OPINION AND ORDER

REPORT AND RECOMMENDATION ON DEFENDANT STANLEY SPIEGEL'S AMENDED FEE PETITION (#159).

GEORGE A. O'TOOLE, JR., District Judge.

The magistrate judge to whom this case was referred issued a report and recommendation (dkt. no. 204) ("R&R") concerning defendant Stanley Spiegel's Amended Motion for Attorney Fees (dkt. no. 159). The R&R recommends ordering the plaintiff's attorney to pay $20,396.61 of defendant Spiegel's fees and costs as a sanction for violating Rule 11 of the Federal Rules of Civil Procedure. Defendant Spiegel has filed timely objections to the R&R. No objection or response was filed by the plaintiff.

It is important to emphasize that Spiegel does not present a claim based in substantive law for money damages. Rather, his argument is that Ames should be sanctioned—i.e., punished—for litigation misconduct under the authority of Federal Rule of Civil Procedure 11. The purpose of the sanction is to deter similar misconduct in the future. It is not to make Spiegel whole for litigation expenses incurred. The failure of the ordered sanction to make him whole is therefore not a reason to disagree with the Magistrate Judge's analysis.

After review of the motion papers, affidavits, and billing entries, I OVERRULE defendant Spiegel's objections and ADOPT the R&R in full. I agree that an award of attorney fees in the amount of $43,560 is greater than necessary to serve as an effective deterrent in this case. The recommended sanction of $20,396.61, which is itself sizable, appropriately balances Rule 11 deterrence against the very real financial cost to Spiegel.

It is SO ORDERED.

I. Introduction.

After a hearing on June 8, 2017, I concluded that defendant Stanley Spiegel's renewed motion for sanctions pursuant to Fed. R. Civ. P. 11 (#91) as to plaintiff's attorney, Brooks Ames, should be allowed (#130), and I issued a Report and Recommendation to that effect on June 9, 2017, which is incorporated here by reference. (#132.)1 Specifically, I recommended "that under Rule 11(c)(4), the District Court order Attorney Ames to pay attorneys' fees and other expenses incurred by Spiegel after the District Court dismissed the first amended complaint against him and allowed [plaintiff Gerald] Alston to replead." (#132 at 12.) Attorney Ames objected to the Report and Recommendation. (#138.) Spiegel also filed an objection, arguing that the award of fees should be calculated from an earlier date. (#139.) The district court, O'Toole, J., adopted the Report and Recommendation to the extent that it recommended imposing sanctions, but ordered that the award of fees and expenses should run from the date on which counsel for Spiegel served plaintiff's counsel with a Rule 11 "safe harbor" notice, March 8, 2016. (#153.)

II. Rule 11.

Federal Rule of Civil Procedure 11(b) provides, in relevant part:

See, e.g., Eldridge v. Gordon Bros. Grp., L.L.C., 863 F.3d 66, 87-88 (1st Cir. 2017); Caffeinate Labs, Inc. v. Vante Inc., No. CV 16-12480-GAO, 2017 WL 2889031, at *1 (D. Mass. July 6, 2017) (citations omitted) ("Rule 11 is designed to deter parties from pursuing unwarranted or frivolous claims or defenses."); Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228, 247 (1st Cir. 2010) ("Rule 11 . . . finds its justification exclusively in deterrence.").2

Having determined that Attorney Ames violated Rule 11(b) by repeatedly filing essentially frivolous complaints against Spiegel, Rule 11(c)(1) authorizes the imposition of sanctions. See, e.g., Thomas Tierney v. Town of Framingham, No. CV 17-11657-FDS, 2018 WL 850078, at *7 (D. Mass. Feb. 13, 2018). Rule 11 mandates that "[a] sanction imposed under this rule must be limited to what suffices to deter repetition of conduct." Fed. R. Civ. P. 11(c)(4). When the imposition of attorneys' fees is warranted, the court may issue "an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation." Fed. R. Civ. P. 11(c)(4); see, e.g., Yokozeki v. Carr-Locke, No. CV 13-12587-MBB, 2017 WL 1160569, at *5 (D. Mass. Mar. 28, 2017), on reconsideration in part, No. CV 13-12587-MBB, 2017 WL 2818981 (D. Mass. June 29, 2017). With this framework in mind, the court will first calculate reasonable attorneys' fees and then decide what portion of them should be assessed against Attorney Ames for purposes of deterrence.

