Sooroojballie v. Port Authority of New York and New Jersey et al

Filing 128

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 126 Report and Recommendations: On July 22, 2020, this Court referred Plaintiff's motion for appellate attorneys' fees (the "Appellate Fees Motion"), ECF No. 110 , to the Honorable Magistrate Judge Peggy Kuo for a report and recommendation. ECF No. 113 . On November 10, 2020, Magistrate Judge Kuo filed the Report & Recommendation ("R&R") recommending Plaintiff be awarded appellate attorneys' fees in the amoun t of $62,802.19. On November 20, 2020, Plaintiff objected to the R&R. ECF No. 127 , Pl.'s Objection to the R&R ("Pl.'s Obj."). For the reasons that follow, Plaintiff's objections are OVERRULED, and the R&R is ADOPTED in its entirety. Accordingly, Plaintiff's Appellate Fees Motion, ECF No. 114 , is GRANTED in part and DENIED in part and Plaintiff is awarded $65,232.19 in appellate attorneys' fees. The Clerk of Court is respectfully directed to close the motions pending at ECF Nos. 114 , 126 . So Ordered by Judge William F. Kuntz, II on 5/7/2021. (Love, Alexis)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NEIL SOOROOJBALLIE,
:
:
Plaintiff,
:
:
v.
:
ORDER
:
15-CV-1230 (WFK) (PK)
PORT AUTHORITY OF NEW YORK
:
AND NEW JERSEY and GARY
:
FRATTALI,
:
:
Defendants.
:
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WILLIAM F. KUNTZ, II, United States District Judge: On July 22, 2020, this Court referred
Plaintiff’s motion for appellate attorneys’ fees (the “Appellate Fees Motion”), ECF No. 110, to the
Honorable Magistrate Judge Peggy Kuo for a report and recommendation. ECF No. 113. On
November 10, 2020, Magistrate Judge Kuo filed the Report & Recommendation (“R&R”)
recommending Plaintiff be awarded appellate attorneys’ fees in the amount of $62,802.19. 1 On
November 20, 2020, Plaintiff objected to the R&R. ECF No. 127, Pl.’s Objection to the R&R
(“Pl.’s Obj.”). For the reasons that follow, Plaintiff’s objections are OVERRULED, and the R&R
is ADOPTED in its entirety. Accordingly, Plaintiff’s Appellate Fees Motion, ECF No. 114, is
GRANTED in part and DENIED in part and Plaintiff is awarded $65,232.19 in appellate attorneys’
fees.
BACKGROUND
The Court assumes the parties’ familiarity with the factual and procedural history of this
case as set forth in Magistrate Judge Kuo’s report. Briefly, on November 10, 2020, Magistrate
Judge Kuo issued an R&R recommending Plaintiff be awarded appellate attorneys’ fees in the
amount of $62,802.19. ECF No. 126, R&R. Plaintiff moved for appellate attorneys’ fees in the
amount of $84,210.00, and an additional $5,220.00 in attorneys’ fees for drafting the reply brief

On January 4, 2019, Plaintiff filed a motion for Reasonable Attorneys’ Fees and Costs for the prosecution of his
claims in the district court (the “Initial Fees Motion”). ECF No. 95. This Court granted the motion. However, on
appeal, the Second Circuit “remand[ed] the issue [of attorneys’ fees] to the district court to allow it to fully consider
[D]efendants’ opposition and to provide the grounds for its discretionary decision in connection with the fees
motion.” ECF No. 105 at 23. By order dated June 9, 2020, the Court referred the question of the reasonableness of
the award of attorneys’ fees expended in the district court to the Honorable Magistrate Judge Peggy Kuo for a report
and recommendation. ECF No. 106. On September 22, 2020, Judge Kuo filed the Report and Recommendation,
recommending Plaintiff be awarded attorneys’ fees in the amount of $149,289.78. ECF No. 122. No objections
were filed and this Court adopted the Report and Recommendation in its entirety on October 21, 2020. ECF No.
124.

