Vereen v. Siegler et al

Filing 98

ORDER granting 83 Motion for Attorneys' Fees and Expenses. Attorneys' fees are awarded in the amount of $29,581.25 and costs in the amount of $2,949.56. Signed by Judge Holly B. Fitzsimmons on 6/16/11. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAIRWOOD E. VEREEN
v.
MICHAEL SIEGLER and
SEAN KRAUSS

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CIV. NO. 3:07CV1898 (HBF)

RULING ON PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND EXPENSES
On March 14 to 16, 2011, a jury trial was held on Dairwood
Vereen’s civil rights action in which he claimed arrest without
probable cause and malicious prosecution in violation of his
Fourth Amendment rights under the United States Constitution.
The jury returned a verdict in favor of plaintiff on the claim of
malicious prosecution against both defendants and awarded damages
in the amount of $15,000. Pending is plaintiff’s motion for
attorneys’ fees and expenses under 42 U.S.C. §1983 and §1988.
For the reasons that follow, plaintiff’s motion [Doc. #83]
is GRANTED in part and DENIED as set forth below.1
Determining the Amount of Fees and Costs
To determine the amount of fees to award, courts
traditionally employed the “lodestar” method: first the court
multiplied a reasonable number of hours worked by a reasonable
hourly rate to calculate the “lodestar” amount, and then adjusted

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The Court assumes familiarity with the background facts of
this case and will discuss only those facts essential to the
disposition of this application for attorney’s fees and costs.

the lodestar amount up or down based on case-specific factors.
See, e.g., Adorno v. Port Authority of New York and New Jersey,
685 F. Supp. 2d 507, 510 (S.D.N.Y. 2010).

Recently, however, the

Second Circuit has abandoned the use of the term “lodestar,”
Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of
Albany, 522 F.3d 182, 190 (2d Cir. 2008), and outlined a
different process for calculating fees.

The district court

should first determine a “reasonable hourly rate,” based on
case-specific variables, and then multiply that rate by the
number of hours reasonably expended to arrive at a “presumptively
reasonable fee.” Id.

That amount is only “presumptively”

reasonable; the court may still adjust that amount based on
relevant factors specific to the instant case. See Robinson v.
City of N.Y., No. 05 Civ. 9545(GEL), 2009 WL 3109846, at *3
(S.D.N.Y. Sept. 29, 2009) (“Following the determination of the
presumptively reasonable fee, the court must then consider
whether an upward or downward adjustment of the fee is warranted
based on factors such as plaintiffs' success in the
litigation.”); McDow v. Rosado, 657 F. Supp. 2d 463, 467
(S.D.N.Y. 2009) (“unstated, but again presumed, is that the
presumptively reasonable fee is just that-a presumptive figure
that can be further adjusted as circumstances warrant”).
“Hence, the process is really a four-step one, as the court
must: (1) determine the reasonable hourly rate; (2) determine the

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number of hours reasonably expended; (3) multiply the two to
calculate the presumptively reasonable fee; and (4) make any
appropriate adjustments to arrive at the final fee award.”
Adorno, 685 F. Supp. 2d at 510.

1.

Reasonable Hourly Rate
The Supreme Court has identified twelve factors that should

