John et al v. Demaio et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS: Defendants' objections (Dkt. 40) are OVERRULED and Judge Pollak's R&R (Dkt. 39) is ADOPTED IN FULL. Accordingly, Plaintiffs' Motion for Attorney's Fees (Dkt. 31) is GRANTED, and the court AWARDS Plaintiffs $15,313.22, consisting of $14,190.00 in attomey's fees and $1,123.22 in costs. So Ordered by Judge Nicholas G. Garaufis on 12/21/2016. (fwd'd for jgm) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ADRIAN JOHN,SHANTEE WILLIAMS,and LUIS
MEMORANDUM & ORDER
Police Officer MATTHEW DEMAIO,Shield No. 23579;
Sergeant KEVIN CAIN, Shield No. 615; Lieutenant
MICHAEL DOYLE;Police Officer IRWIN LUPERON,
Shield No. 12509; Sergeant ROBERT AGATE,Shield
No. 3869;Police Officer MATTHEW EVANS,Shield
No. 7425;Police Officer AARON VERSKA,Shield
No. 5369; Officer ALEXIS YANEZ,Shield No. 23098;
and JOHN and JANE DOE I through 10, individually and
in their official capacities (the names John and Jane Doe
being fictitious, as the true names are presently
NICHOLAS G. GARAUFIS,United States District Judge.
In this case. Plaintiffs Adrian John, Shantee Williams, and Luis Gomez asserted
numerous constitutional claims under 42 U.S.C. § 1983 against Defendants, all of whom work
for the New York Police Department("NYPD"). (See Second Am. Compl.(Dkt. 22),) After
settlement negotiations failed (see Mar. 25,2016, Min. Entry), all three Plaintiffs accepted
Defendants' offer ofjudgment pursuant to Rule 68 ofthe Federal Rules of Civil Procedure (the
"Rule 68 Offer")(Notice of Acceptance with Offer of J.(Dkt. 27)). Plaintiffs then moved for
$20,268.22 in attomey's fees and costs under 42 U.S.C. § 1988 (the "Fee Motion"). (Mot. for
Att'y Fees(Dkt. 31).) The court referred the Fee Motion to Magistrate Judge Cheryl L. Pollak
for a Report & Recommendation("R&R")pursuant to 28 U.S.C. § 636(b)and Rule 72(a).
(Aug. 19,2016, Order Referring Mot.) On September 29, 2016, Judge Pollak issued an R&R
recommending that Plaintiffs be awarded a reduced total of$15,313.22 in attorney's fees and
costs. (R&R(Dkt. 39).) Defendants objected to certain portions ofthe R&R. (Obj. to R&R
(Dkt. 40).) For the reasons stated below. Defendants' objections are OVERRULED and Judge
Pollak's R&R is ADOPTED IN FULL. Accordingly,the Fee Motion is GRANTED and
Plaintiffs are AWARDED $15,313.22, consisting of$14,190.00 in attorney's fees and $1,123.22
REVIEW OF A REPORT & RECOMMENDATION
A district court 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). "[T]he district court
'may adopt those portions ofthe Report to which no objections have been made and which are
not facially erroneous.'" Locurto v. United States. No. lO-CV-4589(NOG)
4257550, at *2(E.D.N.Y. Aug. 12, 2016)(quoting La Torres v. Walker. 216 F. Supp.2d 157,
159(S.D.N.Y. 2000)); see also Porter v. Potter, 219 F. App'x 112(2d Cir. 2007)(summary
order). The court shall review de novo any portions ofthe R&R to which a party timely
objected. 28 U.S.C. § 636(b)(1). If, however,"a party 'makes only conclusory or general
objections, or simply reiterates his original arguments,the Court reviews the Report and
Recommendation only for clear error.'" Locurto. 2016 WL 4257550, at *2(quoting Pall Corp.
V. Enteeris. Inc.. 249 F.R.D. 48,51 (E.D.N.Y. 2008)).
A. Judge Pollak's Report & Recommendation
Judge Pollak made the following recommendations:
(1) Plaintiffs are entitled to attorney's fees under 42 U.S.C. § 1988(R&R at 5-6);
(2) In this jurisdiction, $350 represents a reasonable hourly rate for Plaintiffs'
counsel's work(id at 14-15);
(3) The tally of hours should be reduced by 10% in light of certain excessive and
duplicative billings, yielding a total of 39.2 compensable attorney hours, plus 1.6
hours of paralegal work (billed at $75 per hour) and 2 hours oftravel time (billed
at $175 per hour) Cid. at 21: see also id. at 18 n.l2);
(4) The tally of compensable hours properly includes the time that Plaintiffs'
counsel spent working on the Fee Motion(id at 23-24); and
(5) Plaintiffs should be awarded $1,123.22 in costs, representing all requested costs
for which Plaintiff submitted adequate supporting documentation(id at 25).
