Bauman v. 2810026 Canada Limited Ltd. et al
DECISION AND ORDER. Defendants' Request for attorneys fees re 35 Decision and Order is GRANTED in part, and DENIED in part. Plaintiff's counsel shall pay Defendants $5,375.50 within 30 days of this Decision and Order. Signed by Hon. Leslie G. Foschio on 4/12/2017. (SDW)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
2810026 CANADA LIMITED LTD.,
2810034 CANADA LIMITED,
FREDERICK GROUP INC.,
PAMELA J. BAUMAN,
2810026 CANADA LIMITED,
2810034 CANADA LIMITED,
FREDERICK GROUP INC.,
DAVID W. POLAK, ESQ.
Attorney for Plaintiffs
3686 Seneca Street
West Seneca, New York 14224
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorneys for Defendants
BEATA SHAPIRO, of Counsel
260 Franklin Street, 14th Floor
Boston, Massachusetts 02110
FELDMAN KIEFFER, LLP
Attorney for Third-Party Defendant
ADAM C. FERRANDINO, of Counsel
110 Pearl Street, Suite 400
Buffalo, New York 14202
By Order filed October 17, 2016 (Dkt. 35), the court granted Defendants’ request,
pursuant to Fed.R.Civ.P. 37(a)(5), for expenses incurred in prosecuting Defendants’
motion to compel discovery (Dkt. 17) granted by the court on February 3, 2016 (Dkt. 24)
(“the February 3, 2016 D&O”) based on Plaintiff’s failure to show cause why such
expenses should not be awarded and finding that Plaintiff’s failure to provide the
requested discovery was not substantially justified and that an award of expenses would
not, in the circumstances, be unjust. Defendants’ affidavit in support of such award was
filed in accordance with the court’s direction on October 31, 2016 (Dkt. 38)
(“Defendants’ Request”). Plaintiff filed Plaintiff’s opposition on November 10, 2016 (Dkt.
41). Oral argument was deemed unnecessary. Based on the following, Defendants’
Request is GRANTED in part and DENIED in part.
In this case, Defendants seek $8,605 in expenses incurred in connection with the
filing of Defendants’ December 20, 2015 motion granted by the court in the February 3,
2016 D&O. Defendants’ request includes time for three attorneys, including Beata
Shapiro, a partner in Wilson Elser, Defendants’ attorneys, and a paralegal with Wilson
Elser’s office located in Boston, Massachusetts who worked on Defendants’ motion.
Dkt. 38 ¶¶ 2-4. Specifically, Defendants claim 36 hours of work which includes 33.5
hours for communications with Plaintiff’s attorney beginning in July 2015 to resolve the
discovery dispute, drafting Defendants’ motion and supporting memorandum of law with
exhibits, a review of Plaintiff’s opposition papers, and 10.5 hours for Ms. Shapiro’s travel
time and participation in oral argument on January 26, 2016 on Defendants’ motion.
Defendants’ counsel’s billable hourly rate is $280; the paralegal rate is $130/hour.
Plaintiff’s opposition argues Ms. Shapiro’s time to participate in oral argument on
January 26, 2016 is unreasonable as Ms. Shapiro’s presence was required in Buffalo
for Plaintiff’s deposition the next day. Dkt. 41 ¶ 53. Plaintiff also asserts the time, 19.9,
for three attorneys in preparing Defendants’ motion which, according to Plaintiff, was not
complex, is also excessive. Id. ¶ 54. Plaintiff does not contest the Defendants’ claimed
attorney hourly rate of $280/hr. 1 Instead, Plaintiff suggests a reasonable time required
to prepare Defendants’ motion is 2-3 hours. Dkt. 41 ¶ 59.
It is basic in awarding expenses pursuant to Fed.R.Civ.P. 37(a)(5)(c) that courts
shall determine a lodestar amount consisting of the product of a reasonable hourly rate
and a reasonable amount of time expended on litigation of the motion, plus reasonable
expenses in producing the motion. Scott-Iverson v. Independent Health Association,
Inc., 2016 WL 1457881, at *2 (W.D.N.Y. Apr. 14, 2016) (citing Robbins & Myers, Inc. v.