be taken into account when calculating the “reasonable hourly
rate,” and that would warrant an adjustment of the presumptively
reasonable fee. See Hensley v. Eckerhart, 461 U.S. 424, 429-30
n.3 (1983) (citing Johnson v. Georgia Highway Express, Inc., 488
F.2d 714, 717-19 (5th Cir. 1974). These factors are:
(1) the time and labor required; (2) the
novelty and difficulty of the questions; (3)
the skill requisite to perform the legal
service properly; (4) the preclusion of
employment by the attorney due to acceptance
of the case; (5) the customary fee; (6)
whether the fee is fixed or contingent; (7)
time limitations imposed by the client or the
circumstances; (8) the amount involved and
the results obtained; (9) the experience,
reputation, and ability of the attorneys;
(10) the “undesirability” of the case; (11)
the nature and length of the professional
relationship with the client; and (12) awards
in similar cases.
See Johnson, 488 F.2d at 717-719.
Reasonable hourly rates “are in line with those prevailing
in the community for similar services by lawyers of reasonably
comparable skill, experience and reputation.” Blum v. Stenson,
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465 U.S. 886, 895 (1984). There is a rebuttable presumption that
the reasonable hourly rate is one based on prevailing fees in the
district where the case was litigated. See Arbor Hill, 522 F.3d
at 191-193. A reasonable hourly rate is “the rate a paying client
would be willing to pay.” Id. at 190. “[C]urrent rates, rather
than historical rates, should be applied in order to compensate
for the delay in payment.” LeBlanc-Sternberg v. Fletcher, 143
F.3d 748, 764 (2d Cir. 1998).
Plaintiff filed this application on March 17, 2011, seeking
$40,050 in attorneys' fees and $2,949.56 in costs. In support of
the application, plaintiff submitted the affidavit of Attorney
John R. Williams, along with contemporaneous billing records
showing attorney time and expenditures. [Doc. #83-1].

Attorney

Williams billed 74 hours for work performed between December 26,
2007 and March 17, 2011 at a rate of $500 per hour.

Attorney

Williams has been a member of the bar since 1968, with over
forty-three years of experience.

Williams Aff. ¶2.

Plaintiff also seeks attorneys’ fees for 12.5 hours of work
performed by Associate Attorneys Katrena Engstrom and Joseph
Merly, at an hourly rate of $250.
Defendants dispute the reasonableness of the hourly rate for
Attorney Williams, claiming it is excessive and should be reduced
to $300 per hour. [Doc. #96 at 8].

Defendants’ survey of cases

found only one opinion where Attorney Williams was awarded a rate

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of $500 per hour, in a case where plaintiff won a $300,000
excessive force verdict and his fee application was not opposed.
Muhammed v. Martoccio, No. 3:06-cv-1137(WWE), 2010 WL 3718560, *3
(D. Conn. Sept. 13, 2010).

Attorney Williams’ billing rate was

$500 per hour from the beginning of his involvement in Muhammed
on May 10, 2010.

Here, Attorney Williams filed the complaint in

December 2007. [Doc. #1]. Defendants provided a survey of cases
showing fee awards of $300 to $350 per hour for Attorney Williams
in this district.

See Johnson v. Rapice, No. 3:00CV1556(DFM),

2007 WL 1020747, (D. Conn. Mar. 30, 2007) (determining “that a
rate of $300/hour was the appropriate rate for an attorney of Mr.
Williams’ experience as of 2005" and citing 2005 opinions in this
district awarding Attorney Williams an hourly rate of $300);
Galazo v. Pieksza, No. 4:01CV01589 (TPS), 2006 WL 141652, (D.
Conn. Jan. 19, 2006) (Attorney Williams requested and received an
hourly rate of $350 in 2006); c.f. In Bridgeport and Port
Jefferson Steamboat Co. v. Bridgeport Port Authority, No.
3:03CV599(CFD), 2011 WL 721582, *5 (D. Conn. Feb 22, 2011)
(awarding attorney with forty-three years experience an hourly
rate of $425 and summarizing cases); Pappas v. Watson Wyatt &
Co., No. 3:04CV304 (EBB), 2008 WL 45385, at *5 (D. Conn. Jan. 2,
2008) (awarding hourly rate of $400 to Stamford employment
discrimination attorney with 18 years experience in 2008); Tolnay
v. Wearing, Civil No. 3:02 CV 1514 (EBB), 2007 WL 2727543 at *2

