Joint Stock Co. Channel One Russia Worldwide v. Infomir, LLC
Joint Stock Co. Channel One Russia Worldwide v. Infomir, LLC
2019 WL 11825219 (S.D.N.Y. 2019)
June 13, 2019
Moses, Barbara, United States Magistrate Judge
Summary
The court applied a 35% discount to the time entries that included ESI, which was partially redacted and highlighted in blue. The court also applied a 40% discount across the board due to the extensive use of block-billing and plaintiffs' aggressive approach to the fee application. As a result, plaintiffs were awarded sanctions in the amount of $30,607.50 against defaulted defendants Panorama Alliance, LP and Asaf Yevdayev, jointly and severally.
Additional Decisions
JOINT STOCK COMPANY CHANNEL ONE RUSSIA WORLDWIDE, et al., Plaintiffs,
v.
INFOMIR LLC, et al., Defendants
v.
INFOMIR LLC, et al., Defendants
16-CV-1318 (GBD) (BCM)
United States District Court, S.D. New York
Signed June 13, 2019
Counsel
Akbar Azam Khan, Hardin Parisher Rowley, Samuel Asher Blaustein, Dunnington Bartholow & Miller LLP, New York, NY, for Plaintiff Joint Stock Company Channel One Russia Worldwide.Eugene David Kublanovsky, Kublanovsky Law, LLC, Samuel Asher Blaustein, Akbar Azam Khan, Hardin Parisher Rowley, Dunnington, Bartholow & Miller, LLP, New York, NY, for Plaintiffs Closed Joint Stock Company CTC Network, Closed Joint Stock Company TV Darial, Closed Joint Stock Company New Channel, Limited Liability Company Rain TV-Channel.
Samuel Asher Blaustein, Dunnington, Bartholow & Miller, LLP, New York, NY, for Plaintiffs Limited Liability Company Veriselintel, Open Joing Stock Company Accept.
Raymond James Dowd, Hardin Parisher Rowley, Samuel Asher Blaustein, Dunnington, Bartholow & Miller, LLP, New York, NY, for Plaintiff Limited Liability Company Comedy TV.
Eugene David Kublanovsky, Kublanovsky Law, LLC, Akbar Azam Khan, Hardin Parisher Rowley, Samuel Asher Blaustein, Dunnington Bartholow & Miller LLP, New York, NY, for Plaintiff Limited Liability Company Global Entertainment TV.
Stewart M. Leviss, Berkowitz, Lichtstein, Kuritsky, Giasullo & Gross, LLC, Short Hills, NJ, Evan Silagi, Berkowitz, Lichtstein, Kuritsky, Giasullo & Gross, Roseland, NJ, for Defendant Infomir LLC.
Marcus Aurelius Nussbaum, Brooklyn, NY, for Defendant S.K. Management of New York, Inc.
Moses, Barbara, United States Magistrate Judge
ORDER
*1 For the reasons stated below, the Court awards plaintiffs Joint Stock Company Channel One Russia Worldwide, Closed Joint Stock Company CTC Network, Closed Joint Stock Company TV DARIAL, Closed Joint Stock Company “New Channel,” Limited Liability Company “Rain TV-Channel,” and Limited Liability Company “Comedy TV” a total of $30,607.50 in attorneys’ fees and expenses, as a sanction pursuant to Fed. R. Civ. P. 37(b), to be assessed jointly and severally against defaulted defendants Panorama Alliance, LP (Panorama) and Asaf Yevdayev (collectively, the Defaulted Defendants).
I. BACKGROUND
Plaintiffs are a group of Russian television broadcasters suing to redress what they characterize as the “pirating” and resale of their programming to consumers in the United States, over the internet, without authorization or license fees. See First Amended Complaint (FAC) (Dkt. No. 211) ¶¶ 1, 6, 15, 19, 21, 23, 26. Plaintiffs are “organized under the laws of the Russian Federation,” id. ¶¶ 6, 15, 19, 21, 23, 26, and most are headquartered in Moscow. Id. ¶¶ 6, 23, 26. Plaintiffs produce and distribute Russian-language television programming, which is broadcast via satellite in Russia and neighboring countries. Id. ¶ 62.
