Opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________________

JOHN R. ANDREWS, JR., DECISION

and

Plaintiff, ORDER

v.

21-CV-746-LJV(F)

TOWN OF WEST SENECA,

DONALD DRISCOLL

JEFFREY COIA,

JAMIE PAPPACENO,

GERALD FIBICH,

ROBERT DEPPELER,

Defendants.

_____________________________________

APPEARANCES: RUPP PFALZGRAF LLC

Attorneys for Plaintiff

JONATHAN P. CANTIL,

MATTHEW E. GABALSKI,

PAUL D. JAGER,

YOUNG WOO KIM,

R. ANTHONY RUPP, III, of Counsel

1600 Liberty Building

424 Main Street

Buffalo, New York 14202

BAKER & SMITH PC

Counsel for Defendants

ARTHUR J. SMITH, of Counsel

125 Jericho Turnpike, Suite 302

Jericho, New York 11753

In a Decision and Order filed April 9, 2026 (Dkt. 103), the court directed

Defendants to respond to Plaintiff’s request for an award of attorneys fees incurred in

connection with Plaintiff’s motion to compel filed January 16, 2026 (Dkt. 93) which was

granted in a Decision and Order filed March 26, 2026 (Dkt. 101). On May 5, 2026,

Defendants filed the Declaration of Arthur J. Smith in opposition to Plaintiff’s request of

$3,460.50, see Paul D. Jager Attorney Declaration (Dkt. 104) ¶ 4, filed on April 27, 2026

(Dkt. 105) (“Smith Declaration”). In the Smith Declaration, (Dkt. 105) ¶¶ 6-8, 12,

Defendants argue Plaintiff’s request is unreasonable given the relatively simple issue

raised by Plaintiff’s motion, viz. that Defendants’ discovery responses were overdue.

See March 26, 2026 D&O (Dkt. 101) at 2. Defendants further argue Plaintiff failed to

provide any information in support of Plaintiff’s counsel’s $250 hourly billing rate, Smith

Declaration ¶ 30, or that Plaintiff’s counsel has actually billed Plaintiff for the amount of

fees sought to be awarded. Id. at ¶ 31.

“[I]n determining a fee award, the typical [starting] point is the so-called lodestar

amount, that is ‘the number of hours reasonably expended on the litigation multiplied by

a reasonable hourly rate.’ ” New York v. Grand River Enterprises Six Nations, Ltd., 2021

WL 4958653, at *2 (W.D.N.Y. Oct. 26, 2021) (quoting Healy v. Leavitt, 485 F.3d 63, 71

(2d Cir. 2007) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983))). “In calculating

the lodestar amount, the initial burden is on the requesting party to submit evidence

supporting the number of hours worked and the hourly rate claimed.” Grand River

Enterprises Six Nations, Ltd., 2021 WL 4958653, at *2 (citing Hensley, 461 U.S. at 433).

“A reasonable hourly rate is a rate ‘in line with...prevailing [rates] in the community for

similar services by lawyers of reasonably comparable skill, expertise and reputation.’”

McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Tr. Fund, 450

F.3d 91, 96 (2d Cir. 2006) (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984),

and citing Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058-59

(2d Cir. 1989)). “[O]nly those hours ‘reasonably expended’ are to be awarded.” Id.

(quoting Hensley, 461 U.S. at 434–35). Attorney fees awarded as a sanction are not

intended to provide the prevailing party with a windfall, but “merely to compensate [ ] for

additional expenses incurred on this single discovery matter.” Matteo v. Kohl's Dept.

Stores, Inc., 2012 WL 5177491, at *7 (S.D.N.Y. Oct. 19, 2021). Further, courts often

employ an across-the-board reduction in hours to “trim the fat.” See McDonald v.

Pension Plan of the NYSA–ILA Pension Trust Fund, 450 F.3d 91, 96 (2d Cir. 2006) (“A

district court may exercise its discretion and use a percentage deduction ‘as a practical

means of trimming fat from a fee application.’”) (quoting Kirsch v. Fleet St., Ltd., 148

F.3d 149, 173 (2d Cir. 1998)) (further internal quotation). The fee application “must be

supported by contemporaneous time records, affidavits and other materials.” McDonald

ex rel. Prendergast, 450 F.3d at 96.

Here, based on Plaintiff’s computerized record of Paul D. Jager’s, Plaintiff’s main

attorney on Plaintiff’s motion (“Jager”), time and hourly rates, see Dkt. 104-1, the court

determines that Jager incurred 6.1 hours in preparing Plaintiff’s motion to compel

between January 12 and January 16, 2026, which consisted of Plaintiff’s counsel’s four

page Declaration (Dkt. 93-1), five exhibits (Dkt. 93-1-6) and a five page Memorandum of

Law (Dkt. 93-7), which at his then hourly rate of $250 resulted in a reimbursable fee of

$1,525. Further, in response to Defendants’ Attorney Declaration in opposition to

Plaintiff’s motion to compel, filed January 30, 2026 (Dkt. 98), Jager prepared Plaintiff’s

Reply (Dkt. 100), filed February 6, 2026, consisting of a four page Memorandum of Law

(Dkt. 100) and a three page Attorney Declaration (Dkt. 100-1) which required Plaintiff to

incur 2 hours, 42 minutes of lawyer time. At Jager’s then slightly increased hourly rates

of $275 per hour this resulted in a fee of $742.56. In sum, Plaintiff thus incurred a total

of 8 hours, 48 minutes of lawyer time in prosecuting Plaintiff’s motion for a total fee of

$2,267.50 which appears to the court to be a reasonable basis for making an award in

this case pursuant to Fed.R.Civ.P. 37(a)(5)(A). Additionally, the fees of Charlie Morse

and Jonathan Cantil, incurred on February 6, 2026, and Jager’s post-February 6, 2026

fees, according to the computerized record, (Dkt. 104-1), are disallowed as

unsupported. However, finding some merit in Defendants’ opposition based on the

uncomplicated nature of the issue presented on Plaintiff’s motion, i.e., Defendants’

belated service of Defendants’ required discovery responses, the court will exercise its

discretion and reduce the amount of Plaintiff’s fees by $500 for a total award of

$1,767.50. As this amount is close to the $1,000 figure Defendants deemed

reasonable, see Smith Declaration (Dkt. 105) ¶ 29, the court presumes it is not

necessary to require Plaintiff to provide supplemental information regarding justification

for Jager’s hourly billing rates nor as to whether Jager’s firm has billed Plaintiff for the

fees requested as Defendants argued. See Smith Declaration ¶¶ 30, 31.

CONCLUSION

Based on the foregoing, Plaintiff’s application (Dkt. 104) is GRANTED in the

amount of $1,767.50 to be paid by Defendants’ counsel.

SO ORDERED.

/s/ Leslie G. Foschio

_________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

Dates: May 13, 2026

Buffalo, New York