Commercial Litigation and Arbitration

No Rule 37(c) Sanctions on Counsel — Fees for Time on Sanctions Motion and Fee App OK — Reasonable Fees: Court Looks to Lawyer’s Customary Rates, NLJ Survey; Rates OK’ed in Various SDNY Cases Listed — No Partner Rates for Associate Work

Pichardo v. C.R. Bard, Inc., 2015 U.S. Dist. LEXIS 10722 (S.D.N.Y. Jan. 26, 2015):

Defendants C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. have moved for monetary sanctions against Jean Prabhu, Esq., the attorney who represents plaintiff Glenny Pichardo in this litigation. Pursuant to Rule 16(f) of the Federal Rules of Civil Procedure, the Court awards defendants the reasonable attorney's fees they incurred in connection with (1) their motion to strike plaintiff's expert witness designations and expert witness responses [*2]  and to exclude plaintiff's identified experts from testifying or otherwise supplying evidence, and (2) this motion for sanctions.

I. Background

Pichardo filed this personal injury and products liability suit against defendants, who manufactured an allegedly defective inferior vena cava ("IVC") filter that had been surgically implanted in Pichardo. The following litigation history is relevant to this motion for sanctions:

  • In September 2009, this case was commenced and assigned to this Court as related to an earlier filed action entitled Lindsay v. C.R. Bard, Inc., 09-Cv-5475.
  • On February 1, 2011, the Court signed an order to which the parties had stipulated that extended the deadline for Pichardo to submit her expert reports to March 31, 2011. (Dkt. No. 31.) The Court had already extended this deadline once previously. (Dkt. No. 25.) Pichardo's attorney did not submit her client's reports on that date and did not request an extension from the Court.
  • Five weeks after the deadline had passed, on May 9, 2011, Pichardo's attorney wrote to the Court requesting that she "be permitted additional time for our Expert Exchanges to July 29, 2011." (Dkt. No. 35.) The Court denied that request. [*3]  (See Dkt. Nos. 35-36.)
  • By letter to defendants dated June 8, 2011--one month after she had requested additional time and more than two months after the deadline--Pichardo's attorney identified as her experts the same five experts that the plaintiff in Lindsay had previously identified and attached copies of the same reports he had already submitted in his case. (Dkt. No. 39, Exs. 1-A-1-E.)
  • One month later, defendants filed a "motion to strike plaintiff's expert witness designations and expert witness responses and to exclude Plaintiff's identified experts from testifying or otherwise supplying evidence." (Dkt. No. 37.)
  • Three weeks after that, Pichardo's attorney filed a motion for extension of time to complete discovery for the purpose of having her experts examine the IVC filter that had been extracted from Pichardo on June 1. (Dkt. No. 47.) The Court denied that motion because plaintiff "has proffered no reason for its delay in seeking the extension for approximately 2 months (from 6/3 until 7/25) following removal of the device." (Dkt. No. 61.)

Defendants subsequently filed a motion for summary judgment, which the Court granted. (Dkt. No. 88.) The Court concluded that Pichardo had [*4]  not actually retained the experts on whose reports she had relied (Dec. 22, 2012 Tr. of Oral Arg. at 45-50), and held that "[w]ithout any expert evidence in the record that supports any causal connection between the filter and Pichardo's injury, Pichardo's claims cannot withstand this motion for summary judgment" (id. at 49).

Pichardo appealed this Court's grant of summary judgment to the U.S. Court of Appeals for the Second Circuit. In April 2014, that court issued a summary order vacating this Court's order and remanding for further proceedings on the ground that this Court had improperly denied Pichardo's motion to extend discovery to permit an expert witness to examine her extracted IVC filter. Pichardo v. C.R. Bard, Inc., 563 F. App'x 58, 62 (2d Cir. 2014). It reasoned that this denial "effectively prevented Pichardo from presenting evidence the court considered necessary to oppose the motion for summary judgment," and that the grant of summary judgment therefore functioned as a sanction on Pichardo due solely to her attorney's failure to follow the Court's scheduling order. Id. at 61. The panel found that Pichardo herself was not at fault and that the delays were caused by her attorney's "sloppiness and neglect." Id. at 62. It concluded that "it would be more appropriate [*5]  for the court to sanction Pichardo's attorney rather than bar Pichardo from completing necessary expert examinations and, as a consequence, dismissing her case." Id.