Defendant Panorama, a limited partnership incorporated under the laws of the United Kingdom, sold unauthorized access to plaintiffs’ programming, which it streamed via internet protocol television (IPTV) through its website www.mypanorama.tv (the Website), to Russian-speaking customers in New York and elsewhere. Id. ¶¶ 39, 42, 96. Defendant Yevdayev, a resident of Brooklyn, registered the Website's domain name and operated Panorama's “principal place of business,” located on Avenue Z in Brooklyn, where he offered “subscriptions for its illegal service,” answered technical support questions, and processed payments. Id. ¶¶ 39-42.[1]
On June 30, 2017, after Panorama and Yevdayev failed to respond to the FAC, plaintiffs sought a default judgment against them. (Dkt. No. 309.) On July 10, 2017, the Hon. George B. Daniels, United States District Judge, found that Panorama and Yevdayev “engaged in willful infringement of [plaintiffs’] Broadcasts in violation of the Federal Communications Act, Copyright Act, and Lanham Act,” and therefore that “Plaintiffs are entitled to damages and injunctive relief pursuant to the Copyright Act, Lanham Act, Federal Communications Act and Fed. R. Civ. P. 65, together with attorney's fees and costs.” Order dated July 10, 2017 (Dkt. No. 313), ¶ 14-17. In the same order, Judge Daniels enjoined the Defaulted Defendants from any future infringement of plaintiffs’ broadcasts and referred the matter to me for a damages inquest, id. ¶¶ 18, 26, which remains pending.
*2 On August 15, 2017, plaintiffs moved for a “writ of assistance” as to both Defaulted Defendants, seeking damages-related discovery for use in the inquest. (Dkt. No. 339.) By order dated September 8, 2017 (the 9/8/17 Order) (Dkt. No. 351), I construed the request as a motion made pursuant to Fed. R. Civ. P. 37(a) to compel responses to certain damages-related discovery requests that plaintiffs had served on Panorama prior to its default, and as so construed granted it, directing Panorama and Yevdayev to respond to specified interrogatories and document requests (those relating to damages) by October 9, 2017. 9/8/17 Order at 4. In addition, noting that Yevdayev was “Panorama's agent and representative with respect to the conduct at issue in this action,” see 7/18/17 Order and Report at 68,[2] I directed that he sit for a second deposition (limited to “matters relevant to the calculation of plaintiffs’ damages”). 9/8/17 Order at 4.[3]
Panorama ignored the 9/8/17 Order entirely. Yevdayev, acting pro se, made some preliminary efforts to schedule a deposition, but failed to commit to a date or produce any documents by the October 9, 2017 deadline. The next day, plaintiffs filed a motion seeking sanctions – including contempt sanctions – against both Defaulted Defendants. (Dkt. No. 372.) Yevdayev then retained an attorney and requested an extension of his discovery and motion deadlines. By order dated October 25, 2017 (the 10/25/17 Order) (Dkt. No. 393), I extended Yevdayev's deadline to respond to plaintiffs’ written discovery requests to November 3, 2017, ordered him to appear for deposition by November 10, 2017, and extended his deadline to respond to the sanctions motion until November 17, 2017. 10/25/2017 Order at 2.
On November 3, 2017, Yevdayev served written responses to plaintiffs’ document requests and interrogatories, consisting primarily of objections. Among other things, Yevdayev claimed that he had no “access” to information or documents concerning Panorama's subscription sales, receipts or profits. He also failed – without explanation – to produce information and documents concerning his own sales of Panorama subscriptions in New York, the prices charged, or the payments received. See 9/18/18 Order at 7-8. On November 9, 2017, Yevdayev appeared for deposition and testified, among other things, that he had no records or recollection concerning how many subscriptions he had sold or precisely what he charged for them. Id. at 8; see also 11/9/17 Yevdayev Dep. Tr. (Dkt. No. 462-6), at 222:15-225:16, 231:16-17, 232:18-22.
