Bravia Capital Partners, Inc. v. Fike

296 F.R.D. 136, 2013 WL 1728059, 2013 U.S. Dist. LEXIS 57644
CourtDistrict Court, S.D. New York
DecidedApril 22, 2013
DocketNo. 09 Civ. 6375(JFK)(KNF)
StatusPublished
Cited by20 cases

This text of 296 F.R.D. 136 (Bravia Capital Partners, Inc. v. Fike) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bravia Capital Partners, Inc. v. Fike, 296 F.R.D. 136, 2013 WL 1728059, 2013 U.S. Dist. LEXIS 57644 (S.D.N.Y. 2013).

Opinion

[138]*138MEMORANDUM AND ORDER

KEVIN NATHANIEL FOX, United States Magistrate Judge.

INTRODUCTION

Before the Court is defendant Maryanne Fike’s (“Fike”) application, pursuant to Federal Rule of Civil Procedure 37, for an award of the reasonable attorneys’ fees she incurred in making her motion to compel plaintiff Bravia Capital Partners, Inc. (“Bravia”) to make disclosures in response to her discovery demands. Bravia opposes the application, contending that the attorneys’ fees Fike seeks are not reasonable.

BACKGROUND

On October 23, 2012, during a telephonic conference, the Court entertained arguments from the parties regarding Fike’s motion to compel, Docket Entry No. 102, and resolved the motion. Through that motion, Fike sought:

an Order: (i) compelling Bravia to produce all documents responsive to Fike’s docu-mente ] [requests] within Bravia’s ‘possession, custody and control,’ (ii) compelling Bravia to explain[,] by affidavit[,] the circumstances of the shipment of responsive documents off Bravia’s premises; (in) requiring Bravia to pay the reasonable expenses incurred by Fike resulting from Bravia’s conduct, including the necessity of making this motion and obtaining third party discovery to identify plainly responsive documents; and (iv) otherwise sanctioning Bravia as the Court deems appropriate.

In Bravia’s submissions in opposition to Fike’s motion to compel, Bravia contended that it had provided Fike with some materials responsive to her discovery demands, after the motion to compel had been filed. Furthermore, in a declaration filed in opposition to the motion to compel, Bharat Bhise (“Bhise”), Bravia’s chief executive officer, stated that he had sent materials responsive to Fike’s discovery demands out of the country, and had not informed his present counsel of the existence of responsive materials timely. The Court granted, completely, that portion of Fike’s motion seeking the production of documents, by directing Bravia to produce to Fike any undisclosed materials responsive to her discovery demands.

On October 24, 2012, the Court directed Fike to “serve and file competent evidence establishing the reasonable expenses and attorney’s fees she incurred in making the motion to compel.” In support of Fike’s application for attorneys’ fees, her counsel, Herbert Rubin, Esq. (“Rubin”) of Herzfeld & Rubin, P.C. (“Herzfeld P.C.”), prepared and submitted to the Court: (1) a declaration; and (2) a copy of an invoice generated from the time and billing records of the Herzfeld P.C. attorneys who worked on the motion to compel. Rubin’s declaration states that

[e]aeh entry on the annexed invoice ... reflects time records by an attorney for tasks performed or an expense actually incurred,____The necessary tasks included, without limitation, preparation of communications to the Court seeking an informal conference related to seeking to compel production of documents, responding to Bravia’s various letters in connection with Fike’s discovery requests, preparation of formal motion papers and reply papers including declarations and exhibits, meetings and conferences with Ms. Fike related to same, and two telephonic hearings before Magistrate Judge Kevin Nathaniel Fox.

In addition, according to Rubin, “[t]he standard hourly billing rates for the attorneys who worked on the items enumerated in the invoice, based on each attorney’s experience and expertise, are as follows: Herbert Rubin $475 per hour; Maureen D. Fogel [(“Fo-gel”) ] $400.00 per hour; Mark A. Weissman [ (‘Weissman”) ] $375 per hour; and Bryan Lipsky [(“Lipsky”)] $225 per hour----The total reasonable attorney [sic] fees for making of Fike’s motion to compel was $48,517.50.” The documents submitted by Fike, with her initial moving papers, do not describe the “experience and expertise” of each Herzfeld P.C. attorney who worked on the motion to compel; nor do they provide any information, beyond that which is identified above, that may be used to evaluate the reasonableness of the fees sought by Fike, [139]*139such as information explaining why it was necessary to expend the number of hours billed to Fike to prosecute the motion to compel. The fees sought by Fike, as detailed in the invoice she submitted, are reproduced below in the chart labeled: “Fike’s Invoice for Attorneys’ Fees.”

FIKE’S INVOICE for ATTORNEYS’ FEES

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[140]*140[[Image here]]

[141]*141[[Image here]]

In response to Fike’s fee application, Bravia submitted: (i) a declaration by its counsel, William House, Esq. (“House”), with exhibits attached thereto consisting of correspondence the parties sent to the Court between April 20 and May 14, 2012; and (ii) a memorandum of law in opposition to the fee application. Bravia contends that the: (1) hourly rates charged by Fike’s counsel for legal services are not reasonable and should be reduced by the Court; (2) time expended by defense counsel on pre-motion activities is excessive and includes a substantial amount of time for activities unrelated to Fike’s motion to compel; and (3) time claimed for preparing a reply to Bra-via’s response to Fike’s motion to compel should be excluded entirely, as the reply did not add any value to the motion because it did not provide any new information or counter the legal arguments made by Bravia.

According to Bravia, in her fee application, Fike made, “[n]o effort ... beyond the implied bald say-so of Herbert Rubin [in his declaration,] ... to show that the hourly rates charged are reasonable.” Bravia maintains that, Fike “produced no evidence at all showing the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Anticipating that the Court “might take judicial notice of biographical information concerning the [defendant’s] attorneys” that appears on Herzfeld P.C.’s Web site, Bravia avers that the Court should not do so, as it was Fike’s burden to provide that information to the Court in her fee application. However, Bra-via contends that, even if the Court were to take judicial notice of the biographical information of Fike’s attorneys appearing on the Herzfeld P.C.

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Cite This Page — Counsel Stack

Bluebook (online)
296 F.R.D. 136, 2013 WL 1728059, 2013 U.S. Dist. LEXIS 57644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bravia-capital-partners-inc-v-fike-nysd-2013.