Opinion
00 Civ. 5959(RCC)(FM), 00 Civ. 6262 (RCC)(FM), 01 Civ. 1814(RCC)(FM)
December 18, 2003
OPINION AND ORDER
Introduction
This landlord-tenant dispute, which finds its way into federal court based on diversity of citizenship, has been the subject of several prior opinions, familiarity with which is presumed. In brief, when these suits were commenced, Ms. Lindsay Jenkins ("Jenkins") owned two units in a cooperative apartment building ("Building") located at 178 East 80th Street on Manhattan's Upper East Side. The cooperative corporation ("Coop") contended that Jenkins was renting out these units in violation of her proprietary lease. Both units have since been sold and Jenkins now resides in London, England.
Present Issue
The sole remaining dispute between Jenkins and the Coop arises out of a settlement agreement ("Agreement") that Jenkins and the Coop entered into in April 2001. Pursuant to the Agreement, which was "so ordered" by Judge Casey on April 9, 2001, Jenkins agreed not to have any overnight guests in her apartments for more than two weeks in any six-month period, and that such guests could be present only when she was "contemporaneously physically there." (Agreement ¶ 7). The Agreement further provided that any application to enforce its terms could be heard and resolved by me pursuant to 28 U.S.C. § 636(c). (Id. ¶ 17).
The Coop contends that Jenkins violated the Agreement in 2002 by having an individual named Frank Marrero ("Marrero") stay in her apartment for a period exceeding two weeks during which she was not also present. After this alleged violation was drawn to my attention, I issued an order ("OSC"), returnable November 1, 2002, which required Jenkins to show cause why she should not be adjudicated in contempt of court, and sanctioned and fined, for violating the terms of both the Agreement and an order that I had signed on August 15, 2002 ("Order"). (See Docket Nos. 25, 29). The Order required that by August 26, 2002: (1) the Coop produce to Jenkins documents relevant to its allegation that she had violated Paragraph 7 of the Agreement, and (2) Jenkins produce to the Coop documents relating to Marrero's stay in her apartment, including any pages of her passport needed to establish her whereabouts between July 8 and August 8, 2002. (Order ¶ 2). In addition, the Order required the parties to arrange dates for the Coop to depose Jenkins and for Jenkins to depose the doormen and any other witnesses the Coop might call at the hearing. (Id. ¶ 3).
The Coop subsequently sent Jenkins copies of the relevant documents in its possession. (See OSC Ex. 9). Despite her professed interest in securing discovery, however, Jenkins never took any steps to depose the Coop's witnesses and did not produce any of the documents required by the Order. (See OSC (Aff. of Steven D. Sladkus, Esq., sworn to on Sept. 13, 2002 ("Sladkus Aff."), ¶¶ 18-20)). Jenkins also failed to make herself available to be deposed. (Id. ¶ 20).
As the OSC hearing date approached, Jenkins filed a series of motions, including a motion which asked Judge Casey to vacate the reference to me and require my recusal. As a consequence of those motions, I delayed the OSC hearing to afford Judge Casey an opportunity to rule. By Opinion and Order dated August 22, 2003, Judge Casey denied those motions.See 178 East 80th Street Owners Corp. v. Jenkins. 2003 WL 22004900 (S.D.N.Y. Aug. 22, 2003). Thereafter, I scheduled the OSC hearing for October 3, 2003. (Docket No. 43). It is clear that Jenkins had notice of this hearing date because she was faxed a copy of my order setting the hearing date at the fax number in London that she typically has used to communicate with the Court. Moreover, on September 29, 2003, Ms. Jenkins faxed to my Chambers a copy of a "notice of appeal" to Judge Casey from my decision to hold the OSC hearing on October 3, 2003.
Hearing and Findings
The OSC hearing was held, as scheduled, on October 3, 2003. Ms. Jenkins did not appear at the hearing. (10/3/03 Tr. 3). The sole witness called by the Coop was Joseph Seda, a doorman at the Building. In addition, the Coop asked that I deem the exhibits to the OSC application part of the hearing evidentiary record, which request was granted. (See id. at 14). Those exhibits include the affidavits of several other Building doormen.