Thereafter, at plaintiffs’ prodding, Yevdayev served supplemental written discovery responses, produced several hundred pages of documents, and appeared for yet another deposition session on December 8, 2017. He continued to insist, however, that he did not know (and possessed no other documents that would show) how many Panorama subscriptions he had sold or what the subscribers paid. See 9/18/18 Order at 9. Meanwhile, plaintiffs sent subpoenas to various non-parties, including Setplex LLC (Setplex), which provided “network services” to Panorama for a period of seven months. Setplex produced documents showing that the number of Panorama subscribers during that period ranged from a high of 4,241 in March 2017 to a low of 1,688 in October 2017 (after the default judgment was entered). 9/18/17 Order at 10. In addition, Setplex produced what appeared to be a list of Panorama's customers during that period. Id. Yevdayev, who ran the business, never produced any comparable documents for any time period. Nor did he produce documents showing what he (or Panorama) earned from those customers. Id.
*3 Panorama never responded to plaintiffs’ discovery requests, nor to their sanctions motion.
On September 28, 2018, I granted plaintiffs’ sanctions motion in part, finding that Yevdayev's excuses for not producing additional documents and information were “not credible,” 9/28/18 Order (Dkt. No. 676) at 17, that the Defaulted Defendants’ conduct was “sanctionable,” id. at 18, and that it had forced plaintiffs to “incur additional costs and burdens to obtain documents and information from third parties that should have been promptly provided by the Defaulted Defendants.” Id. at 20. “Moreover, plaintiffs still do not have some of the documents and information that they requested, such as customer counts prior to March 2017 and a clear picture of the revenues and profits earned by the Defaulted Defendants from their unlawful scheme.” Id. Accordingly, although I found that their misconduct did not “warrant either civil or criminal contempt sanctions,” id. at 18, I ordered Panorama and Yevdayev, jointly and severally, to:
pay the reasonable expenses, including attorneys’ fees and out-of-pocket costs, caused by their failure to obey this Court's discovery orders issued on September 8 and October 25, 2017, including plaintiffs’ expenses incurred in (a) seeking and obtaining additional damages-related discovery as to Panorama and/or Yevdayev, formally or informally, from October 10, 2017, to December 15, 2017; and (b) preparing and pursuing their sanctions motion.
The only remaining task as to the sanctions motion, therefore, is to determine plaintiffs’ reasonable fees and other expenses.
On November 1, 2018, plaintiffs submitted a declaration from their attorney, Raymond Dowd of Dunnington Bartholow & Miller (Dunnington), requesting attorney's fees and costs totaling $165,775.49 for worked performed from September 5 through December 15, 2017. Declaration of Raymond Dowd dated Nov. 1, 2018 (11/1/18 Dowd Decl.) (Dkt. No. 689), ¶¶ 5, 11. Along with his declaration, Dowd submitted Dunnington's invoices dated November 29, 2017 (the 11/29/17 Invoice) (Dkt. No. 689-1, at ECF pages 2-20) and January 31, 2018 (the 1/31/18 Invoice) (Dkt. No. 689-1, at ECF pages 21-42), both of which are addressed to Kartina Digital GmbH, which pays plaintiffs’ legal bills. Some of the time entries shown on the invoices are partially redacted to “exclude fees not associated with the discovery investigation of Defaulted Defendants and Plaintiff Broadcasters’ sanctions motion.” 11/1/18 Dowd Decl. ¶ 7. Dowd also submitted Dunnington's underlying time records (Time Records) (Dkt. No. 689-2), similarly redacted. Dunnington's invoices were paid in full “except for $55 per hour of my fees as of January 2017, which in an exercise of billing judgment, have been deferred unless and until we are able to successfully collect such fees from the Defaulted Defendants.” 11/1/18 Dowd Decl. ¶ 6.