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in further support of the fee motion, for a total of $89,430.00. Id. at 3. After adjusting the hourly
rates for some of the attorneys and paralegals who worked on the case, Magistrate Judge Kuo
determined that, without any reduction in hours, Plaintiff sought $83,736.25. Id. at 26. Judge
Kuo then recommended Plaintiff’s fees request be reduced by fifteen percent to account for
“vague and excessive billing,” id. at 22, and that “Plaintiff’s requested fees be reduced by a
further ten percent on the basis of Plaintiff’s lack of success on appeal.” Id. at 26. Additionally,
Judge Kuo recommended that five entries for work done between December 27, 2018 and
January 25, 2019 be excluded from the Appellate Fees Motion because the entries “should have
been included with the Initial Fees Motion.” Id. at 17. Ultimately, Judge Kuo wrote, “[r]educing
the total fee amount by fifteen percent for the insufficient and excessive billing entries and ten
percent based on Plaintiff’s lack of success on appeal (a total of twenty-five percent) results in a
recommended reasonable fee amount of $62,802.19.” Id. at 27.
On November 20, 2020, Plaintiff objected to the R&R arguing: (1) Magistrate Judge Kuo
improperly reduced Plaintiff’s overall appellate attorneys’ fees entitlement by twenty-five
percent; (2) Judge Kuo improperly deemed some of Plaintiff’s time entries vague or excessive;
and (3) Judge Kuo should have awarded Plaintiff attorneys’ fees for the “pre-appeal hours” that
were included in the appellate fees motion. See generally Pl.’s Obj., ECF No. 127. For the
reasons that follow, Plaintiff’s objections are OVERRULED and the R&R is ADOPTED in its
entirety. Accordingly, Plaintiff’s motion for appellate attorneys’ fees, ECF No. 114, is
GRANTED in part and DENIED in part and Plaintiff is awarded $65,232.19 in appellate
attorneys’ fees.
LEGAL STANDARD
In reviewing a Report and Recommendation, a district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
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U.S.C. § 636(b)(1). Parties must serve and file any written objections to the proposed findings
and recommendations within fourteen days of being served with a copy of such proposed
findings and recommendations. Id. A district judge “shall make a de novo determination of
those portions of the report or specified findings of recommendations to which objection is
made.” Id. Objections to a report and recommendation must be “specific and are to address only
those portions of the proposed findings to which the party objects.” Phillips v. Reed Grp., Ltd.,
955 F. Supp. 2d 201, 211 (S.D.N.Y. 2013) (Owen, J.) (internal quotation marks and citation
omitted). “Where ‘the objecting party makes only conclusory or general objections, or simply
reiterates the original arguments, the Court will review the report and recommendation strictly
for clear error.’” Norman v. Metro. Transp. Auth., 13-CV-1183, 2014 WL 4628848, at *1
(E.D.N.Y. Sept. 15, 2014) (Matsumoto, J.) (quoting Zaretsky v. Maxi-Aids, Inc., 10-CV-3771,
2012 WL 2345181, at *1 (E.D.N.Y. June 18, 2012) (Feuerstein, J.)).
DISCUSSION
In their objection, Plaintiff argues: (1) they sustained a “resounding victory in the Second
Circuit” and thus Magistrate Judge Kuo “improperly reduced Plaintiff’s overall appellate
attorneys’ fees entitlement by twenty-five percent; (2) the time entries that led to Judge Kuo’s
fifteen percent reduction “were not vague nor excessive,” and they were not “sufficiently
extensive to support such a reduction”; and (3) Judge Kuo “should have awarded attorneys’ fees
for the pre-appeal hours that were included in the appellate fees motion.” Pls.’ Obj. at i. The
Court has conducted a de novo review of the portions of the R&R that Plaintiff has objected to
and concludes Plaintiff’s objections are without merit.
I.

A Reduction of Fifteen Percent Was Warranted for Vague and Excessive Time
Entries

