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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`CASE NO. 4:14-CV-543
`LEAD
`Judge Mazzant
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`§
`§
`§
`§
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`§
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`§
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`FELD MOTOR SPORTS, INC.
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`v.
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`TRAXXAS, LP
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`MEMORANDUM OPINION AND ORDER
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`Pending before the Court are Plaintiff Feld Motor Sports, Inc.’s Motion for Attorneys’
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`Fees (Dkt. #164), Feld Motors Sports, Inc.’s Motion for Bill of Costs (Dkt. #167), and Feld
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`Motor Sports, Inc.’s Supplemental Motion for Attorneys’ Fees and Expenses (Dkt. #184). After
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`reviewing the relevant pleadings, the Court finds that the motions should be granted in part and
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`denied in part.
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`BACKGROUND
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`On April 14, 2014, Traxxas LP (“Traxxas”) filed its action against Feld Motor Sports,
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`Inc. (“Feld”) in the 429th District Court of Collin County, Texas, in which it sought declaratory
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`relief, stating that it did not owe Feld royalties on the two-wheel drive Brushless Stampede (“the
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`Stampede VXL”), the Nitro Stampede, and the Stampede 4x4 (See Dkt. #3 in 4:14-cv-463). On
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`July 11, 2014, the case was removed to the Eastern District of Texas, and filed as Traxxas, LP v.
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`Feld Motor Sports, Inc., No. 4:14-cv-463 (E.D. Tex. 2014) (Dkt. #1).
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`On July 11, 2014, Feld filed its action against Traxxas in the United States District Court
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`for the Eastern District of Virginia, in which it alleged that Traxxas has breached the License
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`Agreement, breached the implied covenant of good faith and fair dealing, and failed to pay audit
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`expenses, and failed to pay interest on late payments (Dkt. #1). On August 15, 2014, the case
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`1
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`Case 4:14-cv-00543-ALM Document 190 Filed 05/12/16 Page 2 of 41 PageID #: 7844
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`was transferred to the Eastern District of Texas, and filed as Feld Motor Sports, Inc. v. Traxxas,
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`LP, No. 4:14-cv-543 (E.D. Tex. 2014) (Dkt. #21).
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`On April 3, 2015, Traxxas filed its Motion for Summary Judgment (Dkt. #51). On April
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`27, 2015, Feld filed its response (Dkt. #84). On May 11, 2015, Traxxas filed its reply (Dkt. #97).
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`On May 21, 2015, Feld filed its sur-reply (Dkt. #105).
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`On April 3, 2015, Feld filed its Motion for Summary Judgment (Dkt. #54). On April 27,
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`2015, Traxxas filed its response (Dkt. #81), and filed its objections to Feld’s Summary Judgment
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`Evidence (Dkt. #80). On May 11, 2015, Feld filed its reply (Dkt. #92), and filed its response to
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`Traxxas’s objections (Dkt. #96). On May 21, 2015, Traxxas filed its sur-reply (Dkt. #109), and
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`its reply to its objections (Dkt. #108). On June 1, 2015, Feld filed its sur-reply to Traxxas’s
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`objections (Dkt. #111). On May 11, 2015, Traxxas filed its objections to Feld’s summary
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`judgment opposition evidence (Dkt. #100). On May 21, 2015, Feld filed its response (Dkt.
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`#104). On June 1, 2015, Traxxas filed its reply (Dkt. #112). On June 11, 2015, Feld filed its
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`sur-reply (Dkt. #113). On July 31, 2015, the Court denied both Traxxas’s Motion for Summary
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`Judgment and Feld’s Motion for Summary Judgment, finding that material fact issues existed in
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`the case (Dkt. #118).
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`On June 12, 2015, Feld filed its Motion to Consolidate Cases and to Remain as Plaintiff
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`(Dkt. #98 in 4:14-cv-463). Also on June 12, 2015, Traxxas filed its Unopposed Motion to
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`Consolidate Cases and Opposed Motion to Establish Order of Proof (Dkt. #99 in 4:14-cv-463).