Yevdayev opposes plaintiffs’ application, arguing – through his counsel – that plaintiffs improperly seek reimbursement for legal work that was not “caused by” the Defaulting Defendants’ discovery violations or otherwise within the scope of the 9/28/17 Order. See Declaration of Lloyd M. Eisenberg dated November 30, 2018 (Eisenberg Decl.) (Dkt. No. 705), ¶¶ 4-12. Yevdayev further contends that no fees should be awarded for the partially redacted time entries, because they were “block billed,” such that “there is no way to tell what portion of the time entry relates to reimbursable time.” Id. ¶ 5. According to Yevdayev, only $33,645 worth of Dunnington's time “appear[s] to be reimbursable,” id. ¶¶ 9, 12, 14, and even that figure should be reduced – to $10,000 – because Dunnington assigned too many attorneys to a “garden-variety discovery dispute” and failed to obtain either criminal or civil contempt penalties. Id. ¶¶ 13-14.
*4 Panorama did not submit any opposition to plaintiffs’ fee application.
II. ANALYSIS
Having previously found that plaintiffs are entitled to recover their attorney's fees and costs as sanctions for Rule 37(b) violations by Panorama and Yevdayev, the Court must now determine whether plaintiffs’ requested award is reasonable. To calculate a “presumptively reasonable fee,” the Court begins by multiplying the hours counsel reasonably spent on the litigation by a reasonable hourly rate. Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (citing Arbor Hill Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008)). “The presumptively reasonable fee boils down to what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively.” Simmons v. New York City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (internal quotations omitted).
A. Hourly Rate
To arrive at a reasonable fee award, I must first determine the reasonable hourly rate for each timekeeper for whom fees are sought. “A fee applicant bears the burden of ‘produc[ing] satisfactory evidence’ that its requested rates are ‘in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.’ ” In re Terrorist Attacks on Sept. 11, 2001, 2015 WL 6666703, at *4 (S.D.N.Y. Oct. 28, 2015) (quoting Pearson Educ., Inc. v. Vergara, 2010 WL 3744033, at *6 (S.D.N.Y. Sept. 27, 2010)), report and recommendation adopted, 2015 WL 9255560 (S.D.N.Y. Dec. 18, 2015). This inquiry properly includes a court's own knowledge of private firm hourly rates. Id. at *4 (citing Miele v. N.Y.S. Teamsters Conference Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir. 1987)).
Plaintiffs seek fees for five Dunnington timekeepers involved in this matter:

11/1/18 Dowd Decl. ¶ 12. Dunnington is a small firm by Manhattan standards. According to its website (available at https://www.dunnington.com) it comprises 26 attorneys as of this writing. Attorney Dowd, who serves as lead counsel for plaintiffs in this action, was admitted to practice in 1993 and since then has focused primarily on litigation, including litigation on behalf of international television broadcasters. 11/2/17 Dowd Decl. ¶¶ 13-14. He has written extensively on litigation topics and is the author of a copyright litigation handbook. Id. ¶ 15.
I find that Dunnington's rates, as set out above, are consistent with the prevailing market rates charged by legal professionals of comparable experience and expertise in this district. See Barcroft Media, Ltd. v. Fashion In Me Inc., 2018 WL 4565889, at *5 (S.D.N.Y. June 5, 2018) (collecting copyright and trademark infringement cases awarding $425-$570 for partners at small to mid-sized law firms, and $200-$390 for associates), report and recommendation adopted, 2018 WL 4568727 (S.D.N.Y. July 25, 2018); Pyatt v. Raymond, 2012 WL 1668248, at *6 (S.D.N.Y. May 10, 2012) (collecting infringement cases in which partners were awarded $400-650). See also Genger v. Genger, 2015 WL 1011718, at *2 (S.D.N.Y. Mar. 9, 2015) (“New York district courts have also recently approved rates for law firm associates in the range of $200 to $450 per hour ... and for law firm paralegals in amounts of approximately $200 per hour.”).