III. Reasonable Attorneys' Fees and Costs.

Spiegel has filed an amended fee petition in which he seeks $95,260.00 in attorneys' fees and $1,424.27 in costs.3 (#166 ¶ I.) The proposed hourly rate for Attorney Martin Rosenthal and Attorney David Duncan is $500.00 per hour, while the proposed rate for Attorney Naomi Shatz is $300.00 per hour.

The First Circuit has explained how a court is to calculate reasonable attorneys' fees:

Matalon v. Hynnes, 806 F.3d 627, 638 (1st Cir. 2015) (internal quotation marks and citations omitted); Gross v. Sun Life Assurance Co. of Canada, 880 F.3d 1, 22 (1st Cir. 2018); Hefter Impact Techs., LLC v. Sport Maska, Inc., No. CV 15-13290-FDS, 2017 WL 5798642, at *2 (D. Mass. Nov. 28, 2017); Anderson v. Brennan, 267 F.Supp.3d 270, 274 (D. Mass. 2017). "The party seeking fees must submit evidence in support of the hours worked and rates claimed; if the documentation is inadequate, the award may be reduced." Marshall v. Rio Grande River Ltd. Partnership, 162 F.Supp.3d 54, 58 (D. Mass. 2016) (citation omitted).

A. Reasonable Hours Expended.

This case was overlitigated by Spiegel's lawyers. The allegations against Spiegel in the amended complaint were limited to five paragraphs;4 the changes from the first to the second amended complaint were cosmetic, and certainly not substantive. Yet Spiegel's bill essentially doubled when the time spent litigating the first motion to dismiss was added to the fee, see n.3, supra. The hours spent on the motion to dismiss the second amended complaint should not have been approximately equal to the time spent on the initial motion to dismiss. Much of the time responding to the second amended complaint was spent repackaging earlier filings. With regard to the second amended complaint, Spiegel filed a motion to dismiss (#80) together with an eight-page memorandum contending that the second amended complaint "does not allege anything substantially new or different about Spiegel's actions." (#81 at 2.) Plaintiff submitted a nine-page opposition in which he incorporated his opposition to Spiegel's first motion to dismiss and his objection to the Report and Recommendation. (#84.) Spiegel filed a renewed motion for Rule 11 sanctions (#91) and a ten-page reply brief. (#95.)

On February 1, 2017, I issued a Report and Recommendation (#98) recommending Spiegel's motion to dismiss be granted, with prejudice. Specifically, I noted that

(#98 at 7.) (internal citations omitted). Plaintiff objected to this Report and Recommendation in a nine-page pleading. (#99.) Spiegel responded with an eight-page response, in which he relied on "reasons that have been repeatedly set out" in his prior filings. (#101 at 8.) In a subsequent pleading, Spiegel again acknowledged that "[g]iven the opportunity to amend his complaint, [Attorney Ames] effectively re-filed the same complaint, adding a handful of immaterial additional allegations." (#151-2 at 7-8.)

While Spiegel's counsel views this course of events as underscoring the frivolous nature of Attorney Ames' pleadings, that observation cuts both ways. Since plaintiff's pleadings were repetitious, it was unwarranted for Spiegel's counsel repeatedly to file lengthy responses incorporating versions of the same arguments. A ten percent reduction will be taken to reflect these redundant hours.5

1. Attorney Rosenthal.

Attorney Rosenthal's hours billed on 03/13/2016, 03/14/2016 and 04/05/2016, a total of 8.5 hours, should be excluded.6 (#159-1; #161 at 6-8.) The hours billed on those days are for activity with respect to Brookline's Diversity Commission (DICRC), which does not "directly result[] from the violation." Fed. R. Civ. P. 11(c)(4). The same is true with respect to the 9.2 hours billed by Attorney Rosenthal on insurance coverage issues on 04/28/2016, 05/04/2016, 05/17/2016, 06/07/2016, 06/11/2016, 06/14/2016, 07/01/2016, 07/02/2016, 08/11/2016, 08/12/2016, and 09/24/2016.7 (#159-1; #161 at 8-9.) Exploration of potential insurance coverage, while related to the representation of his client, is nonetheless peripheral for present purposes.