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Plaintiff first objects to Magistrate Judge Kuo’s recommendation that this Court reduce
Plaintiff’s attorneys’ fees award by fifteen percent to account for vague and excessive time
entries. Pl.’s Obj. at 7. Plaintiff argues both that the relevant time entries were neither vague nor
excessive and, that to the extent “this Court finds otherwise, they did not comprise a substantial
portion of the requested fees to warrant such a reduction.” Id.
A court’s award of attorneys’ fees must be “reasonable.” Bergerson v. N.Y. State Office
of Mental Health, 652 F.3d 277, 289–90 (2d Cir. 2011). The prevailing approach for
determining reasonableness is the “lodestar” method, in which courts multiply a reasonable
hourly rate by a reasonable number of expended hours. See id.; see also Perdue v. Kenny A., 559
U.S. 542, 546 (2010). When considering the reasonableness of hours expended, a “district court
examines the particular hours expended by counsel with a view to the value of the work product
of the specific expenditures to the client’s case.” Luciano v. Olsten Corp., 109 F.3d 111, 116 (2d
Cir. 1997). Because fee applicants bear the burden of establishing an appropriate number of
hours expended, see Hensley v. Eckhart, 461 U.S. 424, 434 (1983), the starting point of the
inquiry is counsel’s contemporaneous time records, see U.S. Bank, N.A. v. Byrd, 854 F. Supp. 2d
278, 287 (E.D.N.Y. 2012) (Matsumoto, J.) (citing LeBlanc-Sternberg v. Fletcher, 143 F.3d 748,
756, 764 (2d Cir. 1998)). Where the documentation of hours is inadequate—i.e., where the time
records reflect expended hours that are excessive, redundant, duplicative, or otherwise
unnecessary—the district court may adjust the number of hours expended and reduce the award
accordingly. See, e.g., Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley, 461
U.S. at 437). Thus, the district court has discretion “to make across-the-board percentage cuts in
hours as a practical means of trimming fat from a fee application.” In re Agent Orange Prod.
Liab. Litig., 818 F.2d 226, 237 (2d Cir. 1987) (internal quotation marks and citation omitted).

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Plaintiff sought “$84,210 in attorneys’ fees and costs” for the work performed by his
counsel on the appeal. R&R at 3. These fees include 203.3 hours of work performed by four
lawyers and four paralegals at Phillips & Associates and one lawyer at Bergstein & Ullrich. Id.
Plaintiff also requests an additional $5,220.00 in attorneys’ fees for drafting the Reply, which
was done entirely by the lawyer at Bergstein & Ullrich. Id. Plaintiff does not object to
Magistrate Judge Kuo’s recommendation as to the hourly rates for each lawyer. Pl.’s Obj. at 2.
Having reviewed the hourly rate recommendations for clear error, and having found none, the
Court adopts the hourly rates recommended by Judge Kuo. The rates are as follows:

R&R at 5-11.
In addition to evaluating the reasonableness of the hourly rate sought, the Court must also
consider whether the “number of hours for which compensation is sought is reasonable.” Monge
v. Glen Cove Mansion Hosp., LLC, 18-CV-7229, 2020 WL 1666460, at *7 (E.D.N.Y. Apr. 2,
2020) (Feuerstein, J.) (quotation and citation omitted). This Court has conducted a de novo
review of Plaintiff’s motion for appellate attorneys’ fees and all of the time records submitted in
support of the motion. The Court agrees with the characterization of factors that led to
Magistrate Judge Kuo’s recommendation to reduce Plaintiff’s requested fees:
(1) Bergstein block billed a limited portion of his time; and (2) many of the billing
entries were too vague to permit review. Of the time that could be reviewed,
many of the time entries were unreasonable because: (1) attorneys, including
partner and associates, performed tsks that should have been performed by
paralegals; (2) partners performed tasks that should have been performed by less
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experienced attorneys; and (3) the time spent by Bergstein and Mesidor preparing
for the oral argument was excessive.
R&R at 22. Further, this Court agrees with Judge Kuo that given the length of the motion and
the number of time entries submitted in support of it, an “across-the-board percentage cut[ ] in
hours[is] a practical means of trimming fat from [Plaintiff’s] fee application.” Id. (quoting In re
Agent Orange Prod. Liab. Litig., 818 F.2d 226,237 (2d Cir. 1987) (quotation and citation
omitted)). Accordingly, this Court adopts Magistrate Judge Kuo’s recommendation that
Plaintiff’s requested fees be reduced by fifteen percent to account for the vague and excessive
billing. See Crews v. Cty. of Nassau, 06-CV-2610, 2019 WL 6894469, at *11–12 (E.D.N.Y.
Dec. 18, 2019) (Bianco, J.) (“conclud[ing in a civil rights case] that a 20% percent [sic] acrossthe-board reduction to [counsel’s] hours is warranted” because of excessive, redundant, and
vague hours); S.M. v. Evans-Brant Cent. Sch. Dist., 09-CV686S, 09-CV-922S, 2013 WL
3947105, at *11 (W.D.N.Y. July 31, 2013) (Skretny, C.J.) (finding that “an across-the board
reduction of 20% is appropriate for all hours billed” “[t]o correct for [ ] deficiencies,” including
duplicative and excessive billing); Cent. N.Y. Laborers’ Health & Welfare, Pensions, Annuity &
Training Funds, 04-CV-509, 2011 WL 167236, at *3 (N.D.N.Y. Jan. 19, 2011) (Suddaby, J.)
(reducing the fees requested by “twenty percent . . . to account for the excessive and/or vague
time entries”); Ass’n of Holocaust Victims for Restitution of Artwork & Masterpieces v. Bank
Austria Creditanstalt AG, 09-CV-3600, 2005 WL 3099592, at *7 (S.D.N.Y. Nov. 17, 2005)
(Kram, J.) (finding that reducing the requested fees by twenty five percent “better reflect[ed] the
hours reasonably expended on th[e] matter” because of “instances of block billing, vagueness,
and excess” in the billing); see also Ritchie v. Gano, 756 F. Supp. 2d 581, 584 (S.D.N.Y. 2010)
(Marrero, J.) (reducing the fees requested “by forty percent” because “the vagueness of many of
the entries” prevented the court from determining whether the work the attorney performed was
“wrong[ ] or excessive[ ]” (footnotes omitted)).
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II.

