-ARL Toussie, et al v. County of Suffolk, et al
Filing
339
MEMORANDUM AND ORDER denying 326 Motion for Attorney Fees. For the foregoing reasons, Toussie's motion for attorney's fees is DENIED in its entirety. So Ordered by Judge Joanna Seybert on 9/6/2012. C/ECF (Valle, Christine)
FILED
CLERK
9/6/2012 1:23 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATED DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
ROBERT I. TOUSSIE and
CHANDLER PROPERTY, INC.,
Plaintiffs,
MEMORANDUM & ORDER
01-CV-6716(JS)(ARL)
-againstCOUNTY OF SUFFOLK, ROBERT J. GAFFNEY,
individually, and in his official
capacity as Suffolk County Executive,
ALLEN GRECCO, and PEERLESS ABSTRACT
CORP.,
Defendants.
--------------------------------------X
ROBERT I. TOUSSIE, LAURA TOUSSIE,
ELIZABETH TOUSSIE, MICHAEL I. TOUSSIE,
PRAND CORP. f/k/a CHANDLER PROPERTY,
INC., ARTHUR A. ARNSTEIN CORP.,
TOUSSIE LAND ACQUISITION & SALES CORP.,
and TOUSSIE DEVELOPMENT CORP.,
05-CV-1814(JS)(ARL)
Plaintiffs,
-againstCOUNTY OF SUFFOLK,
Defendant.
--------------------------------------X
APPEARANCES
For Plaintiffs:
Abbe David Lowell, Esq.
Chadbourne & Parke, LLP
1200 New Hampshire Avenue NW
Washington, DC 20036
Scott S. Balber, Esq.
Emily Abrahams, Esq.
Jeffrey Carson Pulley, Esq.
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, NY 10112
For Suffolk County:
Arlene S. Zwilling, Esq.
John Richard Petrowski, Esq.
Chris P. Termini, Esq.
William G. Holst, Esq.
Suffolk County Attorney’s Office
P.O. Box 6100
H. Lee Dennison Building-5th Floor
100 Veterans Memorial Highway
Hauppauge, NY 11788
SEYBERT, District Judge:
Presently pending before the Court is Plaintiff Robert
I. Toussie’s (“Toussie”) motion for attorney’s fees.
For the
following reasons, Toussie’s motion is DENIED.
BACKGROUND
Plaintiffs
commenced
this
Toussie
action
(No.
and
Chandler
01-CV-6716)
in
Property,
Inc.
October
2001,
asserting that their civil rights had been violated when the
Defendants Suffolk County (the “County”) and Robert J. Gaffney
denied them the opportunity to purchase thirty-one parcels of
real estate at the 2001 Suffolk County Surplus Auction (the
“2001 Auction”).
(Petrowski Decl. Ex. A, hereinafter the “2001
Amended Complaint.”)
The 2001 Amended Complaint asserted eight
separate causes of action against these Defendants arising out
of the 2001 Auction:
claims under 42 U.S.C. § 1983 for an
2
unconstitutional bill of attainder (2001 Am. Compl. Count I),
violations of equal protection and due process (id. Counts IIIII), and denial of Toussie’s First Amendment right to intimate
association (id. Count IV), as well as state common law breach
of contract and tortious interference claims (id. Counts V-VI,
XI-XII).
The 2001 Amended Complaint also asserted four common
law causes of action against Allen Grecco and Peerless Abstract
Corp.
for
breach
of
contract
(id.
Count
VII),
breach
of
fiduciary duty (id. Count VIII), an accounting (id. Count IX),
and
tortious
interference
(id.
Count
X).
Plaintiffs
sought
relief in the form of:
(1) an order of specific performance
directing
convey
the
County
to
to
Plaintiffs
the
thirty-one
parcels for which they were the highest bidders at auction or,
in
the
alternative,
damages
in
an
amount
equal
to
the
lost
profits from the development, sale, and/or rental of the thirtyone parcels (approximately $5.3 million), and (2) damages equal
to the lost profits from the termination of a line of credit by
Safra Bank (approximately $30 million).
