Cooper v. Dieugenia et al

Filing 93

ORDER: For the reasons stated in the attached, it is ordered that Plaintiff be awarded $112,380.00 in attorneys' fees and $1,219.00 in costs, for a total award of $113,599.00. The Clerk of the Court is respectfully requested to enter judgment. The case remains closed. Ordered by Judge Pamela K. Chen on 5/7/2018. (Hess, Alexandra)

Case 1:14-cv-06136-PKC-RLM Document 93 Filed 05/07/18 Page 1 of 9 PageID #: 839

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
NATIFAH COOPER,
Plaintiff,
-against-

MEMORANDUM & ORDER
14-CV-6136 (PKC)

POLICE OFFICER PAUL DIEUGENIA,
Defendant.
---------------------------------------------------------X
PAMELA K. CHEN, United States District Judge:
Before the Court is Plaintiff’s Motion for Attorneys’ Fees pursuant to 42 U.S.C. § 1988.
For the reasons stated herein, it is ordered that Plaintiff be awarded $112,380.00 in attorneys’ fees
and $1,219.00 in costs.
BACKGROUND
The Court assumes the parties’ familiarity with the facts in this case and thus recites them
only to the extent relevant to the Court’s analysis.
Plaintiff Natifah Cooper (“Plaintiff”) brought this action on October 20, 2014 pursuant to
42 U.S.C. § 1983 against Defendant Police Officer Paul Dieugenia (“Dieugenia”) and unidentified
“Jane Doe Officers 1–10”, based on events relating to Plaintiff’s arrest on April 17, 2013. (Dkt.
1.) At that time, Plaintiff was solely represented by Robert Marinelli of Wright and Marinelli LLP.
(Id.)
On July 16, 2015, Plaintiff amended her complaint to add Police Officer Aleksandr
Pasynkov (“Pasynkov”) as a defendant. She alleged six causes of action against all Defendants:
(1) unlawful stop and search; (2) false arrest; (3) excessive force; (4) denial of the right to a fair
trial; (5) First Amendment retaliation; and (6) failure to intervene. (Amended Complaint, Dkt. 12,
¶¶ 36–57.) The parties attended an initial conference on May 7, 2015 and discovery closed on

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December 18, 2015 after the parties were admonished by Magistrate Chief Judge Roanne L. Mann
“for ignoring the Court’s discovery and other deadlines.” (Dkts. 9, 18.)
During discovery, three depositions were taken and approximately sixty-five pages of
discovery were produced. (Declaration of Ashley Garman (“Garman Decl.”), Dkt. 88, ¶ 3.) None
of the depositions exceeded two hours in length, and their transcripts did not exceed eighty pages.
(Id. at ¶¶ 7-12.) The day before discovery initially closed, Ryan Michael Lozar of the Law Offices
of Ryan Lozar entered an appearance on behalf of Plaintiff. (Dkt. 20.)1
After discovery, Plaintiff withdrew her claims against the Doe Defendants. (4/26/2016
Minute Entry and Transcript; see also Dkt. 30.) Plaintiff also withdrew her First Amendment,
false arrest, excessive force, and denial of a right to fair trial claims against Pasynkov, as well as
her First Amendment retaliation claim against Dieugenia. (Dkts. 30, 31, 39; see also Summary
Judgment Memorandum and Order, Dkt. 44, at 2 (“In her Amended Complaint, Plaintiff blanketly
asserted all six causes of action against all of the Defendants. In rather helter-skelter fashion,
Plaintiff thereafter voluntarily withdrew various claims against some of the Defendants.”).) On
June 7, 2016, Defendants Dieugenia and Pasynkov moved for partial summary judgment. (Dkt.
33.) On June 22, 2016, Plaintiff opposed the motion. (Dkt. 39.) On February 27, 2017,
Defendants’ motion for partial summary was granted in part and denied it in part. The Court
granted summary judgment as to Plaintiff’s claims of a denial of the right to a fair trial and failure
to intervene against Dieugenia, and her unlawful stop and search claim as against Pasynkov. (See
Dkt. 44.) The Court denied Defendants’ motion for partial judgment as to Plaintiff’s false arrest

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Discovery was briefly reopened between May 4 to July 20, 2017 to allow Plaintiff to
produce a copy of her certified medical records. (Dkts. 46, 47, 48, 49.)
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and unlawful stop and search claim against Dieugenia, as well as her failure to intervene claim
against Pasynkov. (Id.)
On April 13, 2017, the parties filed a Joint Proposed Pretrial Order. (Dkt. 45.) On October
1, 2017, Juliene D. Munar of Wright and Marinelli LLP entered an appearance on behalf of
Plaintiff. (Dkt. 64.) The jury trial in the matter lasted from October 2 until October 5, 2017.
(Garman Decl. ¶ 15.)

