United States District Court, D. Vermont
DECISION ON MOTION FOR ATTORNEYS FEES (DOC.
GEOFFREY W. CRAWFORD, CHIEF JUDGE UNITED STATES DISTRICT
case concerns two primary issues: (1) a claim originally
filed in New York state court by Top Ridge Investments, LLC
("Top Ridge") against Defendants Anichini, Inc.,
Anichini Hospitality, Inc., Anichini Retail, Inc., and Susan
Dollenmaier to collect on a promissory note and personal
guaranty; and (2) counterclaims by Defendants against Top
Ridge, its principal Jeffrey Tauber and Royal Heritage House,
LLC ("RHH"). The case was removed to the Southern
District of New York (see Docs. 1, 9, 17) and
transferred to the District of Vermont (Doc. 23).
case went to trial before a jury in December 2017. The jury
did not address Top Ridge's breach-of-contract claim on
the promissory note, since the parties did not dispute
default or the principal amount owed ($453, 269.16).
(See Doc. 142 at 10-11.) The jury found against the
Anichini parties on their misrepresentation claim against
RHH,  and found that RHH breached a term of its
contract for the acquisition of the Anichini companies, but
that the Anichini parties had not proved that the breach
caused damages. (Doc. 146.) The court has ordered a new trial
on the counterclaims and third-party claims. (Doc. 162.)
Ridge seeks an award of attorneys fees in the amount of $489,
297.50 and costs in the amount of $28, 776.38. (Docs. 152,
160, 161.) In their Objection to Top Ridge's fees
request, the Anichini parties state that:
(1) Top Ridge should only recover for fees it actually
incurred and paid. Since Plaintiffs counsel was retained and
paid by RHH, Top Ridge should not recover fees.
(2) Top Ridge should not recover fees incurred in the defense
of claims against RHH and Jeffrey Tauber;
(3) RHH's breach of its agreement to acquire the Anichini
companies and employ Ms. Dollenmaier prevents Top Ridge from
recovering fees or costs incurred when the promissory note
went unpaid as a consequence of RHH's actions.
(Doc. 155.) Top Ridge maintains that its application for an
award of attorneys fees should be granted. (Doc. 156.)
follows the "American Rule," under which
"parties bear their own litigation costs, including
attorney's fees, unless provided otherwise by contract or
statute." Walsh v. Cluba, 2015 VT 2, ¶ 15,
198 Vt. 453, 117 A.3d 798. In this case, as described below,
the relevant contracts do include fee-shifting provisions.
Since fees must be reasonable, id., the court will
first address the proof of the reasonableness of the
attorneys fees. It will then address the three issues raised
by the Anichini parties in the Objection they filed to the
claim for attorneys fees (Doc. 155).
reviewing Top Ridge's fee request, the court begins with
the "lodestar" method. This method depends upon a
determination of the number of hours reasonably expended on
the litigation and a reasonable hourly rate. Blum v.
Stenson, 465 U.S. 886, 888 (1984); Arbor Hill
Concerned Citizens Neighborhood Ass'n v. Cty. of
Albany, 522 F.3d 182, 186 (2d Cir. 2008). Although not
always conclusive, the lodestar calculation creates a
"presumptively reasonable fee," and absent
extraordinary circumstances, failure to calculate it as a
starting point is legal error. Millea v. Metro-North R.R.
Co., 658 F.3d 154, 166 (2d Cir. 2011).
court sets forth its lodestar calculation below. The lodestar
method has been described as an "economic model,"
but there is also the 12-factor "Johnson"
approach-a model that is based on the court's
"experience and judgment." See Arbor Hill,
522 F.3d at 187-88. The court recognizes the doubt cast in
recent cases on the 12-factor test established in Johnson
v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
1974). See Klipsch Grp., Inc. v. ePRO E-Commerce
Ltd., 880 F.3d 620, 634 n.8 (2d Cir. 2018) (citing
Perdue v. Kenney A. ex rel. Winn, 559 U.S. 542,
550-52 (2010). Here-as in A ex rel. Mr. A. v.
Hartford Board of Education, No.
3.11-CV-01381-GWC, 2017 WL 187138, at *2 (D. Conn. Jan. 17,
2017)-the court concludes that the "best course is to
avoid becoming fixated on any particular method," and to
instead consider both the lodestar and Johnson
upon the declarations submitted by Plaintiffs lead counsel
Mark Gross and Vermont counsel Mark Werle, the court finds
that the hourly rates charged by the attorneys are reasonable
in amount. Multiple partners, associates, and paralegals
representing Top Ridge billed hours on this case, including
Mr. Gross and associates at his current and former firms- Fox
Rothschild LLP ("Fox") and Greenbaum, Rowe, Smith
& Davis, LLP ("Greenbaum"), respectively-as
well as Mr. Werle and associates at his Vermont firm (Ryan
Smith & Carbine ("RSC")). Mr. Gross billed at
hourly rates between $516.33 and $535.30. Mr. Werle and his
partners billed at hourly rates in the $240-250 range.
(See Docs. 152-3, 152-4.)
figures are not challenged by counsel for the Anichini
parties. They are reasonable and supported in light of the
Johnson factors, including the experience and duties
of the attorneys and paralegals and the market rates for
counsel from the New York region. The rates are consistent
with the experience of this court in attorneys fee
litigation. See, e.g., Bank of Am., N.A. v. New England
Quality Serv., Inc., No. 5:16-cv-83 (D. Vt. Aug.
2, 2018), ECF No. 134 (finding $280 hourly rate to
be reasonable in commercial lending case); see also A. ex
rel. Mr. A., 2017 WL 187138, at *7 (approving an hourly
rate of $450 to experienced Hartford area attorney in
educational IDEA litigation).