Coley v. The City of New York et al

Filing 44

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Memorandum & Order, the court affirms and adopts Magistrate Judge Bloom's well-reasoned Report and Recommendation in its entirety, and awards plaintiffs attorneys' fees in the amount of $10,318.73. Ordered by Judge Kiyo A. Matsumoto on 3/28/2017. (Newman, Alanna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DERRICK COLEY and TURAY COLEY,
ORDER ADOPTING
REPORT AND
RECOMMENDATION

Plaintiffs,
-againstTHE CITY OF NEW YORK, POLICE OFFICER
OMAR GARIB, Shield #3570, DETECTIVE
BRIAN ILUND, Shield #113, DETECTIVE
JAMIE ROSADO, Shield #5776, SERGEANT
BRANDON BERSCH, Shield #2946,
LIEUTENANT KEVEN BREEN, and POLICE
OFFICERS JOHN/JANE DOE(S) #1-10,

15-CV-5132(KAM)(LB)

Defendants.
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KIYO A. MATSUMOTO, United States District Judge:
Presently before the court is the Report and
Recommendation of United States Magistrate Judge Lois Bloom,
filed on December 30, 2016.

(ECF No. 41, Report and

Recommendations re First Motion for Attorneys Fees (“R&R”).)
The R&R recommends that plaintiffs Derrick and Tulay Coley’s
(“plaintiffs”) motion for attorneys’ fees should be granted, but
that the award should be reduced from the amount requested.
(R&R at 1.)

Plaintiffs raise the instant objections to the

R&R’s recommended reduction in the award of attorneys’ fees.
(ECF No. 42, Appeal of Magistrate Judge Decision, dated 1/2/2017
(“Pl. Obj.”).)

Defendants have not objected to the R&R and

request that the court adopt the R&R in its entirety.

(ECF No.

43, Response to Motion re report and Recommendations (“Def.
Resp.”) at 1.)

The court has undertaken a comprehensive de novo

review of the R&R and the record in light of plaintiffs’ written
objections pursuant to 28 U.S.C. § 636(b)(1)(C).

For the

reasons set forth below, the court adopts the R&R in its
entirety.
Background
Plaintiff Derrick Coley commenced the instant action
on September 3, 2015, alleging violation of his constitutional
rights as a result of his arrest on April 25, 2015.
Complaint dated 9/3/2015.)

(ECF No. 1,

On February 6, 2016, Mr. Coley filed

an amended complaint, adding, inter alia, his mother Turay Coley
as a plaintiff, additional officers as defendants, and an
additional claim for illegal search of his property.
12, Amended Complaint dated 2/6/2016.)

(ECF No.

The court presumes

familiarity with the underlying facts and procedural history as
set forth in greater detail in the R&R.

(See R&R at 1-4.)

On April 25, 2016, plaintiffs accepted defendants’
offer of judgment dated April 11, 2016 (the “Offer of
Judgment”), pursuant to Rule 68 of the Federal Rules of Civil
Procedure (“Rule 68”), for a total of $5,002 to be allocated in
the amounts of $1,501 to Derrick Coley and $3,501 to Turay
Coley.

(See ECF No. 29, Letter re acceptance of Rule 68 Offer
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of Judgment; ECF No. 30-1, Rule 68 Offer of Judgment; ECF No.
30-2, Letter accepting Rule 68 Offer of Judgment, dated
4/25/2016.)

Under the terms of the Offer of Judgment,

defendants agreed to pay “reasonable attorneys’ fees, expenses,
and costs to the date of this offer for the federal claims of
plaintiffs Derrick Coley and Turay Coley.”

(ECF No. 30-1, Offer

of Judgment.)
On May 23, 2016, plaintiffs filed the instant motion
for attorneys’ fees, requesting $24,595.00 in fees based on a
total of 58.95 hours of work performed in this matter by Mr.
David Zelman, Esq. and his associates Mr. Joshua Tey, Esq. and
Mr. Issac Cwibeker, Esq.

(See ECF No. 33, First Motion for

Attorneys’ Fees; ECF No. 33-1, Affirmation in Support of
Plaintiffs’ Motion for Attorneys’ Fees and Costs (“Pl. Aff.”) at
17.)

Plaintiffs do not seek costs or other expenses.

(Id.)

Defendants filed their opposition to plaintiffs’ motion for
attorneys’ fees on June 20, 2016 (See ECF No. 38,
Affidavit/Declaration in Opposition re First Motion for Attorney
Fees; ECF No. 39, Memorandum in Support re Affidavit in
Opposition to Motion (“Def. Opp.”)), and plaintiffs filed a
reply on June 21, 2016.