Much or all of Attorney Rosenthal's time on a substantial number of days was spent on telephone calls and/or reading and drafting emails. See, e.g., #159-1, 04/01/2016, 04/02/2016, 04/06/2016, 04/09/2016, 04/11/2016, 04/15/2016, 04/19/2016, 05/05/2016, 05/24/2016, 05/25/2016, 09/02/2016, 09/13/2018 09/17/2016, 09/19/2016, 09/22/2016, 09/23/2016, 09/25/2016, 09/29/2016, 09/30/2016, etc. Given the block billing entries where Attorney Rosenthal engaged in several tasks, including telephone call and emails, it is impossible to allocate the time among the activities.8 Rather than applying a different hourly rate for core versus noncore activities, the court will apply the same reasonable hourly attorney rate to all entries, but will reduce the hours for which recompense is sought by thirty percent to account for time spent on "less demanding" tasks9 and for block bill entries. See Matalon, 806 F.3d at 638-40.

Applying these deletions and reductions, Attorney Rosenthal's reasonable hours are 56.26.

2. Attorney Duncan.

Attorney Duncan also spent time on less demanding tasks such as telephone calls, conferences and emails (see, e.g., #159-2, 03/09/2016, 03/14/2016, 04/02/2016, 04/04/2016, 04/09/2016, 04/14/2016, 09/30/2016, 11/01/2016, etc.), but not with the frequency of Attorney Rosenthal.10 A twenty percent reduction will be applied to account for this less demanding work, including work performed on the fee petition. In all other respects, the remaining hours billed by Attorney Duncan, 49.92, were reasonable.11

3. Attorney Shatz.

The time spent by Attorney Shatz on the fee petition should be reduced by twenty percent, as it is less demanding work. In all other respects, her hours, 33.1, are reasonable.12

B. Reasonable Hourly Rates.

With respect to the second part of the lodestar analysis,

Norkunas v. HPT Cambridge, LLC, 969 F.Supp.2d 184, 197 (D. Mass. 2013) (internal quotation marks and citations omitted). Spiegel's three attorneys have filed affidavits detailing their impressive credentials in support of their fee petition. Attorney Rosenthal received his J.D. from Stanford Law School in 1971, and has been licensed to practice law in Massachusetts since 1973. (#141-1 ¶ 1.)13 He has had a lengthy career as a criminal defense trial attorney, supervising attorney, training director at the Committee for Public Counsel Services (CPCS) and author. Id. ¶¶ 2, 7. Since 1992 Attorney Rosenthal has been a solo practitioner. Id.¶ 4. He has held positions and leadership roles on bar-related and civic committees. Id. ¶¶ 5, 6. Attorney Rosenthal's practice is entirely litigation, predominantly consisting of criminal defense work and bar discipline cases. Id. ¶ 9. His current hourly rate for private clients is in the range of $600-$750. Id. ¶ 11. In this case he is requesting a reduced rate of $500.00 per hour due to his "lesser civil litigation and civil rights cases experience." Id.

Attorney Duncan graduated from the University of Pennsylvania Law School in 1982 and has been admitted to practice law in Massachusetts since 1986. (#141-2 ¶ 1.)14 He has been a partner in his current firm, Zalkind, Duncan & Bernstein LLP, or its predecessors, since 1990. Id. ¶ 3. Attorney Duncan describes his practice as being primarily litigation with an emphasis on criminal defense work and also student disciplinary matters. Id. ¶¶ 5, 6. He has done some civil work, including two cases involving First Amendment issues. Id. ¶ 6. Attorney Duncan states that his hourly rate for private clients ranges from $600-$750 per hour. Id. ¶ 7. In this case he is requesting a reduced rate of $500.00 per hour in light of the fact that he has "not extensively litigated civil rights cases." Id.

