Hart et al v. Crab Addison, Inc. d/b/a Joe's Crab Shack et al

Filing 607

DECISION AND ORDER I find plaintiffs are entitled to sanctions in the amount of $31,971.60 in attorneys' fees and costs. The above-stated sums are to be paid by no later than thirty (30) days from the date of this Order. Signed by Hon. Marian W. Payson on 5/12/2023. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
CHRISTOPHER HART, et al.,
Plaintiffs,
v.

DECISION & ORDER
13-CV-6458MWP

CRAB ADDISON, INC., d/b/a JOE’S
CRAB SHACK, et al.,
Defendants.
_______________________________________

By Report and Recommendation dated March 29, 2019, I recommended that
plaintiffs’ renewed motion for sanctions be granted in part and denied in part. (Docket ## 544,
582). Specifically, I recommended that defendants’ counsel Brian Gershengorn and Melissa
Camire 1 be ordered to pay $3,000 to the Clerk of the Court and to reimburse plaintiffs’ counsel
for their reasonable attorneys’ fees and costs “associated with the filing and briefing of the
original [sanctions] motion (excluding the filings providing the further specificity ordered by the
Court that should have been included in their original filings and excluding the costs of
mediation), and the renewal of their motion after mediation, including briefing, oral argument,
the evidentiary hearing, and post-hearing submissions.” (Docket # 582 at 73). I also
recommended that Gershengorn and Camire be ordered to reimburse those fees and costs
incurred by plaintiffs between May 17 through June 6, 2016, to prepare for and attend a
court-ordered evidentiary hearing. (Id.). A thorough recitation of the procedural history and

At the time of this Court’s Report and Recommendation, Melissa Camire’s name was Melissa Osipoff.
(Docket # 606 at 2).
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factual basis for my determination that sanctions were appropriate is set forth in my Report and
Recommendation, familiarity with which is assumed.
On May 17, 2019, Gershengorn and Camire filed objections to my Report and
Recommendation, and on May 19, 2021, the district court issued a Decision and Order denying
those objections and adopting my Report and Recommendation in its entirety. (Docket ## 589,
598). On August 13, 2021, plaintiffs’ counsel submitted an affidavit with attached supporting
documentation seeking $42,820 in fees and $1,239.60 in costs. (Docket # 601 at 5, ¶ 18). 2
Gershengorn and Camire have opposed the requested fees and costs, maintaining that plaintiffs’
counsel has failed to provide contemporaneous time records and that the Court should disregard
plaintiffs’ contention that they voluntarily reduced the amount of attorneys’ fees requested.
(Docket # 606 at 4-6). They also maintain that plaintiffs’ request is excessive on two separate
grounds: (1) certain hours fall outside of the scope of sanctions authorized by the Court or reflect
work that did not result from the conduct found sanctionable by the Court; and, (2) the amounts
sought relating to the filing of plaintiffs’ motion to strike (Docket ## 561, 566) are unreasonable.
(Docket # 606 at 6-14). For the reasons discussed below, plaintiffs are hereby awarded
attorneys’ fees and costs in the amount of $31,971.60.

I.

Contemporaneous Time Records
Gershengorn and Camire oppose plaintiffs’ application for attorneys’ fees in its

entirety on the grounds that plaintiffs failed to submit any of the underlying time records in
support of the application. (Docket # 606 at 5-6). In her affirmation in support of the
application, plaintiffs’ attorney, Jessica L. Lukasiewicz, represents that it is the standard practice
Several of the paragraphs in this affidavit are misnumbered. For clarity, citations to this affidavit will
contain both page and paragraph numbers.
2

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of plaintiffs’ law firm Thomas & Solomon, LLP, to require all timekeepers “to make and
maintain records of time spent and work performed . . . contemporaneously with, or near in time,
to when the work is performed.” (Docket # 601 at 2, ¶ 8). According to Lukasiewicz, consistent
with that practice, the timekeepers who performed work in connection with this matter “made
and maintain[ed] contemporaneous records,” and those records were “exported into an Excel
spreadsheet,” and, after review and voluntary reduction, incorporated into her affirmation. (Id. at
2-3, ¶¶ 9-11; 5-6, ¶ 22; 7, ¶ 24; 8, ¶ 27; 9-11, ¶ 29; 11-13, ¶ 31; 13-15, ¶ 33). I find that such
representations are sufficient to support plaintiffs’ application for attorneys’ fees. See Tri-Star
Pictures, Inc. v. Unger, 42 F. Supp. 2d 296, 303 (S.D.N.Y. 1999) (“[t]he actual original time
sheets are not necessary; submitting an affidavit and attaching a computerized printout of the
pertinent contemporaneous time records is acceptable”).

