Opinion
No. 09 Civ. 7830 (RJS)
10-19-2012
ZORA MATTEO Plaintiff, v. KOHL'S DEPARTMENT STORES, INC. AND KOHL'S ILLINOIS INC., Defendants.
Plaintiff is represented by Charles M. Arnold of Lerner Arnold & Winston, LLP. 475 Park Avenue South, 28th Floor, New York, New York 100126. Defendants are represented by Charles T. Glaws of Gruvman, Giordano & Glaws, LLP. 61 Broadway, Suite 2715, New York, New York, 10006.
MEMORANDUM AND ORDER :
In 2009, Plaintiff Zora Matteo ("Plaintiff") commenced this action against Kohl's Department Stores, Inc. and Kohl's Illinois, Inc. ("Defendants"), asserting a claim for negligence under New York common law. By Order dated March 6, 2012 (the "March 6 Order"), the Court granted Defendants' motion for summary judgment, but granted in part and denied in part Plaintiff's motion for spoliation sanctions. Matteo v. Kohl's Dept. Stores, Inc., No. 09 Civ. 7830 (RJS), 2012WL 760317, at *10 (S.D.N.Y. Mar. 6, 2012). Now before the Court is Plaintiff's motion for fees and costs incurred in connection with her motion for spoliation sanctions. Plaintiff requests $68,827.10 in attorneys' fees, expert fees, and costs. For the reasons that follow, the Court grants Plaintiff's motion but only to the extent of $10,686.60.
I. BACKGROUND
A. Facts
On December 11, 2008, Plaintiff tripped and fell while shopping at Defendants' store in Yonkers, New York. Id. at *1. Plaintiff alleges that her left foot became stuck in the wheel at the base of a temporary display rack in the middle of the main aisle of the store because the wheel was sticking out from the base of the display. Id. As a result of the fall, Plaintiff fractured and dislocated her left shoulder. Id. After filing her complaint in this action on September 14, 2009, Plaintiff attempted to get a copy of the store's video surveillance footage from the day of her fall during discovery. Id. at *1. Notwithstanding the fact that Defendants' policy was to preserve relevant video evidence following an accident, Plaintiff was told that her accident had not been captured by the store's sophisticated surveillance system and that the video from the time of her accident had not been preserved. Id. at *1-2. In April 2010, Plaintiff retained the services of Jeffrey Zwirn, a security and video surveillance expert, to identify whether Defendants' video surveillance system captured or could have captured Plaintiff's accident. (Decl. of Charles Arnold, dated Mar. 29, 2012, Doc. No. 61 ("Arnold Decl."), ¶ 13.) Between May and December of that year, Plaintiff also conducted depositions with three members of Defendants' staff regarding the video surveillance system and video evidence issues. (Id. at 6-7.)
B. Procedural History
On May 9, 2011, Plaintiff moved for spoliation sanctions based on Defendants' failure to preserve the video footage. On May 10, 2011, Defendants moved for summary judgment.
On March 6, 2012, this Court granted Defendants' motion for summary judgment against Plaintiff on her negligence claim. For reasons set forth in detail in the March 6 Order, the Court denied Plaintiff's request for spoliation sanctions in the form of an adverse inference because "the Court [could not] conclude that the video evidence [wa]s sufficiently relevant to warrant a sanction as severe as an adverse inference instruction." Matteo, 2012 WL 760317, at *5. However, the Court permitted Plaintiff to "apply for reasonable fees and costs incurred in connection with her motion for spoliation sanctions and discovery to determine whether Plaintiff's accident was recorded by Defendants' video surveillance." Id. at *10.
On March 29, 2012, Plaintiff filed the instant motion for fees and costs. The motion was fully briefed as of April 19, 2012. The Court heard argument on the motion on July 10, 2012.
