Ceglia v. Zuckerberg et al
Filing
663
MEMORANDUM/BRIEF re 660 Order,, Supplemental Fee Application by Facebook, Inc., Mark Elliot Zuckerberg. (Snyder, Orin)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
-----------------------------------PAUL D. CEGLIA,
Plaintiff,
v.
MARK ELLIOT ZUCKERBERG and
FACEBOOK, INC.,
Defendants.
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Civil Action No. 1:10-cv-00569RJA
DEFENDANTS’ SUPPLEMENTAL FEE APPLICATION
Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
(202) 955-8500
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
(716) 200-5120
May 20, 2013
Orin Snyder
Alexander H. Southwell
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
(212) 351-4000
DEFENDANTS’ SUPPLEMENTAL FEE APPLICATION
INTRODUCTION
Defendants submit this Supplemental Fee Application in response to the Court’s May 9,
2013 Order (Doc. No. 660) directing them to submit a supplemental application reflecting the
fees incurred in preparing and defending their successful fee application in connection with their
Eighth Motion to Compel. Defendants respectfully request that this supplemental application be
granted in full and that the Court award $2,966.25, to be paid, along with the $3,747.68 already
ordered, within fourteen days of this Court’s order granting this application.
STATEMENT OF FACTS
On September 5, 2012, Defendants filed their Eighth Motion to Compel (Doc. No. 511),
seeking three documents referenced in another document produced by Ceglia pursuant to
previous motions to compel. On November 7, 2012, this Court granted in part Defendants’
motion and ordered Ceglia to produce immediately one of the documents—the March 30
Capsicum Communication. See Doc. No. 584 at 11–15. In that order, this Court also directed
Ceglia to pay attorneys’ fees and costs associated with Defendants’ pursuit of the March 30
Capsicum Communication and directed Defendants to file a fee application detailing the fees and
costs expended in this pursuit. See id. at 20–22. On November 19, as directed by the Court,
Defendants filed their Fee Application and supporting declaration and exhibits. See Doc. No.
599. In a Decision and Order dated May 9, 2013, this Court granted Defendants’ Fee
Application in full, ordering that Ceglia pay Defendants $3,747.68, and requesting Defendants to
file a supplemental application within ten days of the order detailing the fees and costs incurred
in the preparation and defense of the Fee Application. See Doc. No. 660 at 4, 12.
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Defendants now request $2,966.25 in fees they incurred in preparing their Fee
Application. This time is detailed in the accompanying Southwell Declaration (“Southwell
Dec.”) and calculated in accordance with the Court’s decision on Defendants’ Fee Application.
Attorney
Alexander H. Southwell
Amanda M. Aycock
TOTAL
Total
Hours
0.50
6.25
6.75
Claimed
Rate
$682.50
$420.00
Total Fees
$341.25
$2,625.00
$2,966.25
ARGUMENT
The fees sought in this supplemental application are warranted to properly prepare the
Fee Application and should be awarded in full. Defendants seek reimbursement for 6.75 hours
of legal services for this work over a seven-day period, following the same approach for
calculating hours expended in providing legal services as that used by Defendants in their Fee
Application and expressly approved by the Court in its May 9 Order, as well as in several
previous orders on Defendants’ fee applications following successful motions to compel. Doc.
No. 600, ¶¶ 12–13; Doc. No. 660 at 6; see also Southwell Dec., ¶¶ 6–7; see e.g., Doc. Nos. 292,
370, 615.
The time and rates sought were reasonably expended to prepare the Fee Application. In
the seven days before Defendants filed their Fee Application, Defendants reviewed time entries,
drafted, revised, and finalized their Fee Application and prepared the accompanying declaration
and exhibits. These tasks were discharged efficiently, with the lion’s share of the preparation of
the Fee Application performed by junior associate Amanda M. Aycock, with partner Alexander
H. Southwell providing only necessary supervision and editorial assistance. As they did in their
original Fee Application, Defendants exclude the same categories of legal services that might
otherwise be included and the work of several associates and partners who contributed to the
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filing, in an effort to conservatively estimate the hours incurred. See Doc. No. 599 at 5.
Moreover, Defendants exclude the same categories of costs as they did in their original Fee
Application. See id. In a further effort to present this Court with only the most conservative
estimate of attorneys’ fees incurred, Defendants have applied the same discount of 25% as their
original Fee Application to this Supplemental Fee Application. See Doc. No. 600 at ¶ 3. The
Court should therefore grant Defendants’ narrowly tailored and reasonable Supplemental Fee
Application in full.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that this Court order Ceglia to
pay Defendants’ attorneys’ fees in the total amount of $2,966.25 within fourteen days of this
Court’s order granting Defendants’ Supplemental Fee Application,1 or submit documentation
demonstrating why such payment is not possible, in accordance with this Court’s May 3, 2012
Decision and Order on Defendants’ Supplemental Fee Application. See Doc. No. 370 at 13–14.
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See, e.g., Sheehy v. Wehlage, 02CV592A, 2007 U.S. Dist. LEXIS 11722, at *27 (W.D.N.Y. Feb. 20, 2007)
(requiring plaintiff to pay defendant’s attorneys’ fees for discovery abuse within fourteen days); Ng v. HSBC Mortg.
Corp., 07-CV-5434 (RRM) (VVP), 2010 U.S. Dist. LEXIS 33486, at *6 (E.D.N.Y. April 5, 2010) (same); Citizens
State Bank v. Dixie County, 1:10-cv-224-SPM-GRJ, 2011 U.S. Dist. LEXIS 113752, at *9 (N.D. Fla. Oct. 3, 2011)
(requiring plaintiff to pay defendant’s attorneys’ fees for discovery abuse within ten days).
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Dated:
New York, New York
May 20, 2013
Respectfully submitted,
/s/ Orin Snyder
Orin Snyder
Alexander H. Southwell
Matthew J. Benjamin
Amanda M. Aycock
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
(212) 351-4000
Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
(202) 955-8500
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
(716) 200-5120
Attorneys for Defendants Mark Zuckerberg and Facebook, Inc.
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