Scott-Iverson v. Independent Health Association, Inc.

Filing 103

DECISION AND ORDER. Defendant's application for attorneys fees in relation to Defendant's motion to compel Plaintiff's deposition is GRANTED in the amount of $4,787.73 to be paid by Plaintiff. Signed by Hon. Leslie G. Foschio on 6/21/2016. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
DECISION
and
ORDER

DAWN SCOTT-IVERSON,
Plaintiff,
v.
INDEPENDENT HEALTH ASSOCIATION, INC.,

13-CV-451V(F)

Defendant.
________________________________________
APPEARANCES:

FRANK T. HOUSH, ESQ.
Attorney for Plaintiff
70 Niagara Street
Buffalo, New York 14202
KAVINOKY & COOK, LLP
Attorneys for Defendant
R. SCOTT DELUCA, of Counsel
726 Exchange Street, Suite 800
Buffalo, New York 14210

Before the court is Defendant’s application filed May 11, 2016, Dkt. 96, for fees
and expenses incurred by Defendant in prosecuting Defendant’s motion to compel
Plaintiff’s deposition (Dkt. 80) (“Defendant’s application”). Familiarity with the prior
proceedings is presumed. In its award of Defendant’s attorneys fees as a sanction, the
court found, pursuant to Fed.R.Civ.P. 37(a)(3), Plaintiff, and not her attorney, to be
primarily responsible for the need for Defendant to file its motion to compel. Dkt. 91 at
11. Plaintiff’s response to Defendant’s application was due fourteen days after the filing
of Defendant’s application. Dkt. 91 at 12. To date, no response has been filed by
Plaintiff.
In a prior Decision and Order, filed April 14, 2016 (Dkt. 90) granting Defendant’s
earlier motion to compel, the court determined $210 per hour as a reasonable hourly
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billing rate for Defendant’s attorney, R. Scott DeLuca. Based on such rate, Defendant
now requests $6,813.18 for its attorneys fees and costs. Dkt. 96 at 7. Defendant’s
application is based on 32.15 hours of time expended by Mr. DeLuca and $61.68 in
legal research expenses. Dkt. 96 at 12-13. In the absence of any opposition by
Plaintiff, the court is unable to find Defendant’s application to be unreasonable.
Nevertheless, the court, in its discretion, reduces the amount requested by Defendant
for reimbursement of Defendant’s attorneys fees by 30% to avoid possible redundancy
and excessive time, see Romeo and Juliette Laser Hair Removal, Inc. v. Assara, 2013
WL 3322249, at *8 (S.D.N.Y. July 2, 2012) (court may reduce fee application in its
discretion to ‘trim fat’ and avoid redundancy (citing 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.” (quotation marks and citation omitted))). Accordingly, the
court finds Defendant’s application should be reduced by $2,025.45 to $4,726.05 for
attorneys fees plus $61.68 in related expenses for a total of $4,787.73.

CONCLUSION
Defendant’s application in GRANTED in the amount of $4,787.73 to be paid by
Plaintiff.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: June 21, 2016
Buffalo, New York
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