(See Joint Pre-Trial
Order (“JPTO”) at 7; Pl. Damages Stmt. ¶¶ 1-2, 7.)
In
Toussie,
April
Elizabeth
2005,
those
Toussie,
plaintiffs,
Michael
I.
joined
Toussie,
by
Laura
Prand
Corp.
f/k/a Chandler Property, Inc., Arthur A. Arnstein Corp., Toussie
Land Acquisition and Sales Corp., and Toussie Development Corp.
(collectively, “Plaintiffs”), commenced a second action (No. 053
CV-1814)
asserting
similar
claims
under
42
U.S.C.
§
1983.
(Petrowski Decl. Ex. B, hereinafter the “2005 Complaint.”)
2005
Complaint
Sabatino,
that
Patricia
II,
alleged
B.
Defendants
Zielinski,
Suffolk
and
The
County,
Thomas
A.
Paul
Isles
violated Plaintiffs’ civil rights when they blocked the sale of
sixteen parcels at the 2002 Suffolk County Surplus Auction (the
“2002 Auction”), rejected Toussie’s highest bids at the 2004
Suffolk County Surplus Auction (the “2004 Auction”), and had
police escort Toussie and his wife from the 2004 Auction.
With
respect to the 2002 Auction, the 2005 Complaint asserted claims
under Section 1983 for an unconstitutional bill of attainder
(2005
Compl.
procedural
Count
due
XIX),
process
violations
(id.
of
Counts
equal
XX,
protection
XXII),
denial
and
of
Plaintiffs’ First Amendment right to intimate association (id.
Count XXIII), retaliation in violation of the First Amendment
(id. Count XXI), as well as state common law breach of contract
and
unjust
enrichment
claims
(id.
Counts
XXIV,
XXV).
With
respect to the 2004 Auction, the 2005 Complaint asserted claims
under Section 1983 for an unconstitutional bill of attainder
(id. Count XIII), violations of equal protection and substantive
and procedural due process (id. Counts I, III, V), violations of
Plaintiffs’ First Amendment right to free speech and intimate
association (id. Counts VII, XI), retaliation in violation of
the
First
Amendment
(id.
Count
4
IX),
conspiracy
to
violate
Plaintiffs’ constitutional rights (id. Counts II, IV, VI, VIII,
X,
XII),
as
well
as
state
common
law
claims
for
breach
of
contract (id. Counts XIV-XV), unjust enrichment (Count XVI), and
defamation (id. Count XVII), and a claim under Suffolk County’s
Administrative Code (id. Count XVIII).
The 2005 Complaint also
asserted claims for continuing constitutional violations.
Counts XXVI-XXIX).
(Id.
Plaintiffs sought relief in the form of:
(1) an order of specific performance directing the County to
convey to Plaintiffs the parcels for which they were the highest
bidders at the 2002 and 2004 Auctions or, in the alternative,
damages
in
an
amount
equal
to
the
lost
profits
from
the
development, sale, and/or rental of the parcels (approximately
$3.8 million for the 2002 Auction properties and approximately
$1
million
for
the
2004
Auction
properties),
and
(2)
an
unspecified amount of damages for Toussie’s lost opportunity to
purchase additional properties at the 2004 Auction.
(See JPTO
at 7; Pl. Damages Stmt. ¶¶ 3-6.)
On May 18, 2007, the Court consolidated the 2001 and
2005 actions in the interest of judicial economy.
182.)
This
litigation
negotiations.
was
and
followed
by
protracted
and
years
of
(Docket Entry
discovery-related
unsuccessful
settlement
On July 19, 2011, Plaintiffs stipulated to the
dismissal of all claims against and related to Defendants Allen
Grecco and Peerless Abstract Corp (2001 Am. Compl. Counts VII5
XII), and on August 2, 2011, the Court granted in part and
denied in part the County’s motion for summary judgment (Docket
Entry 278).