II.

Voluntary Reduction
According to plaintiffs’ counsel, time entries reflecting work relating to the

reimbursable activities identified by the Court in its decision totaled approximately 532.4 hours.
(Docket # 601 at 4-5, ¶¶ 14, 18). Plaintiffs’ counsel then multiplied the total hours expended by
an hourly blended rate of $200, resulting in total fees in the amount of $106,480. (Id. at 5, ¶ 18).
Plaintiffs represent that they voluntarily reduced the amount of attorneys’ fees requested by
excluding more than half of the hours (318.3 of the total 532.4 hours) and used an hourly rate of
only $200, which they believe is below the current market rate, resulting in requested fees
totaling $42,820. (Id. at 4-5, ¶¶ 14-15, 17-18). According to Lukasiewicz, plaintiffs voluntarily
reduced the recorded hours by (1) eliminating hours expended “that would be unreasonable for a
market-based client to pay”; (2) eliminating tasks and costs that “although a market-based client
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would pay, a court is unlikely to award”; and, (3) reducing additional, unspecified time. (Id. at
2-3, ¶¶ 9-11). Lukasiewicz does not specify how much of the deducted time fell within each of
these categories and has not submitted any time entries reflecting such work.
Gershengorn and Camire urge the Court to disregard plaintiffs’ assertions that the
amount of attorneys’ fees has been significantly reduced, maintaining that plaintiffs’ assertions
in this regard are conclusory and unsupported. (Docket # 606 at 4, 6). I agree. The Court has no
basis to dispute plaintiffs’ representations that their counsel expended in excess of 500 hours on
sanctions-related litigation tasks. Nevertheless, plaintiffs have not submitted any of the
contemporaneous time records for the approximately 318.3 hours which they claim were worked
but for which they are not seeking reimbursement. Nor have they identified which of those
hours are those which would be “unreasonable for a market-based client to pay,” which would be
unlikely to be reimbursed by a court, and which were simply excluded from reimbursement for
other unspecified reasons. On this record, the Court lacks sufficient information to determine
whether the excluded hours are in fact compensable and reasonable. Accordingly, the Court will
evaluate the reasonableness of plaintiffs’ fee request based solely upon those amounts for which
plaintiffs have requested reimbursement and supplied contemporaneous time records.

III.

Scope of the Sanctions Recommendation
As stated above, I determined that Gershengorn and Camire should “reimburse

those fees and costs associated with the filing and briefing of the original [sanctions] motion
(excluding the filings providing the further specificity ordered by the Court that should have
been included in their original filings and excluding the costs of the mediation), and the renewal
of [plaintiffs’] motion after mediation, including briefing, oral argument, the evidentiary hearing,
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and post-hearing submissions.” (Docket # 582 at 73). Gershengorn and Camire were also
ordered to reimburse those fees and costs incurred by plaintiffs between May 17 through June 6,
2016, to prepare for and attend a court-ordered evidentiary hearing. (Id.). Gershengorn’s and
Camire’s remaining challenges to plaintiffs’ reimbursement request primarily concern whether
particular litigation tasks for which plaintiffs seek reimbursement are properly included within
the tasks identified by the Court in its decision and whether those particular tasks were in fact
caused by their sanctionable conduct. (Docket # 606 at 6-14). These arguments are addressed
below.
A.

