Moore v. Peters et al

Filing 89

DECISION AND ORDER awarding attorney's fees. Defendant Peters shall pay Plaintiff $3,624.00 in attorney's fees within 90 days. Signed by Hon. Elizabeth A. Wolford on 07/22/2021. (CDH)

Case 6:13-cv-06271-EAW-MJP Document 89 Filed 07/22/21 Page 1 of 3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
KENNETH E. MOORE,
Plaintiff,

DECISION AND ORDER

v.

6:13-CV-06271 EAW

CORRECTIONAL OFFICER J.
PETERS, LIEUTENANT REYNOLDS,
and ESTATE OF LARRY CASLIN,
Defendants.
___________________________________
On January 26, 2021, the Court entered a Decision and Order granting in part and
denying in part Plaintiff Kenneth E. Moore’s (“Plaintiff”) motion for sanctions based on
defendant Correctional Officer J. Peters’ (“Peters”) failure to attend his deposition in June
of 2019. (Dkt. 75) (the “Sanctions Order”). Familiarity with the Sanctions Order is
presumed for purposes of the instant Decision and Order.
As relevant here, the Court ordered Peters “to pay Plaintiff’s reasonable expenses,
including attorney’s fees, incurred as a result of Peters’ failure to attend his scheduled
deposition in June 2019” pursuant to Federal Rule of Civil Procedure 37(d)(3). (Id. at 11).
Plaintiff was ordered to submit documentation of the same, which he did on February 7,
2021. (Dkt. 86). Pursuant to the Sanctions Order, Peters was required to file any response
to Plaintiff’s submission within 14 days of its filing (Dkt. 85 at 11). Peters did not file any
such response.

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Case 6:13-cv-06271-EAW-MJP Document 89 Filed 07/22/21 Page 2 of 3

Plaintiff seeks $3,624.00 in attorney’s fees, consisting of 15.1 hours of attorney time
at a rate of $240.00 per hour. The requested 15.1 hours includes “(i) [counsel’s] efforts to
extend the discovery deadline to allow time to conduct defendant Peters’ deposition; (ii)
correspondence with counsel concerning rescheduling defendant Peters’ deposition; and,
(iii) the motion to strike and related filings, including discovery following the July 13,
2020, conference.” (Dkt. 86 at ¶ 8). Plaintiff’s counsel has submitted timekeeping records
supporting his request.
The Court finds that the work identified by Plaintiff’s counsel is compensable under
Rule 37(d)(3), because it “would not have been necessary if [Peters] had conducted
[himself] properly in the discovery process[.]” Creative Res. Grp. of New Jersey, Inc. v.
Creative Res. Grp., Inc., 212 F.R.D. 94, 104 (E.D.N.Y. 2002). The Court further finds that
the time expended is reasonable. See Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)
(the issue for the Court is whether “at the time the work was performed, a reasonable
attorney would have engaged in similar time expenditures”). Finally, the Court concludes
that $240.00 per hour is reasonable. This hourly rate is consistent with rates customarily
charged in this District by attorneys with experience comparable to Plaintiff’s counsel. See
Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany, 522 F.3d 182, 190
(2d Cir. 2008) (holding a “presumptively reasonable” fee . . . is the “prevailing hourly rate
in the community” (alteration and internal quotation marks omitted)); Creative Resources,
212 F.R.D. at 103 (“[I]t is within the judge’s discretion to determine reasonable fees based
on his or her knowledge of prevailing community rates and the experience of the attorney.”
(citation omitted)).
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Case 6:13-cv-06271-EAW-MJP Document 89 Filed 07/22/21 Page 3 of 3

For all the foregoing reasons, as well as the reasons set forth in the Sanctions Orders,
the Court awards Plaintiff $3,624.00 in attorney’s fees, payable by Peters. Peters shall pay
this sum within 90 days of entry of this Decision and Order.
SO ORDERED.

_________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: July 22, 2021
Rochester, New York

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