13cv4441 (VEC) (DF)
REPORT AND RECOMMENDATION
TO THE HONORABLE VALERIE CAPRONI, U.S.D.J:
This franchise dispute, brought pursuant to Section 460, et seq., of the New York Vehicle and Traffic Law (the "Dealer Act"), is currently before this Court to report and recommend as to the amount of attorneys' fees and costs that should be awarded to defendant Kia Motors America ("KMA") upon its successful motion for summary judgment against plaintiffs H.B. Automotive Group, Inc., d/b/a Kia of the Bronx, and Major Motors of Long Island City, Inc. d/b/a Kia of Long Island City ("Major LIC") (collectively, "Plaintiffs"). For the reasons discussed below, I recommend that, under Section 469 of the Dealer Act ("Section 469"), KMA's fee application (Dkt. 126) be granted to the extent that KMA be awarded $311,216.87 in attorneys' fees and $18,028.35 costs.
A. Factual Background
The facts underlying this action are discussed in detail in the Memorandum Opinion and Order, dated August 22, 2016 (Dkt. 109), by which the Honorable Valerie Caproni, U.S.D.J., granted summary judgment to KMA. Familiarity with that decision is assumed, and the factual background of the parties' dispute need not be reiterated herein.
B. Relevant Procedural History
Over the course of this action, Plaintiffs were represented by four different law firms and amended the Complaint three times. (See Affidavit of John J. Sullivan in Support of Defendant's Application for Attorney's Fees, Costs, and Disbursements, sworn to Jan. 5, 2018 ("Sullivan Aff.") (Dkt. 127) ¶¶ 9, 10; see also Dkts. 1-2, 14, 34, 60.) Plaintiffs' Third Amended Complaint asserted 25 causes of action under the Dealer Act, the Automobile Dealer's Day in Court Act, 15 U.S.C. § 1221, et seq., and common law, and demanded $7.5 million in compensatory damages, $10 million in punitive damages, injunctive relief, and an award of Plaintiffs' own attorneys' fees and costs pursuant to Section 469. (See Third Amended Complaint, dated Oct. 8, 2014 (Dkt. 60) ¶¶ 82-233.)
On August 28, 2015, KMA filed a motion for summary judgment. (See Dkt. 97.) In connection with their opposition to that motion, Plaintiffs voluntarily withdrew a number of claims by stipulation, with the five remaining claims involving alleged violations of the Dealer Act and breach of contract. (See generally Dkt. 106.) On August 22, 2016, Judge Caproni granted KMA's summary judgment motion in its entirety, disposing of Plaintiffs' remaining claims. (See Dkt. 109.)
KMA then moved under Rule 54(d)(2) of the Federal Rules of Civil Procedure and Local Civil Rule 54.1(c)(7) for an award of reasonable attorneys' fees and nontaxable expenses pursuant to Section 469. (See Dkts. 111, 112.) Plaintiffs opposed that motion, arguing that the Second Circuit has imposed a heightened standard for an award of attorneys' fees, requiring the party requesting fees to show that the claims or defenses were asserted in bad faith. (See Dkts. 117, 118.) Judge Caproni disagreed, holding that KMA, as the prevailing party in this Dealer Act case, was entitled to an award of attorneys' fees and costs in this action, pursuant to Section 469. (Dkt. 122.)
C. KMA's Fee Application
On October 16, 2017, this action was referred to this Court for a report and recommendation as to the appropriate amount of attorneys' fees and costs to be awarded. (Dkt. 124.) On December 8, 2017, this Court issued a Scheduling Order (Dkt. 125), directing KMA to file a fee application and setting a schedule for Plaintiffs to respond. In accordance with the schedule set by this Court, KMA duly filed its application, together with supporting materials (Dkts 126-130), requesting a total of $429,831.00 in attorneys' fees and $18,028.35 in costs. To date, Plaintiffs have filed no opposition to the fee application, despite having been instructed by this Court to file any such opposition no later than February 2, 2018.
KMA's submissions consist of its Motion for Attorney Fees, Costs, and Disbursements, dated Jan. 5, 2016 (Dkt. 126); the Sullivan Aff. (Dkt. 127) and exhibits thereto (Dkts. 127-1 through 127-12); the Declaration of Maria Mondero, dated Jan. 4, 2018 ("Mondero Decl.") (Dkt. 128) and Exhibit 1 thereto (Dkt. 128-1); the Declaration of James T. Meyers, dated Jan. 4, 2018 ("Meyers Decl.") (Dkt. 129); and a Memorandum of Law in Support of [Defendant's] Application for Attorney's Fees, Costs, and Disbursements, dated Jan. 5, 2018 ("Def. Mem.) (Dkt. 130).
I. APPLICABLE LEGAL STANDARDS
Section 469 provides, in part, that "the court may award necessary costs and disbursements plus a reasonable attorney's fees to any party." N.Y. Veh. & Traf. Law § 469. Generally, in determining whether an amount of claimed attorneys' fees is appropriate, the "starting point" is "the lodestar - the product of a reasonable hourly rate and the reasonable number of hours required by the case," which calculates a "presumptively reasonable fee." Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (citing Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008); Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552-53 (2010) (internal quotation marks omitted)). While precedent specifically discussing how fees should be determined under Section 469 is sparse, courts in this Circuit have used the "lodestar" approach. See General Motors Corp. v. Villa Marin Chevrolet, Inc., 240 F. Supp. 2d 182, 184 (E.D.N.Y. 2002) ("Although there does not appear to be any jurisprudence interpreting [Section 469], New York courts typically apply a 'lodestar' analysis when setting fees pursuant to a fee-shifting statute."); Gray v. Toyota Motor Sales, U.S.A., Inc., No. 10cv3081 (JS) (ETB), 2013 WL 3766530, at *3 (E.D.N.Y. July 16, 2013) (calculating award of fees under Section 469 with the lodestar analysis); Walters Motorcars, Ltd. v. Mazda Motor of America, Inc., 647 N.Y.S.2d 683, 685 (N.Y. Sup. Ct. 1996) (awarding attorneys' fees under Section 469 based on "such well-established criteria as plaintiff's counsel's expertise, the level of difficulty of the proceedings, the time spent by counsel, the nature of the result obtained, and what is the fair and reasonable value of the services provided by [counsel to counsel's client]."). In line with these decisions, this Court will use the familiar "lodestar" approach here, to calculate fees under Section 469.