Defendants now move this Court to award monetary sanctions against Pichardo's attorney. Specifically, they request reimbursement of the attorney's fees they incurred in connection with making or opposing the following motions:

  • Defendants' motion to strike plaintiff's expert witness designations and expert witness responses and to exclude plaintiff's identified experts from testifying or otherwise supplying evidence ("motion to strike plaintiff's experts"). (Dkt. No. 37.)
  • Pichardo's motion for extension of time to complete discovery. (Dkt. No. 47.)
  • Defendants' motion for summary judgment. (Dkt. No. 51.)
  • Defendants' motion in limine to strike the opinions of Robert McMeeking and Matthew Begley. (Dkt. No. 55.)
  • Defendants' motion in limine to strike the opinions of Joseph F. Dyro. (Dkt. No. 58.)
  • Defendants' motion for sanctions. (Dkt. No. 106.)

Pichardo's attorney submitted a memorandum of law opposing this motion for sanctions (Dkt. Nos. 110-11), as well as one opposing defendants' detailed application for attorney's [*6]  fees (Dkt. No. 130). She also presented her position through oral argument before the Court on October 16, 2014 and in a telephone conference held on January 21, 2015.

II. Discussion

A. Sanctions Are Warranted Pursuant to Rule 16(f) for Pichardo's Attorney's Violation of the Court's February 1, 2011 Scheduling Order

Defendants request that the Court impose monetary sanctions on Pichardo's attorney in the form of attorney's fees pursuant to Rule 16(f) of the Federal Rules of Civil Procedure and this Court's inherent authority.1

1   Although defendants initially urged the Court to award sanctions pursuant to Rule 37(c) of the Federal Rules of Civil Procedure, they later conceded that this rule does not authorize sanctions against a party's attorney. Apex Oil Co. v. Belcher Co. of N.Y., Inc., 855 F.2d 1009, 1014 (2d Cir. 1988) ("By its express terms, Rule 37(c) applies only to a party."); Gregory [P]. Joseph, Sanctions: The Federal Law of Litigation Abuse 716 (5th ed. 2013).

1. Legal Standard

Rule 16(f) provides that "[o]n motion or on its own, the court may issue any just orders" if a party's attorney "fails to obey a scheduling or other pretrial order." Fed. R. Civ. P. 16(f)(1)(C). It further states that "[i]nstead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses--including attorney's fees--incurred because of any noncompliance with this rule, unless the noncompliance [*7]  was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 16(f)(2). A finding of bad faith is not a prerequisite to an award of sanctions pursuant to Rule 16(f). Charles Alan Wright et al., 6A Federal Practice & Procedure § 1531 (3d ed.) (footnote omitted); cf. Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006) ("Since Rule 37(c)(1) by its terms does not require a showing of bad faith, we now hold that such a requirement should not be read into the Rule.").

District courts may also impose monetary sanctions by way of their inherent power "to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (internal quotation marks and citation omitted). In contrast with Rule 16(f), however, the court must make a finding of bad faith before invoking its inherent power to impose sanctions. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980); United States v. Seltzer, 227 F.3d 36, 40-42 (2d Cir. 2000).

2. Sanctions Are Warranted Pursuant to Rule 16(f)

Although defendants urge the Court to utilize its inherent power to sanction Pichardo's attorney, the Court does not find that she acted in bad faith during the course of this litigation. Consequently, its inherent authority does not provide a proper basis for awarding attorney's fees here.

Rule 16(f), however, does support the imposition of sanctions. Pichardo's attorney violated Rule 16(f)(1)(C) when she failed to submit [*8]  her expert reports on March 31, 2011, in contravention of the Court's February 1, 2011 scheduling order. As a result, defendants filed a motion to strike plaintiff's experts, in which they argued principally that the Court should preclude Pichardo's identified experts from testifying because she submitted their reports more than two and one-half months late. (See generally Defs.' Mem. of Law in Supp. of Mot. to Strike, Dkt. No. 38.) Defendants submitted that motion "because of" Pichardo's attorney's noncompliance with the Court's scheduling order. See Fed. R. Civ. P. 16(f)(2). Consequently, requiring her to reimburse defendants for the attorney's fees they incurred in making that motion is appropriate.