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`On June 23, 2015, Feld filed its response to Traxxas’s motion (Dkt. #101 in 4:14-cv-463). On
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`June 24, 2015, Traxxas filed its response to Feld’s motion (Dkt. #102 in 4:14-cv-463). On June
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`24, 2015, the Court held a hearing on consolidation. Following the hearing, the Court ordered
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`the matters Feld Motor Sports, Inc. v. Traxxas, LP, No. 4:14-cv-543, and Traxxas, LP v. Feld
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`2
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`Case 4:14-cv-00543-ALM Document 190 Filed 05/12/16 Page 3 of 41 PageID #: 7845
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`Motor Sports, Inc., No. 4:14-cv-463, to be consolidated (Dkt. #103 in 4:14-cv-463). However,
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`the Court held its determination as to which case would be the lead case until a later date (Dkt.
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`#103 in 4:14-cv-463). On July 31, 2015, after considering the relevant pleadings, the Court
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`determined that Feld would remain as Plaintiff in the consolidated cases, and that the No. 4:14-
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`cv-543 case would be the lead case in the consolidated action (Dkt. #119 in 4:14-cv-543).
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`The trial began on August 24, 2015. At the close of Feld’s case-in-chief, Traxxas made a
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`motion for judgment as a matter of law, in which it requested that the Court grant judgment as a
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`matter of law in favor of Traxxas, as Feld had not proved its case. The Court denied Traxxas’s
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`motion. On August 31, 2015, Feld requested judgment as a matter of law, which the Court
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`denied. On September 1, 2015, the jury rendered its verdict and found the following: (1) the
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`parties intended the License Agreement to include (a) the Stampede Brushless VXL; (b) the
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`Stampede Brushed 4x4; (c) the Stampede Brushless 4x4 VXL; and (d) the Nitro Stampede, when
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`calculating royalties; and (2) Traxxas owed Feld $955,620.30 in unpaid royalties under the
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`License Agreement (Dkt. #162).
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`On September 14, 2015, the Court entered its Final Judgment, in which it ordered
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`judgment in favor of Feld in the amount of $955,620.30, plus costs and expenses, against
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`Traxxas (Dkt. #163 at p. 1). The Court also stated that “[p]ostjudgment interest is payable to
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`Plaintiff on the foregoing judgment amount at the contractually provided rate of twelve percent
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`(12%) per annum from the date this judgment is entered until judgment is paid.” (Dkt. #163 at p.
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`1). The Court also awarded Plaintiff its attorneys’ fees and stated that “[c]ourt costs are taxed to
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`Defendant.” (Dkt. #163 at p. 1).
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`3
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`Case 4:14-cv-00543-ALM Document 190 Filed 05/12/16 Page 4 of 41 PageID #: 7846
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`On September 28, 2015, Feld filed its Motion for Attorneys’ Fees (Dkt. #164). On
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`October 22, 2015, Traxxas filed its response (Dkt. #172). On November 9, 2015, Feld filed its
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`reply (Dkt. #178). On November 19, 2015, Traxxas filed its sur-reply (Dkt. #182).
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`On September 29, 2015, Feld filed its Motion for Bill of Costs (Dkt. #167). On October
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`22, 2015, Traxxas filed its response (Dkt. #171). On November 9, 2015, Feld filed its reply
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`(Dkt. #177). On November 19, 2015, Traxxas filed its sur-reply (Dkt. #180).
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`On December 11, 2015, Feld filed its Supplemental Motion for Attorneys’ Fees (Dkt.
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`#184). On December 29, 2015, Traxxas filed its response (Dkt. #186). On January 4, 2016, Feld
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`filed its reply (Dkt. #187).
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`LEGAL STANDARD
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`“State law controls both the award of and the reasonableness of fees awarded where state
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`law supplies the rule of discretion.” Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002).
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`Therefore, because this case utilizes New York law, the Court will look to determine the
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`reasonableness of the attorneys’ fees.1 2
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`“New York follows the ‘American Rule’ on the award of attorneys’ fees, meaning that
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`‘attorneys’ fees and disbursements are incidents of litigation and the prevailing party may not
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`collect them from the loser unless an award is authorized by agreement between the parties or by
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`1 As a preliminary matter, the parties agree that New York law controls this diversity action under the terms of the
`License Agreement. “When the laws of two or more states may apply to the various claims in a federal diversity
`action, the court must apply the choice of law rules of the forum state.” Quicksilver Res., Inc. v. Eagle Drilling,
`LLC, 792 F. Supp. 2d 948, 951 (S.D. Tex. 2011) (citing Mayo v. Hartford Life Ins. Co., 354 F.3d 400, 403 (5th Cir.
