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recommending that the court deny recovery for velobinding
Summary of this case from Bobrow Palumbo Sales, Inc. v. Broan-Nutone, LLCOpinion
03 Civ. 7752 (RMB) (KNF).
October 12, 2007
REPORT and RECOMMENDATION
TO THE HONORABLE RICHARD M. BERMAN, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff Anthony M. Lavely ("Lavely") brought this action against Redheads, Inc. ("Redheads"), a corporation engaged in the business of operating a chain of bistro-style restaurants, Sogevalor, S.A. ("Sogevalor"), a Swiss investment bank, Paolo Matteuzzi ("Matteuzzi"), a principal and officer of Sogevalor, Rodolfo Oechslin ("Oechslin"), a principal and officer of Sogevalor, and Dumont Investments, Inc. ("Dumont"), an investment banking service provider for Sogevalor in the United States. Lavely seeks to recover damages for: (1) breach of contract against Sogevalor and Redheads; (2) an account(s) stated against Sogevalor and Redheads; (3) Sogevalor, Matteuzzi and Oechslin's breach of guaranty agreements; (4) fraud against all defendants; (5) unjust enrichment against all defendants; (6) quantum meruit against all defendants; and (7) promissory estoppel against all defendants. In addition, Lavely maintains he is entitled to recover damages from Sogevalor because it is the alter ego of Redheads and Dumont. By an order, dated April 23, 2004, your Honor granted the plaintiff's request for a judgment by default against Redheads on the plaintiff's account stated claim, finding it jointly and severally liable for $515,023.12 in damages, including interest. On February 15, 2007, your Honor granted the plaintiff's request for a judgment by default, on all claims, against all the remaining defendants ("defendants"), owing to their persistent failure to comply with discovery orders. Your Honor also awarded the plaintiff the reasonable costs and attorney's fees he has incurred prosecuting this action. Thereafter, your Honor referred the matter to the undersigned to conduct an inquest and to report and recommend the amount of damages, if any, to be awarded to the plaintiff.
The plaintiff asserts, in his proposed findings of fact and conclusions of law, that, as of April 13, 2007, he has been unable to recover anything from Redheads.
On March 14, 2007, your Honor granted defense counsel's motion to be relieved of the obligation of continuing to represent the defendants, conditioned on counsel's payment of a modest monetary sanction for, inter alia, causing protracted and unnecessary litigation, which caused the plaintiff to incur unwarranted litigation expenses. Thereafter, your Honor referred the matter to the undersigned to determine the appropriate amount to be paid to the plaintiff by defense counsel. On April 9, 2007, the plaintiff and the defendants' counsel entered into an agreement, through which the issue of the amount of the sanction was resolved. On April 11, 2007, the plaintiff withdrew his motion for sanctions against the defendants' counsel.
The Court directed the plaintiff to serve and file proposed findings of fact and conclusions of law, and an inquest memorandum, accompanied by supporting affidavits and exhibits, setting forth his proof of damages, costs of this action, reasonable attorney's fees and any applicable interest. The Court also directed the defendants to serve and file any opposing memoranda, affidavits and exhibits, as well as any alternative findings of fact and conclusions of law they deemed appropriate. The defendants did not file anything in opposition to the plaintiff's submissions.
The plaintiff's submissions aver that he is entitled to recover jointly and severally from the defendants: (a) $621,650 in damages, including interest, based on the value of the services he rendered to them, for which he was never paid; and (2) $219,660, the costs and attorneys' fees he incurred prosecuting this action. On September 24, 2007, the Court directed the plaintiff to itemize its costs and identify the total amount of costs it seeks to recover, because the costs sought appeared to be included, but not delineated, in the request for attorneys' fees the plaintiff submitted to the Court previously. In response to the Court's order, the plaintiff submitted a writing contending that the plaintiff "does not seek to recover costs separate and apart from the disbursements [totaling $10,487, and delineated under the heading Description of Disbursements at the end of each invoice], which have already been included in the request for attorney's fees of $219,660."