B. Number of Hours Expended
*5 At the second stage of the analysis, I multiply each timekeeper's reasonable hourly rate by the reasonable number of hours expended. Reilly v. Plot Commerce, 2016 WL 6837895, at *12 (S.D.N.Y. Oct. 31, 2016). Hours that are “excessive, redundant, or otherwise unnecessary” may be excluded from an attorney's fee award. Infinity Headwear & Apparel v. Jay Franco & Sons, 2016 WL 6962541, at *5 (S.D.N.Y. Nov. 28, 2016) (citing Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998)). Additionally, where the description of the work performed is vague, or the timekeepers use block-billing, the Court must determine “whether the time records submitted permit ‘a meaningful review of the hours requested.’ ” We Shall Overcome Found. v. Richmond Org., Inc., 330 F. Supp. 3d 960, 973 (S.D.N.Y. 2018) (quoting Restivo v. Hessemann, 846 F.3d 547, 591 (2d Cir. 2017)).
1. Block-Billing
Yevdayev is correct that Dunnington's records contain a number of block-billed entries that reflect time spent on multiple activities, not all of them compensable as sanctions. For many of these entries, a portion of the task description has been redacted precisely because it includes activities that plaintiffs concede to be outside the scope of the 9/28/18 Order and for which they do not seek fees. 11/1/18 Dowd Decl. ¶ 7. For example, on November 16, 2017, attorney Dowd spent a total of 3.2 hours (for which he billed $1760) on the following tasks:
[Redacted] address discovery issues re Setplex/conference call C. Sovak H. Rowley re defective Setplex production, removal of confidentiality designations [Redacted]
Time Records at 4. Similarly, on December 11, 2017, attorney Dowd spent a total of 4.30 hours (for which he billed $2,365) performing these services:
“review Yevdayev Transcript, prepare motion for contempt, corr re Omniverse/Filmon [Redacted]
Time Records at 1. As to these entries, and others like them (highlighted in blue on the Time Records), plaintiffs seek to recover 65% of the associated fees, based on counsel's estimate that “approximately sixty-five percent (65%) of the fees highlighted in blue ... were generated for work done in relation to the Defaulted Defendants.” 11/1/18 Dowd Decl. ¶ 8.
As I have previously noted, Dunnington's frequent use of block-billing “makes it impossible to assess how much time was spent on each individual task.” Order dated May 24, 2019 (Dkt. No. 747), at 10. The difficulty is compounded by the fact that part of each blue-highlighted entry has been redacted because it relates to a task outside the scope of the 9/28/18 Order, making it impossible even to guess at the likely time allocation based on the nature of the non-compensable tasks. The Court therefore has no confidence that the 35% discount already applied to the partially-redacted blue-highlighted entries adequately accounts for the amount or proportion of their non-compensable time.
2. Work Outside the Scope of the 9/28/18 Order
Yevdayev is also correct that plaintiffs seek fees for tasks that are not within the scope of the 9/28/18 Order. Plaintiffs appear to believe that they are entitled to a fee award covering their entire “discovery investigation of the Defaulted Defendants.” 11/1/18 Dowd Decl. ¶ 7. However, the Court carefully limited the monetary sanction to expenses that were “caused by” the Defaulted Defendants’ “failures to obey” two specified discovery orders (the 9/8/17 Order and the 10/25/17 Order), including expenses incurred in preparing and pursuing their sanctions motion. See 9/28/18 Order at 25. Thus, plaintiffs cannot recover attorneys’ fees or costs incurred to serve subpoenas, take depositions, or otherwise conduct discovery before October 10, 2017 (the first date on which the Defaulted Defendants could have been in violation of the 9/8/17 Order). Yet they request tens of thousands of dollars in fees for discovery-related work performed between September 5 and October 9, 2017. They also request fees for work that was performed on or after October 10 but was clearly not “caused by” the Defaulted Defendants’ misconduct – including, in some instances, work that was wholly unrelated to the pending damages inquest.
*6 On September 5 and 6, 2017, attorneys Dowd and Blaustein spent a total of 8.95 hours (for which they billed $3,385) to prepare for and take the deposition of “A. Benjamin.” Time Records at 12. This deposition may have been related to plaintiffs’ claim for damages against the Defaulted Defendants. However, the associated legal fees could not have been “caused by” the Defaulted Defendants’ later violation of the 9/8/17 and 10/25/17 Orders, neither of which had yet been issued, much less disobeyed, when counsel took Benjamin's deposition.