On the basis of Seda's uncontradicted testimony and the documents received into evidence, I find as follows:
1.Jenkins allowed Marrero to use her apartment at the Building continuously from approximately July 8 through August 8, 2002. She was present at the Building on the day that Marrero moved in and introduced him to Seda. Thereafter, however, Jenkins did not occupy the apartment during the period of approximately one month that Seda was using it as his residence.
2.Jenkins' own letter to the Coop's managing agent, dated July 5, 2002, confirms her intention to have Seda stay in her apartment for more than the permitted two-week period since it states that Marrero would be staying with her "through July 25th." (OSC Ex. 3).
3.Seda's occupancy of the apartment for more than two weeks during the summer of 2002 constitutes a violation of Paragraph 7 of the Agreement.
4.Jenkins' letter and her refusal to produce documents or submit to a deposition concerning her whereabouts confirm that she committed this violation of the Agreement knowingly.
5.By refusing to comply with court-ordered discovery, Jenkins also knowingly violated the Order.
6.Having knowingly violated both the Agreement and the Order, Jenkins is in contempt of Court.Damages and Sanctions
In its OSC application, the Coop indicated that it would seek to recover the damages resulting from Jenkins' contumacious conduct, including "all legal fees, costs and disbursements which the Coop has been (and will be) forced to incur." (Sladkus Aff. ¶ 27) (emphasis in original).
Ordinarily, each party to a lawsuit is responsible for his or her own attorney's fees. In this case, because Jenkins was a tenant in a cooperative apartment building, I assume that her proprietary lease contained a fee-shifting provision. See, e.g.,Isaacs v. Jefferson Tenants Corp., 704 N.Y.S.2d 71 (1st Dep't 2000) ("Plaintiff was properly required to pay defendant cooperative association's legal costs and disbursements pursuant to paragraph 28 of the proprietary lease. . . ."). The Coop has not alleged, however, that Jenkins' decision to let Marrero use her apartment violated the terms of the proprietary lease. Accordingly, the lease is not a basis for awarding the Coop any fees or disbursements.
Nevertheless, Local Civil Rule 83.9 provides, in part, that:
If the alleged contemnor is found to be in contempt of court, an order shall be entered . . . (2) setting forth the amount of damages, if any, to which the complainant is entitled; (3) fixing the fine, if any, imposed by the court, which fine shall include the damages found and naming the person to whom such fine shall be payable;. . . .
Local Civ. R. 83.9(c). The Rule further provides that a "reasonable counsel fee, necessitated by the contempt proceedings, may be included as an item of damage." Local Civ. R. 83.9(a).
The Coop seeks to recover legal fees in the amount of $41,062 and expenses in the amount of $4,111.96 through September 25, 2003, based on detailed records it has presented to the Court. (See Supplemental Aff. of Steven D. Sladkus, sworn to Oct. 2, 2003 ("Sladkus Supplem. Aff."), ¶ 9 Exs. A, B). The Coop also seeks to recover an additional $2,400 in fees (i.e., ten hours of attorney time) and $50 in expenses which it estimated would be incurred through the close of the hearing. (Id. ¶ 10).
Jenkins has not submitted any papers taking issue with any of these requests. Despite Jenkins' failure to respond to the fee application, I have independently reviewed the time records, which indicate that three attorneys at the Wolf, Haldenstein firm devoted time to this case in response to Jenkins' violations of the Agreement and Order. Of these attorneys, I am only familiar with Mr. Sladkus, an associate at the firm, who has had the laboring oar in connection with this matter and has acted with considerable skill.
Although Mr. Sladkus' affidavit seeking an award of legal fees does not set forth his professional history, this Court can take judicial notice of its own attorney admission records which confirm that he was admitted in this District in 1995. On that basis alone, it is clear that Mr. Sladkus' hourly billing rate — which increased from $210 to $240 over time — is fair and reasonable.
An internet search further indicates that Mr. Sladkus received his J.D. from Brooklyn Law School in 1994 and his L.L.M. in Taxation from New York University School of Law in 1995. See http://www.martindale.com/xp/Martindale/home.xml (last visited Dec. 18, 2003).
After careful review of the Coop's fee request, I have made several downward adjustments. First, I have eliminated certain of the entries for attorneys other than Mr. Sladkus based on (1) the Coop's failure to identify them by name and set forth their professional credentials; (2) the fact that the billings for these attorneys often reflect office conferences with Mr. Sladkus; and (3) my belief that there was no need for additional "`quality control" personnel to review Mr. Sladkus' work.