Toussie v. Cnty. of Suffolk, 806 F. Supp. 2d 558
(E.D.N.Y. 2011).
The Court granted summary judgment in favor of
Defendants Gaffney, Zielinski, Isles and Sabatino on all claims,
and in favor of the County on (1) all equal protection claims
(2001 Am. Compl. Count II; 2005 Compl. Count III, XX, XXVI);
(2) the procedural due process claims arising out of the 2001
and 2002 Auctions (2001 Am. Compl. III; 2005 Compl. Count XXII);
(3) the First Amendment freedom of speech claim (2005 Compl.
Count
VII);
(4)
all
First
Amendment
retaliation
claims
(id.
Count IX, XXI); (5) the bill of attainder claim arising out of
the
2004
arising
Auction
out
of
(id.
the
Count
2001
XIII);
and
2002
(6)
the
Auctions
contract
(2001
claims
Am.
Compl.
Counts V, VI; 2005 Compl. Count XXIV); (7) all unjust enrichment
claims (2005 Compl. Counts XVI, XXV); (8) the defamation claim
(id. Count XVII); and (9) the claim for violation of the Suffolk
County Administrative Code (id. Count XVIII).
Plaintiffs
were
permitted
to
proceed
to
trial
only
against the County and only with respect to (1) the bill of
attainder claims arising out of the 2001 and 2002 Auctions (2001
Am.
Compl.
intimate
Count
I;
association
2005
claims
Compl.
(2001
Counts
Am.
XIX,
Compl.
XXIX);
Count
(2)
IV;
the
2005
Compl. Counts XI, XXIII); (3) the procedural and substantive due
6
process
claims
related
to
Mr.
and
Mrs.
Toussie’s
protected
property interest arising out of the 2004 Auction (2005 Compl.
Counts I, V, XXVII, XXVIII); and (4) the breach of contract
claims arising out of the 2004 Auction (id. Counts XIV, XV).
The trial commenced on August 10, 2011.
On August 23,
2011, the Court granted the County’s Rule 50 motion to dismiss
the breach of contract claims (Tr. 1614-1616), and the jury
began its deliberations on August 24, 2011.
On August 26, 2011,
the jury returned a verdict in favor of Toussie on the due
process claims arising out of the 2004 Auction and in favor of
the County on all other claims.
The jury awarded Toussie only
$12,500 in damages.
On October 19, 2011, Toussie moved for attorney’s fees
pursuant to 42 U.S.C. § 1988(b) in the amount of $2,794,929.50.
This motion is presently pending before the Court.
DISCUSSION
The Supreme Court has stated that “[a] request for
attorney’s fees should not result in a second major litigation.
Ideally, of course, litigants will settle the amount of the
fee.”
Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933,
76 L. Ed. 2d 40 (1983).
Not surprisingly, the parties here were
unable to settle the attorney’s fees issue as Toussie is seeking
almost $2.8 million dollars in attorney’s fees and the County is
asserting that he is entitled to nothing.
7
Thus, the Court has
reviewed Toussie’s motion and the accompanying exhibits, which
include over 400 pages of counsel’s billing records spanning a
period of six years, as well as the County’s opposition.
The Court will briefly explain the standard applicable
to motions for attorney’s fees before turning to the parties’
arguments.
I.
Standard under 42 U.S.C. § 1988
Section 1988(b) provides, in relevant part:
In any action or proceeding to enforce a
provision of [42 U.S.C. § 1983], the court,
in its discretion, may allow the prevailing
party, other than the United States, a
reasonable attorney’s fee as part of the
costs . . . .
A threshold issue in any motion for attorney’s fees is whether
the plaintiff was a “prevailing party.”
Id.