II. BACKGROUND
When a defendant defaults in an action, the plaintiff's factual allegations must be accepted as true, except as they relate to damages. See Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993);Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). In addition, the plaintiff is entitled to all reasonable inferences from the evidence presented. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). Based upon the submissions made by the plaintiff, the complaint filed in the instant action, and the Court's review of the entire court file in this action, the following findings of fact are made:
Lavely is a consultant with experience in the restaurant industry and with expertise in evaluating potential business investments. In or about February 1999, Sogevalor owned the majority of all outstanding shares in and controlled Redheads, which was emerging from bankruptcy protection. At that time, Matteuzzi and Oechslin, on behalf of Sogevalor, approached Lavely and requested that he provide his consulting services to Redheads. Lavely agreed to provide his services to Redheads for one month, in exchange for a payment of $15,000 and reimbursement for all out-of-pocket expenses incurred in connection with rendering his services. At the end of 1999, Sogevalor and Redheads requested and Lavely agreed to continue to provide his consulting services on a monthly basis in exchange for a monthly payment of $16,000 and reimbursement of all out-of-pocket expenses. Thereafter, Sogevalor and Dumont requested that Lavely expand the scope of his services and review potential investment opportunities available in the United States. Lavely agreed to provide consulting services to Redheads and to analyze potential investments in certain internet companies and a Florida restaurant chain named Sfarza, being contemplated by Redheads, Sogevalor and Dumont.
Over the course of time, the defendants agreed to pay Lavely the following consulting fees: (a) $17,000 monthly, effective October 1999; (b) $18,000 monthly, effective January 2000; (c) $19,000 monthly, effective July 2000; and (d) $20,000 monthly, effective January 2001.
Starting in December 1999, Redheads and Sogevalor fell behind in paying Lavely's consulting fees and reimbursing his out-of-pocket expenses. In response to Lavely's demands for payment, Matteuzzi and Oechslin, personally and on behalf of Sogevalor and a Dumont executive Julio Pasini, assured Lavely he would be paid in full for his services. Thereafter, Matteuzzi and Oechslin began to make excuses for their failure to make the payments. Among other things, Matteuzzi and Oechslin told Lavely they had to pay him through intermediaries, because of a regulatory investigation by Swiss authorities into improprieties related to Sogevalor's conduct, and because Redheads' financial condition had been misrepresented to Sogevalor's board of directors. On several occasions, Matteuzzi and Oechslin indicated to Lavely they were liquidating certain personal and company assets, in order to raise the capital necessary to pay Lavely's consulting fees. During this period, Lavely continued to invoice Redheads, Sogevalor and Dumont, on a monthly basis, and each invoice was received and accepted without objection. Additionally, the defendants acknowledged repeatedly the outstanding debt and requested that Lavely continue performing his services while reassuring him that he would be paid in full for his work. By September 2001, after Lavely realized he had been deceived by the defendants, who owed him more than $390,000, he ceased rendering his services to them.
Based on the statements of the fees owed to him, submitted by Lavely to Oechslin, to which no objections were made, an account has been stated between Lavely and Sogevalor. To induce Lavely to continue providing consultant services, Mateuzzi and Oechslin repeatedly guaranteed payment of Lavely's fees. In reliance on those guarantees, Lavely continued to render his services. Dumont accepted Lavely's services, without paying for them. Although Lavely did not submit proposed findings of fact to the Court concerning his breach of contract, fraud, quantum meruit and promissory estoppel claims, all Lavely's claims are based on the facts noted above.
III. CONCLUSIONS OF LAW
A default judgment in an action establishes liability, but is not a concession of damages. See Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). The amount of damages must be established by the plaintiff in a post-default inquest, "unless the amount is liquidated or susceptible of mathematical computation." Id. In conducting an inquest, a court need not hold a hearing "as long as it ensured that there was a basis for the damages specified in the default judgment." Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quotingFustok v. ContiCommodity Services, Inc., 873 F.2d 38, 40 [2d Cir. 1989]). A court may rely on detailed affidavits or documentary evidence in evaluating the fairness of the sum requested. See Fustok, 873 F.2d at 40.In his proposed conclusions of law, Lavely seeks an identical damages award, "the sum of $390,000, together with interest thereon from the due date of each invoice," under each of the following claims: account stated, breach of guaranty agreements and unjust enrichment. "Where a plaintiff seeks recovery for the same damages under different legal theories, only a single recovery is allowed." Conway v. Icahn Co., Inc., 16 F.3d 504, 511 (2d Cir. 1994). All theories under which Lavely seeks to recover damages are based on the same set of facts and the loss sustained is predicated on those same facts. Therefore, Lavely is entitled to a single recovery.