(See ECF No. 40, Reply in Support of

Plaintiffs’ Application for Attorneys’ Fees.)

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On October 7, 2016, the court referred the instant
motion to Magistrate Judge Lois Bloom for an R&R.
Referring Motion, dated 10/7/2016.)

(See Order

On December 30, 2016, Judge

Bloom issued an R&R recommending that the court grant
plaintiffs’ motion for attorneys’ fees but reduce the award to
$10,318.73 for a total of 37.395 hours of work performed on this
matter.

(R&R at 13.)

The R&R notified the parties that any

objections to the R&R must be filed within fourteen days of
service of the R&R.

(Id. at 14.)

On January 2, 2017,

plaintiffs timely filed objections to the R&R, asserting
objections to the reduced award of attorneys’ fees, and
requesting that this court award the amount originally
requested.

(ECF No. 42, Pl. Obj.)

Defendants responded to

plaintiffs’ objections on January 17, 2017, requesting that the
court affirm the R&R in its entirety.

(Def. Resp. at 1.)

Discussion
As discussed below, upon review of the R&R and the
instant objections and responses, as well as a comprehensive de
novo review of the applicable law and the underlying record,
including the court docket, the amended complaint, the
application for attorneys’ fees, and the related declarations
and exhibits, the court adopts the R&R in its entirety.

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I.

Standards of Review
A district court reviews those portions of a Report and

Recommendation to which a party has timely objected under a de
novo standard of review and “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.”

28 U.S.C. § 636(b)(1)(C).

Where “no or merely

perfunctory objections” to the Report and Recommendation have been
filed, however, the district court reviews for clear error.
Caires v. Jp Morgan Chase Bank N.A., No. 16-cv-2694, 2017 WL
384696, at *1 (S.D.N.Y. January 27, 2017).

The district court is

permitted “to adopt those sections of a magistrate judge’s report
to which no specific objection is made, so long as those sections
are not facially erroneous.”

S.E.C. v. Nadel, No. 11-cv-215, 2016

WL 4718188, at *2 (E.D.N.Y. September 9, 2016) (citations
omitted).

In light of the objections asserted by plaintiffs, the

court reviews the R&R de novo.
II.

Plaintiffs’ Objections
Plaintiffs request that the court award the requested

attorneys’ fees in the amount of $24,595 for a total of 58.95
hours worked, plus additional fees for the time spent working on
plaintiffs’ reply to defendants’ opposition to the fee application
and on the instant objections to the R&R.

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(Pl. Obj. at 9-10.)

A. Hourly rates
Plaintiffs object to the R&R’s recommendation that the
hourly rates awarded to Mr. Zelman, Mr. Tey and Mr. Cwibeker, be
reduced from $500 to $325 for Mr. Zelman, $300 to $185 for Mr.
Tey, and $250 to $100 for Mr. Cwibeker.

(See Pl. Obj. at 6.)

In

determining a reasonable hourly rate for attorneys at varying
qualifications and levels of seniority, the court looks to “the
prevailing market rates in the relevant community.”

Bennett v.

Asset Recovery Solutions, LLC, No. 14-cv-4433, 2017 WL 432892, at
*7 (E.D.N.Y. January 5, 2017) (internal citations and quotation
marks omitted), report and recommendation adopted by 2017 WL
421920 (E.D.N.Y. January 31, 2017).

The “relevant community” is

typically regarded as “the district in which the court sits.”

Id.

(quoting Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir.
1997)); see also Restivo v. Hessemann, 846 F.3d 547, 590 (2d Cir.
2017) (citing Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174
(2d Cir. 2009)).

Courts in this district typically approve hourly

rates ranging from $200 to $450 per hour for partners, $100 to
$300 per hour for associates, and $70 to $100 per hour for
paralegals.

Bennett, 2017 WL 432892, at *7 (listing cases in the

Eastern District of New York, where attorneys’ fees within the
stated ranges were awarded).

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In support of their objection to the reduced hourly
rates, plaintiffs refer to two prior cases, in which Mr. Zelman
was awarded hourly rates greater than $325.

However, the court

agrees with Judge Bloom’s determination that the cases cited do
not support the $500 hourly rate requested by plaintiffs for Mr.
Zelman and that an hourly rate of $325 is appropriate.

First, in

both cases cited by plaintiffs, the courts awarded Mr. Zelman an
amount lower than the $500 he requested, recognizing that $500
exceeded the hourly rates typically awarded in civil rights cases.
See Thomas v. City of New York, No. 09-cv-3162, 2016 WL 319982, at
*6-7 (S.D.N.Y. January 25, 2016); Walker v. City of New York, 11cv-314, 2015 WL 4568305, at *3-4 (E.D.N.Y. July 28, 2015).