`2004)). Therefore, Texas choice of law rules determine which law applies to each claim in the present case.
`Generally, Texas law gives effect to contractual choice of law provisions. Quicksilver Res., Ins., 792 F. Supp. 2d at
`951; see Caton v. Leach Corp., 896 F.2d 939, 942 (5th Cir. 1990); Restatement (Second) of Conflict of Laws § 187
`(1971). Therefore, based upon the language of the License Agreement, the Court will apply New York law to
`determine Feld’s Motion for Attorneys’ Fees, Motion for Bill of Costs, and Supplemental Motion for Attorneys’
`Fees (Trial Ex. 11 at p. 10 ¶ 25).
`2 “New York courts frequently look to federal case law in determining whether an award of attorney’s fees is
`reasonable.” Expeditors Int’l of Wash., Inc. v. Rubie’s Costume Co., Inc., No. 03 CV 3333 SLT WDW, 2007 WL
`430096, at *1 n. 2 (E.D.N.Y. Feb. 2, 2007); see, e.g., Bell v. Helmsley, No. 111085/D1, 2003 WL 21057630, at *1
`(N.Y. Sup. Ct. Mar. 27, 2003); see also Matthews v. LFR Collections LLC, No. 4:13-cv-2311, 2015 WL 502040, at
`*4 (S.D. Tex. Feb. 4, 2015).
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`4
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`Case 4:14-cv-00543-ALM Document 190 Filed 05/12/16 Page 5 of 41 PageID #: 7847
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`statute or court rule.’” Versatile Housewares & Gardening Sys., Inc. v. Thill Logistics, Inc., 819
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`F. Supp. 2d 230, 241 (S.D.N.Y. 2011) (quoting A.G. Ship Maint. Corp. v. Lezak, 503 N.E.2d
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`681, 683 (N.Y. 1986). “[A] contract provision that one party to a contract pay the other party’s
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`attorneys’ fees in the event of breach is enforceable ‘so long as those amounts are not
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`unreasonable.’” Weiwei Gao v. Sidhu, No. 11 Civ. 2711 (WHP) (JCF), 2013 WL 2896995, at *5
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`(S.D.N.Y. June 13, 2013); (quoting F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d
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`1250, 1263 (2d Cir. 1987)); see Wells Fargo N.W., N.A. v. Taca Int’l Airlines, S.A., 315 F. Supp.
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`2d 347, 353 (S.D.N.Y. 2003). In the present case, the parties agree that the License Agreement
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`awarded damages to the prevailing party of any litigation (Trial Ex. 11 at p. 8 ¶ 14(c)) (“In the
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`event that litigation of any nature with respect to performance, non-performance or breach by
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`Licensee of its duties and obligations hereunder is initiated, then and in such event, the non-
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`prevailing party shall promptly reimburse the prevailing parties for the prevailing party costs and
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`expenses, including reasonable attorneys’ fees, incurred in connection with said litigation.”)
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`(emphasis added)).
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`Under New York law, courts determine the reasonableness of attorneys’ fees using the
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`lodestar analysis. Gonzalez v. Scalinatella, Inc., 112 F. Supp. 3d 5, 20-21 (S.D.N.Y. 2015); Cho
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`v. Koam Med. Servs. P.C., 524 F. Supp. 2d 202, 206 (E.D.N.Y. 2007). “[The lodestar]
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`assessment results in a ‘presumptively reasonable fee,’ which is ‘calculated by multiplying the
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`number of hours reasonably billed…by the appropriate hourly rate.’” Gonzalez, 112 F. Supp. 3d
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`at 21 (quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany, 522 F.3d
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`182, 190 (2d Cir. 2007); In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 n. 4 (2d Cir.
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`2008)). “[T]he lodestar method involve[s] two steps: (1) the lodestar calculation; and (2)
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`adjustment of the lodestar based on case-specific considerations.” Arbor Hill, 522 F.3d at 186.