Account Stated
An account stated is an "agreed upon balance of indebtedness," based on an implied or express promise of payment made by the parties to a transaction. Newburger-Morris Co. v. Talcott, 219 N.Y. 505, 512 (1916). Lavely submitted with his declaration, in support of an award in his favor, copies of the statements he sent to Oechslin, dating from September 27, 1999, to December 6, 2001, indicating the money owed for the consulting services he rendered to the defendants. The statements included both consulting fees and expense reimbursements Lavely sought from the defendants. However, some of the statements sent to Oechslin by Lavely requested that he be paid his monthly fees and estimated expenses in advance. The following demands for monthly consulting fees were detailed in Lavely's statements:
August 1999 $16,000 made on January 11, 2000 September 1999 $16,000 made on September 27, 1999 October 1999 $17,000 made on January 11, 2000 November 1999 $17,000 made on October 25, 1999 December 1999 $17,000 made on December 6, 1999 January 2000 $18,000 made on January 11, 2000 February 2000 $18,000 made on March 2, 2000 March 2000 $18,000 made on April 3, 2000 April 2000 $18,000 made on April 3, 2000 The following demands for monthly expenses incurred were detailed in Lavely's statements sent to Oechslin: September 1999 $24,001.57 made on September 27, 1999 October 1999 $5,055.24 made on January 11, 2000 November 1999 $6,113.20 made on January 11, 2000 December 1999 $5,876.04 made on January 11, 2000 January 2000 $8,153.78 made on March 2, 2000 February 2000 $8,984.76 made on March 2, 2000 March 2000 $7,988.70 made on April 3, 2000 April 2000 $8,797.12 made on May 15, 2000 Lavely received two payments from the defendants: $20,000 on February 8, 2000, and $20,000 on March 2, 2000. Lavely also requested bonus payments: $2,582.27, in his January 11, 2000 statement, and $773, in his March 2, 2000 statement.The last detailed statement containing the breakdown of monthly fees and expenses owed, sent to Oechslin, on May 15, 2000, indicated the total amount due to Lavely was $194,551.11. After May 15, 2000, Lavely sent Oechslin statements through which he requested the total combined amount of fees and expenses owed. The next statement after May 15, 2000, sent on July 27, 2000, indicated: "The total owed to me in overdue management fees and expenses is $173,160.19. Redheads has been able to reduce slightly the previous total out of working capital . . ." It appears, from the record evidence, that Lavely received some payment between the time he dispatched his May 15, 2000, and July 27, 2000 statements, although it is not clear what the amount of that payment was or how it was applied to satisfy fees and expenses that were owed.
Furthermore, it is not clear whether Lavely received any payments from the defendants between the date on which his October 30, 2000 statement, in which he claimed the total of fees and expenses owed to him was $247,000, was dispatched, and the date on which his December 11, 2000 statement, in which he claimed that the entire balance owed was $246,000, was sent. Discrepancy also exists between Lavely's December 11, 2000 statement, claiming $246,000 as the total amount due to him, and Lavely's December 20, 2000 statement, in which he demanded that the defendants wire him $100,000 immediately, stating: "After you send me the $100,000 wire today, there will be a balance owed, including my January fee of $165,000." According to Lavely, his January 2001 fee was $20,000. If the defendants owed Lavely $246,000 on December 11, 2000, and they failed to make any payments, adding the January 2000 fee would bring the total, on December 20, 2000, and before wiring any money as requested by Lavely, to $266,000, not $265,000, excluding any expenses. Lavely did not indicate to the Court that he received any payment from the defendants between December 11 and December 20, 2000, and he failed to explain the difference in the amounts demanded in the statements sent to the defendants on those two dates.
After December 20, 2000, Lavely sent three additional statements to Oechslin, but failed to specify the exact amount owed to him. On March 28, 2001, he sent a statement indicating: "You owe me approximately $300,000 for overdue fees and expenses." On September 10, 2001, Lavely sent a statement to Ocheslin in which he indicated: "As you know, your obligations to me — in overdue fees and expenses-now amount to over $370,000." The final statement Lavely sent the defendants, dated December 6, 2001, indicated that the total fees and expenses "increased to over $390,000."