For purposes of the lodestar, an attorney's hourly rate is considered reasonable when it is "in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); see also Rosado v. City of New York, No. 11cv4285 (SAS), 2012 WL 955510, at *4 (S.D.N.Y. Mar. 15, 2012) ("The relevant community to which the court should look is the district in which the case is brought."). Although the fee applicant has the burden of demonstrating prevailing market rates for comparable work, see Broome v. Biondi, 17 F. Supp. 2d 230, 237 (S.D.N.Y. 1997), the Court may also apply its "own knowledge" of rates charged in the community in assessing the reasonableness of the rates sought. Miele v. New York State Teamsters Conf. Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir. 1987); McDonald ex rel Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96-7 (2d Cir. 2006). Paralegal services are includable in an award of attorneys' fees, and the reasonableness of paralegal fees are also determined by reference to the prevailing hourly rate in the relevant community. See Marisol A. ex rel. Forbes v. Giuliani, 111 F. Supp. 2d 381, 386 (S.D.N.Y. 2000) (citing Missouri v. Jenkins by Agyei, 491 U.S. 274, 284 (1989); U.S. Football League v. Nat'l Football League, 887 F.2d 408, 415-16 (2d Cir. 1989)). In assessing whether an hourly rate is reasonable, the Court should "bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Arbor Hill, 522 F.3d at 190.
As for the time component of the lodestar, an attorney's stated number of hours should be reduced by the court where it is greater than required to litigate the case effectively, see Seitzman v. Sun Life Assurance Co. of Canada, 311 F.3d 477, 487 (2d Cir. 2002) (time component of lodestar calculation "reflects hours worked that are neither excessive nor duplicative"), or where the attorney's proffered time records are vague or otherwise inadequate to enable the court to determine the reasonableness of the work performed or the time expended, see Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Thai-Lao Lignite (Thailand) Co. v. Gov't of Lao People's Democratic Republic, No. 10cv05256 (KMW) (DF), 2012 WL 5816878, at *10 (S.D.N.Y. Nov. 14, 2012) (holding vague and block-billed time records insufficient to substantiate claimed expenditures of time; collecting cases). As the party seeking attorneys' fees bears the burden of demonstrating that its claimed fees are reasonable, Thai-Lao Lignite (Thailand), 2012 WL 5816878, at *3 (citations omitted), it must submit, in support of its request for fees, contemporaneous time records that "specify, for each [timekeeper], the date, the hours expended, and the nature of the work done," id. (quoting N.Y. State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)) (internal quotation marks omitted). Where an attorney's time records are inadequate to enable the court to determine whether the time expended was reasonable, a percentage reduction may be applied as a "practical means of trimming fat" from a fee application. N.Y. State Ass'n for Retarded Children, 711 F.2d at 1146.
In determining whether a reasonable amount of time was expended on a case, a court may consider, inter alia, the nature and quality of the work submitted by counsel in connection with the litigation, see Kirsch v. Fleet St. Ltd., 148 F.3d 149, 173 (2d Cir. 1998); In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987), as well as the degree of counsel's success, see Hensley, 461 U.S. at 436 (holding that there is "no precise rule or formula" for reducing a fee award and that courts have discretion to either eliminate specific hours or reduce the lodestar to account for limited success). Other factors that a court may consider in determining the lodestar include "the difficulty of the questions involved; the skill required to handle the problem; the time and labor required; the lawyer's experience, ability, and reputation; the customary fee charged by the Bar for similar services; and the amount involved." Weiwei Gao v. Sidhu, No. 11cv2711 (WHP) (JCF), 2013 WL 2896995, at *5 (S.D.N.Y. May 7, 2013).
With respect to costs, "[t]he Second Circuit has consistently 'held that attorney's fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.'" TufAmerica Inc. v. Diamond, No. 12cv3529 (AJN), 2016 WL 1029553, at *7 (S.D.N.Y. Mar. 9, 2016) (quoting U.S. Football League, 887 F.2d at 416). Such costs may properly include, for example, shipping fees, filing fees, printing, process servers, travel, telephone costs, legal research, deposition-related expenses, and litigation support. Id.; see also Anderson v. City of New York, 132 F. Supp. 2d 239, 245-47 (S.D.N.Y. 2001); Tips Exports, Inc. v. Music Mahal, Inc., No. 01cv5412 (SJF) (VVP), 2007 WL 952036, at *11 (E.D.N.Y. Mar. 27, 2007).
II. APPROPRIATE AWARD OF ATTORNEYS' FEES IN THIS CASE
A. Requested Attorneys' Fees
In its fee application, KMA seeks an award of $429,831.00 in fees for work performed from June 3, 2013 through December 28, 2016, by three partners, two associates, and two paralegals in the New York City and Washington D.C. offices of Hogan Lovells U.S. LLP ("Hogan Lovells"), an international litigation firm. (Meyers Decl. ¶ 9; Sullivan Aff. ¶ 42.) The Hogan Lovells attorneys and paralegals who performed services in connection with this case, and their requested rates, are as follows:
1. John J. Sullivan
John J. Sullivan, Esq. ("Sullivan") is a partner at Hogan Lovells and served as lead counsel on this matter. (Sullivan Aff. ¶ 23.) A member of Hogan Lovells' Motor Vehicle Franchise Group, Sullivan states that he has had over 35 years of experience in commercial litigation and 20 years of experience representing motor vehicle franchisors in dealer disputes. (Id.) Sullivan recorded far more hours on this case than any of the other timekeepers, and KMA is requesting recovery for about 445 hours of his time. With regard to his rates, KMA states that fees for Sullivan's work should be awarded at the rates of $630 per hour for 2013 (which Sullivan states is discounted from the "standard" hourly rate of $780 that he charged in that year), $680 per hour for 2014 and 2015 (which Sullivan states is discounted from his standard hourly rates of $810 and $840, respectively, for those years), and $750 per hour for 2016 (which Sullivan states is discounted from his standard hourly rate of $900 for that year). (Id. ¶ 27.)
According to Sullivan, motor vehicle franchisor law is a "specialized area of the law" that is "heavily regulated at the state level," with frequently amended state statutory schemes and "unanswered questions of interpretations under [such] statutes." (Sullivan Aff. ¶ 26.)
2. Carl J. Chaippa
Carl J. Chaippa, Esq. ("Chiappa") is also a partner at Hogan Lovells, and, during the relevant period, he served as the head of its Motor Vehicle Franchise Group. (Id. ¶ 28.) According to Sullivan, Chiappa has had over 35 years of practice in the area of automobile franchise law, and he was responsible for the firm's relationship with KMA. (Id.) KMA seeks recovery for approximately 22 hours of Chiappa's work on this case, at the rates of $725 per hour for his work in 2014 and 2015 and $775 per hour for his work in 2016 (reportedly discounted from his standard hourly rates of $840 for 2014, $870 for 2015, and $935 for 2016). (Id. ¶ 30.)