II. DISCUSSION
A. Legal Standards
In light of the Court's prior decision that Plaintiff is entitled to reasonable fees and costs incurred in connection with her motion for spoliation sanctions and discovery, the Court must now determine what amount of fees and costs is reasonable. In making this determination, the rates actually charged by attorneys and experts, and the hours actually expended, are not dispositive. Moreno v. Empire City Subway Co., No. 05 Civ. 7768 (LMM) (HBP), 2008 WL 793605, at *3 (S.D.N.Y. Mar. 26, 2008). Instead, the court must limit both the rate and hours to what is reasonable "with an eye to moderation, seeking to avoid either the reality or the appearance of awarding windfall fees." N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1139 (2d Cir. 1983) (internal citations and quotation marks omitted). It is Plaintiff's burden to demonstrate "satisfactory evidence" that the costs requested are reasonable. Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).
B. Attorneys' Fees
Plaintiff requests $43,625.00 in attorneys' fees and costs in connection with the spoliation issue. This figure consists of 82 hours expended by Plaintiff's principal attorney, Charles Arnold, at $450 per hour, as well as 27 hours his associate expended at $250 per hour.
The Court's analysis of attorneys' fees begins with the calculation of the lodestar, the number of hours reasonably expended by each attorney multiplied by the appropriate hourly rate for that attorney. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The Court then adjusts the lodestar amount based on factors such as the complexity of the issues, overstaffing of the case, or the expenditure of excessive amounts of time. See Bowne of New York City, Inc. v. AmBase Corp., 161 F.R.D. 258, 266 (S.D.N.Y. 1995). Where time entries submitted by the party seeking fees reflect excessive billing, the Court can reduce the rate or hours claimed, or it may order an across-the-board percentage reduction to achieve a reasonable award. See Rahman v. Smith & Wollensky Rest. Grp., Inc., No. 06 Civ. 6198 (LAK) (JCF), 2008 WL 1899938, at *4 (S.D.N.Y. Apr. 29, 2008) (reducing claimed hours by 33% because "counsel devoted far more hours to the sanctions issue than was justified by the work product"); Ass'n of Holocaust Victims for Restitution of Artwork & Masterpieces v. Bank Austria Creditanstalt AG, No. 04 Civ. 3600 (SWK), 2005 WL 3099592, at *7 (S.D.N.Y. Nov. 17, 2005) (fees reduced by 25% for block billing, excessive hours, and vagueness in time entries); Gen. Elec. Co. v. Compagnie Euralair, S.A., No. 96 Civ. 0884, 1997 WL 397627, at *6 (S.D.N.Y. July 3, 1997) (fees reduced by 50% for overstaffing, excessive hours, and excessive hourly rates). With that background, the Court proceeds to determine (1) a reasonable hourly fee for attorneys in this litigation and (2) a reasonable amount of time for them to have expended on the narrow spoliation issue.
1. Reasonable Rate
To determine whether an attorney's requested hourly rate is reasonable, courts ask "what a reasonable, paying client would be willing to pay." Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 184 (2d Cir. 2008). Thus, courts "should use the approximate market rate for an attorney's services in calculating the presumptively reasonable fee." Id. at 192. To do this, courts look to the prevailing rates in the district, examining the rates of attorneys of reasonably comparable skill and experience for similar litigation, Polk v. N.Y. State Dep't of Corr. Serv., 722 F.2d 23, 25 (2d Cir. 1983), and factoring in the size of the law firm involved, Chambers v. Masters, 885 F.2d 1053, 1058-59 (2d Cir. 1989), and the complexity of the litigation at issue. Moreno, 2008 WL 793605, at *2.