Moreover, Pichardo's attorney's failure to comply with the Court-ordered expert report deadline of March 31 was not substantially justified. First, she waited until May 9 to request an extension of time to submit her reports, more than one month after the deadline had passed. (Dkt. No. 35.) Second, in her opposition to defendants' motion to strike plaintiff's experts, Pichardo's attorney offered no justification or explanation for her behavior. Rather, she argued only that her late submission did not result [*9]  from "gamesmanship" or "foot-dragging" and that defendants suffered no prejudice. (Pl.'s Mem. of Law in Opp'n to Mot. to Strike 10-11, Dkt. No. 41.) That Pichardo's attorney's noncompliance was apparently a result of her negligence or her sloppiness rather than strategy, however, does not make it "substantially justified," as Rule 16(f)(2) requires. See Fed. R. Civ. P. 16(f)(2). The Court is aware of no "other circumstances" that would "make an award of expenses unjust." See id.

In addition, the Court imposes sanctions in the form of the reasonable attorney's fees that defendants incurred in litigating this motion for sanctions. This sanction is appropriate because defendants made this motion to recoup the losses they suffered as a result of Pichardo's attorney's noncompliance with the Court's February 1 order. See Fed. R. Civ. P. 16(f)(2); Norelus v. Denny's, Inc., 628 F.3d 1270, 1298 (11th Cir. 2010) ("If there were no sanctionable conduct there would have been no proceeding to impose sanctions."). District courts in this Circuit routinely award attorney's fees for the preparation of sanctions motions and fee applications. See Thai Lao Lignite (Thailand) Co. v. Gov't of the Lao People's Democratic Republic, No. 10 CIV. 5256, 2011 WL 4111504, at *10 (S.D.N.Y. Sept. 13, 2011); Spanski Enters., Inc. v. Telewizja Polska, S.A., No. 07 Civ. 930, 2009 WL 3270794, at *5 (S.D.N.Y. Oct. 13, 2009); see also Weyant v. Okst, 198 F.3d 311, 316 (2d Cir. 1999) ("[A] reasonable fee should be awarded for time reasonably spent in preparing and defending an application [*10]  for § 1988 fees.").

Although defendants ask the Court to award them fees for four other motions listed above, those motions did not directly result from Pichardo's attorney's disregard of the Court's February 1, 2011 scheduling order. Therefore, those requested sanctions do not meet the standard of Rule 16(f).

B. Sanctions in the Amount of $10,000 Are Appropriate

1. Legal Standard

When determining the amount of attorney's fees to award, the court begins with the lodestar--"the product of a reasonable hourly rate and the reasonable number of hours required by the case." Millea v. Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (internal quotation marks omitted); see also Short v. Manhattan Apartments, Inc., 286 F.R.D. 248, 255 (S.D.N.Y. 2012) (utilizing the lodestar approach in calculating attorney's fees awarded as sanctions). The lodestar creates a "presumptively reasonable fee," Millea, 658 F.3d at 166, although the court may modify it "in those rare circumstances in which [it] does not adequately take into account a factor that may properly be considered," Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010).

A reasonable hourly rate is based on "the prevailing market rates in the relevant community," Perdue, 559 U.S. at 551, for "similar services by lawyers of reasonably comparable skill, experience, and reputation," Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998). An inquiry into the reasonableness of an hourly rate may "include judicial notice of the rates awarded in [*11]  prior cases and the court's own familiarity with the rates prevailing in the district." Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 59 (2d Cir. 2012) (internal quotation marks omitted). The Second Circuit utilizes the "forum rule," which requires use of "the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee." Bergerson v. N.Y. State Office of Mental Health, Cent. N.Y. Psychiatric Ctr., 652 F.3d 277, 290 (2d Cir. 2011) (internal quotation marks omitted).

In determining a reasonable number of hours expended, the court "should look at the amount of time spent on each task, and then decide how much of that time was reasonably expended given 'the scope and complexity of the particular litigation.'" Short, 286 F.R.D. at 256 (quoting N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983)). The court must exclude hours that are "excessive, redundant, or otherwise unnecessary." Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The question, however, "is not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures." Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992).