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`5
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`Case 4:14-cv-00543-ALM Document 190 Filed 05/12/16 Page 6 of 41 PageID #: 7848
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`Under the lodestar method, the Court must first determine the amount of reasonable hours
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`expended. “Courts are given broad discretion to evaluate the reasonableness of the number of
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`hours expended.” Shim v. Millennium Grp., No. 08-CV-4022 (FB)(VVP), 2010 WL 2772493, at
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`*4 (E.D.N.Y. June 21, 2010); see Anderson v. Sotheby’s, Inc., No. 04-CV-8180, 2006 WL
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`2637535, at *1 (S.D.N.Y. Sept. 11, 2006). “While the resulting number is not conclusive in all
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`circumstances,…there is a ‘strong presumption’ that the lodestar figure is reasonable.”
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`Gonzalez, 112 F. Supp. 3d at 21 (quoting Balestriere PLLC v. CMA Trading, Inc., No. 11 CIV.
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`9459 MHD, 2014 WL 7404068, at *3 (S.D.N.Y. Dec. 31, 2014) (quoting Perdue v. Kenny A.,
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`559 U.S. 542, 552 (2010)) (internal quotations omitted).
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`Next, the Court must determine a reasonable hourly rate. Generally, to determine an
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`appropriate hourly rate, “the court looks to rates prevailing in the community ‘for similar
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`services by lawyers of reasonably comparable skill, experience and reputation.’” Id. (quoting
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`Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984); accord Perdue, 559 U.S. at 551 (“[I]n
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`accordance with our understanding of the aim of fee-shifting statutes, the lodestar looks to the
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`prevailing market rates in the relevant community.”). See Gamache v. Steinhaus, 776 N.Y.S.2d
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`310, 311 (N.Y. App. Div. 2004). “[T]he burden is on the fee applicant to produce satisfactory
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`evidence-in addition to the attorneys’ own affidavits-that the requested rates are in line with
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`those prevailing in the community for similar services by lawyers of reasonably comparable
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`skill, experience and reputation.” Cho, 524 F. Supp. 2d at 206 (quoting Blum, 465 U.S. at 895-
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`96 n. 11 (1984)) (internal quotations omitted). The relevant “community” is “the district in
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`which the court sits[.]” Id. (quoting Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997))
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`(internal citations omitted). In the present case, the relevant community consists of the Eastern
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`District of Texas.
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`6
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`Case 4:14-cv-00543-ALM Document 190 Filed 05/12/16 Page 7 of 41 PageID #: 7849
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` After the Court calculates the lodestar calculation, it should review the amount in line
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`with the Johnson factors. “[T]he district court should consider among others, the Johnson
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`factors; it should also bear in mind that a reasonable, paying client wishes to spend the minimum
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`necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 190. The Johnson factors
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`were developed by the Fifth Circuit to establish a reasonable fee. See Johnson v. Ga. Highway
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`Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v.
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`Bergeron, 489 U.S. 87, 92-93, 96 (1989). Johnson lays out twelve factors for the court to
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`consider which include the following:
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`(1) the time and labor required;
`(2) the novelty and difficulty of the questions;
`(3) the level of skill required to perform the legal service properly;
`(4) the preclusion of employment by the attorney due to acceptance of the case;
`(5) the attorney’s customary hourly rate;
`(6) whether the fee is fixed or contingent;
`(7) the time limitations imposed by the client or the circumstances;
`(8) the amount involved in the case and the results obtained;
`(9) the experience, reputation, and ability of the attorneys;
`(10) the “undesirability” of the case;
`(11) the nature and length of the professional relationship with the client; and
`(12) awards in similar cases.
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`Johnson, 488 F.2d at 717-19. However, many of the Johnson factors are subsumed within the
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`initial calculation of hours reasonably expended at a reasonable hourly rate.3 Pennsylvania v.
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`Del. Valley Citizens’ Council for Clear Air, 478 U.S. 546, 564 (1986).
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`Feld’s Motion for Attorneys’ Fees (Dkt. #164)
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`ANALYSIS
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`Feld seeks $1,634,536 in legal fees, comprising $1,597,896 incurred by the attorneys at
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`Harris, Wiltshire & Grannis, LLP (“HWG”), and $36,640 incurred by the attorneys at Gardere
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`3 The “novelty and complexity of the issues,” “the special skill and experience of counsel,” the “quality of
`representation,” and the “results obtained” from the litigation are presumably fully reflected in the lodestar amount.
`Pennsylvania, 4787 U.S. at 565.
