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)

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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 2 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 3

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