The party seeking fees bears the burden of demonstrating the reasonableness of its request. Blum v. Stevenson, 465 U.S. 886, 897 (1984). Accordingly, the fee application must include "contemporaneous time records" that "specify, for each attorney, the date, the hours expended, and the nature of the work done." Handschu v. Police Dep't of the City of N.Y., 679 F. Supp. 2d 488, 505 (S.D.N.Y. 2010) (quoting [*12]  Carey, 711 F.2d at 1148)).

2. Defendants Have Shown that Attorney's Fees in the Amount of $10,000 Are Reasonable

After the Court ordered defendants to submit detailed information on the attorney's fees they incurred in making their motion to strike plaintiff's experts and this motion for sanctions (Dkt. No 121), defendants filed a fee application in which they requested $53,647.50 for both motions. (Defs.' Reply in Supp. of Amended App. for Attorney's Fees ("Defs.' Reply"), Dkt. No. 133, at 5-6.) For the reasons explained below, the Court reduces that amount to $10,000.

a. Reasonable Rate

Defendants seek fees for the eight attorneys and support staff in two major law firms who worked on the two motions. In Reed Smith LLP, the Manhattan-based personnel were: Daniel Winters, a partner with more than twenty years of experience; Jessica Shook and Janice Kubow, associates with over five years of experience; and Shimaree Evans, a project associate. (Defs.' Reply 3.) In Nelson Mullins Riley & Scarborough LLP, the Atlanta-based personnel were: Richard North and Taylor Daly, senior partners with more than 30 years of experience; Deirdre McCool, a partner with over 20 years of experience; and Sanjay Ghosh, a senior associate [*13]  with ten years of experience. (Defs.' Reply 2-3.)

In 2011, when defendants filed their motion to strike plaintiff's experts, their attorneys' hourly billing rates were $425 for Winters, $350 for Kubow, $310 for North and Daly, $280 for McCool, and $250 for Ghosh. In 2014, when defendants filed this motion for sanctions, their attorneys' hourly rates were $550 for Winters, $375 for Shook, $135 for Evans, $375 for North, $365 for Daly, $365 for McCool, and $270 for Ghosh. (Ex. A to Defs.' Amended App. for Attorney's Fees, Dkt. No 125.)

Prabhu urges the Court to reduce these hourly rates on the basis that defendants have not proven their reasonableness. Specifically, defendants did not include in their moving papers any description of the experience of their attorneys or any comparison of their rates to the market rates in the Southern District of New York. In their reply papers, however, defendants identified the number of years of practice experience that each attorney possesses. (Defs.' Reply 2-3.) They also submitted a December 2012 article from The National Law Journal that lists the low, high, and median hourly rates charged by partners and associates at 55 law firms nationwide. (Ex. [*14]  B to Defs.' Mem. of Law in Supp. of Amended App. for Attorney's Fees, Dkt. No. 126.)

At the phone conference held on January 21, 2015, Pichardo's attorney responded to the information defendants had provided in their reply brief. Citing Danaher Corp. v. Travelers Indem. Co., No. 10 CIV. 0121, 2014 WL 4898754 (S.D.N.Y. Sept. 30, 2014), she argued that defendants still had not adequately supported their fee application because The National Law Journal article depicted a nationwide survey of billing rates and did not compare rates charged by firms within this district. In addition, that article did not explain how the surveyed firms' hourly rates varied between partners and associates with different levels of experience. Defendants conceded these deficiencies, but argued that because the rates typically charged by firms in the Southern District of New York rank among the highest in the nation, the article provides an adequate baseline against which the Court is able to compare defendants' requested rates.