The same is true for almost all of the time billed by plaintiffs’ counsel prior to October 10, 2017. Thus, for example, plaintiffs are not entitled to reimbursement for their fees or costs incurred in connection with reviewing deposition transcripts, negotiating with Setplex, attempting to schedule the Yevdayev deposition, or attending court teleconferences during this period.[5] Indeed, after careful review of Dunnington's invoices and time records, the Court concludes that the only reimbursable work performed by plaintiffs’ counsel prior to October 10, 2017, began on September 26, 2017, when attorney Blaustein drafted a letter to the Court concerning what became plaintiffs’ contempt motion, see Time Records at 11, and continued on October 6 and 9, 2017, when Blaustein again addressed the contempt motion. Id. at 9.
On October 19, 2019, attorney Dowd spent 2.1 hours (for which he billed $1,155) on “corr S. Leviss re service of Infomir GmbH, corr client re same, corr S. Leviss re santions [sic], review potential objections to Rule 11 decision, address discovery issues.” Time Records at 8. With the possible exception of “address discovery issues,” all of these tasks relate to plaintiffs’ claims against other defendants (or potential defendants) and/or their previously-filed Rule 11 motion. That same day, attorney Blaustein spent some portion of the seven hours he devoted to this case (for which he billed $2800) on plaintiffs’ “Rule 54.2 motion.” Time Records at 8. This was an effort (ultimately unsuccessful) to obtain an order under Local Civil Rule 54.2 requiring two unrelated defendants – Informir LLC and “Goodzone TV” – to post bonds for costs. (See Dkt. Nos. 383, 616.) These tasks – and others like them scattered throughout Dunnington's invoices and time records – are not reimbursable under the 9/28/18 Order because they do not relate to plaintiffs’ damages discovery against the Defaulted Defendants (and therefore were not caused by the Defaulted Defendants’ violations of my post-default discovery orders), nor to the sanctions motion that plaintiffs filed on October 10, 2017. Moreover, plaintiffs made no attempt to redact or discount the block-billed entries in which these tasks appear.
*7 Other time entries on and after October 10, 2017, reflect many hours spent processing and reviewing third-party discovery that was subpoenaed prior to October 10, 2017. For example, plaintiffs seek reimbursement for more than sixty entries (the majority occurring after October 10, 2017) related to the Setplex documents. See Time Records at 1-6, 8-12. However, plaintiffs’ efforts to obtain documents from Setplex began much earlier. They served Setplex with a document subpoena on August 11, 2017, and on September 27, 2017, they entered into a stipulation governing the production of confidential documents (Dkt. No. 358), which I so-ordered (as modified) on October 5, 2017. (Dkt. No. 365.) As noted above, Setplex ultimately did produce damages-related documents which made up for some (though not all) of the deficiencies in Yevdayev's production. See 9/28/18 Order at 9-10. These documents are unquestionably relevant to the pending damages inquest against the Defaulted Defendants. However, since plaintiffs first asked for them in August 2017 – well before I issued the first of the two discovery orders that the Defaulted Defendants are now being sanctioned for violating – I cannot conclude that any of counsel's Setplex-related work was “caused by” those violations.[6]
Plaintiffs also seek reimbursement for the considerable time they spent preparing for, taking, and reviewing the transcripts of Yevdayev's depositions on November 9 and December 8, 2017. See Time Records at 2-3, 5-6. These depositions, however, took place pursuant to the 9/8/17 and 10/25/17 Orders (indeed, the 10/25/17 Order directed him to appear for deposition by November 10, 2017, which he did), and thus can hardly be characterized as having been “caused by” his “failure to obey” those orders. To be sure, Yevdayev's testimony on key points was “not credible,” see 9/28/18 Order at 17, which – coupled with the remainder of his “evasive conduct,” see id. at 19 – furnished the necessary grounds for the award of sanctions. But those sanctions, as delineated in the 9/28/18 Order, are intended to cover the fees and other expenses reasonably incurred in “seeking and obtaining additional damages-related discovery” after the Defaulting Defendants’ violations. Id. at 25. The Yevdayev deposition – which plaintiffs’ counsel would have prepared for, taken, and reviewed under any scenario – is simply not covered by my monetary sanctions order.