B. Recommendations that Received No Objections
The only objection the court received from either party challenged recommendation (4).
The court reviews the other, unobjected-to recommendations for clear error. Locurtp,
2016 WL 4257550, at *2. Finding none,the court adopts those recommendations in full.
C. Defendant's "Fees on Fees" Objections
Defendants objected to the recommendation that Plaintiffs be awarded "'fees on fees' for
time spent on [the Fee Motion]." (Obj. to R&R at 1.) The court therefore reviews this issue de
noyo.^ 28 U.S.C. § 636(b)(1). Defendants point out that the Rule 68 Offer "award[s] only fees
and costs incurred up to and including the date ofthe Rule 68 Offer." (Obj. to R&R at 4
(emphasis added); see also Rule 68 Offers(Dkts. 27-1 to -3).) Because Plaintiffs prepared and
submitted the Fee Motion after accepting the Offer, Defendants argue that the court should
exclude time spent on the Fee Motion from the calculation ofPlaintiffs' attorney's fees. The
court disagrees, concluding instead that Plaintiffs' counsel should be compensated for reasonable
time spent on the Fee Motion, as Judge PoUak recommended.
Plaintiffs argue that Defendants' objections mirror the arguments"made in their original opposition to [the Fee
Motion]," and "[t]hus, defendants' objection is subject to review under the *clearly erroneous' standard." (Reply to
Obj.(Dkt.41)at 2(citing Jaramillo v. Banana King Rest. Corp.. No. 12-CV-5649(NGG)
1108956,*2(E.D.N.Y. Mar. 18, 2016)).) The court acknowledges that Defendants assert substantially similar
arguments, and cite many ofthe same cases, as in their original opposition. (Compare Opp'n to Fee Mot.(Dkt. 35)
at 8-10 with Obj. to R&R.) The objections to the R&R,however, develop these arguments in much greater detail,
and grapple more directly with a set ofcases that, admittedly,"do not follow a uniform practice." Johnson v. Citv of
New York No. 1 l-CV-6176(ENV)
(CLP),2016 U.S. Dist. LEXIS 17088, at *18(E.D.N.Y. Jan. 30,2016). In light
ofboth Defendants' expanded argumentation and the lack of clear, binding precedent on this issue, the court will
apply de novo review.
1. Legal Standard
Section 1988 allows the court,"in its discretion," to award "a reasonable attorney's fee"
to a party who prevails in an action under Section 1983. 42 U.S.C. § 1988(b). The Second
Circuit has long held that, as a general matter, the award may account for "time reasonably spent
by plaintiffs attomeys in establishing their fee." Gagne v. Maher. 594 F.2d 336,344
(2d Cir. 1979), affd.448 U.S. 122(1980); see also Valley Disposal. Inc. v. Cent. Vt. Solid
Waste Mgmt. Dist.. 71 F.3d 1053,1060(2d Cir. 1995)(noting "the default rule that a successful
applicant for § 1988 attorneys' fees should be awarded the costs of bringing its § 1988
application"). "The Second Circuit courts do not follow a uniform practice," however, with
regard to "fee on fee" requests that follow offers under Rule 68. Johnson v. City ofNew York.
(CLP),2016 U.S. Dist. LEXIS 17088, at *18(E.D.N.Y. Jan. 30, 2016);
see also Hassan v. New York City. No. 1 l-CV-5382(JBW)
(VMS),2014 U.S. Dist. LEXIS
26194, at *23(E.D.N.Y. Feb. 10, 2014)(citing example cases for the proposition that,"while
some courts in this Circuit do not award fees incurred after the acceptance ofan offer of
judgment, other courts allow such fee awards, when reasonable").
Courts that declined to award "fees on fees" have typically relied on clear language in the
Rule 68 offer, noting that "[ojffers ofjudgment pursuant to [Rule 68] are construed according to
ordinary contract principles." Struthers v. City of New York. No. 12-CV-242,2013 WL
5407221, at *4(E.D.N.Y. Sept. 25,2013)(quoting Goodheart Clothing Co.. Inc. v. Laura
Goodman Enters.. Inc.. 962 F.2d 268,272(2d Cir.1992)). In Long v. City ofNew York,for
example,"[tjhe Rule 68 judgment limited recoverable fees and expenses to those incurred prior
to the date ofthe offer." and so Judge Alvin K. Hellerstein declined to award "fees and expenses
for work done preparing" the fee motion after judgment was entered. Long. No.09 Civ. 6099
(AKH),2010 U.S. Dist. LEXIS 81020, at *5(S.D.N.Y. Aug. 6,2010)(emphasis added). Judge
Hellerstein recognized, however,that if a defendant disputes the fee motion "in bad faith," then
even a clear Rule 68 offer would not necessarily preclude plaintiffs from recovering for time
spent securing their fee award. Id at *5-6,
Other courts have taken a broader approach,finding that "fees on fees" may be
recoverable whenever the parties fail to settle attorney's fees before judgment, even ifthe
defendants did not act in bad faith. Under,such circumstances, the defendants have effectively
been "put on notice that time spent by counsel in seeking fees would become a component" of
the "reasonable attorney's fees" authorized under Section 1988. Rosado v. Citv ofNew York.