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`7
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`Case 4:14-cv-00543-ALM Document 190 Filed 05/12/16 Page 8 of 41 PageID #: 7850
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`Wynne Sewell, LLP (“Gardere”) (Dkt. #164 at p. 3). Feld asserts that it “incurred reasonable
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`attorneys’ fees from both its trial counsel and local counsel. Both firms worked a reasonable
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`number of hours for this matter and charged [Feld] an hourly rate that is appropriate for lawyers
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`of comparable skill and experience in this District.” (Dkt. #164 at p. 4). Traxxas asserts that the
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`fees assessed are not reasonable for the following reasons: (1) Feld’s counsel overstaffed the
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`case; (2) Feld’s counsel engaged in “gross overbilling;” and (3) Feld’s counsel engaged in
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`“improper billing” techniques (Dkt. #172 at p. 1).
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`Hours Reasonably Expended4
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`Feld asserts that “HWG attorneys expended 4,594.3 hours on this matter[,]” and “Gardere
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`attorneys expended 109.8 hours on this matter.” (Dkt. #164, Exhibit A at p. 8).5 Furthermore,
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`Feld asserts that their counsel worked the following hours on the case:
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`Mr. Kimmett
`Mr. Anderson
`Ms. Norvell
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`Mr. Grimm
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`(Dkt. #164, Exhibit A at p. 8).6 Additionally, local counsel for Gardere expended 109.8 hours of
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`1,468.5 hours
`1,144.1 hours
`1,000.5 hours
`918.3 hours
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`legal work. Specifically, the attorneys at Gardere worked the following hours:
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`38.4
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`Ms. Early
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`63.7
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`Ms. Lee
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`4 As a preliminary matter, Feld argues that “Traxxas blatantly manipulated HWG’s time records…Traxxas altered
`[Feld’s billing entires] by deleting tasks from HWG’s time records to make them appear vague when they [were]
`not.” (Dkt. #178 at p. 2). The Court finds that in preparing their response, Traxxas re-worked the time records, but
`the Court does not find that Traxxas “blatantly manipulated” the time records, but instead re-worked the time
`records as examples for its attorney’s declaration. For purposes of this motion, the Court will not use the time
`records provided by Traxxas as they are not a complete and accurate representation of Feld’s time records, but will
`instead use the time records provided by Feld (See Dkt. #164, Exhibit C).
`5 After reviewing the billing records provided by HWG, the Court calculates 4,531.4 hours of attorney time
`performed in the present case. Therefore, for purposes of this motion, the Court will use the Court’s calculation as
`the total amount of attorney hours performed by HWG attorneys.
`6 Traxxas asserts that it charged 2,570.7 hours in the present case, which it deems is a reasonable amount of hours
`spent (See Dkt. #172 at p. 3). However, under the Lodestar method, the Court does not take into consideration the
`hours that the other side spent preparing their case for trial, therefore, the Court will not address Traxxas’ argument,
`or consider Traxxas’ hours when making its determination as to whether the hour charged by Feld’s attorneys were
`reasonable.
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`8
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`Case 4:14-cv-00543-ALM Document 190 Filed 05/12/16 Page 9 of 41 PageID #: 7851
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`(Dkt. # 164, Exhibit B).7 Traxxas asserts that Feld’s “attorneys’ fees demand is excessive
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`because its counsel: (a) overstaffed the matter…; (b) overbilled for a variety of discovery
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`activities…; (c) improperly includ[ed] travel time at full billing rates; and (d) engag[ed] in
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`improper ‘block billing,’ making it impossible to discern which tasks were done within a
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`reasonable time frame.” (Dkt. #172 at p. 8).
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`“To obtain an award of attorneys’ fees, a plaintiff must provide contemporaneous time
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`records.” Akman v. Pep Boys Manny Moe & Jack of Del., Inc., No. 11-CV-3252, 2013 WL
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`4039370, at *1 (E.D.N.Y. Aug. 7, 2013); see Scott v. City of New York, 643 F.3d 56, 58-59 (2d
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`Cir. 2011); Pilitz v. Inc. Vill. of Freeport, No. 07-CV-4078, 2011 WL 5825138, at *4 (E.D.N.Y.