Second, I have adjusted two entries for work performed by Attorney "39" on October 30 and November 11, 2002, at billing rates higher than those of Mr. Sladkus by reducing the hourly rate to Mr. Sladkus' then current billing rate. (This results in a $742.50 reduction.)
Third, there are certain time entries which appear to relate to the sale of Jenkins' units at the Coop, an action which was consistent with the Coop's goals and the terms of the Agreement and, therefore, in no way related to the Coop's allegations that she should be adjudicated in contempt.
Fourth, I have eliminated in their entirety any time entries which relate to insurance since the Coop has not explained how they relate to its application for contempt sanctions.
Fifth, I have eliminated a time entry related to the preparation of a letter to "Monitor" since I have no idea how this relates to the Coop's OSC.
Finally, I have reduced the reimbursable time after September 23, 2003, to seven hours, resulting in a reduction of $720. (3 x $240 = $720). I also have eliminated the estimated $50 in additional expenses.
The specific time entries that I have eliminated or adjusted may be summarized as follows:
Date Timekeeper Rate Hours Amount
07/30/02 39 $265 .8 $212.00
09/05/02 39 265 1.0 265.00
09/13/02 39 265 2.2 583.00
9/17/02 39 265 .4 106.00
9/18/02 39 265 .4 106.00
9/18/02 11 335 .4 134.00
9/19/02 15 300 .9 270.00
9/19/02 39 265 .3 79.50
9/19/02 197 210 1.5 315.00
9/23/02 39 265 .3 79.50
9/25/02 39 265 .7 185.50
10/02/02 39 265 .9 238.50
10/04/02 15 300 .2 60.00
10/04/02 14 375 .3 112.50
10/11/02 15 300 .1 30.00
10/11/02 39 265 .5 132.50
10/15/02 39 265 .4 106.00
10/24/02 39 265 .7 185.50
10/29/02 39 265 1.0 265.00
10/30/02 39 (-55) 6.8 374.00
11/01/02 39 265 .5 132.50
11/04/02 11 335 .5 167.50
11/04/02 197 210 2.0 420.00
11/04/02 39 265 1.4 371.00
11/08/02 39 265 2.6 689.00
11/11/02 39 (-55) 6.7 368.50
11/15/02 11 335 .2 67.00
11/15/02 15 300 .1 30.00
11/15/02 14 375 .3 112.50
11/15/02 39 265 .3 79.50
11/19/02 14 375 .3 112.50
11/21/02 14 375 .4 150.00
12/03/02 39 265 .3 79.50
12/10/02 39 265 1.6 424.00
12/11/02 39 265 .3 79.50
7/15/03 197 210 .3 63.00
9/23/03 14 400 .6 240.00
Total $7,425.50
After making these adjustments, I find that the reasonable and reimbursable expense incurred by the Coop for legal fees in connection with its successful application to have Jenkins adjudicated in contempt is $32,916.50. ($41,062 — 7,425.50 — 720).
I also have reviewed the Coop's disbursements in connection with its contempt application, (see Sladkus Supplem. Aff. Ex. B), which I find are reasonable. Accordingly, I award as this element of the Coop's damages the full amount requested (other than the $50 in estimated future disbursements), i.e., $4,111.96.
The Coop also requests, albeit halfheartedly, that I award as damages the legal fees occasioned by Jenkins' violations of the Agreement, the Order, and this Court's other orders and stipulations dating back to April 2001. (See Sladkus Aff. ¶¶ 24-25). These damages are not detailed in the Coop's papers and evidently are unrelated to the events underlying the OSC. Accordingly, I decline to award such damages.
Finally, although I am not imposing a fine in addition to the Coop's direct damages, I recognize that collection of the sums awarded may prove difficult since Jenkins is apparently no longer living in the United States. For that reason, I have determined that the Coop should also be awarded interest on its damages from October 3, 2003, at the rate of nine percent per annum.
As Local Civil Rule 83.9 requires, I direct that Jenkins be fined the amount of $37,028.46, ($32,916.50 + 4,111.96), together with interest from October 3, 2003, through the date of payment at the rate of nine percent per annum, and that this fine be payable to 178 East 80th Street Owners, Inc.
SO ORDERED.