United States District Court, D. Connecticut
RULING ON PLAINTIFF'S STATEMENT OF REASONABLE
ATTORNEYS' FEES AND EXPENSES
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
27, 2016, the Court denied Defendant Midsun Group Inc.'s
Renewed Motion for Protective Order ("Renewed
Motion") made pursuant to Fed.R.Civ.P. 26(c)(1)(g) and
ordered that Defendant pay Plaintiff's costs and fees in
responding to its Motion should Plaintiff CSL Silicones, Inc.
seek such fees and costs. Doc. 81 (the "Ruling"). The
instant ruling resolves Plaintiff's subsequent request
for attorneys' fees, Docs. 82-83. For the reasons that
follow, the Court declines to award Plaintiff the amount it
requests and directs payment by Defendant of a slightly
Renewed Motion sought an order protecting it against
disclosure as to certain of Plaintiff's discovery
requests principally on the ground that the information
contained purported confidential trade secrets. Doc. 81, at
1, 9. Defendant had filed a nearly identical motion before,
and Plaintiff had fully briefed an opposition to it, but the
Court denied that earlier motion without prejudice to
refiling. CSL Silicones, Inc. v. Midsun Grp. Inc.,
170 F.Supp.3d 304, 319-20 (D. Conn. 2016). The parties had
filed jointly a Stipulated Protective Order (the
"SPO") and the Court specifically noted that it
appeared that the SPO "may seem to obviate the need for
a ruling by the Court" although it was "not so
clear given counsels' statements at the hearing."
Id. at 320. The Court denied Defendant's Renewed
Motion because the discovery sought was relevant and the SPO
adequately protected the trade secrets. See Doc. 81.
Ruling, pursuant to Fed.R.Civ.P. 37(a)(5), the Court held
that Plaintiff was entitled to attorney's fees and costs
because "[t]here is no doubt that Defendant's motion
was not substantially justified and that sanctions are
warranted." Doc. 81, at 10. The Court noted that it had
already expressed an initial view that the SPO may have
obviated any need for the motion, and it was clear that the
SPO had in fact obviated that need. Id. More
egregiously, Defendant had not even tried to fully explain
why the SPO had not obviated the need in its briefings
despite already knowing the Court's initial view on the
issue. Id. Thus, the Court awarded attorneys'
fees and costs pursuant to Fed.R.Civ.P. 37(a)(5) and
instructed Plaintiff to file a statement as to those fees.
Court later received a statement as to as to the amount of
fees to which Plaintiff claims, Docs. 82-83, in the form of a
Declaration from Attorney John A. Clifford ("Clifford
Decl."), and Defendant submitted a detailed response and
objections to Plaintiff's request in a briefing, Doc. 85
("Def. Response"). Plaintiff also submitted certain
exhibits in support of its fees application ("Clifford
Ex."). Defendant also submitted exhibits A-C ("Def.
Ex."), including a Declaration from Attorney Joseph R.
Carvalko ("Carvalko Decl.") and an exhibit attached
to that Declaration in support of its response
("Carvalko Ex."). This ruling resolves the
parties' dispute as to the award of fees and as to the
Standard for Attorneys' Fees
evaluate a request for attorneys' fees, courts must
conduct a "lodestar analysis, which calculates
reasonable attorneys' fees by multiplying the reasonable
hours expended on the action by a reasonable hourly
rate." Kroshnyi v. U.S. Pack Courier Servs.,
Inc., 771 F.3d 93, 108 (2d Cir. 2014). If "at the
time the work was performed, a reasonable attorney would have
engaged in similar time expenditures, " then the number
of hours proffered is reasonable. Grant v. Martinez,
973 F.2d 96, 99 (2d Cir. 1992) (citing Wooldridge v.
Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir.
1990)). As to the hourly rate, a district court has
discretion but should begin generally with "the
prevailing market rates in the relevant community."
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551
(2010) (quoting Blum v. Stenson, 465 U.S. 886, 895
(1984)) (internal quotation marks omitted).
there is a strong presumption that the lodestar figure
represents a reasonable fee, the district court may, in its
discretion, adjust the lodestar based on a variety of
factors, " but, "must state its reasons for doing
so as specifically as possible." Ayres v. 127 Rest.
Corp., No. 99-7723, 1999 WL 1295335, at *1 (2d Cir. Dec.
23, 1999) (citations, internal quotation marks, and
alterations omitted). For example, "in dealing with
items that are 'excessive, redundant, or otherwise
unnecessary, . . . the [district] court has discretion simply
to deduct a reasonable percentage of the number of hours
claimed as a practical means of trimming fat from a fee
application.'" Hines v. City of Albany, 613
F.App'x 52, 54-55 (2d Cir. 2015) (summary order) (quoting
Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d
Cir. 1998)). A Court may also deduct a percentage of hours
where proffered time entries are overly vague.
Kirsch, 148 F.3d at 172-73; see also Conn. Hosp.
Ass'n v. O'Neill, 891 F.Supp. 687, 690 (D. Conn.
Circuit has long followed the dictates of Judge Newman's
opinion in New York State Association for
Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148,
1154 (2d Cir. 1983) to evaluate a movant's proffered
evidence supporting its attorneys' fees request:
Hereafter, any attorney-whether a private practitioner or an
employee of a nonprofit law office-who applies for
court-ordered compensation in this Circuit . . . must
document the application with contemporaneous time records. .
