Serricchio v. Wachovia Securities, LLC

258 F.R.D. 43, 2009 U.S. Dist. LEXIS 51139, 2009 WL 1687779
District Court, D. Connecticut·Decided June 17, 2009·No. Civil No. 3:05cv1761 (JBA)·Published·Cited by 3 cases

Opinion

RULING ON MOTIONS TO QUASH

JANET BOND ARTERTON, District Judge.

“A request for attorney’s fees should not result in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Nevertheless, Plaintiff Michael Serricchio and Defendant Wachovia Securities, LLC (“Wachovia”) once again stake out diametrically opposing positions in this case, this time concerning the reasonableness of Serricchio’s request for attorney’s fees and costs following judgment in his favor. See generally Serricchio v. Wa-chovia Securities, LLC, 606 F.Supp.2d 256, 268 (D.Conn.2009) (awarding Serricchio $778,906 in damages and granting him equitable relief following a jury verdict finding Wachovia liable). Serricchio seeks fees and costs in the amount of $968,653.05, an amount Wachovia characterizes as “excessive,” “unreasonable,” “hyperbol[ic],” “extra-vagan[t],” and “egregious.”

After Wachovia filed its opposition to Serricchio’s fee application, Serricchio served Wachovia’s attorneys — at Seyfarth Shaw in New York and at Zeldes, Needle & Cooper in Bridgeport — with subpoenas seeking production of their billing records and expense invoices in connection with this litigation. Now before the Court are motions by Wachovia’s attorneys to quash these two subpoenas on relevance grounds. See Travelers Indem. Co. v. Metro. Life Ins. Co., 228 F.R.D. 111, 113 (D.Conn.2005) (noting that a subpoena shall be quashed if it places an “undue burden” on a person by, for example, seeking irrelevant information).

Wachovia contends that its counsel’s billing records simply have no bearing on the Court’s determination of a reasonable fee for Serricchio’s attorneys. According to Wacho-via’s attorneys, they practice in distinct legal markets and serve a client with different interests and incentives than Serricchio. Thus, Wachovia’s attorneys maintain, their billing rates are not relevant because Second Circuit law “approv[es] of divergent rates between Connecticut and New York attorneys,” see Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058-59 (2d Cir.1989), and the amount of hours they billed is also not relevant because their litigation responsibilities are not comparable to the work of Plaintiffs counsel, see Mirabal v. General Motors Acceptance Corp., 576 F.2d 729, 731 (7th Cir.1978).

[45]*45Serricchio persuasively argues, however, that the better approach is to permit discovery of an opponent’s billing records and then, in comparing the work performed by each side’s attorneys, regard differences in the parties’ burdens and incentives as relevant to the weight of the records, not whether the records are discoverable. In fact, authority in support of this proposition can be found in Wachovia’s own reply brief. Contending that the cases Serricchio cites “fail to support his request that the Court examine the time spent by Wachovia’s attorneys in order to evaluate whether the hours billed by Plaintiffs counsel were reasonable,” Wachovia references Shaw v. AAA Engineering & Drafting, Inc., 213 F.3d 538, 542-43 (10th Cir. 2000), Black v. Lojac Enterprises, Inc., 117 F.3d 1420 (6th Cir.1997), and Henson v. Columbus Bank & Trust Co., 770 F.2d 1566, 1574 (11th Cir.1985).

According to Wachovia’s reading of Shaw, the Tenth Circuit panel “expressly declined to evaluate the reasonableness of the 804 hours expended by Plaintiffs counsel against the 425 hours expended by defense counsel.” (Wachovia’s Reply [Doc. # 259] at 5.) But the actual text of Shaw belies that characterization:

Evidence of the hours expended by opposing counsel may be helpful in determining whether time expended on a case was reasonable, but the opponent’s time is not an “immutable yardstick of reasonableness.” Robinson v. City of Edmond, 160 F.3d 1275, 1284 (10th Cir.1998) (reviewing attorney’s fees award under 42 U.S.C. § 1988). The district court had first-hand knowledge of the complexity of the case and the voluminous number of documents Shaw, who had the burden of proof, presented at trial. See Hensley, 461 U.S. at 437, 103 S.Ct. 1933. The district court did not abuse its discretion in finding counsel’s hours reasonable in spite of the contrast with defense counsel’s time.

213 F.3d at 543. And contrary to Wachovia’s view of Black, in that case the Sixth Circuit expressed a similar view about the potential relevance of opposing counsel’s billing records:

Likewise, the district court properly denied fees for Black’s motion to compel the production of Lojac’s billing statements. Undoubtedly, where the issue of the reasonableness of the time expended is fully joined, the amount of time spent by the opposing party is a relevant benchmark as to the amount of time reasonably required. Mitroff v. Xomox Corp., 631 F.Supp. 25, 28 (S.D.Ohio 1985). In the matter at bar, however, the motion to compel was entirely unreasonable at that time given that Black had simply failed to provide Lojac or the district court with the means by which to make an informed assessment of the reasonableness of the time claimed. A global summary reveals very little. Black’s efforts would have been more productively directed to adequately documenting his own fee request. The time spent on the motion to compel being unreasonably expended, no corresponding fees were in order. Hensley, 461 U.S. at 434, 103 S.Ct. 1933.

117 F.3d 1420, 1997 WL 377051, at *4 (6th Cir. July 2, 1997) (unpublished disposition).

Perhaps most illuminating is the Eleventh Circuit’s opinion in Henson v. Columbus Bank & Trust Co. In its brief, Wachovia quotes Henson’s observations that “the number of hours needed by one side to prepare adequately may differ substantially from that of opposing counsel because the nature of the work on each side may differ dramatically” and because “the case may have far greater precedential value for one side than the other.” 770 F.2d at 1574. Lacking any further context, one might have the impression that the Eleventh Circuit was disapproving of looking to an opponent’s billing records in evaluating the reasonableness of a fee request. That impression would be mistaken, however, because a more faithful reference to the case would have included the language the panel used on either side of that quote:

In considering awards for [truth-in-lending] cases, we consider the same factors and concerns that we consider in other attorneys’ fees cases. See McGowan v. Credit Center of North Jackson, Inc., 546 F.2d 73, 77 (5th Cir.1977); Johnson v. Georgia Highway Express, Inc., 488 F.2d [46]*46714, 717-19 (5th Cir.1974).

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Serricchio v. Wachovia Securities, LLC, 258 F.R.D. 43, 2009 U.S. Dist. LEXIS 51139, 2009 WL 1687779 (D. Conn. 2009).

258 F.R.D. 43 (Serricchio v. Wachovia Securities, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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