A Further Reduction of Ten Percent Was Warranted Based on Plaintiff’s Lack
of Success on Appeal
Plaintiff also objects to Magistrate Judge Kuo’s recommendation that this Court further

reduce the attorneys’ fees award by ten percent to account for Plaintiff’s lack of success on
appeal. Pl.’s Obj. at 2. Plaintiff argues Judge Kuo, “placed too much emphasis on the appellate
arguments advanced by Plaintiff that did not succeed in the Second Circuit,” arguing Plaintiff
sustained a “resounding victory” despite losing on some issues. Id. at 2,4. In support of this
contention, Plaintiff points to the fact that Plaintiff’s counsel spent only 2.10 hours on the losing
§ 1981 claim and .75 hours on the losing attorneys’ fees issue, which were only a “fraction of the
nearly 100 hours” spent on the appeal in total. Id. at 5. However, these arguments ignore that
the fact that the Second Circuit’s decision resulted in an eighty-eight percent reduction in the
damages award. Id.
“Once civil rights litigation materially alters the legal relationship between the parties,
‘the degree of the plaintiff’s overall success goes to the reasonableness’ of a fee award . . . .”
Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Texas State Teachers Ass’n v. Garland
Indep. Sch. Dist., 489 U.S. 782, 793 (1989)). “Indeed, ‘the most critical factor’ in determining
the reasonableness of a fee award ‘is the degree of success obtained.’” Id. (quoting Hensley, 461
U.S. at 436). The Second Circuit has “clearly adopted the view . . . that a district judge’s
authority to reduce the fee awarded to a prevailing plaintiff below the lodestar by reason of the
plaintiffs ‘partial or limited success’ is not restricted either to cases of multiple discrete theories
or to cases in which the plaintiff won only a nominal or technical victory.” Kassim v. City of
Schenectady, 415 F.3d 246, 256 (2d Cir.2005). Where a plaintiff’s lawsuit was based on a
common nucleus of facts, the Second Circuit has “affirmed district court reductions of a lodestar
fee by reason of the plaintiffs limited degree of success.” Id. at 255 (discussing Green v. Torres,
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361 F.3d 96 (2d Cir.2004); Abrahamson v. Bd. of Educ., 374 F.3d 66 (2d Cir.2004)). “The
district court may attempt to identify specific hours that should be eliminated, or it may simply
reduce the award to account for the limited success.” Hensley, 461 U.S. at 436–37; see also
Dancy v. McGinley, 141 F. Supp. 3d 231, 239 (S.D.N.Y. 2015) (Smith, Mag.).
Plaintiff was the prevailing party overall before the Second Circuit. However,
Defendants did succeed on certain of the grounds on which they appealed. The Second Circuit
found that the district court erred in not dismissing Plaintiff’s § 1981 claims. ECF No. 105 at 3–
5. The Second Circuit also rejected Plaintiff’s contention that his emotional distress damages
fell into the “egregious” category, finding “the jury’s $2,160,000 award for emotional distress
damages far surpasse[d] the upper limit of the reasonable range and shocks the judicial
conscience.” Id. Accordingly, the Second Circuit “grant[ed] a new trial as to [Plaintiff’s]
emotional distress damages unless he accept[ed] a remittitur of the award to $250,000.” Id. at 18
(quotation, citation, and alteration omitted). Finally, the Second Circuit also “remand[ed] the
issue [of the Initial Fees Motion] to the district court to allow it to fully consider [D]efendants’
opposition and to provide the grounds for its discretionary decision in connection with the fees
motion.” Id. at 23. Thus, the Court agrees with Judge Kuo’s determination that, “Plaintiff was
unsuccessful on meaningful portions of the appeal despite Plaintiff’s attempts to minimize those
losses.” R&R at 25.
In light of these significant losses on appeal, Magistrate Judge Kuo recommended a
further reduction in attorneys’ fees of ten percent. Id. at 26. After conducting a de novo review
of the record, this Court adopts Magistrate Judge Kuo’s recommendation. A further ten percent
reduction in attorneys’ fees adequately accounts for Plaintiff’s limited success on appeal while
still recognizing that Plaintiff’s efforts to uphold the verdict. See Crews, 2019 WL 6894469, at
*11 (finding, in a civil rights case, a further “across-the-board 10% reduction in the number of
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hours [ ] appropriate because of the additional legal work performed litigating the unsuccessful
claims”); Skyline Steel, LLC v. Pilepro, LLC, 13-CV-8171, 2015 WL 3739276, at *7 (S.D.N.Y.
June 15, 2015) (Furman, J.) (holding that “a 25 percent reduction is appropriate” when, inter alia,
the plaintiff did not prevail on all of the issues and “some of the billing entries reflect time spent
on both compensable and non-compensable tasks”); DeMarco v. Ben Krupisnki Gen. Contractor,
Inc., 12- CV-573, 2014 WL 3696020, at *10 (E.D.N.Y. July 22, 2014) (Feuerstein, J.)
(“reduc[ing] across-the-board by thirty percent” counsel’s hours because of excessive billing
entries and work on an unsuccessful claim and motion).
III.