“[T]o qualify as a
prevailing party, a civil rights plaintiff must obtain at least
some relief on the merits of his claim.”
Farrar v. Hobby, 506
U.S. 103, 111, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992); see
also Hensley v. Eckerhart, 461 U.S. at 433 (“[P]laintiffs may be
considered ‘prevailing parties’ for attorney’s fees purposes if
they
succeed
on
any
significant
issue
in
litigation
which
achieves some of the benefit the parties sought in bringing
suit.” (internal quotation marks and citation omitted)).
plaintiff
is
determined
to
be
a
prevailing
If a
party,
a
“presumption” that he “should recover an attorney’s fee [arises]
8
unless special circumstances would render such an award unjust.”
Kerr
v.
Quinn,
692
F.2d
875,
877
(2d
Cir.
1982)
(citations
omitted).
Here, it is undisputed that Toussie is a prevailing
party under § 1988.
See, e.g., Farrar, 506 U.S. at 111 (stating
that a plaintiff who obtains an enforceable judgment against the
defendant from whom fees are sought is a prevailing party).
Thus, the issue is what fee is “reasonable.”
See Hensley, 461
U.S. at 433; see also Pino v. Locascio, 101 F.3d 235, 238 (2d
Cir. 1996).
II.
Reasonable Attorney’s Fees
The County argues that any award of attorney’s fees
would be unreasonable, and hence unjust, because:
(1) Toussie’s
recovery in this case was de minimus and (2) the request for
almost $2.8 million in fees is “so unreasonable and grossly
excessive” that it could not have been made in good faith.
In
the alternative, the County argues that a fee of no more than
$25,000 would be reasonable.
The Court will address each of the
County’s arguments separately.
A.
De Minimus Success
The
Supreme
Court
has
repeatedly
stated
that
“‘the
most critical factor’ in determining the reasonableness of a fee
award ‘is the degree of success obtained,’” Farrar, 506 U.S. at
114 (quoting Hensley, 461 U.S. at 436); accord Marek v. Chesney,
9
473
U.S.
1,
11,
105
S.
Ct.
3012,
87
L.
Ed.
2d
1
(1985);
Riverside v. Rivera, 477 U.S. 561, 585, 106 S. Ct. 2686, 91 L.
Ed. 2d 466 (1986); see also Pino, 101 F.3d at 237, and the
Supreme Court has upheld decisions to deny attorney’s fees to
plaintiffs who achieve only “technical” or de minimus success,
see, e.g., Farrar, 506 U.S. at 117 (O’Connor, J., concurring).
Thus,
even
if
a
plaintiff
is
the
“prevailing
party,”
if
he
“recovers only nominal damages because of his failure to prove
an essential element of his claim for monetary relief, the only
reasonable fee is usually no fee at all.”
Id. at 115 (majority
opinion) (citation omitted); cf. Carroll v. Blinken, 105 F.3d
79, 81 (2d Cir. 1997) (“Where the damage award is nominal or
modest,
the
importance,
injunctive
and
no
relief
substantial
has
no
public
systemic
interest
is
effect
of
served,
a
substantial fee award cannot be justified.”).
The County argues that because Toussie achieved only
an “infinitesimal degree” of success, he is not entitled to
recover
entirely
any
attorney’s
without
merit.
fees.
The
Since
County’s
this
action
argument
was
is
not
commenced,
Toussie has consistently sought damages equal to the value of
the parcels for which Plaintiffs were the highest bidders at the
2001, 2002, and 2004 Auctions (less the winning bid amount)1 and
1
At trial, Plaintiffs’ counsel indicated that, collectively, the
properties were worth upwards of $10 million. (Tr. 1813-14.)