In

addition, both cases were distinct from the instant case in that
they continued for several years through discovery and motions,
and ultimately proceeded to trial.1

In contrast, the instant

action settled within one year of filing, after limited paper
discovery and without depositions, and before the parties engaged
in any dispositive motion practice or proceeded to trial.

Thus,

The court notes that the Thomas case proceeded in the Southern District of
New York, and that the rate of $450 awarded to Mr. Zelman is therefore not an
appropriate benchmark for consideration in this case. See Restivo, 846 F.3d at
590-91 (recognizing that hourly rates in the Southern District of New York are
typically higher than those awarded in the Eastern District of New York). The
court nonetheless finds that Thomas is particularly distinguishable from the
instant action as it not only proceeded to trial, but subsequent to the trial’s
conclusion, the verdict and judgment were vacated on appeal and the case
proceeded to a second trial. See Thomas, 2016 WL 319982, at *1-2.
1

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after considering the limited work involved and straightforward
legal and factual issues in the instant case, as well as Mr.
Zelman’s qualifications and the hourly rates typically awarded in
civil rights cases, the court adopts Judge Bloom’s award of $325
per hour for Mr. Zelman.
The court also adopts the hourly rates awarded by Judge
Bloom in the amounts of $185 for Mr. Tey and $100 for Mr.
Cwibeker.

The hourly rates requested by plaintiffs, in the

amounts of $300 for Mr. Tey and $250 for Mr. Cwibeker, are
significantly higher than those typically awarded to associates at
their level in this district.

See, e.g., Bennett, 2017 WL 432892,

at *7; see also Tr. of Empire State Carpenters Annuity v. Bayview
Custom Constr. Corp., No 15-cv-6574, 2016 WL 6892147, at *4
(E.D.N.Y. November 22, 2016) (“Courts in this district
consistently determine that an hourly rate of $200 to $325 is a
reasonable hourly rate for senior associates while $100 to $200 is
a reasonable hourly rate for more junior associates.”) (citations
omitted).

In addition, plaintiffs have provided minimal

information regarding Mr. Tey and Mr. Cwibeker’s experience and
qualifications.
The court, therefore, finds that it is reasonable to
consider Mr. Tey, who was admitted to practice in 2014, and Mr.
Cwibeker, who was admitted to practice in 2016, to be junior
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associates at the lower end of the range of reasonable hourly
rates.

Finally, the court agrees with Judge Bloom’s finding that

the bills provided by plaintiffs reflect that both associates
performed administrative, rather than legal, tasks as part of
their work.

The court therefore finds that an hourly rate of $185

for Mr. Tey, who was a second year associate at the time of this
action, and $100 for Mr. Cwibeker, who was not yet admitted when
this action commenced and became newly admitted in 2016, were
reasonable.
B. Reduction in hours worked
Plaintiffs further object to the R&R’s recommendation to
exclude the hours their attorneys spent drafting the notice of
claim and attending the 50h hearing.

(See Pl. Obj. at 8-9.)

The

court agrees with Judge Bloom’s finding that work related to state
law claims should not be included in attorneys’ fees under the
terms of the Offer of Judgment, which explicitly limits recovery
of attorneys’ fees to the “federal claims of plaintiffs Derrick
Coley and Turay Coley.”
(emphasis added).

(ECF No. 30-1, Offer of Judgment)

Plaintiffs do not dispute that the Offer of

Judgment was limited by its terms to the federal claims, and that
the notice of claim and 50h hearing related to state law claims.
However, plaintiffs argue that work related to the state law
claims should nonetheless be included as “integral to the
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litigation.”

(Pl. Obj. at 8-9.)

The court disagrees with

plaintiffs’ contention and notes that in Tucker, cited by
plaintiffs, the district court did not adopt the Magistrate
Judge’s recommendation to include state law claims in awarding
attorneys’ fees because, as in the instant case, the offer of
judgment “explicitly encompassed attorneys’ fees and costs related
only to ‘plaintiff's federal claims.’”

Tucker v. City of New

York, 704 F. Supp. 2d 347, 349-50 (S.D.N.Y. 2010) (“Given the
plain language of the agreement and the clear intent of the
parties [...] the Court modifies the recommendation of the Report
to exclude from the award the portion of legal fees attributable
to [plaintiff]’s state law claims.”).

The court further noted, as

the court notes here, that offers of judgment are construed “as a
matter of ordinary contract law principles.”

Id. at 350.

Here, the Offer of Judgment explicitly limited recovery
to plaintiffs’ federal claims, and plaintiffs have offered no
evidence of a contrary intent by the parties – indeed, defendants
oppose plaintiffs’ request in their oppositions to the fee
application and the instant objections.
Def. Resp. at 10.)

