Corsair Asset Management, Inc. v. Moskovitz

142 F.R.D. 347, 1992 U.S. Dist. LEXIS 6679, 1992 WL 96770
CourtDistrict Court, N.D. Georgia
DecidedMarch 18, 1992
DocketCiv. A. No. 1:89-CV-2116-JOF
StatusPublished
Cited by26 cases

This text of 142 F.R.D. 347 (Corsair Asset Management, Inc. v. Moskovitz) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Corsair Asset Management, Inc. v. Moskovitz, 142 F.R.D. 347, 1992 U.S. Dist. LEXIS 6679, 1992 WL 96770 (N.D. Ga. 1992).

Opinion

ORDER

FORRESTER, District Judge.

This matter is before the court on defendant Kathy Faer Moskovitz’s motion for reconsideration of this court’s order granting plaintiffs’ motion for default judgment; and plaintiffs Moderncare, Inc. and Corsair Asset Management, Inc.’s motion to tax costs and fees.

I. MOTION FOR RECONSIDERATION

Defendant Kathy Faer Moskovitz seeks the court’s reconsideration of its order dated August 8, 1991, granting plaintiffs’ motion for default judgment. Said default judgment was based upon defendant’s willful failure to attend her own scheduled deposition. Default was entered after six attempts to take her deposition and a written court order directing her to submit to the deposition and warning her that any failure to submit would risk an entry of default judgment. Defendant Kathy Faer Moskovitz, having obtained new counsel, argues that she has not been unjustifiably resisting discovery, but rather, has been under a doctor's care for severe depression which resulted in extreme dysfunction and prevented her from attending her deposition.

In support of defendant’s motion, defendant has submitted the affidavit of Dr. Sheldon B. Cohen. Dr. Cohen is a doctor of psychiatry and licensed to practice medicine in the State of Georgia. Dr. Cohen treated defendant Kathy Moskovitz on a recurring basis from July 3, 1989 through December 10, 1990. Dr. Cohen stated that defendant’s condition required intensive psychotherapy and antidepressant medication. Dr. Cohen concluded that “[a]t the time that she was scheduled to attend a deposition in this case, I strongly recommended that she not be called on to testify.” Based on Dr. Cohen’s affidavit, defendant argues that her medical condition [349]*349prevented her from attending her deposition.

Dr. Cohen’s affidavit, however, does not state that defendant’s medical condition required that she not attend her deposition. Said affidavit merely states that Dr. Cohen recommended she not testify. Nor does Dr. Cohen’s affidavit provide any information about specific times during the year and a half he was treating defendant for major depression that her condition rendered her so dysfunctional as to be unable to provide a deposition. Plaintiffs attempted to take defendant’s deposition on six different occasions. In addition, plaintiffs note that defendant did not raise her medical condition as an issue preventing the taking of her deposition until after the fourth scheduled deposition date. Nor has defendant’s deposition been taken to date. Therefore, the court sees no reason in reconsidering its order granting default judgment because of defendant’s repeated failure to comply with discovery and this court’s prior orders. See Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir.1987); Hashemi ¶. Campaigner Publications, Inc., 572 F.Supp. 331, 332 (N.D.Ga.1983), aff'd, 737 F.2d 1538 (11th Cir.1984); Federal Rules of Civil Procedure 37(d). Therefore, defendant Kathy Faer Moskovitz’s motion for reconsideration [38-1] is hereby DENIED.

II. MOTION TO TAX COSTS AND FEES

Plaintiffs seek an order taxing costs and fees on defendants, pursuant to this court’s order of August 8, 1991 granting plaintiffs’ motion for default judgment and awarding plaintiffs expenses and attorney’s fees. Defendants object to the motion to tax costs and fees sought by plaintiffs, arguing that the time charged by plaintiffs’ attorneys is excessive and the documentation supporting said time is without sufficient particularity to enable the court to determine accurately the appropriate fees and costs to be taxed.

A. Attorney’s Fees

The standard for determining appropriate attorney’s fees to be taxed was set by the Eleventh Circuit Court of Appeals in Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292 (11th Cir. 1988). Adopting the lodestar analysis, the starting point of determining an attorney’s fees estimate “is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Norman, 836 F.2d at 1299.

1. Setting the Hourly Rate

The fee application in this case is adequate. “A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, expertise, and reputation.” Norman, 836 F.2d at 1299. Based on the record evidence provided by the plaintiffs, it appears that the hourly rate sought by plaintiffs’ counsel is the actual hourly rate charged to plaintiffs for the legal services rendered on their behalf. Therefore, the court accepts these hourly rates as the prevailing market rate, because it is assumed that plaintiffs and plaintiffs’ counsel conducted an arms-length transaction when determining the attorney’s fees to be paid.

In reviewing plaintiffs’ counsel’s fee logs, it appears that plaintiffs’ counsel billed one of its file clerks, Anthony J. Hall, at a higher rate for a file clerk than the rates listed in William J. Holley, II’s affidavit supporting plaintiffs’ fee request. Specifically, based on plaintiffs’ counsel’s January 16, 1991 fee log, it appears that Mr. Hall was billed at a rate of $40 per hour, whereas Mr. Holley stated that file clerks were billed at a rate of $25 to $35 per hour. The court believes that a rate of $25 per hour more accurately represents the prevailing market rate for file clerks. Based on the record evidence provided, it appears that Mr. Hall worked on plaintiffs’ case for a total of nine hours. Therefore, plaintiffs’ request for attorney’s fees will be reduced by $135.00 (9 x $15.00/hr), this representing the apparent overbilling by plaintiffs’ counsel.

[350]*3502. Hours Reasonably Expended

The district court shall determine whether the hours charged are reasonable, excluding from the amount claimed any unreasonable or unnecessary hours charged. Norman, 836 F.2d at 1301. In particular, the court should deduct any redundant hours. Id. “Generalized statements that the time spent was reasonable or unreasonable, of course, are not particularly helpful and not entitled to much weight.” Id. In particular, the objections and proof provided from the party opposing the fees sought must be reasonably precise to warrant exclusion. Id. This precision requirement is mirrored by the court, who also must be precise in excluding hours thought unreasonable or unnecessary. Id.

Here, plaintiffs’ counsel has merely presented their general time logs in support of the hours expended and for which they are seeking reimbursement. No affidavits indicating the reasonableness of the hours expended were provided, and no summary breakdowns by attorney or topic area were provided. However, defendants’ objections were no more detailed. Defendants cite no specific examples where they believe plaintiffs’ counsel’s work was unreasonable or redundant.

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Bluebook (online)
142 F.R.D. 347, 1992 U.S. Dist. LEXIS 6679, 1992 WL 96770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corsair-asset-management-inc-v-moskovitz-gand-1992.