Before summations, Plaintiff withdrew her remaining claim against

Pasynkov, and he was dismissed from the case. (Id. at ¶ 24; 10/03/2017 Minute Entry.) Plaintiff’s
three remaining claims against Dieugenia, for false arrest, unlawful stop and search, and use of
excessive force, went to the jury. The jury ultimately awarded $30,000 in compensatory damages,
but no punitive damages, to Plaintiff on her excessive force claim and found for Defendant
Dieugenia on the other two claims. (Dkt. 71.)
Plaintiff filed the instant motion for fees and costs on December 26, 2017. (Dkt. 81.)
Defendant filed his opposition on January 26, 2018. (Dkt. 87.) Plaintiff filed a reply on February
10, 2018. (Dkt. 90.) Plaintiff seeks a total of $206,880.25 in attorneys’ fees and costs. (Id. at 20.)
LEGAL STANDARD
In the Second Circuit, a “presumptively reasonable fee” must be calculated using the
“lodestar” method, i.e., multiplication of a reasonable hourly rate by the reasonable number of
hours required by the case. Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014); Millea
v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011). District courts have broad discretion,
using “their experience with the case, as well as their experience with the practice of law, to assess
the reasonableness” of each component of a fee award. Fox Indus., Inc. v. Gurovich, 03-CV-5166,
2005 WL 2305002, at *2 (E.D.N.Y. Sept. 21, 2005) (quoting Clarke v. Frank, 960 F.2d 1146,
1153 (2d Cir. 1992)). Reasonable hourly rates are informed in part by the rates “prevailing in the

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community for similar services by lawyers of reasonably comparable skill, experience, and
reputation.” Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997) (quoting Blum v. Stenson,
465 U.S. 886, 896 n.11 (1984)). A district court should “bear in mind all of the case-specific
variables that [the court] and other courts have identified as relevant to the reasonableness of
attorney’s fees in setting a reasonable hourly rate.” Arbor Hill Concerned Citizens Neighborhood
Ass’n v. Cnty. of Albany, 522 F.3d 182, 190 (2d Cir. 2008) (emphasis omitted). A “presumptively
reasonable [attorneys’] fee boils down to what a reasonable, paying client would be willing to pay
given that such a party wishes to spend the minimum necessary to litigate the case effectively.”
Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (citation and internal marks
omitted).
A fee applicant bears the burden of demonstrating the hours expended and the nature of
the work performed through contemporaneous time records that describe with specificity the
nature of the work done, the hours, and the dates. N.Y. State Ass’n for Retarded Children, Inc. v.
Carey, 711 F.2d 1136, 1147−48 (2d Cir. 1983). The absence of contemporaneous records
precludes any fee award in all but the most extraordinary of circumstances. Scott v. City of New
York, 626 F.3d 130, 133−34 (2d Cir. 2010). If a court finds that claimed hours are “excessive,
redundant, or otherwise unnecessary,” it should exclude those hours in calculating a fee award.
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). “A district court is not, however, required to set
forth item-by-item findings concerning what may be countless objections to individual billing
items . . . and may either subtract uncompensable hours or use percentage reductions to eliminate
excessive or duplicative hours.” Marshall v. Reisman, No. 11-CV-5764, 2013 WL 1563335, at *4
(E.D.N.Y. Mar. 25, 2013), report and recommendation adopted, No. 11-CV-5764, 2013 WL
1561478 (E.D.N.Y. Apr. 12, 2013) (internal citations and quotations omitted).