3. Jason Isralowitz
Jason Isralowitz, Esq. ("Isralowitz"), also a partner at Hogan Lovells, served as KMA's primary outside counsel for advice on motor vehicle franchise law. Isralowitz was a member of the firm's Motor Vehicle Franchise Practice Group, and, according to Sullivan, had practiced law in the automobile franchise area for 24 years. (Id. ¶ 31.) KMA seeks recovery for over 60 hours of Isralowitz's time on the matter, at the rates of $575 per hour for 2013, $620 per hour for 2014 and 2015, and $675 per hour for 2016 (reportedly discounted from his standard hourly rates of $695 for 2013, $720 for 2014, $750 for 2015, and $795 for 2016). (Id. ¶ 33.)
4. Lisa Swartzfager
Lisa Swartzfager, Esq. ("Swartzfager") was a mid-level associate in Hogan Lovells' Washington D.C. office, and she served as the "principal associate" on this case. (Id. ¶ 34.) Swartzfager received her law degree from George Washington University Law School in 2010 and clerked in the United States District Court for the District of Hawaii and the United States Court of Appeals for the Eighth Circuit before joining Hogan Lovells' Washington, D.C. office in 2012. (Id.) KMA seeks to recover fees that it incurred for 147 hours of Swartzfager's time, at the rate of $395 per hour, for each of the years (2013-15) when she worked on the case (reportedly discounted from Swartzfager's standard hourly rates of $450 for 2013, $505 for 2014, and $575 for 2015). (Id. ¶ 35.)
5. Ben P. Jacobs
Ben P. Jacobs, Esq. ("Jacobs") was another mid-level associate at Hogan Lovells. Jacobs received his law degree from Harvard Law School in 2010 (the same year as Swartzfager received her degree), then worked as an attorney with the American Civil Liberties Union, and began practicing in Hogan Lovells New York office in 2011. (Id. ¶ 36.) KMA seeks to recover fees for about 15 hours of Jacob's time, at the rate of $300 per hour - both for work performed in 2013 (when his standard rate was reportedly $445 per hour) and in 2015 (when his standard rate was reportedly $575 per hour). (Id. at ¶ 37.)
6. Constance M. Rincon
Constance M. Rincon ("Rincon") was a senior paralegal at Hogan Lovells, who had been working in the Motor Vehicle Franchise Practice Group at Hogan Lovells for 18 years. (Id. ¶ 38.) KMA seeks to recover fees for 15.5 hours of Rincon's time, at the rates of $215 per hour for 2013, $230 per hour for 2014, and $250 per hour for 2016 (reportedly discounted from her standard hourly rates of $270, $285, and $320 for those years, respectively). (Id.)
7. Raymond Torres
According to Sullivan, Raymond Torres ("Torres") was also considered a senior paralegal at Hogan Lovells, although this Court has been provided with no information regarding his actual level of experience. (See id. ¶ 39.) KMA seeks to recover for over 56 hours of Torres's time, at the rate of $215 per hour for work performed in 2013, 2014, and 2105. While KMA states that this rate were discounted from Torres's standard hourly rates for 2013 (when he reportedly charged $265 per hour) and 2015 (when he reportedly charged $305 per hour) (id. ¶ 39), KMA does not state what Torres's standard hourly rate was in 2014.
B. Reasonableness of Requested Hourly Rates
To calculate the lodestar, this Court must first determine reasonable hourly rates for the work performed by KMA's attorneys and paralegals. As described above, KMA seeks: (1) for Sullivan (partner and lead counsel), $630 to $750 per hour; (2) for Chiappa (partner and head of the specialty practice group), $725 to $775 per hour; (3) for Isralowitz (partner and primary outside counsel for KMA), $575 to $675 per hour; (4) for Swartzfager (mid-level, but lead associate), $395 per hour; (5) for Jacobs (mid-level associate), $300 per hour; (6) for Rincon (senior paralegal), $215 to $250 per hour; and (7) for Torres (senior paralegal), $215 per hour. Sullivan asserts that Hogan Lovells' "standard" rates are already "in line with the rates charged for attorneys of similar experience and skill in firms of similar size and stature" in New York City and, in the case of Swartzfarger, Washington, D.C., and argues that, by discounting its rates for KMA, the firm essentially charged "below-market" rates. (Id. ¶ 20.)
This Court notes that courts outside this district have awarded lower rates to Hogan Lovells attorneys and paralegals than those requested here, including in Dealer Act cases. See Gray, 2013 WL 3766530, at *5 (in Dealer Act case, awarding hourly rates of $450 for both Sullivan and Chiappa, $300 for a senior associate, and $200 for two junior associates); General Motors Corp., 240 F. Supp. 2d at 188 (in Dealer Act case, awarding, as requested in that instance, rates between $315 and $375 for partners, $225 and $295 for senior associates, $140 and $225 for junior associates, and $75 and $130 for paralegals); cf. Walters Motorcars, 647 N.Y.S.2d at 741 (in Dealer Act case, reducing requested attorneys' fees from $180,000 to $125,000, without detailed explanation); American Honda Motor Co., Inc. v. V.M. Paolozzi Imports, Inc., No. 10cv955 (FJS/ATB), 2013 WL 1296421, at *8 (N.D.N.Y. Mar. 26, 2013) (in non-Dealer-Act case, awarding hourly rate of $250 for Sullivan (as "an experienced partner") $150 for a third-year associate, and $80 for Rincon, as such rates were consistent with what was "customarily charge[d]" in the Northern District of New York). There is no question, though, that reasonable rates in this district may well be higher than those that have been found reasonable in other markets.
1. Partner Rates
In determining reasonable hourly rates, courts may take into account that counsel at large law firms tend to charge higher rates than those at smaller firms, to compensate for higher overhead costs. See McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension, 450 F.3d 91, 97 n.6 (2d Cir. 2006). KMA submits that courts in this district have awarded higher hourly rates to comparably situated counsel than the rates it has requested here, citing, in support of this proposition, In re AOL Time Warner Shareholder Derivative Litig., No. 02cv6302, 2010 WL 363113, at *13 (S.D.N.Y. Feb. 1, 2010) (finding rates of up to $850 per hour for partner to be reasonable), and Amaprop Ltd. v. Indiabulls Financial Services Ltd., No. 10cv1853 (PGG), 2011 WL 1002439, at *5-6 (S.D.N.Y. Mar. 16, 2011) (finding an hourly rate of $761 for a senior partner to be reasonable). (See Def. Mem., at 3.)