March 31, 2017 Submission
Plaintiffs seek reimbursement for 42.4 hours of attorney-time expended drafting

and filing their motion for sanctions filed on March 31, 2017 (the “March 31 submission”)
(Docket # 455), and 5.6 hours of attorney-time drafting and filing their renewed motion for
sanctions on April 16, 2018 (Docket # 544) and preparing and attending oral argument on that
motion on June 6, 2018 (Docket # 554), for a total of $9,600. (Docket # 601 at 5-7, ¶¶ 21-24).
They also seek reimbursement for $140.01 in associated costs. (Id. at 6-7, ¶¶ 14, 25).
Gershengorn and Camire oppose plaintiffs’ request as excessive insofar as they seek
reimbursement for fees and costs associated with the March 31 submission. (Docket # 606 at
6-8).
First, Gershengorn and Camire challenge the request on the grounds that the
March 31 submission was not the “but for” result of the conduct this Court found to be
sanctionable. (Id. at 7). Gershengorn and Camire appear to suggest that because their
sanctionable conduct occurred at the earliest on May 17, 2016, they should not be required to
reimburse plaintiff for litigation costs preceding that date. (Id.). This argument was raised by
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Gershengorn and Camire in their objections to this Court’s Report and Recommendation and
rejected by the district court in its Decision and Order adopting this Court’s Report and
Recommendation in its entirety. (Docket ## 589 at 33; 598 at 3 n.5 (“the Court believes that the
scope of the award of attorneys fees and costs related to the misrepresentations is proper, since,
as the R&R notes, the statements were ‘knowing misrepresentations designed to mislead the
Court in evaluating the conduct at issue in the sanctions motion,” and were ‘relevant and
material to all the bases on which plaintiffs sought sanctions’”). For the reasons stated in my
Report and Recommendation, as well as in the district court’s Decision and Order, I find that the
expenses incurred by plaintiffs in connection with their briefing of the motion for sanctions are
properly reimbursable as sanctions for Gershengorn’s and Camire’s misconduct. See Liebowitz
v. Bandshell Artist Mgmt., 6 F.4th 267, 288 (2d Cir. 2021) (“it was not an abuse of discretion for
the district court to hold [counsel] liable for the cost of litigating the entire sanctions motion even
when this motion was successful only in part[;] . . . [the but-for] standard does not require precise
accounting[,] . . . [and] a district court . . . ‘may decide, for example, that all … of a particular
category of expenses … were incurred solely because of a litigant’s bad-faith conduct’ and
should be compensated in the form of sanctions”) (quoting Goodyear Tire & Rubber Co. v.
Haeger, 581 U.S. 101, 110 (2017)).
Gershengorn and Camire also maintain that the March 31 submission does not fall
within scope of litigation activities for which the Court authorized reimbursement. (Docket
# 606 at 6-7). Again, I disagree. In my decision, I explicitly authorized reimbursement for fees
and costs incurred in connection with the briefing of the original sanctions motion, the renewed
motion, and any associated briefing and oral argument. (Docket # 582 at 73).

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Sanctions were first sought by plaintiffs in connection with a motion to compel
they filed on March 22, 2016. (Docket # 326-1 at 3). During oral argument on that motion on
May 17, 2016, the Court reserved on the issue of sanctions and, during the proceedings on June
6, 2016, directed the parties to confer and provide the Court with available dates to schedule the
requested sanctions hearing. (Docket ## 349 at 18; 354). The Court ordered the sanctions
hearing to be held on August 11, 2016, and subsequently adjourned the hearing without date
after the defendants filed a motion for reconsideration, maintaining they lacked adequate notice
of the basis for which sanctions were sought. (Docket ## 357, 363, 384). By letter dated
September 12, 2016, plaintiffs sought permission to proceed with their sanctions application by
written submission rather than through testimonial evidence, a request which was granted by the
Court during proceedings held on September 13, 2016. (Docket # 401-2 at 52-53). The Court
granted in part defendants’ motion for reconsideration and directed that plaintiffs “provide
defendants additional specificity regarding the alleged conduct at issue” for which they sought
sanctions. (Docket # 432 at 12). Plaintiffs provided that additional specificity by an amended
notice dated March 10, 2017. (Docket # 439). The Court also directed plaintiffs to file their
written submission in support of their request for sanctions on or before March 31, 2017,
resulting in the March 31 submission. (Docket # 432 at 13).
Considering this procedural history, the Court determined that plaintiffs could
seek reimbursement for briefing in connection with their original sanctions motion; that included
the written submission they provided in lieu of live witness testimony – i.e., the March 31
submission. The Court also found that plaintiffs were not entitled to reimbursement for work
associated with providing additional specificity in their notice of sanctions as directed by the
Court. That the Court contemplated reimbursement for the March 31 submission is reflected in
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its explicit authorization for reimbursement for the filing of the renewed motion for sanctions – a
filing that relied upon and incorporated by reference the March 31 submission. (Compare
Docket # 455 with Docket # 544). Accordingly, I find that plaintiffs are entitled to seek
reimbursement for the fees and costs they incurred in connection with the March 31 submission.
B.