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(D. Conn. Sept. 19, 2007) (awarding hourly rate of $350 to New
Haven civil rights attorney with 18 years experience in 2007).
“The determination of a prevailing rate requires a
‘case-specific inquiry into the prevailing market rates for
counsel of similar experience and skill to the fee applicant's
counsel.’” M.K. ex rel. K. v. Sergi, 578 F. Supp. 2d 425, 427 (D.
Conn. 2008 (quoting Farbotko v. Clinton County of New York, 433
F.3d 204, 209 (2d Cir. 2005)). “This inquiry may include taking
judicial notice of the rates awarded in prior cases and the
court's own familiarity with the rates prevailing in the
district, but it also requires evaluating the evidence proffered
by the parties.” Id.
Mindful of the Second Circuit's admonition that attorney's
fees be awarded with an “eye to moderation,” New York State
Ass’n. for Retarded Children v. Carey, 711 F.2d 1136, 1139 (2d
Cir. 1983), the court finds that $400 an hour is a reasonable
hourly fee for Attorney Williams.
As for the Associates who worked on this case, the Court
finds that an hourly rate of $250 is reasonable.

Defendants do

not dispute this hourly rate in their opposition.

2.

Reasonableness of Time Spent
The Court must next determine the number of hours for which

fees will be awarded. In that regard, the Court has carefully

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scrutinized the time records submitted to insure that the time
was “usefully and reasonably expended,” see Lunday v. City of
Albany, 42 F.3d 131, 134 (2d Cir. 1994), and to eliminate hours
that appear excessive, redundant, or otherwise unnecessary. See
Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998).
Where appropriate, the Court has also reduced the requested hours
to reflect plaintiff’s degree of success. As the Supreme Court
held in Hensley, 461 U.S. at 435, it is not necessary for a
plaintiff to have prevailed on every contention raised in a
lawsuit to receive a fully compensatory fee. But, if the
plaintiff has achieved only partial or limited success, as in
this case, even where the claims are interrelated, non-frivolous,
and raised in good faith, the Court has the discretion to reduce
the award to account for the plaintiff's limited success. Id. at
436-37.
There is no question that plaintiff’s counsel was successful
in this case.

The time records attached to plaintiff’s motion

are sufficiently specific with respect to the nature of the work
performed.
Time Counseling Client and Reviewing Transcripts
The Court approves the time plaintiff’s counsel spent
counseling his client and reviewing the transcripts from the
criminal trial and civil cases involving the defendants.
Secretarial/Paralegal Tasks

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Counsel billed for secretarial/paralegal tasks performed on
March 7 and 13, 2011 totaling 3 hours. Missouri v. Jenkins, 491
U.S. 274, 288 n.10 (1989) (quoting Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974) (“It is
appropriate to distinguish between legal work, in the strict
sense, and investigation, clerical work, compilation of facts and
statistics and other work which can often be accomplished by
non-lawyers but which a lawyer may do because he has no other
help available. Such non-legal work may command a lesser rate.
Its dollar value is not enhanced just because a lawyer does
it.”).

These tasks are appropriately billed at $100 per hour.

Muhammed v. Martoccio, 2010 WL 3718560 at *4.
Travel Expenses
“Non-working travel time is customarily billed at half-rate
in the Second Circuit.”

Muhammed v. Martoccio, 2010 WL 3718560

at *3 (citing Gonzalez v. Bratton, 147 F. Supp. 2d 180, 213 n.6
(S.D.N.Y. 2001)).

Accordingly, the time entries for travel by

John Williams on February 20, 2009 (1.5 hours); March 9, 2011
(1.0 hour); March 14, 2011 (1.0 hour); March 15, 2011 (1.0 hour);
and March 16, 2011 (1.0), totaling 5.5 hours, and the time
entries for Attorneys Engstom/Merly on March 3, 2009 (1.5 hours);
June 9, 2010 (1.5 hours); and September 28, 2010 (1.5 hours),
totaling

4.5 hours, are reduced to half rate.

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3.

Presumptively Reasonable Fee
Rate

Hours

John Williams, Partner

$400

64.5

$25,800.00

Williams Travel Time

$200

5.5

$ 1,100.00

Secretarial/Paralegal tasks

$100

4.0

$

Engstrom/Merly, Associates

$250

8.0

$ 2,000.00

Associate Travel Time

$125

2.25

$

TOTAL

4.