Attorney Shatz, a Yale Law School graduate, has been licensed to practice law in Massachusetts since 2010, and has been an associate at Zalkind, Duncan & Bernstein LLP since 2012. (#141-3 ¶¶ 1-2.)15 While her principal area of practice is civil litigation, Attorney Shatz also engages in criminal defense work and student disciplinary matters. Id. ¶ 6. She currently charges an hourly rate of $325-$425 for private clients, but is requesting a reduced rate of $300.00 per hour in this case. Id. ¶ 7.

Apart from their own affidavits, as the sole support for their requested hourly rates,16 Spiegel's counsel have submitted the affidavit of David W. White, Jr., a litigator since 1986 and a named partner in his firm who specializes in personal injury and insurance law. (#141-4 ¶¶ 1-2.) While his affidavit reflects that Attorney White is an accomplished lawyer, id. ¶ 5, he claims no experience in civil rights litigation. Attorney White opined that:

Id. ¶ 10.

Given his limited experience in the civil rights realm, the fees requested by Attorney Rosenthal are excessive. See Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984) ("[T]he burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney's own affidavits— that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.") (emphasis added); E.E.O.C. v. AutoZone, Inc., 934 F.Supp.2d 342, 356-58 (D. Mass. 2013). "Courts generally accord additional weight to an attorney's expertise and experience in determining a reasonable fee only to the extent that her expertise and experience is relevant to the subject matter of the litigation." E.E.O.C., 934 F. Supp. 2d at 357. In recent years, the prevailing rate for experienced civil rights attorneys has been set at around $400.00 per hour. See Ciolino v. Eastman, No. CV 13-13300-ADB, 2016 WL 6246757, at *1 (D. Mass. Oct. 25, 2016) (reviewing cases); E.E.O.C., 934 F. Supp. 2d at 358; Marshall, 162 F. Supp. 3d at 59; Carpaneda v. Domino's Pizza, Inc., 89 F.Supp.3d 219, 228-29 (D. Mass. 2015). A reasonable rate for Attorney Rosenthal in this case is $350.00 per hour. See, e.g., E.E.O.C., 934 F. Supp. 2d at 358 ("Godkin's proposed rate of $425 is too high, given the apparent dearth of his employment discrimination experience. In light of Godkin's extensive record as an accomplished federal litigator, however, an upward adjustment can be made. Accordingly, this Court holds that Godkin is entitled to a rate of $350 per hour."); Porter v. Cabral, No. CIVA 04-11935-DPW, 2007 WL 602605, at *13 (D. Mass. Feb. 21, 2007), aff'd sub nom. Cabral v. U.S. Dep't of Justice, 587 F.3d 13 (1st Cir. 2009) ("Given Mr. Savage's limited experience in civil rights litigation, but rather lengthy and meaningful experience in civil and criminal litigation, I find that an hourly rate of $325, slightly less than that of the most experienced civil rights attorneys like Mr. Schwartz, to be appropriate."). A reasonable attorney's fee for Attorney Rosenthal is $17,503.50.

The same hourly rate of $350.00 should be applied for Attorney Duncan, for the same reasons. A reasonable attorney's fee for Attorney Duncan is $17,472.00.

While Attorney Shatz states that she has "litigated . . . civil rights . . . claims in this court, other federal district courts, and Massachusetts in state courts" (#141-3 ¶ 5), no further explanation of the depth or breadth of this experience has been proffered. Based on the evidence provided, an appropriate rate for Attorney Shatz is $250.00 per hour. See, e.g., Tri-City Community. Action Program, Inc. v. City of Malden, 680 F.Supp.2d 306, 316 (D. Mass. 2010); Ferraro v. Kelley, No. CIV.A. 08-11065-DPW, 2011 WL 576074, at *5-6 (D. Mass. Feb. 8, 2011). A reasonable attorney's fee for Attorney Shatz's work would be $8,587.50.

