Steuben Foods, Inc. v. Country Gourmet Foods, LLC et al

Filing 254

DECISION AND ORDER. Pursuant to this court's Decision and Order 222 , Plaintiff has failed to show cause why the award of expenses and costs should not be granted. Signed by Hon. Leslie G. Foschio on 4/21/2011. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
STEUBEN FOODS, INC.,
Plaintiff,
v.
COUNTRY GOURMET FOODS, LLC,
CAMPBELL SOUP COMPANY,
Defendants.

APPEARANCES:

DECISION
and
ORDER
08-CV-561S(F)

HISCOCK & BARCLAY, LLP
Attorneys for the Plaintiff
BRIAN G. MANKA, of Counsel
1100 M&T Center
Three Fountain Plaza
Buffalo, New York 14203
BUCHANAN INGERSOLL & ROONEY, PC
Attorneys for Defendant Country Gourmet Foods, LLC
PETER S. RUSS, of Counsel
301 Grant Street
One Oxford Centre - 20th Floor
Pittsburgh, Pennsylvania 15219
GOODWIN PROCTOR, LLP
Attorneys for Defendant Campbell Soup Company
FORREST A. HAINLINE, III, and
SUSANNE N. GERAGHTY, of Counsel
Three Embarcadero Center
San Francisco, California 64111
GOODWIN PROCTOR, LLP
Attorneys for Defendant Campbell Soup Company
JORDAN D. WEISS, of Counsel
620 Eighth Avenue
New York, New York 10018
PHILLIPS LYTLE, LLP
Attorneys for Defendant Campbell Soup Company
PAUL F. JONES, of Counsel
3400 HSBC Center
Buffalo, New York 14203

This case was referred to the undersigned for all pretrial matters by Hon. William
M. Skretny on September 18, 2008 (Doc. No. 17). The matter is presently before the
court on the court’s order of November 19, 2010 (Doc. No. 222) directing Plaintiff to
show cause why the expenses of Defendant Campbell Soup Company’s (“Campbell”)
motion to strike Plaintiff’s objections to Campbell’s Second Set of Interrogatories,
served July 22, 2010 to compel Plaintiff’s answers to the interrogatories and for
sanctions filed October 15, 2010 (Doc. No. 203) should not awarded against Plaintiff or
its counsel pursuant to Fed.R.Civ.P. 37(a)(5)(A) (“the Order to Show Cause”).
Based on the court’s careful review of Campbell’s papers in opposition to
Plaintiff’s belated response to the court’s order to show cause, the court finds that upon
the facts, arguments and authorities discussed therein, Plaintiff has failed to show
cause why the award for expenses and costs in connection with Campbell’s motion
should not be granted including the costs and associated expenses of Campbell’s local
counsel, in the total amount of $13,759.90 ($10,263.40 for expenses and fees incurred
by Campbell’s counsel, Goodwin Proctor, LLP and $3,496.50 for fees and costs
incurred by Campbell’s local counsel, Phillips Lytle, LLP). See Koan Produce, Inc. v.
DiMare Homestead, Inc., 329 F.3d 123, 130-31 (2d Cir. 2003) (affirming district court’s
awarding out-of-state party attorneys fees for both out-of-state and local counsel). It is,
of course, reasonable to expect that local counsel be sufficiently prepared to substitute
for any inability by lead counsel to participate in a scheduled proceeding because of, for
example, unforeseen travel interruptions, and thus avoid unnecessary delays in
conducting a scheduled oral argument and prompt judicial action in resolving an
important pretrial issue as in the instant matter. Such important ‘back-up’ function in
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order to avoid rescheduling a matter is an obvious rationale for Local Rule 83.2(a)(1)
(requiring designation of local counsel where lead counsel appears pro hac vice).
Neither Campbell nor Phillips Lytle, its local counsel, could have anticipated that the
court would resolve the motion on the papers thereby avoiding unnecessary travel by
lead counsel and expense to the parties.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: April 21, 2011
Buffalo, New York

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