Serin v. Northern Leasing Systems, Inc.

11-1778-cv (L)
Serin v. Northern Leasing Systems, Inc.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 26th day
of October, two thousand twelve.

Present:
AMALYA L. KEARSE,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER, JR.,
Circuit Judges.
________________________________________________

MELINDA SERIN, JUDSON RUSS, LONG SOUI LIM,
GORDON REDNER, THOMAS J. SMITH,

Plaintiffs-Appellees-Cross-Appellants,

CHITTUR & ASSOCIATES, P.C.,

Cross-Appellant,

PERI KETTLER,

Plaintiff-Appellee,

v. Nos. 11-1778-cv (Lead)
11-2139-cv (XAP)
NORTHERN LEASING SYSTEMS, INC.,

Defendant-Appellant-Cross-Appellee,
JAY COHEN, RICH HAHN, SARA KRIEGER,

Defendants.
_______________________________________________

For Plaintiffs-Appellees: KRISHNAN CHITTUR, STEVEN LIM, & KEITH ALTMAN,
Chittur & Associates, P.C., New York, N.Y.

For Defendant-Appellant: ROBERT DAVID LILLIENSTEIN, Moses & Singer LLP,
New York, N.Y.

Appeal from the United States District Court for the Southern District of New York
(Gwin, J.).

ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

Defendant-Appellant-Cross-Appellee Northern Leasing Systems, Inc. (“Northern”) and

Plaintiffs-Appellees-Cross-Appellants (collectively, “the plaintiffs”) both appeal from an April

22, 2011 judgment of the United States District Court for the Southern District of New York

(Gwin, J.), which awarded the plaintiffs’ attorneys $594,359 in fees and $43,006.46 in expenses.

In 2006, the plaintiffs sued Northern and other defendants, alleging violations of the Racketeer

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962, and of N.Y. Gen. Bus.

Law § 349. In 2010, the parties settled for $295,000. As part of the settlement, Northern agreed

not to challenge the plaintiffs’ right to apply for an award of attorneys’ fees, but reserved the

right to dispute the amount of any such award. The plaintiffs requested attorneys’ fees in the

amount of $3,457,282. Ultimately, the district court awarded fees and expenses in the amounts

noted above.

“We afford a district court considerable discretion in determining what constitutes

reasonable attorney’s fees in a given case, mindful of the court’s ‘superior understanding of the

litigation and the desirability of avoiding frequent appellate review of what essentially are

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factual matters.’” Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 151 (2d Cir. 2008)

(quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)); see also Riordan v. Nationwide Mut.

Fire Ins. Co., 977 F.2d 47, 53 (2d Cir. 1992). A dispute over attorneys’ fees “should not result in

a second major litigation.” Hensley, 461 U.S. at 437. The goal of fee shifting is to do “rough

justice, not to achieve auditing perfection.” Fox v. Vice, 131 S. Ct. 2205, 2216 (2011). Here, the

district court did not abuse its discretion.

Northern first argues that the district court should have reduced the plaintiffs’ fee award

in light of the fact that the plaintiffs recovered only a fraction of the $10 million they sought in

their complaint. On review, we think that the district court was justified in its decision not to

impose any reduction on this basis. The plaintiffs’ attorneys secured a substantial settlement for

their clients. Moreover, we have previously noted that even attorneys who achieve modest

financial returns for their clients should receive fees for the time they spent “defend[ing] against

frivolous motions and [making] motions to compel compliance with routine discovery demands.”

Kassim v. City of Schenectady, 415 F.3d 246, 252 (2d Cir. 2005). Here, the district court found

that the “[d]efendants have purposely engaged in dilatory tactics, disputing every discovery

request of the Plaintiffs, even where that information was obviously discoverable.” Serin v. N.

Leasing Sys., Inc., No. 06–CV–1625, 2011 WL 1467560, at *2 (S.D.N.Y. Apr. 19, 2011). Thus,

the district court did not abuse its discretion when it declined to reduce the plaintiffs’ award of

fees.

Next, Northern argues that the district court should have reduced the award of attorneys’

fees in light of certain attorneys’ failure to keep contemporaneous time records. In the federal

courts, “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)

(per curiam). However, the plaintiffs also brought state-law claims under N.Y. Gen. Bus. Law

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§ 349, and “New York courts have specifically rejected the ‘hard and fast rule that reconstructed

time records can never serve as a basis for compensation’ in favor of wider trial court discretion

in evaluating fee petitions.” Riordan, 977 F.2d at 53 (quoting In re Karp, 537 N.Y.S.2d 510, 515

(1st Dep't 1989)). Here, the district court reduced the number of hours attributed to the relevant

attorneys by thirty-five percent, in part due to the lack of contemporaneous records. Given the

different standards governing the federal and state-law claims and the substantial overlap

between the factual predicates supporting those claims, we conclude that the district court did

not abuse its discretion.

Finally, the plaintiffs argue that the district court abused its discretion when it reduced

their attorneys’ billing rates and when it declined to multiply their total fee award by a factor of

four. The district court, however, made these decisions after extensive consideration of existing

precedents. See Blum v. Stenson, 465 U.S. 886, 895 (1984) (calculating “reasonable fees”

according “to the prevailing market rates in the relevant community”); In re “Agent Orange”

Prod. Liab. Litig., 818 F.2d 226, 234 (2d Cir. 1987) (“[A]n adjustment to the lodestar figure . . .

would only be proper in ‘the rare case where the fee applicant offers specific evidence to show

that the quality of service rendered was superior . . . and that the success was “exceptional.”’”

(quoting Blum, 465 U.S. at 899)). Accordingly, we find no abuse of discretion.

We have considered the parties’ remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED.

FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK

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