In a December 11, 2000 letter to Oechslin, Lavely stated: "If you do not come next week, you have my resignation." On December 20, 2000, Lavely made another demand on Oechslin, in which he asked for his January 2001 fee. On March 28, 2001, Lavely stated: "Tonight, I am leaving the Redheads office permanently, and I will not return. . . . You owe me approximately $300,000 for overdue fees and expenses. I will send you an itemized statement next week, and I will pursue collection and damages through all available legal matters." On September 10, 2001, Lavely demanded overdue fees and expenses from the defendants in an amount over $370,000 and stated: "In addition, I have other costs in interest fees and penalties due to financing these overdue payments with debt." The last statement, sent to Oechslin on December 6, 2001, stated that the total amount due to him from the defendants had increased to over $390,000.
Lavely has not submitted to the Court the itemized accounting to which he referred in his March 18, 2001 statement to Oechslin. It is not clear, from his submissions to the Court, when his resignation, conditionally tendered in his December 11, 2000 letter to Oechslin, actually took effect. Although, in a December 20, 2000 letter to Oechslin, Lavely included a demand for his January 2001 fee, it is uncertain whether fees for January, February or March 2001 were included in the total amount sought by Lavely, before he left Redheads permanently. Further, although Lavely indicated he had "costs in interest fees," he failed to account for: (i) the rate of interest charged; (ii) the amount to which any interest was applied; or (iii) the dates on which he charged the defendants for any interest fees and penalties due to financing of the overdue payments.
The Court finds that Lavely has not established the amount owed to him, including any amount or rate of interest, on his account stated claim, that he demanded from the defendants in 2001. The Court finds further that the last amount, demanded from the defendants, in Lavely's December 20, 2000 letter, was $265,000. Accordingly, Lavely is entitled to $265,000 in damages on his account stated claim. That is the amount certain he established is owed to him through the submissions he made to the Court on this claim.
Prejudgment Interest
Lavely seeks interest at the statutory rate of nine percent per annum, from the due date of each invoice. He contends the "[i]nterest has been taken from the due date specified on each statement, through and including April 13, 2007 and totals $231,650."
An account stated claim is, in essence, a breach of contract claim. A judgment for damages on such a claim is subject to New York Civil Practice Law and Rules ("CPLR") § 5001, which mandates that prejudgment interest be recovered and fixes the rate of interest. See Todtman, Nachamie, Spizz Johns, P.C. v. Ashraf, 241 F.R.D. 451, 457 (S.D.N.Y. 2007). In New York, the applicable interest rate is nine per centum per annum. See CPLR § 5004. Pursuant to CPLR § 5001(b), interest "shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred." When damages are incurred at various times "interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date." CPLR § 5001(b).
It appears from Lavely's September 10, 2001 statement that, at some point, he brought to the defendants' attention "other costs [he incurred] in interest fees and penalties due to financing these overdue payments with debt." In his declaration, submitted in support of an award of damages, costs and attorneys' fees and expenses, Lavely stated: "By September 2001, it was evident that I had been deceived by the defendants and that they never intended to make payments to me despite their repeated, unequivocal assurances to the contrary." While it is not clear when Lavely discontinued performing his services for the defendants, it is clear that the amount he demanded from the defendants continued to increase during 2001, including the increase between the statement made on September 10, 2001, when, according to Lavely, it was evident he was deceived by the defendants, and the last statement, made on December 6, 2001. Despite Lavely's: (i) conditional resignation tender on December 11, 2000; (ii) permanent abandonment of Redhead's office on March 28, 2001; and (iii) own realization, in September 2001, that he was deceived, the amount requested that was owed to Lavely continued to increase. This suggests that, at some point, Lavely included interest on the amount due to him, when he made demands on the defendants for payment.
Lavely submitted no evidence to the Court to demonstrate that an agreement between him and the defendants specified what interest rate, if any, would be applied to overdue payments or that the defendants agreed to pay any interest, simple or compound. Lavely's statements, requesting payment of an amount certain for his fees and expenses, range in date from September 27, 1999, to December 20, 2000. Accordingly, the amount of prejudgment interest to which Lavely is entitled should be calculated at the rate of nine per centum per annum, without compounding, from the intermediate date of May 15, 2000.