Fees and Costs Incurred from May 17 to June 6, 2016
Plaintiffs seek reimbursement for 20.4 hours of attorney-time expended preparing

for and attending the June 6, 2016 evidentiary hearing, totaling $4080 in attorneys’ fees.
(Docket # 601 at 8-9, ¶ 27). They also seek to be reimbursed for $261.80 in associated costs.
(Id. at 9, ¶ 18). Gershengorn and Camire oppose plaintiffs’ request, maintaining that they should
not be required to reimburse any fees incurred after May 23, 2016. 3 (Docket # 606 at 8-10).
Although they concede that my decision explicitly authorized plaintiffs to seek
recovery of fees incurred between May 17 and June 6 in order to prepare for the hearing,
Gershengorn and Camire nonetheless argue that the proper scope of any reimbursement should
be limited to the period between May 17 and May 23 – the date upon which they notified
plaintiffs’ counsel that there was no witness available to testify at the hearing. (Id.). This
argument was raised by Gershengorn and Camire in their objections to my Report and
Recommendation and rejected by the district court. (Docket ## 589 at 20 n.9, 33; 598 at 3 n. 5
(“with regard to Gerhshengorn’s and [Camire’s] failure to produce a witness at the June 6, 2016
evidentiary hearing, they wasted the time of the Court and of opposing counsel by failing to
discover, prior to the May 17, 2016 appearance, that no Ignite representative was available to
testify, and then by failing to indicate, until the actual hearing, that [Camire] would not testify,
contrary to what they had previously indicated”)). For the reasons stated in my Report and
Gershengorn and Camire do not appear to oppose plaintiffs’ request to be reimbursed $261.80 for the
cost of the transcripts from the proceedings on June 6, 2016.
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Recommendation, as well as in the district court’s Decision and Order, I find that the expenses
incurred by plaintiffs between May 17 and June 6 in connection with their preparation for the
June 6 hearing are properly reimbursable.
C.

Fees Incurred in Connection with the October 25, 2018 Evidentiary Hearing
Plaintiffs seek reimbursement for 39.2 hours of attorney-time expended preparing

for and attending the October 25, 2018 evidentiary hearing, totaling $7,840 in attorneys’ fees.
(Docket # 601 at 9-11, ¶ 29). They also seek to be reimbursed for $733.30 in associated costs.
(Id. at 11, ¶ 20). Gershengorn and Camire oppose reimbursement of any fees incurred prior to
September 20, 2018 – the date the Court ordered the evidentiary hearing. (Docket # 606 at 10).
The challenged fees include an entry dated May 29, 2018, during which Lukasiewicz conducted
legal research, drafted an affirmation, and reviewed a memorandum of law. These tasks appear
to relate to the reply submission filed by plaintiffs in support of their renewed motion for
sanctions (Docket # 551). Although such tasks were not undertaken in preparation for the
October 25, 2018 evidentiary hearing, they are within the scope of authorized sanctions because
they relate to the filing and briefing of the renewed sanctions motion. Accordingly, I find that
the fees incurred for this entry are reimbursable.
Gershengorn and Camire also oppose reimbursement of fees reflected in an entry
dated June 1, 2018, relating to Lukasiewicz’s review of and response to a letter to the Court from
Camire. (Docket ## 601 at 10, ¶ 29; 606 at 10). The docket reflects the filing of a letter to the
Court dated June 1, 2018, in which the parties jointly requested an extension of their deadline to
submit a jointly-proposed scheduling order. (Docket # 552). I agree with Gershengorn and
Camire that this letter does not appear to relate to the sanctions motion or the October 25, 2018

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hearing. Accordingly, I find that the 0.2 hours reflected in this time entry are not within the
scope of the authorized sanctions and are not reimbursable.
D.