Based on a review of the relevant case law and the Court's own familiarity with, and knowledge of, the prevailing rates for legal services in this district, the Court agrees with defendants. See Townsend, 679 F.3d at 59. In fact, defendants' attorneys' hourly rates are well within or below the range that [*15]  courts in this district have approved for attorneys of comparable skill and experience. S.D.N.Y. judges have awarded fees in the range of approximately $450-$700 per hour for experienced law firm partners, $250-$450 for associates, and $90-$200 for paralegals. See Regulatory Fundamentals Grp. LLC v. Governance Risk Mgmt. Compliance, LLC, No. 13 Civ. 2493, 2014 WL 4792082, at *2-3 (S.D.N.Y. Sept. 24, 2014) (citing cases and approving rates of $675 for partner and $390 for associate); Themis Capital v. Democratic Republic of Congo, No. 09 Civ. 1652, 2014 WL 4379100, at *8 (S.D.N.Y. Sept. 4, 2014) (awarding rate of $125 for paralegals); Sub-Zero, Inc. v. Sub Zero N.Y. Refrigeration & Appliances Servs., Inc., No. 13-CV-2548, 2014 WL 1303434, at *8 (S.D.N.Y. Apr. 1, 2014) (allowing rates of $485 for partner with sixteen years of experience and $200 for paralegal); Thai-Lao Lignite (Thailand) Co., Ltd. v. Gov't of Lao People's Democratic Republic, No. 10 Civ. 05256, 2012 WL 5816878, at *6 (S.D.N.Y. Nov. 14, 2012) (citing cases in which courts awarded rates of $500-700 to experienced law firm partners); Clover v. Shiva Realty of Mulberry, Inc., No. 10 Civ. 1702, 2011 WL 1832581, at *5 (S.D.N.Y. May 13, 2011) (approving rates of $500 for partner with 23 years of experience and $300 for associate with nine years of experience).

In addition, the fact that defendants were actually charged the rates set forth in their attorneys' contemporaneous timesheets submitted with this fee application provides additional evidence that the rates are reasonable. See Danaher Corp., 2014 WL 4898754, at *2 ("An attorney's customary rate is a significant factor in determining a reasonable rate. Indeed, as a logical matter, the amount actually paid to counsel by paying clients is compelling [*16]  evidence of a reasonable market rate.") (internal quotation marks and citations omitted); Anthony v. Franklin First Fin., Ltd., 844 F. Supp. 2d 504, 508 (S.D.N.Y. 2012); Diplomatic Man, Inc. v. Nike, Inc., 08 Civ. 139, 2009 WL 935674, at *6 (S.D.N.Y. Apr. 7, 2009). The Court therefore concludes that the hourly rates that defendants have requested are reasonable.

b. Reasonable Hours Expended

Fees are warranted only for the time that defendants' attorneys reasonably spent on tasks that arose from Pichardo's attorney's sanctionable conduct--in other words, her violation of the Court's February 1, 2011 scheduling order. See Fed. R. Civ. P. 16(f)(2) (fees must be incurred "because of" noncompliance); cf. Millea, 658 F.3d at 168. Specifically, with respect to the motion to strike plaintiff's experts, fees are allowable only for defendants' challenge to the untimeliness of plaintiff's expert reports, not for arguments related to their content. Similarly, defendants may recoup fees for this motion for sanctions only for hours expended in connection with their argument that the Court should sanction Pichardo's attorney's untimely submission pursuant to Rule 16(f). Defendants pursued various other unrelated arguments in the two motions for which the Court will not award fees.

The Court has reviewed the contemporaneous timesheets submitted by defendants' attorneys which describe [*17]  the tasks they completed in connection with the two motions. The Court has excluded recorded hours that did not stem from the sanctionable conduct. It has also omitted billing entries that either identified no timekeeper at all or listed a timekeeper for whom defendants provided no information. The result is reflected in the "hours recorded" columns of the tables below.

Even after this exclusion of time, most of defendants' attorneys' billing entries do not identify the particular argument to which they devoted a given task. For example, entries that state simply "review portion of draft motion to strike" or "draft reply brief in support of motion for sanctions" do not allow the Court to determine whether those expenditures of time resulted from sanctionable or unsanctionable conduct. Consequently, the Court will impose an across-the-board percentage reduction of hours to ensure that defendants' recovery is limited to fees caused by Pichardo's attorney's violation of Rule 16(f). See Kirsch, 148 F.3d at 173 (upholding 20% reduction for vagueness and other deficiencies in billing records); LV v. N.Y.C. Dep't of Educ., 700 F. Supp. 2d 510, 525-26 (S.D.N.Y. 2010).

