Ceglia v. Zuckerberg et al

Filing 668

MEMORANDUM IN OPPOSITION re 664 Declaration, 663 Memorandum/Brief by Paul D. Ceglia. (Attachments: # 1 Certificate of Service)(Argentieri, Paul)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
Civil Action No. 1:10-cv-00569-RJA

PAUL D. CEGLIA,
Plaintiff,
v.
MARK ELLIOT ZUCKERBERG and
FACEBOOK, INC.

PLAINTIFF’S MEMORANDUM
IN OPPOSITION TO APPLICATION
FOR FEES AND COSTS FOR
PREPARING AND DEFENDING
FEE APPLICATION

Defendants.
______________________________________
In accordance with this Court’s May 9, 2013, Decision and Order (Doc. 660) requiring
plaintiff to file his opposition to defendants’ affidavits of attorney’s fees and costs incurred in
preparing and defending their fee application, plaintiff respectfully submits this memorandum in
opposition.1/
In his Decision and Order of May 9, 2013, the Magistrate approved attorneys’ fees for
7.03 hours of legal work in the amount of $3,747.68, for the time spent by four of defendants’
attorneys to perform substantive legal work on a “portion of the Eighth Motion to Compel
pertaining to the March 30 Capsicum Communication.” (D&O 660 at 5) In Defendants’
Supplemental Fee Application (Doc. 663), they seek fees for 6.75 hours of “legal services
relating to the preparation and defense of Defendants’ Fee Application ... .” Thus, defendants
request additional fees for defending their fee application which closely approximates in both
time and value the fees awarded for performing the substantive motion work.

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On May 23, 2013, plaintiff filed his Motion for Reconsideration, Correction or
Clarification of the May 9, 2013 Decision and Order. Although that motion remains pending,
plaintiff is nonetheless filing this opposition within the five (5) day deadline prescribed in the
Decision and Order.

In relying on Healey v. Leavitt, 485 F.3d 63 (2d Cir. 2007), the Court recognized that the
fee calculation should exclude fees for work that is “‘excessive, redundant or otherwise
unnecessary’.” (D&O at 8). It is impossible to tell from the narrative attached as Exhibit A to
the Declaration of Alexander H. Southwell that the time spent to “reviewing client bills” and to
“draft and revise fee schedules” was limited to that portion of the motion on which defendants
prevailed and was, therefore, related to the defense of the fee application for that part of the
motion. The narrative is unclear in that regard and it is quite likely, given the time reflected in
the “Supplemental Billing Narrative” and its near equivalence to the time spent on the legal work
on the underlying motion that a significant portion of the time expended to prepare the
Supplemental Fee Application was taken up with reviewing and isolating the time spent on the
unsuccessful portion of the underlying motion.
The plaintiff and Court are entitled to more specificity in this regard. The touchstone for
such awards is “reasonable[ness] in relation to the results obtained” (Hensley v. Eckerhart, 461
U.S. 424, 440 (1983)) and plaintiff respectfully submits that, on its face, the Supplemental Fee
Application is not reasonable when compared to the fees already awarded for defendants’ partial
success on the underlying motion.
Plaintiff respectfully objects to defendants’ Supplemental Fee Application.
Dated: May 28, 2013

Respectfully submitted,

s/ Paul A. Argentieri
Paul A. Argentieri
188 Main Street
Hornell, NY 14843
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Joseph M. Alioto
THE ALIOTO LAW FIRM
225 Bush Street
San Francisco, California 94104
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Admitted Pro Hac Vice
Attorneys for Plaintiff

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