3. Recalculation of Fees
Having carefully reviewed Dunnington's invoices and time records, I conclude that plaintiffs are entitled to fees for some or all of the work performed by the following timekeepers on the following dates:

This does not mean, however, that all of the hours listed above (for which Dunnington billed plaintiffs $51,012.50) are compensable in a sanctions award. Some of the time entries are partially redacted and highlighted in blue. As to these entries, plaintiffs acknowledge that a 35% discount is appropriate. See 11/1/18 Dowd Decl. ¶ 8. Other entries, although not redacted or highlighted by plaintiffs, clearly reveal a mix of compensable and non-compensable work. For example, although attorney Blaustein devoted eight hours to this action on October 9, 2017, some portion of that time – quite possibly the largest portion – was spent preparing plaintiffs’ “Opp. to Fraade letter re: Rule 11,” which is not within the scope of the 9/28/18 Order.
After reviewing all of the time entries for which some reimbursement is in order (as well as the corresponding entries on the Court's electronic docket, where available), I have determined to apply a 40% discount across the board. See John Wiley & Sons, Inc. v. Book Dog Books, LLC, 327 F. Supp. 3d 606, 640 (S.D.N.Y. 2018) (quoting McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006)) (“A court may ‘use a percentage deduction as a practical means of trimming fat from a fee application.’ ”). As with any percentage deduction, there is a risk that too much fat has been trimmed. However, Dunnington's extensive use of block-billing has prevented the Court from applying a more nuanced approach. Moreover, plaintiffs’ aggressive approach to the instant fee application – including their request that Panorama and Yevdayev pay for their Local Rule 54.2 bond application against two unrelated defendants, their Rule 11 litigation against Panorama's former counsel, and other matters clearly outside of the scope of the 9/28/18 Order – militates against giving them the benefit of the doubt in a close call. Thus, plaintiffs will be awarded $30,607.50 in fees.
C. Costs
*8 The 9/28/18 Order entitles plaintiffs to recover their “out-of-pocket costs” as well as their fees incurred in “seeking and obtaining additional damages-related discovery” and “preparing and pursuing their sanctions motion.” 9/28/18 Order at 25. Plaintiffs request $8,592.93 in costs, representing 40% of the total costs reflected on the Dunnington invoices submitted with their fee application. 11/1/18 Dowd Decl. ¶ 10. Attorney Dowd explains that he “reasonably estimate[d]” that more than half of the firm's out-of-pocket costs during the relevant period were attributable to “work related to discovery investigation and the sanctions motion,” but “in an exercise of good faith billing practices” requested only 40% of those costs as sanctions. Id.
An application for costs must be substantiated by the requesting party. Hernandez v. JRPAC Inc., 2017 WL 66325, at *2 (S.D.N.Y. Jan. 6, 2017). “Court fees reflected on the Court's docket are sufficiently substantiated, as are costs for which a claimant provides extrinsic proof, such as an invoice or receipt.... A sworn statement or declaration under penalty of perjury that certain amounts were expended on particular items is ordinarily also sufficient.” Id. (internal citations omitted). Here, the application for costs is not sufficiently substantiated.