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DISCUSSION
A. Rates
Plaintiff seeks reimbursement for her counsel at the following hourly rates: $425 per hour
for Robert Marinelli (“Marinelli”), a partner who has been admitted to practice for 26 years and
has eight years of specialized litigation experience in police misconduct matters; $300 per hour for
Juliene Drei Munar (“Munar”), an associate attorney with four years’ experience; and $400 per
hour for Ryan Lozar (“Lozar”), a solo practitioner who has been admitted to practice for 14 years
and has three years’ experience focusing on Section 1983 litigation. (See generally Dkts. 83, 84,
85.)
The Court finds that the proposed rates for Marinelli and Lozar, $425 and $400 per hour,
respectively, are somewhat higher compared to the rates usually approved in this
district. See Gortat v. Capala Bros., 07-CV-3629 (ILG), 2014 WL 3818614, at *7 (E.D.N.Y. Aug.
4, 2014), rev’d in part on other grounds, 795 F.3d 292 (2d Cir. 2015) (“[R]ates higher than $350
per hour are generally reserved for the unusually expert litigation of civil rights claims or other
special circumstances[.]”) (citations omitted); First Keystone Consultants, Inc. v. Schlesinger Elec.
Contractors, Inc., 10-CV-696 (KAM)(SMG), 2013 WL 950573, at *7 (E.D.N.Y. Mar. 12,
2013) (collecting cases) (finding that reasonable hourly rates in this district range from $300 to
$400 for partners); Brown v. Starrett City Assocs., 09-CV-3282 (JBW), 2011 WL 5118438, at *5
(E.D.N.Y. 2011); Manzo v. Sovereign Motor Cars, Ltd., 08-CV-1229 (JG)(SMG), 2010 WL
1930237, at *8 (E.D.N.Y. May 11, 2010), aff’d, 419 F. App’x 102 (2d Cir. 2011). After reviewing
the rates awarded in prior cases and the evidence submitted by the parties, and taking into
consideration the simple nature of the case as well as the Court’s observations of the performance
of counsel, the Court finds that an hourly rate of $325 for Marinelli and an hourly rate of $300 for
Lozar are appropriate.
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Likewise, the requested rate for Munar of $300 per hour is considerably higher than the
generally approved rates in this district for attorneys with comparable experience. See, e.g., Lema
v. Mugs Ale House Bar, 12-CV-2182 (PKC)(JO), 2014 WL 1230010, at *5−6 (E.D.N.Y. Mar. 21,
2014) (approving hourly rates of $125 for associate with two years’ experience, and $225 for an
associate with six years’ experience); Jean v. Auto and Tire Spot Corp., 09-CV-5394
(ARR)(RLM), 2013 WL 2322834, at *7 (E.D.N.Y. May 28, 2013) (reducing the hourly rate for an
associate with four years’ experience from $225 to $200); First Keystone Consultants, 2013 WL
950573, at *7 (finding that reasonable hourly rates in this district range from $200 to $300 for
senior associates and $100 to $200 for junior associates). Accordingly, the Court finds an hourly
rate of $200 is appropriate for Ms. Munar’s work.
B. Hours
Plaintiff’s counsel submits a total bill of 548.4 hours over the course of three years of
litigation. Marinelli requests fees for 356.8 hours, 8 hours of which were billed for travel. (Dkt.
82, at 18; Dkt. 90, at 19.) Lozar requests fees for a total of 18.1 hours. (Dkt 84-1, ¶¶ 10-11; Dkt.
90, at 19.) Munar submits a bill for 173.5 hours, 4 hours of which was billed for travel. (Dkt. 835.)
First, Defendant asserts that Plaintiff should not be awarded fees for any work that did not
involve the excessive force claim on which she prevailed at trial. (Dkt. 87.) This includes fees for
Plaintiff’s opposition to Defendants’ summary judgment motion and her motion in limine relating
to the unlawful stop and false arrest claim. (Id.) While the Court in its discretion may reduce
Plaintiff’s fees to reflect her limited success, Defendant’s assertion that the fees spent on claims
other than the excessive force claim can be “neatly divided”, and should therefore be eliminated,
lacks merit. See Hensley, 461 U.S. at 440 (1983) (“Where a lawsuit consists of related claims, a

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plaintiff who has won substantial relief should not have his attorneys’ fee reduced simply because
the district court did not adopt each contention raised.”). Here, Plaintiff’s lawsuit “consist[ed] of
related claims” concerning her arrest on the evening of April 7, 2013, which emanated from a
single sequence of events, and none of the claims were “distinct in all respects” from her successful
claim. (Id.) As a result, the Court declines to exclude the hours spent on her unsuccessful claims.
Second, Defendants argue that Plaintiff’s attorneys’ fees should be discounted to reflect
that Plaintiff abandoned many of her claims during the case and abandoned the remaining claim
against one officer during trial. The Court rejects this argument. See Green v. Torres, 361 F.3d
96, 100 (2d Cir. 2004) (finding that claims raised in good faith but later withdrawn do not justify
a fee reduction). Plaintiff withdrew several of her claims against Pasynkov before trial, but her
remaining failure to intervene claim against Pasynkov survived summary judgment, even though
she subsequently withdrew the claim at trial. Plaintiff also withdrew only one of her claims against
Dieugenia. As a result, the Court finds that Plaintiff did not “ple[ad] ‘an overbroad case that [she]
had no realistic expectation of ultimately proving.’” Separ v. Nassau Cty. Dep’t of Soc. Servs.,
327 F. Supp. 2d 187, 191 (E.D.N.Y. 2004) (quoting Green, 361 F.3d at 100).
Third, Defendant argues that the 7.1 hours billed by Marinelli before the filing of Plaintiff’s
complaint related to Plaintiff’s criminal case and, therefore, should be excluded. The Court finds
that although Marinelli could have been more specific in his time entries from April 2013 to July
2014 (before the filing of Plaintiff’s complaint in October 2014), the Court finds that the 7.1 hours
that he billed for telephone calls with Plaintiff, meeting with Plaintiff and witnesses, and preparing
releases and a retainer, are reasonable.
Nevertheless, the Court does find that counsel’s requested fees are excessive. “The task of
determining a fair fee requires a conscientious and detailed inquiry into the validity of the