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`Nov. 17, 2011) (“The burden is on the party seeking attorney’s fees to submit evidence to
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`support the hours worked and the rates claimed…. Accordingly, the party seeking an award of
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`attorney’s fees must support its application by providing contemporaneous time records that
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`detail ‘for each attorney, the date, the hours expended, and the nature of the work done.’”). “The
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`fee applicant is obligated to ‘make a good-faith effort to exclude from a fee request hours that are
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`excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
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`obligated to exclude such hours from his fee submission.’” Amato v. City of Saratoga Springs,
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`991 F. Supp. 62, 66 (N.D.N.Y. 1998) (quoting Hensley, 461 U.S. at 434).
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`“In considering what is reasonable, courts ‘should exclude excessive, redundant or
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`otherwise unnecessary hours.’” Shim, 2010 WL 2772493, at *4 (quoting Quarantino v. Tiffany
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`& Co., 166 F.3d 422, 425 (2d Cir. 1999) (citing Hensley, 461 U.S. at 434)). Courts should also
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`eliminate duplicative hours. See id.; see, e.g., Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir.
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`1988); N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146-47 (2d Cir.
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`7 After reviewing the billing records provided by Gardere, the Court finds that some of the total hours performed
`were written off by the attorneys when they submitted the invoices (See Dkt. #164, Exhibit B). For purposes of this
`motion, the Court will use its calculation of 102.1 attorney hours performed by the Gardere attorneys.
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`9
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`Case 4:14-cv-00543-ALM Document 190 Filed 05/12/16 Page 10 of 41 PageID #: 7852
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`1983). Therefore in determining the reasonableness of hours expended, “[c]ourts should
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`consider ‘whether, at the time the work was performed, a reasonable attorney would have
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`engaged in similar time expenditures.” Shim, 2010 WL 2772493, at *4 (quoting Grant v.
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`Martinez, 973 F.2d 96, 99 (2d Cir. 1992)).
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`First, Traxxas asserts that HWG failed to exercise billing judgment, which is represented
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`by the overstaffing of attorneys on the case (Dkt. #172 at p. 4). Specifically, Traxxas asserts that
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`“[e]very deposition and motion in [the] case was a multiple-lawyer billing event for [Feld]. Four
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`or more timekeepers would be responsible for conferencing regarding briefs and depositions as
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`well as researching, drafting, and revising them.” (Dkt. #172 at pp. 8-9). To demonstrate that it
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`exercised billing judgment, Feld presents the Court with a declaration from HWG’s lead
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`attorney, Charles Kimmett (the “Kimmett Declaration”), as well as a supplemental declaration
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`from Kimmett (the “Supplemental Declaration”) (Dkt. #164, Exhibit A; Dkt #177, Exhibit C).8
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`Feld asserts that the “hours [billed] were not only reasonable, but also necessary to represent
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`[Feld] adequately on a case involving detailed fact discovery, extensive motion practice, and the
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`need for a precise understanding of…the R/C model units at issue.” (Dkt. #164 at p. 4).
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`“[T]he court must inquire whether the party exercised ‘billing judgment’ in arriving at the
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`total number of hours requested.” Grievson v. Rochester Psychiatric Ctr., 746 F. Supp. 2d 454,
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`465-66 (W.D.N.Y. 2010) (citing Hensley, 461 U.S. at 434 (“[i]n the private sector, billing
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`judgment is an important component in fee setting[;] [i]t is no less important here”) (quoting
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`Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)). “If the attorney did not properly
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`8 In its sur-reply, Traxxas objects to the consideration of the Supplemental Declaration as it was filed in the reply
`brief (Dkt. #182 at p. 2 n. 1). Traxxas argues that Feld “should not be allowed to lie behind the log and then unload
`on Traxxas with a battery of new evidence and arguments to meet its burden.” (Dkt. #182 at p. 2 n. 1). “Under
`Federal Rule of Civil Procedure 6(b), the trial court had broad discretion to accept late-filed affidavits, ‘where the
`failure to act was the result of excusable neglect.’” Slaughter v. S. Talc Co., 919 F.2d 304, 307 (5th Cir. 1990).
`After reviewing the Supplemental Declaration, the Court finds that Feld does not make new arguments, but is
`merely supplementing its original declaration; and therefore, as the Supplemental Declaration does not prejudice
`Traxxas, the Court will overrule Traxxas’ objection.