The Court will base this across-the-board reduction on the portion of defendants' briefs that bears a reasonable relationship to [*18]  the sanctionable conduct. With regard to the motion to strike plaintiff's experts, defendants devoted approximately 21 of the 24 pages of their opening brief and four of the eight pages of their reply brief to arguments associated with the untimeliness issue. The Court will therefore reduce the hours expended on this motion by 20%. For this motion for sanctions, approximately eight of the thirteen pages of defendants' opening brief and three of the six pages of their reply brief relate to defendants' proposal that the Court sanction Pichardo's attorney pursuant to Rule 16(f) for her violation of the February 1, 2011 order. Consequently, the Court will reduce the hours expended on this motion by 40%.

Pichardo's attorney urges the Court to drastically reduce defendants' attorneys' recorded hours, suggesting a cut of at least 90%. The Court agrees with her that many of the billing entries suffer from vagueness; it has already accounted for that deficiency through its across-the-board reductions of 20% for the motion to strike plaintiff's experts and 40% for this motion for sanctions. Pichardo's attorney also contends that defendants' attorneys spent excessive time on both motions, which she characterizes [*19]  as "simplistic." She has presented an affirmation of an experienced products liability litigator who asserts that each motion could have been completed in three hours or less. (Ex. A to Pl.'s Mem. of Law in Opp'n to Amended App. for Attorney's Fees ¶¶ 7-8, Dkt. No. 130.) The Court, having engaged in private practice in S.D.N.Y. for more than two decades followed by an additional two decades of service on the bench, declines to credit this self-serving assertion.

Nonetheless, a further downward adjustment in hours expended on the motion to strike plaintiff's experts is warranted. Defendants argue that their recorded hours are reasonable because they experienced difficulty "mustering support" for their arguments in light of Pichardo's attorney's "bizarre and unorthodox" behavior, namely her submission of reports from experts she had not retained and whose reports did not directly address Pichardo's situation. (Defs.' Reply at 3.) But the only sanctionable conduct that defendants addressed in that motion was Pichardo's attorney's untimely disclosure of those reports, which presented a significantly less complex legal issue. As a result, the Court will impose a further reduction of 40% [*20]  of the hours recorded on the motion to strike plaintiff's experts.

Finally, Pichardo's attorney challenges defendants' use of six attorneys and support staff for each motion. Defendants' billing records show that, in general, each attorney performed discrete and non-duplicative tasks; furthermore, the vast majority of the work for each motion was completed by two or three attorneys. The Court finds, however, that defendants unreasonably utilized partners for work that could have been adequately and more economically completed by associates. For example, McCool--a partner with over 20 years of experience--spent more than 40 hours researching and drafting the two motions. (See Ex. 1 to Aff. Of Richard B. North dated Nov. 6, 2014, Dkt. No. 126.) Because it would have been more reasonable for a less experienced attorney to take on these tasks, the Court will impose a further across-the-board reduction of 25% of the hours recorded for both motions.

The following tables represent the hours recorded, the reasonable hours expended (after making the appropriate adjustments described above), and the reasonable hourly rate for each timekeeper. By multiplying the reasonable hours expended by the reasonable [*21]  rate for each timekeeper and then combining all timekeepers' results, the Court arrives at the lodestar: $10,354 (rounding to the nearest dollar) for the two motions. For purposes of simplicity, the Court rounds this figure to an even $10,000. The Court finds no exceptional circumstances that would justify deviation from this figure. See Millea, 658 F.3d at 169.

Motion to Strike Plaintiff's Experts



Reasonable hours





expended (after 85%









































Total Fees:


Motion for Sanctions



Reasonable hours





expended (after 65%









































Total Fees:


III. Conclusion

Because Pichardo's attorney violated the Court's February 1, 2011 scheduling order when she failed to submit her expert reports by March 31, 2011, the Court will impose monetary sanctions pursuant to Rule 16(f) of the Federal Rules of Civil Procedure. As a result of Pichardo's noncompliance, defendants incurred attorney's fees in making their motion to [*22]  strike plaintiff's experts and this motion for sanctions. Defendants have proven that they are entitled to recoup $10,000 in fees, payable by Prabhu or her firm, Bums & Harris. In accordance with the guidance set forth in the Second Circuit's summary order, 563 F. App'x at 62, the costs of these sanctions may not be passed on to the plaintiff herself.

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