Plaintiff’s Non-Appeal Related Time Entries
Finally, Plaintiff objects to Judge Kuo’s recommendation that this Court exclude from the

fee application five entries for work performed between December 27, 2018 and January 25,
2019. Pl.’s Obj. at 15. The five entries included 7.2 hours of work performed (1) on Plaintiff’s
Initial Fees Motion and (2) reviewing Defendants’ motion for reconsideration, ECF No. 101.

ECF No. 117-2, Time Log, Phillips & Associates. In recommending this Court exclude the
entries, Magistrate Judge Kuo wrote:
The first four entries pertain to the Initial Fees Motion which was filed on January
4, 2019. The fifth entry appears to refer to review of Defendant’s motion (filed on
January 24, 2019) to reconsider the Court’s January 17, 2019 order awarding
Plaintiff the fees he sought. Because these entries do not relate to the appeal, the
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undersigned respectfully recommends that these five entries be excluded from the
Appellate Fees Motion.
R&R at 17. Plaintiff argues Magistrate Judge Kuo’s exclusion of these time entries from their
motion for appellant attorneys’ fees was in error. Pl.’s Obj. at 12–13. This Court has conducted
a de novo review of the record and concludes Plaintiff’s objection is without merit. While it may
be the case that had Plaintiff characterized this motion as one for “supplemental” attorneys’ fees
rather than one for “appellate” attorneys’ fees the entries would have been correctly included in
the motion, that is not how Plaintiff’s motion was characterized. Because these time entries do
not relate to work done on the appeal, this Court agrees with Magistrate Judge Kuo’s thoughtful
recommendation to exclude these time entries from Plaintiff’s motion for appellate fees.
Bricklayers & Allied Craftworkers Loc. 2 v. Moulton Masonry & Const., LLC, 113 F. Supp. 3d
601, 610 (N.D.N.Y. 2015) (Hurd, J.) (denying plaintiffs request for fees because the relevant fees
had already been incurred at the time of their initial motion, noting “those fees were not included
in plaintiff’s first award and there is no reason to do so now.”). Accordingly, Plaintiff’s
objection is overruled.

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CONCLUSION
Upon a careful review of Magistrate Judge Kuo’s R&R, ECF No. 126, and the objection
filed thereto, ECF No. 127, the Court ADOPTS the R&R in its entirety. Accordingly, Plaintiff’s
motion for appellate attorneys’ fees, ECF No. 114, is GRANTED in part and DENIED in part
and Plaintiff is awarded $62,802.19 in appellate attorneys’ fees. The Clerk of Court is
respectfully directed to close the motions pending at ECF Nos. 114, 126.

SO ORDERED.

s/ WFK

_____________________________
HON. WILLIAM F. KUNTZ, II
UNITED STATES DISTRICT JUDGE

Dated: May 7, 2021
Brooklyn, New York

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