The cases on which KMA relies, however, are not appropriate comparators. In re AOL was a shareholder derivative class action that required extensive discovery, including "the review and coding . . . of millions of pages [of documents]," and that involved attorney's fees arising out of the "common fund doctrine" that may apply in such litigation, see In re AOL, 2010 WL 363113, at *2-4, and Amaprop Ltd. , in which the plaintiff sought, inter alia, an anti-suit injunction to halt foreign litigation, involved complex international issues implicating Indian law, see Amaprop, Ltd., 2011 WL 1002439, at *7. None of the same complexities were present in this case. While Plaintiffs' shifts in legal theories and swapping out of counsel may have generated inefficiencies over the course of this litigation, the legal issues actually presented in this case appear to have been straightforward, and there is no indication in KMA's fee application that the fact investigation and discovery process were particularly difficult.
As detailed in Judge Caproni's opinion granting summary judgment, this case primarily involved KMA's refusal to consent to Plaintiffs' proposed transfers of the franchises, in alleged violations of the Dealer Act and a settlement agreement between the parties. (See generally Dkt. 109.)
Recognizing the scarcity of case law in this district specifically addressing attorneys' fees under Section 469, this Court finds this matter to be more closely analogous to cases involving franchising, contract, and other commercial disputes than to the cases referenced by KMA. For such commercial litigation, this Court notes that rates awarded to attorneys with experience similar to, or greater than, the three partners assigned to this case, practicing at similar size firms, have tended to cluster in the $500 to $700 range. See, e.g., Praesidian Capital Opportunity Fund III v. Persinger, No. 17cv8376 (JFK), 2018 WL 1578365, at *2-3 (S.D.N.Y. Mar. 28, 2018) (finding that $695/hour for a partner in a commercial case was "relatively high," but still reasonable); Triomphe Partners, Inc. v. Realogy Corp., No. 10cv8248 (PKC), 2012 WL 266890, at *3 (S.D.N.Y. Jan. 30, 2012) (approving $570/hour rate to partners at national law firm for defense of arbitration award that declared termination of franchise agreement to have been proper); Thai-Lao Lignite (Thailand), 2012 WL 5816878, at *6 (reducing the hourly rate of a partner at King & Spalding LLP to $600/hour in commercial litigation); HSH Nordbank AG New York Branch v. Swerdlow, No. 08cv6131 (DLC), 2010 WL 1141145, at *7 (S.D.N.Y. Mar. 24, 2010) (approving $500/hour requested rate of senior partner at Sonnenschein Nath & Rosenthal LLP for extended litigation enforcing commercial contract); Banco Central Del Paraguay v. Paraguay Humanitarian Foundation, Inc., No. 01cv9649 (JFK), 2007 WL 747814, at *2 (S.D.N.Y. Mar. 12, 2007) (approving $700 rate for partner at Hughes, Hubbard & Reed LLP in case involving claims of conversion and constructive trust).
Accordingly, this Court recommends that fees for Sullivan's work - requested at the rates (increasing over time) of $630 to $750 per hour - be reduced to not more than $700 per hour, which would remain at the upper end of the range that has been typically approved for similarly experienced litigators in this district, in commercial litigation cases. Turning to the other two partners on this matter, KMA, as noted above, is seeking reimbursement for Chiappa's time at the rate of $725 to $775 per hour, and for Isralowitz's time at the rate of $575 to $675 per hour. Apparently, Chiappa's role in this matter was initially confined to handling mediation between the parties for purposes of settlement (the related fees for which KMA is not requesting reimbursement), but he then provided strategic advice, reviewed certain documents, and, due to his familiarity with the case, substituted for Sullivan when Sullivan was otherwise unavailable. (Sullivan Aff. ¶ 29.) As for Isralowitz, Sullivan states that Isralowitz's knowledge of KMA's history with Plaintiffs, together with his "familiarity with the facts and legal issues," meant that "his assistance in litigating this case was invaluable." (Id. ¶ 32.)
Although it may appear questionable to have three senior-level partners assigned to a case that was not highly complex, a review of the submitted time records reveals that Chiappa engaged in only a de minimis amount of work in the context of the case as a whole, and that Isralowitz provided mostly high-level strategic review and support to Sullivan, as well as secondary review and drafting of a limited number of documents. Under the circumstances, this Court does not find Chiappa's and Isralowitz's involvement to be excessive. As a general matter, and based on the same factors considered above for determining a reasonable range of rates for Sullivan's time, this Court recommends that the rates for Chiappa's services be slightly reduced to $700 per hour, and that, for Isralowitz's services, the requested rates of $575 to $675 per hour be approved as reasonable.
In determining the lodestar, though, it should be noted that the number of hours expended on this matter was primarily allocated to the partners. By this Court's calculation, more than 75 percent of the attorney time for which KMA is seeking reimbursement was billed by partners, as opposed to associates, and nearly 60 percent of the time in question was billed by Sullivan alone. This represents a division of labor among the attorneys on the team that is "atypical in practice," Dial Corporation v. News Corporation, 317 F.R.D. 426, 434 (S.D.N.Y. 2016), and that can result in fee inflation.
Moreover, close scrutiny of counsel's time records in this case shows that a substantial amount of Sullivan's time was spent performing tasks that could have been undertaken by a more junior attorney, billing at a lower rate. For example, Sullivan collected precedent for drafting purposes (see, e.g., Sullivan Aff., Dkt. 127-1, at 2 (time entry for 6/3/13)); drafted initial discovery disclosures, as well as letters and other documents relating to discovery (see, e.g., id., at 29 (time entry for 10/15/13), Dkt. 127-2, at 10 (time entry for 12/9/13), Dkt. 127-4, at 13, 17 (time entries for 1/31/15 and 2/2/15), Dkt. 127-5, at 3 (time entry for 3/8/15)); prepared the initial drafts of certain motion papers, subpoenas, and case summaries (see, e.g., id., Dkt. 127-4, at 13, 17 (time entries for 1/28/15 and 2/4/15); Dkt. 127-7, at 16 (time entry for 8/23/16)); researched rules of civil procedure (see, e.g., id., Dkt. 127-2, at 10 (time entry for 12/9/13)); reviewed electronic filing notices (see, e.g., id., at 3, 4, 9 (time entries for 11/13/13, 11/26/13, and 12/5/13)); supervised filings and service of process (see, e.g., id., Dkt. 127-1, at 6 (time entry for 7/3/13)); and supervised, coordinated, and reviewed documents related to discovery (see, e.g., id., Dkt. 127-2, at 19 (time entry for 2/24/14), Dkt. 127-4, at 11, 13 (time entries for 1/14/15 and 1/28/15), Dkt. 127-5, at 4, 20 (time entries for 3/9/15 and 5/8/15)).
Hogan Lovells' time records have been submitted to this Court in four parts, all of which are attached to the Sullivan Affidavit as Exhibit A. For ease of reference, this Court will cite to pages of these time records by using the Docket and page numbers affixed to the documents by the Court's Electronic Case Filing system.