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`10
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`Case 4:14-cv-00543-ALM Document 190 Filed 05/12/16 Page 11 of 41 PageID #: 7853
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`exercise billing judgment, then the court must reduce the hours to exclude those that were
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`‘excessive, redundant, or otherwise unnecessary.’” Id. (quoting Hensley, 461 U.S. at 434). “One
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`way to accomplish that reduction is to evaluate the reasonableness of each individual time entry
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`and to make reductions and exclusions as necessary.” Id.; see, e.g., Pasternak v. Baines, 2008
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`WL 2019812, at *7 (W.D.N.Y. 2008); Rich Prods. Corp. v. Impress Indus., 2008 WL 203020, at
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`*3 (W.D.N.Y. 2008). The Court can also “apply a reasonable percentage reduction to the total
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`number of hours requested.” Grievson, 746 F. Supp. 2d at 466.
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`The Court finds that Feld failed to demonstrate that it exercised the proper billing
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`judgment which respect to HWG’s invoices. Feld argues that the tier structure inherently gives
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`Feld a discount and demonstrates its billing judgment; however, the Court is unable to see the
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`amount of hours discounted through the tiered structure. Through the Court’s review of HWG’s
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`billing entries, the Court can see that HWG wrote off its paralegal time from the billing, as those
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`hours are not included in the request for attorneys’ fees, however, the Court finds that Feld still
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`did not exercise sufficient billing judgment. Additionally, the Court also found a couple of
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`circumstances where HWG gave Feld a discount (See Dkt. #164, Exhibit C). The Court will
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`discount HWG’s hours at 10%.
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`However, the Court does find that Gardere exercised billing judgment. In the billing
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`entries presented by Gardere, the Court can see instances where time was written off and is
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`redacted by the attorneys (Dkt. #164, Exhibit B). Therefore, the Court finds that Gardere’s hours
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`will not be deducted for failing to exercise billing judgment.
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`Traxxas also asserts that Feld’s attorneys document excessive hours. Traxxas alleges that
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`Feld “overbilled 164.1 hours in defending all six (6) depositions[,]” “overbilled 471.1 hours in
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`taking seven (7) tested depositions[,]” billed “[u]p to 241.8 hours” associated with Feld’s venue
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`11
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`Case 4:14-cv-00543-ALM Document 190 Filed 05/12/16 Page 12 of 41 PageID #: 7854
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`challenge, billed “[u]p to 463.7 hours” associated with the parties’ motions for summary
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`judgment and Feld’s Daubert challenges, and billed “[u]p to 129.1 hours” associated with the
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`reply and objections to the summary judgment motions and Feld’s Daubert challenges (Dkt.
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`#172 at pp. 9-10).9 Traxxas also objects to the amount of hours Feld’s attorneys charged during
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`trial (See Dkt. #172 at p. 11). Specifically, Traxxas argues that Feld’s attorneys charged for six
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`timekeepers who billed 883.5 hours, and two associates who billed for “attending trial[,]” and
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`had almost no role during trial (Dkt. #172 at p. 11).10 Although Traxxas asserts that HWG’s use
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`of multiple timekeepers was “excessive” and “inefficient[,]” the Court finds that each of HWG’s
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`attorneys had an active role during trial, and each performed a distinct task.
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` Traxxas also asserts that Feld included duplicative hours. The Second Circuit has left
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`determination of redundancy in fee applications to the discretion of the district court:
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`prevailing parties are not barred as a matter of law from receiving fees for sending
`a second attorney to depositions or an extra lawyer into court to observe and
`assist…Of course, a trial judge may decline to compensate hours spent by
`collaborate lawyers or may limit the hours allowed for specific tasks but for the
`most party such decisions are best made by the district court on the basis of its
`own assessment of what is appropriate for the scope and complexity of the
`particular litigation.
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`Bridges v. Eastman Kodak Co., No. 91 Civ. 7985 (RLC), 1996 WL 47304, at *6 (S.D.N.Y. Feb.
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`6, 1996) (quoting Carey, 711 F.2d at 1146 (citation omitted)). “While it is true that redundant
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`9 Traxxas also alleges that Feld “spent up to 834.6 hours for almost completely unsuccessful litigation practices.”
`(Dkt. #172 at p. 10). The Court is unclear what “unsuccessful litigation practices” Traxxas is referring to, and thus
`will not address the argument.