Reasonable Attorneys' Fees
When fixing an appropriate amount to be awarded for attorney fees, the Second Circuit Court of Appeals requires that the "presumptively reasonable fee" method be employed. Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110, (2d Cir. 2007). A court must consider "all of the case-specific variables that [the Second Circuit] and other courts have identified as relevant to the reasonableness of attorney's fees," in order to determine what is a presumptively reasonable fee. Id. at 117. These variables include: "(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the 'undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases." Id. at 114 n. 3 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 [5th Cir. 1974]). In the final analysis, a reasonable hourly rate is market-based, or in other words, "the rate a paying client would be willing to pay." Id. at 117.
A party seeking a fee award must support the request with contemporaneous time records detailing, "for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). Fee applications without such supporting data "should normally be disallowed." Id. at 1154.
The plaintiff seeks $219,660 in attorneys' fees. He is represented in this case by the law firm Pryor Cashman Sherman Flynn LLP, which recently changed its name to Pryor Cashman LLP, located in New York, New York. In support of his demand for attorneys' fees, the plaintiff submitted: (a) an affidavit by Michael G. Goldberg ("Goldberg"), a member of the firm; (b) a copy of the law firm's invoices for services rendered to Lavely from September 9, 2003, to March 22, 2007, detailing the date, initials of the person performing a task, hours expended on the task, and the amount of charges, including the hourly rate for each person performing the task, as well as litigation costs and the law firm's expenses related to this litigation. It appears, from the law firm's submissions, that six partners, four associates and ten paralegals worked on the instant case. The hourly rate the law firm charged Lavely for its services in this litigation falls within the following ranges: (1) from $400 to $495 in November 2003, to $525-$585 in March 2007, for partners; (2) from $330 in November 2003, to $395 in March 2007, for associates; and (3) from $170 in November 2003, to $225 in March 2007, for paralegals.
The experience of each attorney who rendered legal services to the plaintiff, during this litigation, is a factor that the Court must consider in determining the reasonableness of the attorneys' fees the plaintiff incurred. However, the law firm failed to submit any information about the law firm or its attorneys. The lack of information before the Court about the experience level of the plaintiff's attorneys prevents the Court from understanding whether the rates billed for the various hours expended by the attorneys who were assigned to work on this matter for the plaintiff were reasonable and appropriate.
In analyzing an application for attorney fees and costs, a court also considers the complexity of the case and the resources required to prosecute the case effectively. Accordingly, a court reviews the billing records submitted to it to determine whether they describe, with sufficient clarity, the nature of the work performed such that the court can assess the reasonableness of that work in the context of the overall litigation and, concomitantly, determine whether the amount billed for the work was reasonable. In performing a review of the billing records, a district court has the discretion to discount "[e]xorbitant, unfounded, or procedurally defective fee applications."Commissioner, I.N.S. v. Jean, 496 U.S. 154, 163, 110 S. Ct. 2316, 2321 (1990).
In the case at bar, six partners, four associates and ten paralegals were assigned to work on this litigation. Such a large allocation of law firm resources for a simple breach of contract action to recover unpaid fees and expenses raises the issue of overstaffing, a matter that affects the determination of whether legal fees incurred are reasonable. The law firm's billing records contain a significant number of vague entries, such as "review docs," "research and review cases," "review research," "review files," "Review/mtg att," "attention to brief" or "Called SDNY for questions about attorney admissions." These vague entries do not indicate what documents or what research were reviewed or what topics were researched or discussed during the meetings or conferences. Duplicative entries, lacking in sufficiency, such as "Prepared papers to be filed with the court" and "Preparation of documents for electronic filing," on the same date, by an associate and a partner, do not warrant the Court in determining that the hours claimed were reasonable. Moreover, (i) duplicative entries, such as December 9, 2004 "Email to client regarding unpaid invoices;" and (ii) duplicated work, such as different partners reviewing the same documents on the same dates, are deficiencies militating against a finding that the hours billed are reasonable.
In light of the deficiencies noted above, in the submissions made by the plaintiff in support of his application for an award of the attorneys' fees he reasonably incurred in prosecuting this action, the Court finds that a 25% reduction in the amount requested by the plaintiff is appropriate. See Luciano v. The Olsten Corp., 109 F.3d 111, 117 (2d Cir. 1997); Carey, 711 F.2d at 1146; Local 32B-32J, SEIU v. Port Auth., 180 F.R.D. 251, 253 (S.D.N.Y. 1998).