Courts in this district have held that civil attorneys in small firms litigating straightforward issues should generally receive between $200 and $375 per hour. See, e.g., DeCurtis v. Upward Bound Int'l, Inc., No. 09 Civ. 5378 (RJS), 2011 WL 4549412, at *8 (S.D.N.Y. Sept. 27, 2011); Nwagboli v. Teamwork Transp. Corp., No. 08 Civ. 4562 (JGK) (KNF), 2009 WL 4797777, at *10 (S.D.N.Y. Dec. 7, 2009) (noting that "considering the straightforwardness of the [civil] action . . . $250 is the most appropriate hourly rate for [the attorney's] legal services"); Moreno, 2008 WL 793605, at *7 ("In this district, the hourly rates awarded to civil litigators in small firms have frequently ranged from about $200 to $300."). Last year, in E.S. v. Katonah-Lewisboro School District, Chief Judge Preska explained that hourly rates in excess of $400 "are only warranted in unusually difficult and complex cases." 796 F. Supp. 2d 421, 429-30 (S.D.N.Y. 2011) (internal citation omitted). Judge Preska noted that such a rate could be justified and, in fact, an hourly rate of $450 had been justified in a prior case because the litigation was extremely complex, the lawyer very experienced, and the firm, Skadden Arps, was one of "the largest and most well-regarded firms in the world." Id.
Arnold's proposed hourly rate is $450. (Arnold Decl. at Ex. L.) This rate is far too high for civil litigation in this district, particularly given the small size of Arnold's firm and the straightforward nature of this trip-and-fall litigation in comparison to, for example, a complex civil rights case. At oral argument, Arnold acknowledged that he took this case on a contingency basis and that $450 is the maximum hourly rate he charges. (Tr. of July. 10, 2012 Oral Argument, ("Tr."), at 3). Arnold also conceded that he charges some clients at rates between $200 and $250 per hour. (Id. at 5.) In comparison, the hourly rate for Charles Glaws, Defendants' principal attorney in this action, is only $150. (Decl. of Charles Glaws, dated Apr. 12, 2012, Doc. No. 66 ("Glaws Decl."), ¶ 13.) As Plaintiff notes, this rate may be "a negotiated rate reflecting a volume of business from [Kohl's]." (Reply Decl. of Charles Arnold, dated Apr. 19, 2012, Doc. No. 67 ("Arnold Reply Decl."), ¶ 7.) Nevertheless, there is nothing in the record that would suggest that the instant case, a straightforward trip-and-fall negligence suit, required Arnold's maximum rate, a rate three times that of opposing counsel and far in excess of the prevailing rate for attorneys involved in similar civil litigation in this district.
The proposed attorneys' fees also include the work of a second-year associate whose proposed hourly rate is $250. This rate is similarly excessive. Indeed, it is a rate that courts in this district have approved for experienced litigators in civil suits. Arnold's associate was a second year associate at the time of the underlying motion, but the Court has not been provided with any additional details regarding her training or experience. (Arnold Decl. ¶ 33.) Courts in this district "have awarded amounts ranging from $125 to $200 per hour for attorneys with less than three years' experience." Torres v. City of New York, No. 07 Civ. 3473 (GEL), 2008 WL 419306, at *2 (S.D.N.Y. Feb. 14, 2008); accord Woods v. Sieger, Ross & Aguire, LLC, 11 Civ. 5698 (JFK), 2012 WL 1811628, at *5-6 (S.D.N.Y. May 18, 2012) (approving hourly rate of $200 for a 2004 New York Law School graduate). The Court therefore concludes - based on its experience with this and other matters, and based on the rates that other judges in this district have previously approved - that in this litigation, a reasonable hourly rate for Arnold is $250, and a reasonable hourly rate for his associate is $150.
2. Reasonable Hours
A court evaluating the reasonableness of the number of hours claimed must examine the attorney's records that detail the time expended. However, it must also check those records against the Court's "own familiarity with the case and its experience generally." DiFilippo v. Morizio, 759 F.2d 231, 236 (2d Cir. 1985). Courts look unfavorably on block billing and vagueness in billing because imprecise entries limit courts' ability to decipher whether the time expended has been reasonable. See Sea Spray Holdings, Ltd. v. Pali Fin. Grp., Inc., 277 F. Supp. 2d 323, 325-26 (S.D.N.Y. 2003); Vishipco Line v. Charles Schwab & Co., No. 02 Civ. 7823 (SHS), 2003 WL 1936142, at *2 (S.D.N.Y. Apr. 23, 2003).