To a lesser extent, Isralowitz also engaged in work that could have been performed by a more junior attorney, such as drafting a litigation-hold memorandum (see, e.g., Sullivan Aff., 127-1, at 7 (time entry for 7/16/13)), drafting and revising letter briefs (see, e.g., id., at 15 (time entry for 8/30/13)), and drafting responses to letters (see, e.g., id., 127-3, at 26 (time entry for 10/10/14).)
This issue, of Sullivan performing associate-level work, became particularly conspicuous in the second half of 2015, after Swartzfager dropped off the case (see id., Dkt. 127-5, at 21 (showing last recorded time entry for Swartzfager on 5/13/15)), and the firm, for some reason, did not fill her position on the team. Indeed, in 2015, largely because he personally appears to have filled this gap in staffing, Sullivan billed an enormous amount of time to this case - over 323 hours - as compared to the time billed by the associates assigned to the case in that year - which was just over 91 hours. (See id., Dkt. 127-8 (showing total time billed in 2015 by Sullivan to be 323.30 hours and by Swartzfager and Jacobs to be 78.50 hours and 12.80 hours, respectively).) This disparity resulted in a material inflation of counsel's fees for that year.
"Courts frequently reduce fee requests where work that could have been handled by more junior lawyers was instead performed by a senior partner," Union Cent. Life Ins. Co. v. Berger, No. 10cv8408 (PGG), 2013 WL 6571079, at *6 (S.D.N.Y. Dec. 13, 2013) (collecting cases), whether by reducing a partner rate otherwise found to be reasonable, in instances where that partner performed associate-level tasks, see, e.g., Kuper v. Empire Blue Cross and Blue Shield, No. 99cv1190 (JSG) (MHD), 2003 WL 23350111, at *13 (reducing attorney's hourly rate for specific time spent on junior-level tasks), report and recommendation adopted, 2004 WL 97685 (Jan. 20, 2004), or, where parsing through the time records for this purpose would be impractical, by reducing the partner's rate in general or applying an overall percentage reduction to the fees sought, see, e.g., Run Guo Zhang v. Lin Kumo Japanese Restaurant Inc., No. 13cv6667 (PAE), 2015 WL 5122530, at *3 (S.D.N.Y. Aug. 31, 2015) (reducing partner rate from $450 to $300 where, in addition to charging an unreasonably high rate, the partner also engaged in a substantial amount of associate-level work); HTV Industries, Inc. v. Agarwal, 17cv3635 (JGK), 2018 WL 2976013 (S.D.N.Y. June 13, 2018) (reducing total fee award by 25% where senior counsel performed a substantial number of tasks that could have been performed by a more junior attorney); Dial, 317 F.R.D. at 434 (noting that "courts have reduced the fee percentage requested where, as here, the lodestar value reflects an over-allocation of work to expensive partners" (internal quotation marks and citation omitted)); Lane Crawford LLC v. Kelex Trading (CA) Inc., No. 12cv9190 (GBD) (AJP), 2013 WL 6481354, at *10 (S.D.N.Y. Dec. 3, 2013) (finding 15% fee reduction to be warranted where, inter alia, attorney billed at $350 per hour for work such as drafting standard forms of service and reviewing judge's rules), report and recommendation adopted, 2014 WL 1338065 (Apr. 3, 2014); Rosso v. Pi Mgmt. Assocs., No. 02cv1702 (KNF), 2006 WL 1227671, at *4 (S.D.N.Y. May 3, 2006) (reducing fees by 15% where, inter alia, "some of the work done by a senior attorney at the law firm could have been performed by a junior attorney").
In this case, in part because of Sullivan's practice of block billing (as discussed further below), it would be impractical, if not impossible, for this Court to identify precisely which of Sullivan's tasks should be compensated at a partner-level rate, and which at a reduced, associate-level rate. This Court therefore finds it appropriate to focus on the year 2015, where the problem of Sullivan's performance of associate-level work was most acute, and, for that year only, to recommend the reduction of his otherwise-reasonable partner rate of $680 per hour by approximately 15 percent, to $580 per hour. Essentially, this would result in the Court's approval of a "hybrid" rate for Sullivan's work in 2015 that encompassed both partner-level and associate-level tasks.
2. Associate Rates
As noted above, KMA requests reimbursement for work performed by associates Swartzfager and Jacobs, at the hourly rates of $395 and $300 per hour, respectively. According to Sullivan, Swartzfager, as the "principal associate" on the case, performed a variety of substantively relevant tasks, including drafting the pleadings and discovery documents, coordinating with third-party witnesses, and preparing for depositions. (Sullivan Aff. ¶ 35.) Jacobs, according to Sullivan, assisted with legal research in connection with Plaintiffs' preliminary injunction motion, KMA's motion for summary judgment, and KMA's motion for attorney's fees under Section 469. (Id. ¶ 37.)
Swartzfager, after clerking, had only begun working at Hogan Lovells in 2012 and was barely a fourth-year associate when she began working on this case in 2013. (See id., Dkt. 127-1, at 20 (showing 9/5/13 as date of first recorded time entry).) While the time records bear out that she was the primary associate assigned to this matter, and while those records reflect that she did take responsibility for drafting some documents and for coordinating document production, as might be expected of a more senior associate (see, e.g., Sullivan Aff., Dkt. 127-2, at 3, 9, 14 (time entries for 11/12/13, 12/4/13, and 1/14/14); Dkt. 127-3, at 26, 27 (time entries for 10/17/13 and 10/20/14); Dkt. 127-5, at 3 (time entry for 3/6/15)), she did not consistently perform senior-associate-level tasks. Based on her work overall, which also included such tasks as legal research (see, e.g., id., Dkt. 127-1, at 20, 21 (time entries for 9/6/13, 9/7/13, and 9/11/13)), and document review (see, e.g., id., Dkt. 127-5, at 14 (time entries for 4/6/15, 4/7/15, 4/13/15, 4/14/15, and 4/16/15)), this Court recommends compensating KMA for Swartzfager's time at a mid-level associate rate of $350 per hour, commensurate with her actual level of experience. See Microban Products Company v. Iskin Inc., 14cv05980 (RA) (DF), 2016 WL 4411349, at *13 (S.D.N.Y. Feb. 23, 2016) (finding reduction of associates' fees to rate of $350/hour to be warranted where senior associates performed junior-level work), report and recommendation adopted, 2016 WL 4411414 (Aug. 18, 2016); see also Nautilus Neurosciences, Inc. v. Fares, No. 13cv1078 (SAS), 2014 WL 1492481, at *3 (S.D.N.Y. Apr. 16, 2014) (approving hourly rate of $337.50/hour for a third-year associate in commercial litigation case); Santa Fe Natural Tobacco Co., Inc. v. Spitzer, Nos. 00cv7274 (LAP), 00cv7750 (LAP), 2002 WL 498631, at *9 (S.D.N.Y. Mar. 29, 2012) (finding associate rates between $90 to $375/hour in New York City and Washington, D.C., to be reasonable, before imposing reductions related to adequacy of billing records).