J.M. Huber Corp., 2011 WL 5326259, at *2 (W.D.N.Y. Nov. 3, 2011) (citing Millea v.
Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2011), and Hensley v. Eckerhart, 461
U.S. 424, 433 (1983))). Additionally, to avoid unnecessary time and potential
redundancy of work, courts may use a “general across-the-board percentage reduction
as a ‘practical means of trimming fat from the fee application.’” Scott-Iverson, 2016 WL
1457881, at *2 (citing Romeo and Juliette Laser Hair Removal, Inc. v. Assara, 2013 WL
3322249, at *3 (S.D.N.Y. July 3, 2012) (quoting Quarantino v. Tiffany & Co., 166 F.3d
422, 425 (2d Cir. 1999))). Here, the court finds Defendants’ motion was not complex.
The court has determined based on Defendants’ Request the billable rate for the other two attorneys
who worked on this matter is $230 per hour and will calculate the proper amount for Defendants’ request
Rather, it primarily involved comparing Plaintiff’s responses to Defendants’ outstanding
interrogatories and document requests. However, Plaintiff opposed the motion, inter
alia, on the ground that Defendants’ request for Plaintiff’s medical records must be
limited to Plaintiff’s body parts allegedly injured in the accident which necessitated reply
briefing by Defendants. See Dkt. 21 at 4. Additionally, as Defendants do not dispute
that Ms. Shapiro was required to travel to Buffalo at that time to conduct Plaintiffs’
depositions the day following oral argument, the court finds it would be unreasonable to
award Defendants the cost of Ms. Shapiro’s travel time as attributable to Defendants’
motion and, as such, to avoid a windfall to Defendants, Defendants’ expenses should
be limited to 4.5 hours including the 1 ½ hours Mr. Shapiro devoted to the oral
argument. See Dkt. 22. To avoid possible duplication and redundancy given that three
attorneys worked on Defendants’ motions, the court further reduces Defendants’
Request for Defendants’ attorneys’ time by 15% to 3.825 for Shapiro and 16.15 for
Jones and Zarriello. As noted, as Plaintiff does not dispute the Wilson Elser attorney
billing rate of $280/hour it is unnecessary to address this issue except to note that such
a rate, while associated with the Boston legal market, is also consistent with similar
rates for experienced attorneys such as Ms. Shapiro, a 2004 law school graduate and
Wilson Elser partner. See Scott-Iverson, 2016 WL 1457881, at *4 (approving $210/hr.
billing rate for defendant’s attorney with 15 years experience as below market rate
(citing Langhorne v. Takhar Grp. Collection Services, Ltd., 2016 WL 1177980, at *2
(W.D.N.Y. Mar. 24, 2016) ($300 per hour reasonable for experienced attorney, $175
reasonable for newer attorney))); Rich Products Corp. v. Bluemke, 2014 WL 860364, at
*5 (W.D.N.Y. Mar. 4, 2014) ($245/hr. billing rate for attorney with 15 years experience
reasonable). Plaintiff also does not contest Defendants’ request for one hour of legal
research service in the amount of $130 nor the 2.5 hours of paralegal time related to
preparation of exhibits. Thus, Defendants’ Request in the amount of $4,785.50 (3.85
hours (for Shapiro) x $280 and 16.15 hours (for Jones and Zarriello) x $230) for
Defendants’ reasonable attorneys fees, plus $455 for 3.5 hours of C. Brown paralegal
assistance plus $135 for legal research service equals $5,375.50 should be granted.
As there is no indication in the record that Plaintiff’s failure to comply with the
Defendants’ outstanding discovery requests upon which Defendants’ motion was based
results from Plaintiff’s conduct, the court finds such failure, and thus the award of
Defendants’ Request, should be assessed solely to Plaintiff’s counsel. See Rule
Based on the foregoing, Defendants’ Request is GRANTED in part, and DENIED
in part. Plaintiff’s counsel shall pay Defendants $5,375.50 within 30 days of this
Decision and Order.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: April 12, 2017
Buffalo, New York
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