C. Costs.

Spiegel seeks $1,424.27 in expenses from March 9, 2016. (#159-2 ¶ 3 and Exh. B.)17 The bulk of the expenses relate to Westlaw research. Although Spiegel seeks to recoup the costs of Westlaw research undertaken on 03/31/2016 (two separate entries), 04/19/2016 (two separate entries), 05/31/2016, 10/29/2016, 05/31/2017 and 07/31/2017, there are no corresponding entries on the attorney time sheets for those dates. Similarly, although Spiegel requests the costs for Pacer research conducted on 06/30/2016, 09/17/2016 and 01/03/2017, there are no attorney time entries for those dates.18 Spiegel has failed to establish that these costs were incurred by his attorneys in his case, and so they are not recoverable.

Costs for Westlaw usage are also sought for 09/21/2016, 09/29/2016, 11/25/2016, 02/19/2017, and 06/30/2017; there are time entries for either Attorney Duncan or Attorney Shatz on each those dates. The compensation costs for Westlaw legal research is $393.41. There are attorney time entries on 09/02/2016 and 09/30/2016, the final dates on which Pacer research is noted. A total of $3.20 is compensable for use of Pacer.

IV. Additional Considerations.

Attorney Ames advances arguments against the imposition of sanctions based on the factors set out in the advisory note to Rule 11.19 He states that he has been licensed to practice law in Massachusetts since 1998, and spent the first five years of his career as a trial lawyer for CPCS. (#147-1 ¶ 3.) For the next two years he worked at a medical malpractice defense firm, and then in 2005 Attorney Ames joined DLA Piper in Boston practicing in the areas of complex business litigation and representing large international companies that were the subject of government investigations. Id. ¶¶ 4-5. In 2014 he left DLA Piper and established his own practice. Id. ¶ 9. The following year Attorney Ames, along with two other Brookline residents (one of whom is his wife), founded a non-profit corporation "to address systemic justice issues in Brookline." Id. The majority of his professional time is now devoted to the work of the non-profit. Id.

Attorney Ames notes that in his nineteen-year career, he has never been sanctioned.20 Id. ¶ 10. Further, in his affidavit, Attorney Ames states that his "household income dropped substantially after I chose to leave DLA Piper and proposed sanctions would have a severe financial impact on our family." (#147-1 ¶ 9.)21 This is a legitimate factor for the court to consider in determining the amount of a sanction to be imposed. See Id.; Irwin Indus. Tool Co. v. Bibow Indus., Inc., No. CIV.A. 11-30023-DPW, 2014 WL 1323744, at *8 (D. Mass. Mar. 31, 2014) (noting that attorney "operates a small law office and that the imposition of a large sanction could `threaten financial disaster.'").

Lastly, it is important to bear in mind that the First Circuit, albeit eight years ago, noted that sanctions in "the mainstream in this circuit . . . typically amount to less than $10,000." Lamboy-Ortiz, 630 F.3d at 249. It is true that the Lamboy-Ortiz decision is distinguishable from the case at bar. See #152-1 at 2-3. However, so, too, is the case upon which Spiegel relies, Rogers v. Cofield, 935 F.Supp.2d 351, 362-85 (D. Mass. 2013), where attorneys' fees and costs were awarded to compensate pursuant to a statute, 42 U.S.C. § 1988,22 rather than as a sanction to deter under Rule 11.

V. Recommendation.

Having considered and weighed all of the relevant factors, I find that the total of $43,560.00 "exceeds the amount of reasonable attorney's fees `warranted for effective deterrence.' Fed. R. Civ .P. 11(c)(4)." Yokozeki, 2017 WL 2818981, at *2. I find that the sum of $20,000.00 in attorneys' fees would serve as an effective deterrent. I RECOMMEND that a sanction in the amount of $20,396.61, comprised of attorneys' fees plus costs, be imposed upon Attorney Ames.

VI. Review by District Court Judge.

The parties are advised that any party who objects to this Report and Recommendation must file specific written objections with the Clerk of this Court within 14 days of the party's receipt of it. The objections must specifically identify the portion of the Recommendation to which objections are made and state the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed. R. Civ. P., shall preclude further appellate review. See Keating v. Secretary of Health & Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); see also Thomas v. Arn, 474 U.S. 140 (1985).