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representations that a certain number of hours were usefully and reasonably expended.” Lunday
v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994). This case, by counsel’s own admission, was a
simple one, and involved only minimal (and not particularly effective) summary judgment briefing
by Plaintiff,2 three short depositions, fewer than one hundred pages of paper discovery, and a fourday jury trial involving only six witnesses. (Dkt. 87, at 3-5.) Additionally, Marinelli billed a
number of hours to legal research and other “numerous entries for tasks more appropriately
handled by younger associates”, such as drafting motions in limine, shepardizing cases, doing
PACER searches, and even drafting this motion for attorneys’ fees. (Dkt. 83-2); Shannon v.
Fireman’s Fund Ins. Co., 156 F. Supp. 2d 279, 301-02 (S.D.N.Y. 2001); see also New Earthshell
Corp. v. Jobookit Holdings Ltd., 14-CV-3602 (JMF), 2015 WL 2152681, at *2 (S.D.N.Y. May 7,
2015), vacated and remanded on other grounds, 634 F. App’x 44 (2d Cir. 2015) (“Legal research
and first-draft writing are tasks that can and should be delegated to associates and not conducted
by partners at the highest billing rates.”). Finally, “many of the entries are vague and do not permit
a thorough evaluation.” Shannon, 156 F. Supp. 2d at 301 (“For example, the time sheets are replete
with references to counsel’s ‘trial preparation’, ‘witness preparation’, ‘legal research’, and ‘office
conferences’—most of which do not indicate the nature or subject matter of the work being

2

Munar billed 40.8 hours researching, 18.1 hours drafting, and 29.7 hours revising and
proofing a nine-page opposition to Defendants’ partial summary judgment motion (Dkt. 83-5, at
1-3) and Marinelli billed another 41.4 hours for the same nine-page opposition and the
corresponding five-page Rule 56.1 Statement (Dkt. 83-2, at 3). Despite the inordinate amount of
time spent on the briefing, the Court noted in its Memorandum & Order that there were a number
of arguments in Defendants’ motion for summary judgment that Plaintiff “fail[ed] to argue [in
response to], or justify.” (Dkt. 44, at 19, 21, 22 n.5.) The Court also notes that counsel’s initial
brief in support of attorneys’ fees was more than double the length of their summary judgment
brief.

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performed. These types of entries do not enable a court to determine whether the hours are
duplicative or excessive and should not be allowed.”).
Therefore, the Court awards attorneys’ fees to Marinelli for 250 hours of work and 8 hours
of travel at a rate of $325 per hour, to Lozar for 18.1 hours of work at a rate of $300 per hour, and
to Munar for 120 hours of work and 4 hours of travel at a rate of $200. 3
C. Costs
Plaintiff is entitled to recover reasonable costs under the provisions of 42 U.S.C. § 1988.
Plaintiff paid $400.00 in filing this case with the Court and $819.00 in serving Defendants with
process.

(Dkt. 83-1.)

The Court finds these costs to be both reasonable and properly

documented. See John v. Demaio, 15-CV-6094 (NCG)(CLP), 2016 WL 7469862, at *11
(E.D.N.Y. Sept. 29, 2016), report and recommendation adopted, 15-CV-6094, 2016 WL 7410656
(E.D.N.Y. Dec. 22, 2016).
CONCLUSION
For the reasons stated above, it is ordered that Plaintiff be awarded $112,380.00
in attorneys’ fees and $1,219.00 in costs, for a total award of $113,599.00. The Clerk of the Court
is respectfully requested to enter judgment. The case remains closed.

SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: May 7, 2018
Brooklyn, New York

Both parties agree that travel time will be compensated at fifty percent of the attorney’s
hourly rate. (Dkt. 90, at 18.)
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