For his part, Jacobs, while also a mid-level associate, apparently took on the role of a junior associate in this particular case, performing only legal research. As this Court has, in the past, awarded fees of up to $300 per hour for junior associates at large firms, see Thai-Lao Lignite (Thailand) Co., 2012 WL 5816878, at *6 (awarding second-year associate $300/hour in 2012, and collecting cases that have awarded junior associates at large firms in the range of $225-$300/hour), it finds Jacobs' requested rate of $300 per hour to be reasonable.
3. Paralegal Rates
According to Sullivan, both Rincon and Torres were senior paralegals in the New York office of Hogan Lovells, and both provided assistance at various points during the case, with Torres assisting during document discovery and depositions. (Sullivan Aff. ¶¶ 38, 39.) As noted above, KMA requests reimbursement for Rincon at the rates of $215 to $250 per hour, and for Torres at the rate of $215 per hour.
The rates requested for both Rincon and Torres are at the high end of the range that courts in this district have ordinarily found reasonable for paralegals. See Axelrod v. Klein, 16cv07183 (ALC), 2016 WL 6330433, at *2 (S.D.N.Y. Oct. 28, 2016) (noting that even $210 per hour was on the high end for paralegals in this district and collecting cases). Indeed, for even senior paralegals with many years of experience, courts in this district have typically limited the rate to $200 per hour, see Doe v. Unum Life Insurance Co. of America, 12cv9327 (LAK) (AJP), 2016 WL 335867, at *6 (S.D.N.Y. Jan. 28, 2016) (finding that the $240 sought hourly rate for senior paralegals was too high, and reducing the rate to $200 per hour), and have reduced the rate substantially where there was no explanation of a paralegal's expertise or experience, see Thai-Lao Lignite (Thailand), 2012 WL 5816878, at *7 (noting that where there was no explanation for the paralegal's high hourly rate, courts have reduced the rate to $100 or even $50 per hour). Here, while Sullivan has explained that Rincon has been providing paralegal services for 18 years, he has not provided any relevant background regarding Torres's professional experience. Accordingly, and in line with the applicable precedent in this district, this Court recommends that Rincon's rate be slightly reduced to $200 per hour, and that Torres's rate be reduced to $100 per hour.
C. Reasonableness of Expended Hours
With respect to the hours expended on this litigation, KMA requests recovery for nearly 760 hours of work by Hogan Lovells (see Sullivan Aff., Dkt. 127-8), a considerable amount of time. In explaining why this time was needed, Sullivan represents that this action "was a drawn-out and expensive proceeding due to the number of claims asserted by Plaintiffs and Plaintiffs' repeated changes of counsel and of theories of recovery," which "required KMA to respond to the differing demands, strategies, and legal theories of four different law firms" and "four complaints." (Sullivan Aff. ¶¶ 8-10.) Sullivan also points out that, "[i]n the course of defending against [Plaintiffs'] shifting claims . . ., KMA defeated [a] motion for a preliminary injunction," engaged in "multiple rounds of paper discovery," took and defended depositions, subpoenaed documents, and "prepared . . . moving and reply papers and briefs in support of [KMA's] motion for summary judgment." (Id. ¶ 11.)
The fact that Plaintiffs raised a host of claims in this litigation, aside from the Dealer Act claims for which attorneys' fees are recoverable by the prevailing party, gives rise to the question of whether KMA is entitled to recover fees for the defense of those other claims. The court in Gray v. Toyota Motor Sales, U.S.A., Inc., No. 10cv3081 (JS) (ETB), 2013 WL 3766530 (E.D.N.Y. July 16, 2013), considered that question, and concluded that recovery of fees incurred in defending non-Dealer-Act claims (such as a contract claim) would be appropriate, where those claims and the Dealer Act claims were based on a "common core of facts" and were thus interrelated, see id. at *2. As in Gray, Plaintiffs' claims here essentially pertained to a common core of facts involving KMA's withholding of consent to the sale and transfer of Plaintiffs' dealer franchises. (See Dkt. 109, at 1-6.) Accordingly, this Court finds that KMA is entitled to recover for attorney time spent defending all of the claims brought by Plaintiffs, and not only for time spent defending those claims specifically alleging violations of the Dealer Act. The same holds true with respect to KMA's entitlement to recover its litigation costs.
Sullivan also states that, in addition to having reduced the standard hourly rates charged by the attorneys and paralegals at Hogan Lovells involved in this action (see Discussion supra, at Section II(A)), the firm strove to keep fees down by generally having only one attorney attend conferences, depositions, and meetings, noting that "there are few if any instances in which KMA is seeking reimbursement for internal meetings or conferences involving more than one attorney." (Sullivan Aff. ¶ 12.) Sullivan further represents that KMA is not seeking reimbursement for time entries and costs related to mediation between the parties, for any advice given to KMA concerning its continuing franchise relationship with each of the Plaintiffs (as such advice was "transactional" in nature and not directly related to this action), for entries relating to a third-party complaint that Major LIC filed against KMA, for "minor amounts of time" charged by attorneys and paralegals at Hogan Lovells, or for fees incurred in preparing the fee application itself. (Id. ¶¶ 3, 14-18.) While this Court acknowledges and appreciates these representations, it is nonetheless charged with examining the time records that have been submitted in support of the fees that are being requested, so as to ensure that the time for which KMA is seeking recovery was reasonably expended, and, upon that examination, this Court finds that some reduction should be made to account for certain issues.
The fees and costs expressly excluded from KMA's fee application have been highlighted in yellow in the time records submitted by Hogan Lovells. (Sullivan Aff. ¶ 13; see also generally, id., Dkts. 127-1 through 127-7.) Although this Court has not undertaken to add these amounts, it notes that, according to Sullivan, KMA is not seeking reimbursement for over $150,000. (Id. ¶ 5.)
First, while Sullivan represents to the Court that "KMA is not requesting fees for preparing this [fee] [a]pplication" (id. ¶ 3), KMA nonetheless has included in its application a number of attorney time entries relating to the preparation of the fee application (see generally id., Dkt. 127-7, at 16-31 (time entries for Sullivan, Chiappa, Isralowitz, and Rincon from 8/23/16-12/28/16)). The Docket for this action reflects that KMA's summary judgment motion was fully submitted by October 30, 2015 (see Dkt. 108), and that the only activity in this case after Judge Caproni granted that motion related to (1) Plaintiffs' filing of an appeal (Dkt. 114), and (2) the fee application (Dkts. 111-113, 115-130). In the fee application, KMA has now sought fees incurred in 2016 for (1) 1.20 hours recorded by Sullivan for his review of Plaintiffs' appellate filings and his conferences with KMA regarding the same (see Sullivan Aff. 127-7, at 19, 24, 27, and 30 (time entries for 9/8/16, 9/9/16, 9/12/16, 9/23/16, 10/11/16, 11/14/16, 11/15/16, and 12/28/16)), and also (2) 21 hours by Sullivan, .70 hours by Chiappa, .40 hours by Isralowitz, and 6.8 hours by Rincon for tasks apparently performed in connection with the fee application. Regardless of whether the latter amounts of time could be properly recoverable under the Dealer Act, this Court finds that, as KMA has expressly informed the Court that it is not seeking such recovery, those hours should be excluded from the lodestar.