Plaintiffs have not produced any evidence of their costs other than the list of disbursements contained in the 11/29/17 Invoice (at ECF pages 19-20) and the 1/29/18 Invoice (at ECF pages 42-43). Many of the costs listed therein are labeled generically (e.g., “binding expense,” “postage,” “photocopy charge,” “Westlaw”), without any reference to a particular party or issue. Even where the costs are clearly tied to specific hearings or depositions – such as the many “outside service” charges from companies that provide court reporting services – plaintiffs have not submitted the invoices themselves. Nor does attorney Dowd provide any basis for the “reasonable estimate” he provides in his declaration. I therefore cannot conclude that 40% – or any other portion – of the costs listed in the invoices are reimbursable under the 9/28/18 Order. Since plaintiffs have not met their burden of proving they are entitled to the costs they seek, no costs will be awarded. See CJ Prod. LLC v. Your Store Online LLC, at *2 (S.D.N.Y. Oct. 3, 2012) (denying costs where plaintiffs “failed to provide any supporting documentation to substantiate the costs they incurred”).
III. CONCLUSION
For the reasons stated above, it is hereby ORDERED that plaintiffs are awarded sanctions in the amount of $30,607.50, pursuant to Rule 37(b), against defaulted defendants Panorama Alliance, LP and Asaf Yevdayev, jointly and severally. Payment is to be made within thirty days of this Order. The Clerk of Court is respectfully requested to mail a copy of this order to Panorama Alliance, LP at 1 Lyric Square, London, United Kingdom, W6 0NB, and to Asaf Yevdayev at 115 Langham Street, Brooklyn, NY 11235.
SO ORDERED.
Footnotes
The factual background and procedural history relevant to the instant fee award are described in more detail in the Court's prior opinions in this action, including Joint Stock Co. Channel One Russia Worldwide v. Infomir LLC, 2017 WL 825482, at *1-5 (S.D.N.Y. Mar. 2, 2017) (the 3/2/17 Report), report and recommendation adopted, 2017 WL 1321007 (S.D.N.Y. Mar. 30, 2017) (the 3/30/17 Order); Joint Stock Co. Channel One Russia Worldwide v. Infomir LLC, 2017 WL 3671036 (S.D.N.Y. July 18, 2017) (the 7/18/17 Order and Report), report and recommendation adopted, 2017 WL 4712639 (S.D.N.Y. Sept. 28, 2017) (the 9/28/17 Order); and Joint Stock Co. Channel One Russia Worldwide v. Infomir LLC, 2018 WL 4760345, at *1-5 (S.D.N.Y. Sept. 28, 2018) (the 9/28/18 Order). Familiarity with these opinions is assumed.
For the sake of consistency, all citations herein to prior orders and opinions issued in this action (whether or not published) use the page numbers appearing in the original order or opinion as posted on the Court's electronic docket.
In 2016 – before they named Yevdayev as a defendant – plaintiffs took his deposition in connection with Panorama's motion to dismiss the claims against it for lack of personal jurisdiction. See Order dated Sept. 28, 2016 (Dkt. No. 126), ¶ 2. After Panorama lost that motion, see 3/2/17 Report, 3/30/17 Order, plaintiffs filed the FAC, adding Yevdayev as an individual defendant. As noted above, neither Panorama nor Yevdayev answered the FAC.
I also imposed an adverse inference sanction and directed that certain damages-related facts be taken as established. 9/28/18 Order at 25.
Wholly apart from the timing issue, plaintiffs appear to seek reimbursement for work performed during this period that was entirely unrelated to the damages inquest against the Defaulted Defendants or the sanctions motion underlying the 9/28/18 Order. For example, attorneys Dowd and Blaustein, as well as paralegal Vidulich, spent as much as 20 hours (due to block-billing it is difficult to be more precise) on October 2, 5, and 6, 2017, working on letters and other documents in an attempt (ultimately unsuccessful) to supplement and expand plaintiffs’ previously-filed motion (Dkt. No. 134) seeking sanctions pursuant to Fed. R. Civ. P. 11 against Panorama and attorney Alan Fraade, who represented Panorama prior to its default. See Time Records at 9-10. Whether performed before or after October 10, 2017, these services are not reimbursable as sanctions pursuant to the 9/28/18 Order.
Moreover, much of plaintiffs’ Setplex-related work consisted of responding to Setplex's confidentiality designations and related sealing requests, and was thus traceable to the October 5, 2017 confidentiality stipulation and order rather than any misconduct by the Defaulting Defendants.