McKeon Rolling Steel Door Co., Inc. v. U.S. Smoke & Fire Corp.

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MCKEON ROLLING STEEL DOOR CO., INC.,

Plaintiff, 23-CV-8720 (ALC) (RFT) -against- OPINION & ORDER

U.S. SMOKE & FIRE CORP., et al., Defendants. ROBYN F. TARNOFSKY, United States Magistrate Judge: Pending before the Court is Plain�ff’s applica�on for atorneys’ fees of $6,597.22 in connec�on with its par�ally successful mo�on to compel discovery. (ECF 111.) For the reasons set forth below, the applica�on is GRANTED in part, and Plain�ff is awarded $6,458.43 in atorneys’ fees. FACTUAL BACKGROUND On November 20, 2024, Plain�ff filed a leter-mo�on (ECF 96) seeking relief in connec�on with various discovery-related issues, including Defendants’ failure to �mely complete its document produc�on pursuant to my order; in addi�on to seeking that Defendants be ordered to complete their produc�on by a date certain, Plain�ff sought its atorneys’ fees rela�ng to its discovery mo�on (ECF 90). Defendants responded on November 21, 2024, explaining that the failure to complete the document produc�on in accordance with my order was inadvertent and that Defendants would complete the produc�on shortly. (ECF 97.) On November 21, 2024, I ordered Defendants to complete their produc�on by November 27, 2024 and to respond by November 25, 2025 to Plain�ff’s request for atorneys’ fees; I substan�ally granted the addi�onal relief sought, although that relief was minor. (ECF 98.) Defendants did not file a response to Plain�ff’s request for atorneys’ fees. Plain�ff asked that its request for atorneys’ fees be granted as unopposed. (ECF 103.) I held a conference on December 2, 2024, and for the reasons stated on the record – principally rela�ng to the mandatory nature of

gran�ng atorneys’ fees under Rule 37(a)(5) under the circumstances and Defendants’ lack of adequate care in making its produc�on – I awarded Plain�ff the reasonable costs of its filing at ECF 103; I did not order compensa�on for Plain�ff’s work preparing its filing at ECF 90, because that applica�on included relief that I declined to grant. (ECF 108.) I set a briefing schedule for Plain�ff’s applica�on for those atorneys’ fees. (Id.) Plain�ff �mely filed its applica�on for

atorneys’ fees. (ECF 111 (sealed version); ECF 110-1 (redacted version).) Defendants �mely filed their response, arguing that any atorneys’ fees awarded should be limited to the work on successful discovery requests only. (ECF 113.) DISCUSSION Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure applies to an “award of expenses” made in connec�on with mo�ons for orders compelling disclosure or discovery

under Rule 37(a)(1) and (a)(3)(B). When a mo�on to compel is granted, Rule 37(a)(5)(A) provides that “the court must, a�er giving an opportunity to be heard, require the party or deponent whose conduct necessitated the mo�on, the party or atorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the mo�on, including atorney’s fees.” Id. “[I]t is widely accepted that an award of expenses under Rule 37(a)(5)(A) is mandatory unless one of . . . three excep�ons applies.” Wager v. G4S Secure Integration, LLC,

No. 19-CV-3547 (MKV) (KNF), 2021 WL 293076, at *4 (S.D.N.Y. Jan. 28, 2021). These excep�ons – none of which is applicable here – are: “(i) the movant filed the mo�on before atemp�ng in good faith to obtain the disclosure or discovery without court ac�on; (ii) the opposing party’s nondisclosure, response, or objec�on was substan�ally jus�fied; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i)–(iii).

Plain�ff supports its requests for $6,597.22 in atorneys’ fees with the December 9, 2024 declara�on of its counsel, Lisa A. Ferrari (“Ferrari Decl.”). (ECF 111.) The declara�on includes excerpts from counsel’s invoice to Plain�ff, showing the �me entries of Ferrari, the partner on the mater; Keren Dadon, a fourth-year associate; and Nancy Gonsalves, a paralegal. The tasks are limited to preparing Plain�ff’s filing at ECF 103 and ge�ng ready for the conference to

discuss that filing. (ECF 111, Ferrari Decl. ¶ 3.) Defendants’ response to the fee applica�on does not challenge the billing rate of any atorney; Defendants suggest that any atorneys’ fees awarded should be limited to the work of a paralegal or junior associate to assess whether Defendants’ produc�on was complete and to prepare to argue that point at the conference on December 2, 2024. (ECF 113.) Having reviewed the �me entries, I conclude that the tasks were limited to work that

was compensable under my order and that the amount spent on the �me was reasonable. Because a sanc�on under Rule 37(a)(5) is compensatory, it is not clear that a lodestar calcula�on is necessary, par�cularly where, as here, Defendants have not challenged any specific �me entries or hourly rates. See, e.g., Sillam v. Labaton Sucharow LLP, No. 21-CV-6675 (CM) (OTW), 2024 WL 3518521, at *2-3 (S.D.N.Y. July 24, 2024). Nevertheless, I will perform a

lodestar calcula�on. I have already concluded that the tasks for which compensa�on was sought fell within the scope of my order and that the amount of �me spent was reasonable. The determina�on of reasonable hourly rates is a factual issue commited to the court's discre�on. See Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 183-85 (2d Cir. 2008). A reasonable hourly rate is typically defined as the rate that a

“reasonable, paying client would be willing to pay.” Id. at 184. The community to which Plain�ff’s counsel’s rates are to be compared is intellectual property lawyers in the Southern District of New York. See, e.g., Sillam, 2024 WL 3518521, at *3. A�er a discount, Ferrari’s hourly rate was $787.50, Dadon’s was $504, and Gonsalves’s was $373.50. (See ECF 111, Ferrari Decl. ¶ 5.) The rates for the atorney �mekeepers are very slightly outside the range of rates that have

been approved by courts in this District in recent intellectual property cases; the paralegal rate is more significantly outside the range of rates approved as reasonable. See, e.g., Latin Am. Music Co. v. Spanish Broad. Sys., Inc., No. 13-CV-1526 (RJS), 2020 WL 2848232, at *6-7 (S.D.N.Y. June 1, 2020) (observing five years ago that courts in intellectual property cases consider to be reasonable hourly rates of $400 to $750 for partners, $200 to $450 for associates, and $150 to $200 for paralegals). Given that these amounts are ones that a reasonable client was willing to

pay, and that the range of rates I reviewed is from five years ago, I believe that Ferrari’s and Dadon’s discounted hourly rates are reasonable; an hourly rate of $200 for Goncalves is also reasonable. Applying these rates to the �me spent by these �mekeepers leads to reasonable atorneys’ fees of $6,458.43. CONCLUSION For the foregoing reasons, Plaintiff is awarded attorneys’ fees of $6,458.43 in connection with its largely successful discovery motion. Dated: New York, New York February 5, 2025

’ Faye ROBYN F. TARNOFSKY United States Magistrate Judge