Second, KMA has not adequately explained why it has included, in its fee application, some attorney time entries that seem indistinguishable from entries it chose to exclude. On this point, Sullivan represents that KMA is also not seeking reimbursement for fees relating either to transactional advice, including advice pertaining to potential dealership purchasers Barry Milea and Nick Letsios (except where the time principally involved the defense of this case), or to a third-party complaint filed by Major LIC. (Sullivan Aff. ¶¶ 15-17.) Although it appears that the majority of time entries relating to such work have indeed been excluded from the fee application (see, e.g., id., Dkt. 127-1, at 24 (highlighted time entry for Isralowitz for 9/25/13); Dkt. 127-3, at 16-17, 20-21 (highlighted time entries for Sullivan, Chiappa, and Isralowitz for 8/1/14-8/25/14, and for 9/2/14-9/8/14)), the fee application still includes multiple time entries that, based on the rather vague descriptions provided, appear to been related to these two supposedly excluded categories of work (see, e.g., id., Dkt. 127-1, at 28, 31 (non-highlighted time entries for Sullivan for 10/1/13 and 10/31/13), Dkt. 127-2, at 2, 8 (non-highlighted time entries for Sullivan for 11/1/13 and 12/4/13), Dkt. 127-3, at 12, 21 (non-highlighted time entries for Sullivan for 7/1/14 and 9/23/14), Dkt. 127-4, at 3, 13 (non-highlighted time entries for Sullivan for 12/5/14 and 1/29/15), Dkt. 127-5, at 21, 23, 24 (non-highlighted time entries for Sullivan for 5/12/15, 5/13/15, 5/20/15, and 5/22/15).
As KMA has not fully explained what distinguishes a number of the included time entries from similar-seeming excluded ones (compare, e.g., id., at Dkt. 127-3, at 20 (excluded time entry for Isralowitz pertaining to review of complaint in Letsios lawsuit) with Dkt. 127-5, at 20 (included time entry for Isralowitz on 5/12/15 detailing work regarding Letsios lawsuit)), this Court cannot determine with accuracy whether fees should be awarded for all of the included items. See Bravia Capital Partners, Inc. v. Fike, 296 F.R.D. 136, 144 (S.D.N.Y. 2013) (holding that where the vague descriptions in many of the time entries could not be connected to the motion to compel, the court was unable to determine the reasonableness of those hours); Louis Vuitton Malletier v. Dooney & Bourke, Inc., No. 04cv5316 (RMB) (MHD), 2007 WL 1284013, at *3 (S.D.N.Y. Apr. 24, 2007) (holding that, where time entries did not appear to be directly related to the preparation of the motion, a percentage reduction in fees was warranted).
Third, with only limited exceptions, all of the timekeepers on this matter engaged in extensive block billing, i.e., clustering various tasks together in a single time entry. (See generally Sullivan Aff., Dkt. 127-1 through 127-7.) While block billing is "not prohibited in this Circuit," as long as the Court can determine, from the context of the time entries, the overall reasonableness of the total hours claimed, see Zimmerman v. Portfolio Recovery Assocs., No. 09cv4602 (PGG), 2013 WL 6508813, at *11 (S.D.N.Y. Dec. 12, 2013) (internal quotation marks and citation omitted), here, the use of block billing has seriously hindered this Court's ability to understand how much time was devoted to particular tasks, so as to determine whether that time was reasonably spent. It has also hindered this Court's ability to determine how much time should be excluded for any tasks relating to transactional advice or Major LIC's third-party complaint, to the extent KMA has inadvertently included any such time in its fee application.
Most problematic in this regard are the time records kept by Sullivan, who, as noted above, billed, far and away, the most time on this matter of any of the attorneys on the Hogan Lovells team. Sullivan almost exclusively block billed his time entries, and, consequently, this Court cannot discern the reasonableness of the time he spent on individual tasks. For example, in a single time entry in 2013, Sullivan billed a total of 3.60 hours for the following tasks:
Reviewing and editing draft brief; additional legal research regarding same; email correspondence with J. Isralowitz regarding same; supervising production, filing and service of same; emails to J. Furman, S. Blatt and client regarding same; email correspondence and telephone conferences with Managing Clerk's office regarding same; read email from S. Blatt and attached letter from Region regarding application package; email correspondence with J. Isralowitz and client regarding same; meet with J. Isralowitz regarding same; telephone call to client regarding same; follow-up email correspondence regarding same; telephone conference with S. Blatt regarding KMA position.
(Sullivan Aff., at Dkt. 127-1, at 19 (time entry for 9/3/13).) This time entry offers no transparency into the time Sullivan spent on each of the many tasks listed. Further, using this time entry as illustrative, it is apparent that, even in 2013, when Swartzfager was assigned to this case, Sullivan was performing work that could have been performed by a more junior attorney (such as conducting "legal research," "supervis[ing the] production, filing and service" of a brief, and engaging in "email correspondence and telephone conference with the Managing Clerk's office"). (Id.) Yet, due to Sullivan's block billing, this Court simply cannot distinguish between how much time Sullivan spent on these tasks, and how much time he spent on other tasks more appropriate to his level of experience. Sullivan's time records are replete with entries that are similarly opaque with respect to how much time was spent on the specified tasks. (See, e.g., id., at 21-25 (time entries for, e.g., 9/11/13, 9/12/13, 9/13/13, 9/24/13, 9/25/13, 9/26/13, and 9/30/13); Dkt. 127-2, at 8-19 (time entries for, e.g., 12/4/13, 12/6/13, 12/9/13, and 2/24/14); Dkt. 127-3, at 3, 34 (time entries for, e.g., 5/15/14, 11/24/14, and 11/26/14); Dkt. 127-4, at 3, 13, 17, 21 (time entries for, e.g., 12/5/14, 1/28/15, 2/2/15, 2/4/15, and 2/24/15); Dkt. 127-5, at 2-27 (time entries for, e.g., 3/5/15, 3/7/15, 3/8/15, 3/9/15, 3/16/15, 3/17/15, 3/19/15, 3/22/15, 5/11/15, 5/12/15, 5/15/15, 5/18/15, 5/22/15, 5/26/15, and 5/27/15).)