. . All applications for attorney's fees . . . should
normally be disallowed unless accompanied by contemporaneous
time records indicating, for each attorney, the date, the
hours expended, and the nature of the work done.
Second Circuit subsequently clarified its use of the word
"normally" in Carey, holding that while it
"indicates that we intend to leave the district courts
with some limited discretion to make exceptions to the
hard-and-fast rule, " Carey nonetheless
"sets out unequivocally that absent unusual
circumstances attorneys are required to submit
contemporaneous records with their fee applications."
Scott v. City of New York, 626 F.3d 130, 133 (2d
Cir. 2010). "In other words, Carey establishes
a strict rule from which attorneys may deviate only in the
rarest of cases." Id.
Plaintiff's Statement of Reasonable Attorneys' Fees
submitted for consideration several exhibits to demonstrate
and prove its fees in accordance with this Court's
instructions in the prior Ruling. First, Plaintiff submitted
Exhibit A, which are the actual monthly invoices for the
months of April 2016 and May 2016 reflecting work performed
in March and April 2016 sent by Plaintiff's counsel to
its client, CSL Silicones, Inc. See Clifford Decl.
¶ 3; Clifford Ex. A. Second, Plaintiff submitted Exhibit
B, which "is a table, compiled from [Plaintiff's
counsel's] contemporaneous billing records, which
calculates the total amount of attorneys' fees [counsel]
incurred in opposing" Defendant's Renewed Motion.
Clifford Decl. ¶ 4. Exhibit B was created at Attorney
Clifford's direction in consultation with each attorney
billing time to determine the amount of time actually spent
in opposing Defendant's Renewed Motion. Id.
Based on the calculations from Exhibit B, the total value of
attorneys' fees incurred in opposing Defendants'
Renewed Motion that Plaintiff seeks is $16, 146.00 based on
47.9 hours with an average hourly rate of $347.51 per hour.
also submitted Exhibit C, an American Intellectual Property
Law Association 2015 Report of the Economic Survey (the
"AIPLA Report") which details the average billing
rates for partners and associates specializing in
intellectual property law in different areas of the United
States. Plaintiff asserts that the billing rates of the three
attorneys involved in opposing Defendant's motions were
within the ranges identified in Exhibit C taking into account
each attorneys' experience and location. Clifford Decl.
¶¶ 6-7. The three attorneys working on the
opposition were: (i) Rachel Zimmerman Scobie, a shareholder
of Merchant & Gould P.C., practicing law since 2001; (ii)
John T. Winemiller, a shareholder of Merchant & Gould
P.C., practicing law since 2000; and (iii) Michael A. Erbele,
an associate at Merchant & Gould P.C., practicing law
since 2012. Id. ¶ 6. Plaintiff does not seek to
recover any costs except for the reasonable attorneys'
fees in the amount of $16, 146.00. Id. ¶ 9.
Defendant's Objections to the Plaintiff's Fees
Court will address the merits of Defendant's objections
below, but summarizes them briefly here. Defendant argues
that: (i) the award of attorneys' fees is not proper
because Defendant's Renewed Motion was
"substantially justified"; (ii) the block billing
by Plaintiff obfuscates the amount of time devoted to
actually opposing Defendant's motion, (iii) the time
entries are vague and often bill for duplicative work and are
more generally just "excessive, " (iv) the number
of hours claimed is unreasonable in light of the task and the
fact that it was a Renewed Motion, and (v) the hourly rates
charged are unreasonable because Plaintiff has ignored the
Analysis of Reasonable Attorneys' Fees
preliminary matter, Defendant asserts that attorneys'
fees should not be awarded because it was "substantially
justified" in bringing its Renewed Motion. The Court
disagrees primarily for the reasons stated in its prior
Ruling. In that Ruling, the Court concluded that
Defendant's relevancy argument was "entirely without
merit" and "unsupported by any authority."
Doc. 81, at 10. Moreover, Defendant made no effort to fully
explain why the SPO did not adequately protect its trade
secrets despite the Court expressing that it believed the SPO
may have obviated any such concerns. Id. Defendant
urges that it did not understand the Court to imitate any
view on any potential renewed motions for a protective order
when it denied the earlier motion. Def. Response, at 3-4. The
Court, of course, did not imitate any views on future motions
at that time. The point made in the Ruling was that the Court
had, in denying the earlier motions, flagged for both parties
that the SPO may have obviated any disagreements. Doc. 81, at
10. Defendant wholly ignored that in its Renewed
Motion-failing to address fully and adequately the SPO's
provisions and explain how the SPO did or did not affect
Defendant's arguments. Again, the Court holds that
Defendant's Renewed Motion was not "substantially
justified, " and therefore, Plaintiff is entitled to
attorneys' fees pursuant to Fed.R.Civ.P. 37(a)(5).
discussed above, to determine the amount of attorneys'
fees owed to Plaintiff, this Court:
[M]ust: (1) determine the reasonable hourly rate; (2)
determine the number of hours reasonably expended; (3)
multiply the two to calculate the presumptively reasonable
fee; and (4) make any appropriate ...