Underdog Trucking, L.L.C. v. Verizon Services Corp.

276 F.R.D. 105, 2011 U.S. Dist. LEXIS 75995, 2011 WL 2844291
District Court, S.D. New York·Decided July 14, 2011·No. No. 09 Civ. 8918(DLC)(JLC)·Published·Cited by 12 cases

Opinion

MEMORANDUM AND ORDER

JAMES L. COTT, United States Magistrate Judge.

By Memorandum and Order dated March 7, 2011, I granted the application by Defendants Verizon Services Corp. and Verizon Communications Inc. for attorney’s fees and costs in connection with Defendants’ motion to compel discovery. On March 21, 2011, at the direction of the Court, Defendants filed an affirmation in support of their reasonable expenses, including attorney’s fees. Plaintiffs Underdog Trucking, L.L.C. and Reggie Anders filed a response on March 31, 2011. For the reasons stated below, I hereby award Defendants reasonable attorney’s fees and costs in the amount of $13,865.97.

I. BACKGROUND

The facts giving rise to the motion to compel have been described at length in the Court’s Memorandum and Order granting Defendants’ application for reasonable expenses, familiarity with which is assumed. (Memorandum and Order dated March 7, 2011 (“Order”) (Dkt. No. 72)). In December 2009, Plaintiffs Underdog Trucking, L.L.C. (“Underdog”) and Reggie Anders (together, “Plaintiffs”) commenced this action against Defendants Verizon Services Corp. and Verizon Communications Inc. (together, “Defendants”), asserting claims of race discrimination and breach of contract. (,See Petition for Damages filed October 21, 2009 and Amended Petition for Damages filed April 23, 2010 (“Pet.”) (Dkt. Nos. 1, 23)). Defendants served Plaintiffs with document requests on April 2, 2010, after which the parties communicated at length regarding deficiencies in Plaintiffs’ responses. (Declaration of Kristina C. Hammond dated December 3, (“Hammond Deck”), Exs. 1-8, 11-12 (Dkt. No. 61)). Following a pre-motion conference with the Court, Defendants filed a motion to compel on December 3, 2010, seeking production of Plaintiffs’ tax returns, IRS Form 1099s issued to Plaintiffs and to independent contractors, income documents received by Plaintiffs from other customers, and documents concerning equipment purchased by Plaintiffs. (Dkt. Nos. 59, 60, 61). On December 23, Plaintiffs produced nearly 200 pages of documents, all of which were responsive to Defendants’ April 2 document requests. (Declaration of Eduardo Diaz dated December 27, 2010, Ex. 21 (Dkt. No. 68)). In light of this production, Defendants agreed to withdraw the portion of their motion compelling discovery, but continued to seek fees and costs incurred in making the motion. (Letter from [108]*108Raymond G. McGuire dated January 7, 2011 (“McGuire Jan. 7, 2011 Letter”) at 1).

On March 7, 2011, I granted Defendants’ application for reasonable expenses as a sanction for Plaintiffs’ discovery conduct. (Dkt. No. 72). To determine the appropriate sanction amount, I directed Defendants to file an affidavit of their reasonable expenses, and Plaintiffs to file a response. (Order at 14). On March 21, 2011, Defendants filed an affirmation, including billing records, which identified fees and costs in connection with the motion to compel. (See Affirmation of Raymond G. McGuire in Support of Motion for Fees and Costs filed March 21, (“Affirmation”) (Dkt. No. 78)). On March 31, 2011, Plaintiffs filed a response, along with the Declaration of Kezia Lasha, who is described as the “office manager” for Underdog Trucking. (See Plaintiffs’ Response (“PL Response”) and Declaration of Kezia Lasha (“Lasha Dec!.”) (Dkt. No. 75)).1

II. DISCUSSION

Having decided that Defendants are entitled to recover reasonable attorney’s fees and costs incurred in making the motion to compel, the Court must now determine the amount to award. Defendants seek $17,223.40 in attorney’s fees and $824.00 in costs, for a total award of $18,047.40, broken down as follows:

Raymond G. McGuire: $550/hour Kristina C. Hammond: $221/hour Daniel M. Murdock: $208.25/hour Costs:
3.8 hours $ 2,090.00 9.3 hours $ 2,055.30 62.8 hours $13,078.10 $ 824.00
Total: $18,047.40

A. Attorney’s Fees

District courts have broad discretion to determine a fee award based on the circumstances of a ease. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); E*Trade Fin. Corp. v. Deutsche Bank AG, 374 Fed.Appx. 119, 124 (2d Cir.2010). The traditional starting point for determining a reasonable attorney’s fee award is the “lodestar” amount, which results in a presumptively reasonable fee. Perdue v. Kenny A. ex rel. Winn, — U.S.-, 130 S.Ct. 1662, 1672-73, 176 L.Ed.2d 494 (2010); Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 182, 188-90 (2d Cir.2008); see also, e.g., Monaghan v. SZS 33 Assocs., L.P., 154 F.R.D. 78, 83 (S.D.N.Y.1994) (applying lodestar method to determine attorney’s fees for Rule 37 motion to compel). The lodestar amount is calculated by multiplying a reasonable hourly rate by the number of hours reasonably expended on the litigation. See Arbor Hill, 522 F.3d at 186 (citing Lindy Bros. Builders, Inc. of Phila. v. Am. Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir.1973)).

1. Reasonable Hourly Rate

A reasonable hourly rate is the rate a “paying client would be willing to pay,” bearing in mind that a “reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 190. A court uses the “hourly rates employed in the district in which the reviewing court sits,” which in this case is the Southern District of New York. In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir.1987) (citation omitted). Hourly rates should be “current rather than historic.” Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 232 (2d Cir.2006) (citation and quotation marks omitted). The Second Circuit has held that in determining the reasonable hourly rate, district courts should also assess case-specific considerations, including the factors articulated by the Fifth Circuit in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92-93, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989).2 See Arbor Hill, 522 F.3d at 186-90.

[109]*109In a recent decision, however, the Supreme Court approved the objective lodestar approach over the discretionary case-specific Johnson factors, reasoning that the lodestar figure “ ‘includes most, if not all, of the relevant factors constituting a ‘reasonable’ attorney’s fee.’” Perdue, 130 S.Ct. at 1673 (citing Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 566, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986)).

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Underdog Trucking, L.L.C. v. Verizon Services Corp., 276 F.R.D. 105, 2011 U.S. Dist. LEXIS 75995, 2011 WL 2844291 (S.D.N.Y. 2011).

276 F.R.D. 105 (Underdog Trucking, L.L.C. v. Verizon Services Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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