of hours for which attorneys’ fees were
requested in connection with the third application, and providing the fee charged by
each attorney who worked on the third fee application. Attached to both declarations
are copies of invoices showing the relevant time entries from each firm’s billing records
to support the summarized hours claimed by each firm. It is only in reply to an
opposing memorandum of law filed by Plaintiff (Doc. No. 334), that Defendants filed a
reply memorandum of law (Doc. No. 335), consisting of four pages of legal argument,
largely repetitive of the legal argument contained in the memorandum Defendants
submitted in support of the first fee application (Doc. No. 300). Nevertheless,
Defendants claim a total of 13.2 hours were spent preparing and defending the third fee
application, including six hours preparing the reply memorandum. Furthermore, the
time entries submitted in support of the fourth fee application are not sufficiently
detailed to permit the court to discern whether the hours claimed were necessary or
duplicative of another attorney’s work.
14

Under these circumstances, the court again finds a 50% reduction in the number
of hours claimed in the fourth fee application in connection with preparing and
defending the third fee application is warranted. Accordingly, although Defendants’
fourth fee application seeks $ 5,422.50 in fees, that amount is reduced by 50% or
$ 2,711.25, leaving Defendants to be reimbursed for the difference of $ 2,711.25 for
preparing and defending the third fee application.

CONCLUSION
Based on the foregoing, Defendants are awarded on the second fee application
$ 4,655.97 for attorneys’ fees incurred preparing and defending the first fee application,
and on the fourth fee application $ 2,711.25 for preparing and defending the third fee
application. In total, Defendants are awarded $ 7,367.22 on both pending fee
applications.

SO ORDERED.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

June 13, 2011
Buffalo, New York

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