Courts in this district have applied reductions, often between 15 to 30 percent, to account for block billing, vague time records, and the resulting inability of the Court to assess the reasonableness of counsel's hours. See, e.g., Custodio v. Am. Chain Link & Const., Inc., No. 06cv7148 (GBD), 2014 WL 116147, at *16 (S.D.N.Y. Jan. 13, 2014) (applying 15% reduction for block billing and vagueness in billing records); Spalluto v. Trump Int'l Hotel & Tower, No. 04cv7497 (RJS) (HBP), 2008 WL 4525372, at *9 (S.D.N.Y. Oct. 2, 2008) (applying 15% reduction for "substantial use of block-billing coupled with vague time entries" by two partners and a senior associate); Ass'n of Holocaust Victims for Restitution of Artwork & Masterpieces v. Bank Austria Creditanstalt AG, No. 04cv3600 (SWK), 2005 WL 3099592, at *7 (S.D.N.Y. Nov. 17, 2005) (applying 25% reduction for "block billing, vagueness, and excess" across time entries of eight attorneys with same law firm); Congregation Rabbinical Coll. v. Village of Pomona, 188 F. Supp. 3d 333, 344 (S.D.N.Y. 2016) (imposing a 30% reduction of total number of hours for which fees were sought, to account for block billing and vagueness of time entries).
In this instance, this Court concludes that it would be reasonable to impose an overall reduction of 15 percent to the fees requested by KMA, to address the fact that the vagueness of counsel's time records and counsel's pervasive block billing, particularly in the case of Sullivan, who performed the most work on this case, has substantially prevented this Court from being able to evaluate the reasonableness of the fees requested for the particular work performed, as well as the extent to which certain fees should be excluded. While 15 percent is at the lower end of the range of percentage reductions that courts in this district have applied for these types of issues, this Court does not recommend a higher percentage reduction here, in light of the separate recommended reduction of Sullivan's hourly rate for work performed in 2015 (see Discussion supra, at Section II(B)(1)), covering a substantial portion of the total number of hours billed on this matter.
D. Lodestar Calculation
In light of the above, this Court recommends calculating the lodestar as follows:
|Reasonable Hours|| |
2013: $630/hr2014: $680/hr2015: $580/hr2016: $700/hr
65.20 hrs34.50 hrs323.30 hrs1.20 hrs
2013: $575/hr2014: $620/hr2015: $620/hr
32.90 hrs10.50 hrs16.50 hrs
Subtotal $366,137.50Less 15% for vagueness and block billing -$54,920.63Total $311,216.87
III. APPROPRIATE AWARD OF COSTS
In addition to seeking fees for the time expended by counsel, KMA also requests an award of $18,028.35 in litigation costs. As stated above, the Second Circuit has held that reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients are recoverable. TufAmerica Inc., 2016 WL 1029553, at *7 (citing U.S. Football League, 887 F.2d at 416); see also Anderson, 132 F. Supp. 2d at 245-47 (allowing recovery for service, filing, and photocopying expenses, witness fees, and computerized legal research costs); Home Loan Inv. Bank, F.S.B. v. Lemans Properties, LLC, No. 11cv1107 (DRH) (AKT), 2012 WL 1020430, at *7 (E.D.N.Y. Mar. 2, 2012) (awarding costs for judgment and lien searches), report and recommendation adopted, 2012 WL 1019597 (Mar. 26, 2012); Tips Exports, Inc., 2007 WL 952036, at *11 (reimbursing plaintiff for process servers and postage); Shannon v. Fireman's Fund Ins. Co., 156 F. Supp. 2d 279, 305 (S.D.N.Y. 2001) (reimbursing plaintiff for filing fees and Federal Express costs).
Here, KMA is specifically seeking reimbursement for costs incurred for filings fees ($400), service of papers ($60), court reporters ($231.18), PACER charges ($46.80), process-server charges for subpoenas to third-party witnesses ($2,804.50), deposition transcripts for Plaintiffs ($1,364.50), deposition transcripts for KMA ($7,454.98), hotel charges ($281.03), taxi charges for a former KMA employee attending his deposition ($69.05), WestLaw research charges ($3,218.36), "[o]ther computer research" ($789.18), outside duplication for document productions ($682.99), in-house duplication cost for document productions and court submissions ($474.17), office supplies, such as binders for courtesy copies to the court ($11.07), postage ($44.19), Federal Express ($79.51), local transportation for delivery of motion papers to the court ($11.00), and telephone service for conference calls ($5.84). (Sullivan Aff. ¶¶ 40-41.)
According to Sullivan, KMA is not seeking reimbursement for meals and staff overtime. (Id. ¶ 40.) In addition, Sullivan clarifies that a $110.84 disbursement to CT Corporation on December 22, 2014 has been excluded from the total amount of costs being sought, even though the item was inadvertently not highlighted in the submitted records. (Id.) --------
With the exception of KMA's deposition transcripts, for which Hogan Lovells has provided the invoices (see generally Mondero Decl., 128-1), KMA has not substantiated these costs by providing specific invoices or receipts. Instead, Hogan Lovells documented its costs, with specificity, in its billing records, and Sullivan has attested to them. (See generally Sullivan Aff. ¶¶ 40-41, Dkt. 127-1 through 127-7.) While further documentation "would have been preferable," this Court recommends accepting Sullivan's attestation, as supported by Hogan Lovells' records of the costs incurred. Euro Pacific Capital, Inc. v. Bohai Pharmaceuticals Group, Inc., 15cv4410 (VM) (JLC), 2018 WL 1229842, at *11 (S.D.N.Y. Mar. 9, 2018) (internal quotation marks and citation omitted), report and recommendation adopted, 2018 WL 1596192 (Mar. 28, 2018); see also Hernandez v. JRPAC Inc., No. 14cv4176 (PAE), 2017 WL 66325, at *2 (S.D.N.Y. Jan. 6, 2017) (finding attorney declaration that certain amounts were expended to be sufficient).
As the costs itemized by KMA are all of the types that are generally considered recoverable, this Court recommends awarding the total requested sum of $18,028.35.
For the reasons set forth above, I respectfully recommend that the Court grant KMA's fee application to the extent that it be awarded $311,216.87 in attorneys' fees and $18,028.35 in costs under Section 469.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6 (allowing three (3) additional days for service by mail). 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 Valerie Caproni, United States Courthouse, 40 Foley Square, Room 240, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 1660, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Caproni. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (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. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York
July 25, 2018
United States Magistrate Judge Copies to: Hon. Valerie Caproni, U.S.D.J. All counsel (via ECF)