Arnold asserts that he and his associate collectively expended 109 hours on the spoliation issue. (Arnold Decl. at Ex. L.) However, the time records submitted to the Court, while fairly detailed, were not created contemporaneously during the course of the litigation. Instead, the billing represents Arnold's attempt to reconstruct the time that he and his associate devoted to the spoliation issue in light of the March 6 Order permitting Plaintiff to apply for reasonable attorney's fees. (Tr. at 13.)
Defendants challenge the 109 hours as plainly excessive given that the spoliation issue was a "single, relatively tangential issue" in the litigation. (Glaws Decl. ¶ 6.) Defendants also point to specific line items that they argue did not arise from the spoliation issue but were instead part of Plaintiff's general preparation for the litigation. (Id. ¶ 7.) Plaintiff, in response, claims that all 109 hours "are specific to the video tape issue and do not, as defense counsel incorrectly alleges, concern other items of discovery." (Arnold Reply Decl. ¶ 6.) Even assuming that Arnold has carefully itemized each of the activities that he and his associate performed, the Court finds that the time billed in connection with this narrow issue was plainly excessive. Put another way, Plaintiff's decision to make the spoliation issue the centerpiece of the litigation and to devote such a substantial amount of time to it was unreasonable. As this Court articulated in the March 6 Order, even if the video had been retained and provided, it is unlikely that it would have shown anything "that would be relevant to establishing liability beyond or different from what is depicted in the photographs taken after the accident . . . that were produced in discovery." Matteo, 2012 WL 760317, at *5. Although the Court remains convinced that Defendants' failure to preserve the video and their actions during discovery warrant an award of fees and costs, Arnold and his associate expended an unreasonable amount of time on this limited issue. Based on the straightforward nature of this minor issue, the Court finds that 30 hours is a reasonable amount of time to have spent in connection with the motion for spoliation sanctions and related discovery.
In light of the different hourly rates charged by Arnold and his associate, the Court maintains the proportional division of hours between Arnold and his associate in its reduction of hours. This reduction results in 22.5 hours for Arnold and 7.5 hours for his associate.
* * *
In the instant action, Plaintiff's request for attorneys' fees totaling $43,625.00 for the narrow spoliation issue is excessive. Plaintiff's request for attorneys' fees is granted but limited to $6,750.00, reflecting this Court's reduction of Plaintiff's attorneys' rates and hours.
C. Expert Fees
Plaintiff requests $23,765.50 in expert fees and costs in connection with the spoliation issue. This is the amount Plaintiff's counsel has already paid Zwirn. According to Plaintiff, Zwirn had initially billed Plaintiff's counsel for $35,975.59, based on the expenditure of nearly 65 hours by Zwirn at $350 per hour and more than fourteen hours of investigator charges at $350 per hour. Zwirn also billed for three, $2,400 out-of-office charges and $958 in assorted administrative and materials fees and travel costs.
Plaintiff notes that "[b]y agreement with Mr. Zwirn, Plaintiff is not seeking reimbursement beyond the $23,765.50 already paid to Mr. Zwirn to date." (Pl.'s Br. at 10). Plaintiff provides no explanation for, or details of, this agreement.