`10 In its motion, Feld asserts that “[l]ike [Feld], Traxxas often had two attorneys attend each deposition. Four
`attorneys from HWG—two partners and two associates—represented [Feld] at trial, while Traxxas was represented
`by between two and three partners and one associate at trial.” (Dkt. #164 at p. 5). In its response, Traxxas asserts
`that it had three timekeepers during trial. “Sean Lemoine and Bryan Wick who tried the case and Darla Gabbitas
`who argued the directed verdict at the end of [Feld’s] case in chief and was tasked with ensuring exhibits were
`properly entered, that evidence necessary for certain defenses or arguments was introduced, and to assist at trial.”
`(Dkt. #172 at p. 11 n. 29) (citing Dkt. #172, Exhibit 1). Jeffrey Hellberg also billed hours, and attended portions of
`the trial, as he assisted Traxxas with jury charge discussions and pretrial preparations (See Dkt. #172 at p. 11 n. 29).
`The Court finds that Traxxas’ argument that Feld overstaffed the trial is without merit, as Traxxas also had multiple
`timekeepers billing during trial.
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`12
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`Case 4:14-cv-00543-ALM Document 190 Filed 05/12/16 Page 13 of 41 PageID #: 7855
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`work should not be billed, many tasks in fact require or benefit from the attention of more than
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`one attorney. Attendance at trial…[is] such a task.” Id.
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`Attendance at depositions, however, is to some extent a different matter. Time
`spent in depositions is far less adversarial and not nearly so crucial to the success
`of the case as time spent in trial. Thus, “[w]hile the court recognizes that
`assistance at depositions is often necessary, generally that assistance is offered by
`an associate at a much lower rate.”
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`Id., at *7 (quoting Carrero v. New York City Hous. Auth., 685 F. Supp. 904, 908 (S.D.N.Y.
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`1988), rev’d in part on other grounds, 890 F.2d 569 (2d Cir. 1989)).11 A party “should not be
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`required to compensate all of…[the] appearances when the use of just one or two lawyers would
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`have been adequate.” Anderson v. Rochester-Genesee Reg’l Transp. Auth., 388 F. Supp. 2d 159,
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`165 (W.D.N.Y. 2005); see Sabatini v. Corning-Painted Post Area Sch. Dist., 190 F. Supp. 2d
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`509, 521 (W.D.N.Y. 2001) (“While plaintiffs or their attorneys might have preferred to have
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`both [attorneys] in court that day [for oral argument], that does not mean that it was reasonably
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`necessary that they both attend, and presumably either one of them could have argued the motion
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`alone.”).
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`After reviewing HWG’s billing records, the Kimmett Declaration, and the Supplemental
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`Declaration, the Court finds that the hours requested by Feld are not overly duplicative and the
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`case was not overstaffed. Traxxas argues that Feld “did not need multiple attorneys at hearings,
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`deposition, and ultimately at trial.” (Dkt. #172 at p. 12). However, the Court finds that this was
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`a complicated matter that required the legal expertise of a trial team. In its Supplemental
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`Declaration, Kimmett states that,
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`11 Feld asserts that the tiered fee structure that Feld employed meant that a partner and an associate’s time counted
`the same in billing, “so the concerns in Bridges do not apply.” (Dkt. #178 at p. 3 n. 13). The Court will address the
`reasonableness of Feld’s fees below; however, the Court finds that Feld did employ the structure recognized by the
`Bridges court, as it appears from the Court’s review of the billing records that a partner and an associate attended
`each deposition (See Dkt. #164, Exhibit C).
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`13
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`Case 4:14-cv-00543-ALM Document 190 Filed 05/12/16 Page 14 of 41 PageID #: 7856
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`Discovery involved thousands of documents. Indeed, Traxxas produced over
`14,000 pages of documents, and [Feld] produced more than 4244 pages of
`documents, which does not include numerous additional non-responsive or
`privileged documents that HWG attorneys had to review during discovery. The
`parties took 17 depositions.
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`(Dkt. #177, Exhibit C at ¶ 21). Additionally, Kimmett states,
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`The parties filed cross-motions for summary judgment of 45 pages each, and for
`each motion there were four rounds of briefing. In addition, the parties were
`simultaneously briefing objections to evidence included in the summary judgment
`motions and oppositions….The time HWG s