No. 11 Civ. 4285(SAS),2012 WL 955510, at *6(S.D.N.Y. Mar. 15, 2012); see also, e.g..
Hassan. 2014 U.S. Dist. LEXIS 26194, at *23-24; Lee v. Santiago. No. 12 Civ. 2558(PAE)
(DF), 2013 WL 4830951, at *13(S.D.N.Y. Sept. 10, 2013); Tucker v. Citv ofNew York.
704 P. Supp. 2d 347,358(S.D.N.Y. 2010).
Defendants object to Judge Pollak's R&R on three grounds, none of which the court finds
persuasive. Defendants argue, first, that "the Court should enforce the plain language ofthe
Rule 68 Offers of Judgment," which "award[s] only fees and costs incurred up to and including
the date ofthe Rule 68 Offer." (Obj. to R&R at 4.) Defendants assert that "[cjourts have
deemed this language to plainly and unambiguously preclude the collection offees and costs
after the date of service ofthe Rule 68 Offer." (Id at 3.) Numerous cases have rejected that
hardline interpretation, however,including two ofthe cases that Defendants cited in support of
Rosado. 2012 WL 955510, at *6("[A]s a matter ofequity, plaintiff should be
awarded some amount for the time his counsel spent in preparing the instant fee application.");
Tucker. 704 F. Supp. 2d at 358("Time devoted to a fee application is generally compensable,
and in this case there is no reason to disallow it."(internal citations omitted)).
Defendants next contend that, even if the court does not adhere to the hard temporal limit
in the Rule 68 Offer,the procedural history ofthis case weighs against awarding "fees on fees"
in this instance. In particular. Defendants note that Plaintiffs filed the Fee Motion "without
providing any fee request or raising the subject offees and costs with defendants," meaning that
"defendants had no opportunity to resolve the issue offees and costs prior to the onset of motion
practice." (ObJ. to R&R at 3.) As Judge Pollak explained, however,"Defendants had the
opportunity to resolve the issue of attorney's fees and costs at the settlement conference" or
"along with the [subsequent] Offer of Judgment. Defendants' failure to do so did not deprive the
Court ofits ability to exercise its discretion under Section 1988 to award attorney's fees and
costs to prevailing parties." (R&R at 23-24.) See also Rosado,2012 WL 955510, at *6.
Defendants' final argument is that the issue of attorney's fees could have been resolved
more expeditiously had Plaintiffs initiated negotiations with Defendants rather than filing the
instant Fee Motion. (Obj. to R&R at 7.) The court should decline any associated costs,
Defendants argue, because ofthe court's obligation to "exclude 'excessive, redundant or
otherwise unnecessary hours.'" (Id at 6(quoting Ouarantino v. Tiffanv & Co.. 166 F.3d 422,
425(2d Cir. 1999)).) Plaintiffs were under no obligation to negotiate rather than litigate their
attorney's fees, however, particularly in light ofthe parties' unsuccessful negotiations before
Defendants extended the Rule 68 Offer. (See R&R at 23-24.) Moreover, if Defendants truly
believed that negotiation would have produced swifter resolution than litigation, they could have
responded to Plaintiffs' Fee Motion by sending Plaintiffs a proposal rather than by filing a brief
The court finds that Defendants' objections lack merit. The court agrees with, and adopts
in full, Judge Pollak's reasoning, including the recommendation that "five hours spent preparing
the instant motion and declaration is reasonable." (Id at 24.) Those five hours are properly
included in the compensable total, as calculated in the R&R.
For the reasons stated above, Defendants' objections(Dkt. 40)are OVERRULED and
Judge Pollak's R&R(Dkt. 39)is ADOPTED IN FULL. Accordingly, Plaintiffs' Motion for
Attorney's Fees(Dkt. 31)is GRANTED,and the court AWARDS Plaintiffs $15,313.22,
consisting of$14,190.00 in attomey's fees and $1,123.22 in costs.
s/Nicholas G. Garaufis
Dated: Brooklyn,New York
United States District Judge
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