Fashion House, Inc. v. K Mart Corp.

124 F.R.D. 15, 1988 U.S. Dist. LEXIS 16257, 1988 WL 148406
CourtDistrict Court, D. Rhode Island
DecidedSeptember 23, 1988
DocketCiv. A. No. 86-0191L
StatusPublished
Cited by3 cases

This text of 124 F.R.D. 15 (Fashion House, Inc. v. K Mart Corp.) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fashion House, Inc. v. K Mart Corp., 124 F.R.D. 15, 1988 U.S. Dist. LEXIS 16257, 1988 WL 148406 (D.R.I. 1988).

Opinion

MEMORANDUM AND ORDER

JACOB HAGOPIAN, United States Magistrate.

The instant matter has been referred to the United States Magistrate for consideration pursuant to Title 28 U.S.C. Section 636(b)(1)(A). Before the Court is plaintiff’s attorneys’ application for attorneys’ fees and related expenses in the amount of $113,172.72, made pursuant to my Orders dated February 1, 1988, affirmed by Judge Lagueux on March 2, 1988, and my Order of March 28, 1988, also affirmed by Judge Lagueux on June 1, 1988.

Discussion

Plaintiff’s attorneys’ instant applications for attorneys’ fees were filed pursuant to two Orders of this Court dated February 1, 1988 and March 28, 1988. On February 1, 1988, I entered an Order wherein I found that defendant’s attorneys had intentionally failed to comply with discovery Orders of this Court, and ordered, pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), defendant’s attorneys to pay plaintiff’s attorneys’ reasonable expenses, including attorneys fees caused by said noncompliance and its unjustified opposition to plaintiff’s motion. On March 28, 1988, I found that defendant’s motion of November 24, 1987 for an Order seeking contempt and sanctions for plaintiff’s alleged failure to provide proper discovery was made by defendant without basis in fact or law. In light of said finding, I ordered plaintiff to submit a motion and memorandum of law as to whether sanctions under Federal Rule of Civil Procedure 11 should be imposed against defendant’s attorneys for the making and prosecution of their contempt motion and accorded defendant an opportunity to submit an opposition thereto.

I. Plaintiffs Application for Attorneys’ Fees Pursuant to the Court Order Dated February 1, 1988.

Plaintiff’s attorneys, in their application for attorneys’ fees, urge that as a result of defendant’s willful failure to obey the prior Orders of this Court and its unjustified opposition to plaintiff’s motion for sanctions, necessitated significant expenditures of money and time by plaintiff’s attorneys and the incurring of other expenses in three aspects of the instant action:

(a) because defendant refused to make discovery and provide information as to its purchases of name brands or labels, Fashion House’s attorneys were compelled to engage in further discovery of many of K Mart’s purchases of brand name and designer label apparel which K Mart had refused to provide;

[18]*18(b) Fashion House’s attorneys were also compelled to take the depositions of K Mart’s own buyers and merchandise managers in order to gather information as to K Mart’s purchases of brands and labels;

(c) plaintiff was compelled to engage in extensive' motion practice.

A. Expenses Incurred with Third Party Discovery of Defendant’s Vendors.

Plaintiff’s attorneys, Sharfman, Shanman, Poret and Siviglia (SSPS) assert that beginning in June, 1987, they began attempts to identify some of defendant's vendors of brand name and designer label apparel and to discover, from the same, the dollar volume of their sales of brand name and designer label apparel to K Mart. These attempts consisted of reviewing defendant’s records to determine which vendors might have relevant information, ascertaining the location of defendant’s vendors, issuing notices and subpoenas for at least 25 of those vendors, conferring with counsel for those vendors as to the scope and timing of discovery, and taking the depositions of personnel of four of those vendors (Bonjour—3 persons; Sigallo —2 persons, Dover—1 person; H.I.S.—1 person). Plaintiff urges that it was compelled to address motions for protective orders from Union Underwear, Amerex of California, and Big Yank. Daniel A. Ross, whose rate is $200.00 per hour, conducted most of the aforesaid activities with the aid of James Landau, as associate of the firm, whose rate is $100.00 per hour.

The time expended by those attorneys, which has also been stipulated to on March 29, 1988 by and between plaintiff and defendant, is as follows:

147.5 hours Daniel Ross-
James Landau- 15.0 hours
However, the dollar amount for these hours, which has not been stipulated to, is as follows:
Daniel Ross- 147.5 hours at $200.00 per hour- $29,500
James Landau-15 hours at $100.00 per hour- $1,500
' Total Attorneys’ Fees: $31,000

In addition, the following expenses were incurred:

Cost of Serving Subpoenas (Witness Fees, Process
Server Fees, Court Fees) $ 1,215.00
Transcripts of Depositions of Vendors 2,252.60
Fees of Local Counsel for Out-of-Town Service
and Motion Practicce (e.g., Bowling Green, Ky., for
Union Underwear, etc.) 747.86
TOTAL EXPENSES: $ 4,215.46
TOTAL ATTORNEYS’
FEES AND EXPENSES $35,215.46

Defendant’s attorneys urge that SSPS’s claim for $35,215.46 is non-payable and excessive since said fees and expenses were incurred for depositions taken last summer, and thus are clearly outside the scope of my Order of February 1, 1988. In response to the same, SSPS urges that the work performed in tracking down and taking the depositions of third party vendor/witnesses was a direct consequence of defendant’s attorneys’ willful refusal to provide the information requested in plaintiff’s interrogatories numbered 83-88 (the dollar purchases of brand names and designer labels for the 138 designations stated). Moreover, this Court found that defendant’s attorneys intended to visit upon Fashion House the enormous cost of such an undertaking caused by defendant’s discovery “stonewalling.”

In my Order dated February 1, 1988, I found that defendant’s attorneys intention[19]*19ally violated the Orders of this Court and failed to act in good faith or in an honest and legitimate attempt to make discovery. On March 2,1988, Judge Lagueux affirmed my Order of February 1, and found:

... There is no question in my mind that defendant K Mart stonewalled answering interrogatories 83 to 88 on the dollar purchases of brand names and designer labels for the 138 designations stated ... What this case illustrates is that K Mart did not want to do a little work to come up with the answers to those interrogatories. It felt that it had the plaintiff, Fashion House, at an enormous disadvantage because Fashion House couldn’t secure this financial information any other way except by a process of the taking of depositions of the vendors themselves, which are located all over the country, an enormous undertaking, which K Mart undoubtedly concluded Fashion House could not financially accomplish ...

Accordingly, I find that SSPS’ taking of third party vendor/witnesses depositions was not outside the scope of my Order of February 1, 1988.

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Cite This Page — Counsel Stack

Bluebook (online)
124 F.R.D. 15, 1988 U.S. Dist. LEXIS 16257, 1988 WL 148406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fashion-house-inc-v-k-mart-corp-rid-1988.