Post-Evidentiary Hearing Submissions
Plaintiffs seek reimbursement for 46.5 hours of time expended in connection with

post-hearing submissions, totaling $9,300 in attorneys’ fees. (Docket # 601 at 11-13, ¶ 31).
They also seek to be reimbursed for $56.49 in associated costs. (Id. at 13, ¶ 22). Gershengorn
and Camire oppose reimbursement of any fees incurred in connection with the drafting and filing
of plaintiffs’ motion to strike (Docket # 561). (Docket # 606 at 10-11).
After the parties had briefed plaintiffs’ renewed motion to strike, the Court held
oral argument on the submissions on June 6, 2018. (Docket ## 544, 546, 551, 554, 557). During
those proceedings, the Court placed Gershengorn and Camire on notice that the information
presented to the Court, including the declaration of Steve Metzger, supported an inference that
Gershengorn and Camire did not adequately supervise their client’s compliance with the district
court’s order directing it to produce a class notice list. (Docket # 557 at 55-64). The Court
considered the request by counsel for Gershengorn and Camire to supplement the record, but
reserved on that issue pending a written application. (Id. at 66, 87). Despite the Court’s
instructions, on July 26, 2018, without leave of the Court, counsel for Gershengorn and Camire
supplemented their submissions with a declaration of Camire. (Docket # 560).
In response, plaintiffs filed a motion seeking to strike the unauthorized
declaration. (Docket # 561). During oral argument on that application, counsel for Gershengorn
and Camire represented that the purpose of the declaration was to supplement the record
concerning issues raised by the Court during the previous oral argument, specifically to
“demonstrate to the Court what was the role that [Gershengorn and Camire were] playing during
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[the relevant] period of time.” (Docket # 569 at 7-8). The Court denied plaintiffs’ motion to
strike, but on the condition that Metzger and Camire were made available to testify at an
evidentiary hearing so that plaintiffs would have an opportunity to cross-examine them
concerning the representations made in their declarations. (Docket # 567).
Gershengorn and Camire maintain that expenses incurred in connection with
plaintiffs’ motion to strike are not properly reimbursable as “post-hearing submissions” because
they were incurred prior to the October 28, 2018 evidentiary hearing. (Docket # 606 at 10-11).
While I agree with Gershengorn and Camire that these expenses are not properly categorized as
“post-hearing submissions,” I disagree that they are not reimbursable. As stated above, this
Court authorized reimbursement of expenses incurred in connection with plaintiffs’ motion for
sanctions, including the renewal of the motion after mediation and any associated briefing or
Court appearances. (Docket # 582 at 73). I find that the motion to strike, which was prompted
by Gershengorn’s and Camire’s unauthorized attempt to supplement the record on the motion for
sanctions, constitutes a “briefing” relating to the renewed motion for sanctions. That the Court
ultimately denied the relief sought by plaintiffs is immaterial, especially because the denial was
conditioned on the production of Camire and Metzger as witnesses at an evidentiary hearing.
Accordingly, I find the amounts incurred in connection with the motion to strike are properly
reimbursable.
E.

Objections to Report and Recommendation
Plaintiffs seek reimbursement for 60 hours of time expended preparing and filing