Costs
Fed.R.Civ.P. 54(d) provides that, unless otherwise provided by a statute, the Federal Rules of Civil Procedure or a directive issued by a court, "costs, other than attorneys' fees shall be allowed as of course to the prevailing party." "[The] list of recoverable costs is obviously the list set out in 28 U.S.C. § 1920, the general statute governing the taxation of costs in federal court." Arlington Central School Dist. Bd. of Educ. v. Murphy, ___ U.S. ___ 126 S. Ct. 2455, 2460 (2006); see Rangolan v. County of Nassau, 370 F.3d 239, 250 (2d Cir. 2004). The list of taxable costs includes: (1) fees of the clerk and marshal; (2) fees of a court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and copies of papers necessarily obtained for use in the case; (5) docket fees under 28 U.S.C. § 1923; and (6) compensation of court-appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828. See 28 U.S.C. § 1920. A district court does not have discretion, under Fed.R.Civ.P. 54(d), to tax as costs expenses incurred beyond those specified as taxable by Congress in 28 U.S.C. § 1920. See Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir. 2001); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct. 2494, 2497 (1987). Additionally, Local Civil Rule 54.1(c)(7) of this court provides that "[a]ttorney fees and disbursements and other related fees and paralegal expenses are not taxable except by order of the court."
The plaintiff seeks $10,487 in "disbursements." The disbursements sought include the following categories: (1) reproduction; (2) telephone; (3) filing fees; (4) car service; (5) air courier; (6) computerized legal research; (7) court clerk service; (8) process server; (9) facsimile; (10) word processing; (11) messenger service; (12) secretarial overtime; (13) postage; (14) velobind; (15) outside duplicating services; (16) tabs; and (17) docket expense. The only items from the list, submitted by the plaintiff, that appear to fall within the scope of taxable costs permitted by applicable rules are: (a) reproduction, as either printing under 28 U.S.C. § 1920(3), or copies of papers necessarily obtained for use in the case, under 28 U.S.C. § 1920(1); (b) filing fees, under 28 U.S.C. § 1920(1); (c) court clerk service, under 28 U.S.C. § 1920(1); and (d) outside duplicating services, as copies of papers necessarily obtained for use in the case, under 28 U.S.C. § 1920(1). All other items, listed by the plaintiff as "disbursements," are not costs within the meaning of Fed.R.Civ.P. 54(d). See United States v. Merritt Meridian Construction Corp., 95 F.3d 153, 172 (2d Cir. 1996) ( 28 U.S.C. § 1920 does not authorize the shifting of private process fees and computer research is compensable under an application for attorney's fees, but not as a separately taxable cost); Kuzma v. I.R.S., 821 F.2d 930, 933 (2d Cir. 1987).
The Court finds that the plaintiff is entitled to recover costs, as indicated above, in the amount of $3,599.13, pursuant to Fed.R.Civ.P. 54(d). Accordingly, the total amount of the attorneys' fees, sought by the plaintiff, is reduced by the amount of costs awarded in this action, bringing the total amount of attorneys' fees, sought by the plaintiff, to $216,060.87, before a 25% reduction, indicated above, is applied.
Post-Judgment Interest
28 U.S.C. § 1961 informs that "interest shall be allowed on any money judgment in a civil case recovered in a district court." 28 U.S.C. § 1961(a). Interest is calculated "from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment." 28 U.S.C. § 1961(a). Therefore, the plaintiff is entitled to post-judgment interest, at the rate prescribed by the above-noted statute, commencing from the date the default judgment is entered.
IV. RECOMMENDATION
For the reasons set forth above, the Court recommends that Lavely be awarded: (1) $265,000 in damages, for an account stated, along with pre-judgment interest calculated by the Clerk of Court at the rate of nine percent per year, without compounding, from May 15, 2000, until the date the default judgment is entered; (2) $162,045.65 in attorneys' fees; and (3) $3,599.13 in taxable costs; and (4) post-judgment interest, calculated by the Clerk of Court, in accordance with 28 U.S.C. § 1961, commencing from the date the default judgment is entered. The Court recommends further that the defendants' liability for the judgment be joint and several on the claims for which they have been found liable and that your Honor modify the default judgment entered against Redheads on April 23, 2004, accordingly, in order to avoid inconsistent judgments.
* * *
The plaintiff shall serve each defendant with a copy of this Report and Recommendation and shall submit proof of service to the Court.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, United States District Judge, 500 Pearl Street, Room 650, New York, New York 10007, and to the chambers of the undersigned, 500 Pearl Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Berman. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).