Courts in this district assess the reasonableness of expert fees using the same method they do for attorneys' fees - by first multiplying the reasonable hourly rate by the reasonable number of hours expended. Anderson v. YARP Rest., Inc., No. 94 Civ. 7543 (CSH) (RLE), 1997 WL 47785, at *5 (S.D.N.Y. Feb. 6, 1997); see also Watson v. E.S. Sutton, Inc., No. 02 Civ. 2739 (KMW) (THK), 2006 WL 6570643, at *12 (S.D.N.Y. Aug. 11, 2006). The "party seeking reimbursement for expert fees bears the burden of proving reasonableness." Penberg v. HealthBridge Mgmt., No. 08 Civ. 1534 (CLP), 2011 WL 1100103, at *15 (E.D.N.Y. Mar. 22, 2011) (citation and internal quotation marks omitted). If the parties do not provide sufficient evidence to support the moving party's interpretation of a reasonable rate, a court may use its discretion to determine a reasonable fee. New York v. Solvent Chem. Co., Inc., 210 F.R.D. 462, 468 (W.D.N.Y. 2002). In the face of very limited evidence, a court may, in its discretion, simply apply an across-the-board reduction of expert's fees. See Penberg, 2011 WL 1100103, at *15 (noting that "without any baseline of rates charged by similar experts, it is difficult for the Court to determine whether the . . . rates are reasonable. Therefore, the Court has cut the amount of fees requested for the work performed by [the expert] by 15%"); Watson, 2006 WL 6570643, at *13 (reducing expert fees by 50% for lack of detailed information provided in support of proposed fees). The Court proceeds to determine a reasonable hourly fee for Zwirn and his investigator in this litigation and a reasonable amount of time for each to have expended on the narrow spoliation issue.
1. Reasonable Rate
To determine whether an expert's proposed rate is reasonable, courts in this Circuit are guided by eight factors:
(1) the [expert]'s area of expertise, (2) the education and training that is required to provide the expert insight that is sought, (3) the prevailing rates for other comparably respected available experts, (4) the nature, quality and complexity of the discovery responses provided, (5) the cost of living in the particular geographic area, (6) the fee being charged by the expert to the party who retained him, (7) fees traditionally charged by the expert on related matters, and (8) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26.Adams v. Mem'l Sloan Kettering Cancer Ctr., 2002 WL 1401979, at *1 (S.D.N.Y. June 28, 2002); see also Frederick v. Columbia Univ., 212 F.R.D. 176, 177 (S.D.N.Y. 2003).
Perhaps most crucially, Plaintiff presents no information that seeks to explain Zwirn's $350 hourly rate or the $350 hourly rate for worker performed by Zwirn's investigator. (Arnold Decl. at Ex. M.) Absent truly compelling evidence that $350 represents a reasonable market rate for such services, the Court will not endorse an expert hourly rate that dwarfs the $250 per hour attorney fee referenced above.
In addition to the hourly charges, Zwirn billed $7,200 for a total of three "out-of-office" charges, which includes two onsite inspections of the video and surveillance equipment at Defendants' Yonkers store, and one completely undescribed activity. (Id.) Plaintiff has not provided any information to the Court that can explain this rate or suggest that it is reasonable. Defendants allege that they witnessed one inspection by Zwirn, "which merely consisted of him looking around the loss prevention room at Kohl's, taking photographs, and adjusting various cameras using a joystick." (Glaws Decl. ¶ 11.) Moreover, the photographs of the video surveillance system that Plaintiff appended to her motion, which Zwirn took, are not informative and did not require great skill. (See Arnold Decl. at Ex. K.) Some of the photos merely depict boxes of video tapes and DVDs, while others show the control room itself. Plaintiff similarly provides no information to explain five flat individual "Administrative fees" of $100 each that were purportedly incurred. (Id. at Ex. M.)
Plaintiff has provided the Court with very limited information to evaluate Zwirn's fees using the eight factors outlined above. Indeed, Plaintiff has provided the Court with no information regarding the prevailing rates for other comparable experts, fees traditionally charged by Zwirn on related matters, or any other factor likely to be of assistance in evaluating the reasonableness of the fees in this case. Plaintiff likewise has provided the Court with little information regarding Zwirn's area of expertise; however, given the context of this litigation, the Court finds that video surveillance expertise, in so far as it was relevant here to determine whether a certain area of the store would have been recorded by the system in the ordinary course, does not appear to be highly complex. Further, the education and training required to provide the necessary expert insight appear to be very limited, and the nature, quality, and complexity of the discovery responses provided do not suggest that this case demanded great expertise or warranted such high expert fees. While the cost of living in the New York metropolitan area is high, on balance, these factors clearly point toward significantly reducing Zwirn's billed hourly rate. Accordingly, the Court concludes based on its experience that a reasonable hourly rate for Zwirn and his investigator is $125.