their opposition to Gershengorn’s and Camire’s objections to my Report and Recommendation,
totaling $12,000 in attorneys’ fees. (Docket # 601 at 13-15, ¶ 33). They also seek to be
reimbursed for $48 in associated costs. (Id. at 15, ¶ 24). Gershengorn and Camire oppose
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reimbursement of this category of fees, maintaining that they are not within the scope of
authorized reimbursable expenses and were not caused by the sanctionable conduct. (Docket
# 606 at 11-14). I agree with Gershengorn and Camire that expenses incurred in connection with
litigating their objections to my Report and Recommendation are not reimbursable. Request for
reimbursement of such expenses should have been raised by plaintiffs at the time the objections
were litigated before the district court. See, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 407 (1990) (“expenses incurred on appeal [may] be shifted onto appellants only when those
expenses are caused by a frivolous appeal, and not merely because Rule 11 sanctions upheld on
appeal can ultimately be traced to a baseless filing in district court”); In re Creative Desperation
Inc., 443 F. App’x 399, 402 (11th Cir. 2011) (collecting cases declining to award costs
associated with appeals of sanctions ordered pursuant to Rule 11, 28 U.S.C. § 1927, and the
court’s inherent powers; “[h]ere, the Trustee did not argue [that the] appeal itself was frivolous,
but instead argued that the causal link between [the] sanctionable conduct in the bankruptcy
court was sufficient alone to justify an award of attorneys’ fees by the district court[;] [t]his
argument contradicts binding Supreme Court precedent, and the district court did not abuse its
discretion by declining to adopt this incorrect legal standard”); Nieves v. City of Cleveland, 153
F. App’x 349, 354 (6th Cir. 2005) (“[a]warding fees and costs, or any sanction for that matter,
associated with [appellant’s] appeal of the imposition of Rule 11 sanctions, constituted an
erroneous ruling on the law and was an abuse of discretion”); Manion v. Am. Airlines, Inc., 395
F.3d 428, 433 (D.C. Cir. 2004) (“[w]e therefore join several of our sister circuits in holding that a
district court may not award the cost of interlocutory appellate proceedings as part of a sanctions
award under § 1927”); Autotech Corp. v. NSD Corp., 1992 WL 82351, *3 (N.D. Ill. 1992) (“[a]
motion for reconsideration of the imposition of sanctions does not risk additional sanctions
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unless the new motion is itself frivolous”). Accordingly, I find that plaintiffs are not entitled to
reimbursement of the fees and costs associated with opposing Gershengorn’s and Camire’s
objections to my Report and Recommendation.

IV.

Reasonableness of Requested Attorneys’ Fees and Costs
I turn finally to the issue of the reasonableness of the fees requested. An award of