(See Def. Opp. at 23, 28;

The court, therefore, finds that attorneys’

fees will not be awarded for work related to state law claims.
The court further notes that plaintiffs have not objected to Judge
Bloom’s recommendation to exclude the 3.3 hours of work performed
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after April 11, 2016, the date of the Offer of Judgment, and
upholds the exclusion of this work under the plain terms of the
Offer of Judgment.
In addition, plaintiffs object to Judge Bloom’s
recommendation that the time spent reviewing court orders be
reduced from 3.9 hours to one hour.

(Pl. Obj. at 7.)

Plaintiffs

assert in support of their objection that there were “numerous”
orders which required review and additional time spent
“calendaring” deadlines.

(Id.)

However, upon review of the

docket, the court finds that the orders were few in number and
brief in length, and should each have required significantly less
time to review than plaintiffs described in their billing records.
In addition, the court finds that administrative tasks such as
“calendaring” deadlines do not constitute legal work in
calculating attorneys’ fees.

See, e.g., Nicaisse v. Stephens and

Michaels Associates, Inc., No. 14-cv-1570, 2016 WL 4367222, at *8
(E.D.N.Y. June 9, 2016) (characterizing tasks related to
calendaring as “clerical or more suitable for a paralegal or
administrative professional, rather than an attorney” and reducing
hours accordingly), report and recommendation adopted by 2016 WL
4275687 (E.D.N.Y. August 12, 2016).

Accordingly, the court

affirms Judge Bloom’s reduction of the hours spent reviewing the
docket.
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Finally, plaintiffs object to the recommended reduction
of the two hours Mr. Zelman claimed for reviewing the instant fee
application to one hour, and further assert that the R&R did not
address the time spent reviewing defendants’ opposition and
drafting plaintiffs’ reply, which plaintiffs contend amounted to
an additional two hours.

(Pl. Obj. at 6-7.)

Plaintiffs have not

objected to the reduction of time spent by Mr. Cwibeker in
drafting the instant fee application from 10.7 hours to two hours,
and the court adopts this reduction.

Upon review of the instant

motion, defendants’ opposition, and plaintiffs’ reply, which is
under five pages and largely narrative in nature, the court adopts
Judge Bloom’s determination that one hour for Mr. Zelman was
reasonable.

In addition, the court considers the fees awarded by

Judge Bloom for plaintiffs’ fee application to be inclusive of the
instant objections and finds that no further fees are warranted.
C. Across-the-board reduction
Plaintiffs object generally to Judge Bloom’s discussion
of their failure to confer with defense counsel prior to discovery
motion practice, as required by Local Rule 37.3.

(Pl. Obj. at 3.)

Upon review of the R&R and the underlying record, the court finds
that Judge Bloom appropriately considered this factor and
determined, in her discretion, that a portion of the time spent on
the discovery motions was unnecessary in light plaintiffs’
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counsel’s failure to confer with defendants.

See Hines v. City of

Albany, 613 F. App’x 52, 54 (2d Cir. 2015) (“When reviewing a fee
application, a district court should ‘examine[ ] 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,’ and if
it ‘concludes that any expenditure of time was unreasonable, it
should exclude these hours’ from the fee calculation.”) (quoting
Luciano 109 F.3d at 116); see also Andrews v. City of New York,
118 F. Supp. 3d 630, 638 (S.D.N.Y. 2015) (“The court is obligated
to exclude hours that are ‘excessive, redundant, or otherwise
unnecessary.’”) (quoting Kirsch v. Fleet St., Ltd., 148 F.3d 149,
173 (2d Cir. 1998)).
The court agrees with Judge Bloom’s finding that had
plaintiffs properly conferred with defendants regarding the
discovery issues, at least some of the motion practice and related
work would have been unnecessary and that a reduction in hours is
therefore reasonable.

In addition, the court notes, as Judge

Bloom did, that plaintiffs rejected a global settlement offer for
nearly three times the amount obtained through the Offer of
Judgment.

(R&R at 13, n.2.)

In light of the foregoing

considerations, the court finds that an additional across-theboard reduction of 10% was an appropriate exercise of Judge
Bloom’s discretion based on her supervision of this action, to
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account for work that Judge Bloom determined was duplicative
and/or unnecessary, but which was less specifically quantifiable.
Conclusion
For the foregoing reasons, and upon de novo review,
the court affirms and adopts Judge Bloom’s well-reasoned R&R in
its entirety, and awards plaintiffs attorneys’ fees in the
amount of $10,318.73 for 37.395 hours worked on the instant
matter.

SO ORDERED.
Dated:

March 28, 2017
Brooklyn, New York
___________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge

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