Total

400.00

281.25

$29,581.25

Reasonable Adjusted Fee
Having determined the presumptively reasonable fee, the

final step in the fee determination is to inquire whether an
upward or downward adjustment is required. The Supreme Court has
held that “‘the most critical factor’ in determining the
reasonableness of a fee award ‘is the degree of success
obtained.’” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting
Hensley, 461 U.S. at 436). The Second Circuit has recently
explained how district courts should consider the degree of
success obtained:
A district court's assessment of the degree
of success achieved in a case is not limited
to inquiring whether a plaintiff prevailed on
individual claims . . . . Both the quantity
and quality of relief obtained, as compared
to what the plaintiff sought to achieve as
evidenced in her complaint, are key factors
in determining the degree of success achieved
. . . . Indeed, this comparison promotes the
court's central responsibility to make the
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assessment of what is a reasonable fee under
the circumstances of the case.
Barfield v. N.Y. City Health & Hosps. Corp., 537 F.3d 132, 152
(2008) (internal quotations and citations omitted). In making
this assessment, courts have rejected a proportionality rule,
that is awarding the prevailing party fees in the same ratio as
the monetary success achieved. See e.g., City of Riverside v.
Rivera, 477 U.S. 561, 578 (1986) (“A rule of proportionality
would make it difficult, if not impossible, for individuals with
meritorious civil rights claims but relatively small potential
damages to obtain redress from the courts.”). While a court may
exclude hours spent on “severable unsuccessful claims,” Green v.
Torres, 361 F.3d 96, 98 (2d Cir. 2004), “where the successful and
the unsuccessful claims were interrelated and required
essentially the same proof,” the fee amount need not be reduced.
Murphy v. Lynn, 118 F.3d 938, 952 (2d Cir. 1997) (citing cases).
The Court finds an across-the-board reduction is not
warranted based on the unsuccessful claim as the two claims and
were interrelated and required essentially the same proof.
Accordingly, plaintiff’s request for fees is GRANTED in the
amount of $29,581.25.

Costs
Plaintiff also seeks $2,949.56 in costs associated with this

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litigation. Defendants do not oppose the costs sought by
plaintiff.
Complaint and Service of Process
The Complaint filing fee and service fees for initial
process and service fees for subpoenas for nonparty witnesses
are recoverable pursuant to D. Conn. L. Civ. R. 54(c)(1). The
Court finds these costs in the amount of $1,106.40 are permitted.
Fees for Court Reporter
The costs of an original and one copy of trial and
deposition transcripts are recoverable if they are used for cross
examination or impeachment, or if they are necessarily obtained
for the preparation of the case and for the convenience of
counsel.

D. Conn. L. Civ. R. 54(c)(2)(ii).

The Court finds

costs for trial and deposition transcripts in the amount of
$1,632.67 are permitted.
Fees for Witnesses
Witness fees for attendance at a trial are recoverable “when
the witness has actually testified or was necessarily in
attendance at trial . . . .”

D. Conn. L. Civ. R. 54(c)(4)(I).

The Court allows the witness fees for Tanisha Hall, Rhonda Brown,
and Jennifer Hall in the amount of $179.49. [Doc. #83-1] at 7].

Photocopies
"Costs for exemplifications or copies of papers are taxable

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only if counsel can demonstrate that such exemplifications or
copies were necessarily obtained for use in the case. . . .
Copies for the convenience of counsel or additional copies are
not taxable unless otherwise directed by the Court." D. Conn. L.
Civ. R. 54(c)(3)(I).

Plaintiff seeks reimbursement for fee to

Meriden Police Department for Internal Affairs records of
defendant Siegler in the amount of $31.00 for use in this case
are allowed.
Accordingly, plaintiff's request for costs is GRANTED in the
amount of $2,949.56.
CONCLUSION
For the reasons stated, plaintiff's Motion for Attorney Fees
and Expenses [Doc. #83] is GRANTED in accordance with this
ruling. Attorney’s fees are awarded in the amount of $29,581.25
and costs in the amount of $2,949.56.
This is not a recommended ruling.

The parties consented to

proceed before a United States Magistrate Judge [Doc. #45] on
August 17, 2010, with appeal to the Court of Appeals.
SO ORDERED at Bridgeport this 16th day of June 2011.

/s/
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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