reasonable attorneys’ fees is typically calculated using the lodestar methodology, which requires
the court to determine counsel’s reasonable hourly rate and multiply it by the reasonable number
of hours expended by counsel; that figure may then be adjusted in the district court’s discretion.
See, e.g., Perdue v. Kenny A., 559 U.S. 542, 551 (2010) (“the lodestar figure has, as its name
suggests, become the guiding light of our fee-shifting jurisprudence”) (internal quotation
omitted); Grievson v. Rochester Psychiatric Ctr., 746 F. Supp. 2d 454, 460-61 (W.D.N.Y. 2010);
Jack v. Golden First Mortg. Corp., 2008 WL 2746314, *2 (E.D.N.Y. 2008); Moreno v. Empire
City Subway Co., 2008 WL 793605, *2 (S.D.N.Y. 2008); see also Arbor Hill Concerned Citizens
Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 182, 190 (2d Cir. 2008) (lodestar figure is the
“presumptively reasonable fee”).
According to plaintiffs’ counsel, time entries reflecting work relating to the
sanctionable conduct for which they seek reimbursement totaled approximately 214.1 hours.
(Docket # 601 at 5, ¶ 18). Plaintiffs’ counsel then multiplied the total hours expended by an
hourly rate of $200, resulting in $42,820. (Id.). Plaintiffs also seek reimbursable costs in the
amount of $ 1,239.60. (Id.). Of the hours identified by plaintiffs, for the reasons discussed
above, I conclude that 60.2 of those hours (0.2 (6/1/2018 entry) and 60 (objections to the Report
and Recommendation)) were not within the scope of litigation activities for which
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reimbursement is authorized. Similarly, I conclude that $48 of the $1,239.60 claimed costs
(copying costs in connection with the objections to the Report and Recommendation) are not
properly reimbursable. Subtracting those fees and costs yields $30,780 in attorneys’ fees ((214.1
– 60.2) x $200/hour) and $1,191.60 in costs ($1,239.60 – $48).
Defendants do not contend that the $200 hourly rate requested by plaintiffs’
counsel is unreasonably high, and, based upon my familiarity with prevailing hourly rates in this
district, I find that the proposed $200 hourly rate is consistent with, if not in fact lower than,
prevailing local rates and is reasonable and appropriate in this case. See Johnson v. New Bern
Transp. Corp., 2020 WL 6736861, *5 (W.D.N.Y. 2020) (“[t]he [c]ourt finds the requested
[$300] hourly rate and hours reasonable given recent case law in this district, [the attorney’s]
experience in consumer litigation, his work drafting the pleadings and motions, and his efforts to
resolve the case”); Figueroa v. KK Sub II, LLC, 2019 WL 1109864, *10 (W.D.N.Y. 2019)
(setting hourly rates for experienced attorneys in this district between $250 and $300); Taylor v.
Delta-Sonic Car Wash Sys., Inc., 2017 WL 436045, *7 (W.D.N.Y. 2017) (“[a]n hourly rate of
$250 for legal services . . . strikes this [c]ourt as both fair and reasonable given . . . the hourly
rate employed by comparable attorneys here in the Western District”); Costa v. Sears Home
Improvement Prods., Inc., 212 F. Supp. 3d 412, 420 (W.D.N.Y. 2016) (“[t]he hourly rates
generally allowed in this District . . . are in the range of $225-$250 for partner time or senior
associate time, $150-$175 for junior associate time, and $75 for paralegal time”).
With respect to the number of hours expended, apart from the arguments
addressed above, Gershengorn and Camire do not broadly challenge plaintiffs’ hours on the
grounds of excessiveness. Rather, they limit their reasonableness challenge to the time expended
briefing and litigating plaintiffs’ motion to strike Camire’s declaration. (Docket # 606 at 11).
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They maintain that the hours sought in connection with that particular motion are “unreasonable”
and should be “reduced substantially to a more reasonable amount.” Id.
Hours that are “excessive, redundant, or otherwise unnecessary” should be
excluded from the award as unreasonably expended. Hensley v. Eckerhart, 461 U.S. 424, 434
(1983). “In calculating the number of reasonable hours, the court looks to its own familiarity
with the case and its experience with the case and its experience generally as well as to the
evidentiary submissions and arguments of the parties.” Clarke v. Frank, 960 F.2d 1146, 1153
(2d. Cir. 1992) (internal quotation omitted). One way to accomplish this task is to evaluate the
reasonableness of each individual time entry and to make reductions and exclusions as necessary.
See, e.g., Pasternak v. Baines, 2008 WL 2019812, *7 (W.D.N.Y. 2008); Rich Prods. Corp. v.
Impress Indus., 2008 WL 203020, *3 (W.D.N.Y. 2008).
Plaintiffs’ counsel has submitted a declaration affirming that a total 31.1 hours
were expended in connection with plaintiffs’ motion to strike, 9.3 in connection with drafting
and filing the original motion papers, 19.9 in connection with drafting and filing the reply
submission, and 1.9 in connection with preparing for and attending oral argument on the motion.
(Docket # 601 at 11-12, ¶ 31). The Court has carefully reviewed counsel’s submission with
respect to the 31.1 hours and finds that the time logged appears reasonable. For example, the
original motion papers consisted of nine pages and an attached two-page affidavit with five
exhibits. (Docket # 561). I find that 9.3 hours is a reasonable period to work drafting a
submission of this length. Similarly, the 19.9 hours expended in connection with the reply
submission are also reasonable. That submission consisted of ten pages and an accompanying
affidavit attaching two exhibits. (Docket # 566). Although the submission does not include
significant legal research or analysis, it does contain a detailed summary of the complex
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litigation history, and I find that the time expended to compile and summarize this information is
reasonable.
Despite the lack of specific objections from Gershengorn and Camire, the Court
has reviewed the compensable time entries with respect to the remaining 122.8 hours for which
plaintiffs seek reimbursement. I find that these hours appear reasonable and should be
reimbursed. As stated above, plaintiffs have also sought reimbursement of $1,191.60 in
associated costs. Gershengorn and Camire have lodged no specific objection to those requested
costs, and I find that the amount is reasonable and should be reimbursed. Accordingly, I find
that plaintiffs are entitled to be reimbursed in the amount of $31,971.60; $30,780 in attorneys’
fees (153.9 hours x $200/hour) and $1,191.60 in costs.

CONCLUSION
For the reasons discussed above, I find plaintiffs are entitled to sanctions in the
amount of $31,971.60 in attorneys’ fees and costs. The above-stated sums are to be paid by no
later than thirty (30) days from the date of this Order.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
May 12, 2023

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