2. Reasonable Hours
Additionally, the Court finds that the hours expended by Zwirn were not reasonable. In addition to the "out of office" visits, Zwirn has billed for over 65 hours of his own time and for more than 14 hours of investigator time. For example, Zwirn asserts that he spent 46 hours preparing the expert report. (Id. at Ex. M.) This is clearly excessive based on the narrow and simple issues presented and the Court's review of the portions of the report that were included with Plaintiff's summary judgment motion. While an expert may have been necessary, the expert report makes clear that the issues on which Zwirn was tasked with opining were not complex and, in fact, quite straightforward. (See Arnold Decl. at Ex. L.)
As the Court noted in its discussion of reasonable hours for Plaintiff's attorneys, Zwirn's decision to devote such substantial time to this narrow issue - which could have at most only minimally aided Plaintiff's case - was a miscalculation, which is not reasonable. Therefore, the Court finds that twenty hours is a reasonable amount of time for Zwirn and his investigator to have spent on this issue.
The total number of hours incorporates the hours of all of Zwirn's purported activity, including hours worked by his investigator, and his out-of-office charges.
* * *
Accordingly, Plaintiff's request for expert fees totaling $23,765.50 is excessive. Plaintiff's request for expert fees is granted but limited to $2,500.00, reflecting this Court's reduction of Plaintiff's expert's rate and hours.
The Court does not separately include Zwirn's assorted administrative and materials fees and travel costs, because the Court finds that these fees are adequately covered by the hourly rate. --------
D. Litigation Costs
Plaintiff also seeks to recover litigation costs related to acquiring deposition transcripts for the spoliation issue. These costs total $1,436.60. Defendants did not challenge this request in their briefing or at oral argument (see Tr. at 17), and the Court sees no reason why Plaintiff should not recover these costs in their entirety. Accordingly, Plaintiff's request for litigation costs is granted in full.
III. CONCLUSION
The Court permitted Plaintiff to apply for reasonable fees and costs as a sanction for Defendants' failure to preserve relevant evidence from the time of Plaintiff's accident and failure to be fully candid during discovery on this matter. However, this sanction was not meant to give Plaintiff a windfall, nor was it designed to permit Plaintiff's counsel to recover what they had hoped to receive in fees if they had prevailed in this matter. Rather, the sanction was merely to compensate them for additional expenses incurred on this single discovery matter. To the extent that counsel and Plaintiff's expert actually expended such a staggering number of hours at such high hourly rates on this issue, the decision to do so was not reasonable and Defendants cannot be held accountable for Plaintiff's imprudent allocation of resources. For the aforementioned reasons, the Court grants Plaintiff's motion for reasonable fees and costs in the reduced amounts of $6,750.00 in attorneys' fees and $2,500 in expert fees, plus $1,436.60 in litigation costs, totaling $10,686.60. Defendants shall pay that sum in full no later than November 19, 2012.
The Clerk of Court is respectfully requested to terminate the motion pending at Doc. No. 60 and to close this case. SO ORDERED.
/s/_________
RICHARD J. SULLIVAN
United States District Judge Dated: October 19, 2012
New York, New York
* * *
Plaintiff is represented by Charles M. Arnold of Lerner Arnold & Winston, LLP. 475 Park Avenue South, 28th Floor, New York, New York 100126.
Defendants are represented by Charles T. Glaws of Gruvman, Giordano & Glaws, LLP. 61 Broadway, Suite 2715, New York, New York, 10006.