10
$30
million
in
damages
Toussie’s
line
of
liability
with
arising
respect
although
the
jury
credit
did
in
to
of
2001.
the
find
out
in
Safra
Yet,
2001
and
favor
of
the
2002
Bank’s
jury
pulling
found
Auctions,
Toussie
on
the
no
and,
due
process claims arising out of the 2004 Auction, it declined to
award any damages related to the value of the parcels for which
Toussie
was
the
highest
bidder
in
2004.
Instead,
the
jury
awarded Toussie only $12,500--a mere third of a percent of what
he submitted to the jury.2
Toussie argues that his success was not de minimus
because (1) he was awarded more than nominal damages and (2) his
constitutional rights were vindicated.
The Court disagrees.
First, at least one court in this circuit has refused
to award attorney’s fees to a plaintiff who recovered more than
one dollar.
(S.D.N.Y.
See Adams v. Rivera, 13 F. Supp. 2d 550, 552
1998)
(finding
that
although
the
Supreme
Court’s
holding in Farrar “would not preclude an award of attorneys’
fees [where] the jury . . . found actual, rather than nominal
damages[,] . . . nothing
attorneys’
fees
to
a
in
Farrar
prevailing
requires
party
the
simply
award
because
of
its
2
Toussie’s counsel submitted to the jury damages in the
following amounts: $5,329,000 arising out of the 2001 Auction,
$3,860,000 arising out of the 2002 Auction, $2,601,200 arising
out of the 2004 Auction, $3,000,000 due to Safra Bank’s pulling
Toussie’s line of credit, and $21,000,000 related to the
property on Horseblock Road. (Tr. 1813-14.)
11
recovery is more than the one dollar given for nominal damages”
(citations omitted)).
Second, vindication of constitutional rights, without
more, does not necessarily justify an award of attorney’s fees.
To
determine
whether
a
prevailing
party’s
recovery
was
de
minimus such that no fees can be awarded, courts often apply the
tripartite
test
articulated
concurring opinion in Farrar.
by
Justice
O’Connor
in
her
See, e.g., Adams, 13 F. Supp. 2d
at 552 (collecting cases); Haywood v. Koehler, 885 F. Supp. 624,
629 (S.D.N.Y. 1995), aff’d, 78 F.3d 101 (2d Cir. 1996).
Under
that test, a plaintiff’s recovery is “technical” or de minimus
if:
(1) there is “a substantial difference between the judgment
recovered and the recovery sought,” (2) the legal issue on which
the
plaintiff
insignificant,
claims
and
(3)
to
have
prevailed
the
litigation
is
relatively
accomplished
nothing
“other than occupying the time and energy of counsel, court, and
client.”
Farrar, 506 U.S. at 121-22 (O’Connor, J., concurring).
The Court has already determined that there is a substantial
difference
sought.
between
the
judgment
recovered
and
the
recovery
Further, the Second Circuit has held that “[t]he vast
majority of civil rights litigation does not result in groundbreaking
conclusions
of
law,
and
therefore,
will
only
be
appropriate candidates for fee awards if a plaintiff recovers
some significant measure of damages or other meaningful relief.”
12
Pino,
101
F.3d
at
239.
And,
here,
aside
from
monetary recovery, Toussie achieved nothing:
his
minimal
the jury found
that, although the County could not bar Toussie from bidding at
auctions, it had no obligation to sell him any parcels.
Thus,
while Toussie “may have won a point, . . . the game, set, and
match all went to the defendants.”
Farrar, 506 U.S. at 121
(O’Connor, J., concurring).
Nonetheless, as Toussie recovered more than nominal
damages
and
the
jury
verdict
will
likely
deter
similar
due
process violations by the County in the future, the Court finds
that
Toussie’s
success
is
not
so
trivial
that
the
only
reasonable fee is no fee at all.
B.
Grossly Excessive
The County also argues that Toussie’s fee application
“is so unreasonable and grossly excessive that it should be
denied in its entirety.”
In
(Cnty. Opp. 19.)
determining
whether
a
The Court agrees.
fee
application
is
reasonable, the Supreme Court has again emphasized that “the
extent
of
a
plaintiff’s
success
is
a
crucial
factor
in
determining the proper amount of an award of attorney’s fees
under 42 U.S.C. § 1988.”
Hensley, 461 U.S. at 440.
Where the plaintiff has failed to prevail on
a claim that is distinct in all respects
from his successful claims, the hours spent
on the unsuccessful claim should be excluded
in considering the amount of a reasonable
13
fee.
Where a lawsuit consists of related
claims,
a
plaintiff
who
has
won
a
substantial relief should not have his
attorney’s fee reduced simply because the
district court did not adopt each contention
raised.
But where the plaintiff achieved
only limited success, the district court
should award only that amount of fees that
is reasonable in relation to the results
obtained.
Id.
The party seeking attorney’s fees “bears the burden of
establishing
entitlement
to
an
award,”
and
“[t]he
applicant
should exercise ‘billing judgment’ with respect to hours worked
and should maintain billing time records in a manner that will
enable a reviewing court to identify distinct claims.”
461 U.S. at 437 (citations omitted).3
Hensley,
Counsel for the party
seeking fees must “make a good faith effort to exclude from a
fee request hours that are excessive, redundant, or otherwise
unnecessary,” id. at 434, and failure to do so can result in
denial of fees altogether, see, e.g., Fair Hous. Council v.
3
The Supreme Court has stated that the level of detail in a
lawyer’s bills to his client is often insufficient to support a
motion to recover fees under § 1988:
In the [former] case, the attorney and
client
have
presumably
built
up
a
relationship of mutual trust and respect;
the client has confidence that his lawyer
has
exercised
the
appropriate
‘billing
judgment,’ and unless challenged by the
client, the billing does not need the kind
of extensive documentation necessary for a
payment under § 1988.
Hensley, 461 U.S. at 441 (Burger, C.J., concurring).
14
Landow, 999 F.2d 92, 93 (4th Cir. 1993) (reversing district
court’s award of $20,000 and remanding with instructions to deny
the fee request in its entirety because it was “so outrageously
excessive so as to shock the conscience of the court”); Brown v.
Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980) (finding that the
denial
of
entirely
an
“outrageously
appropriate,
encouraging
counsel
and
to
excessive”
fee
hopefully
effective,
maintain
adequate
request
records
was
“an
means
of
and
submit
reasonable, carefully calculated, and conscientiously measured
claims when seeking statutory counsel fees”); Lewis v. Kendrick,
944 F.2d 949, 956 (1st Cir. 1991) (reversing district court’s
fee award because “turn[ing] a single wrongful arrest into a
half year’s work, and seek[ing] payment therefor, with costs,
amounting to 140 times the worth of the injury, is, to use a
benign word, inexcusable”); Scham v. Dist. Cts. Trying Crim.
Cases, 148 F.3d 554, 557-58 (5th Cir. 1998) (upholding denial of
an
“outrageous”
request
for
attorney’s
fees);
cf.
Mendez
v.
Cnty. of San Bernardino, 540 F.3d 1109, 1127-28 (9th Cir. 2008)
(reversing
denial
of
attorney’s
fees
when
“there
[was]
no
evidence that [the] fee request was either made in bad faith or
contained excessive hours spent on unrelated claims”).
The Court finds that Toussie’s fee application is so
outrageously
excessive
and
unreasonable
possibly have been made in good faith.
15
that
it
could
not
First, as there is a
mixture of both related and unrelated claims,4 Toussie’s counsel
had an obligation to differentiate between the distinct claims
in its bills submitted to the Court and to seek compensation
only for the claims for which Toussie was successful.
Although
counsel assert that they have done this and portions of the
bills submitted to the Court have been redacted, the remaining
time entries are replete with tasks unrelated to the due process
claims arising out of the 2004 Auction.
(See, e.g., Pl. Ex. 4,
Docket Entry 326-6 at 5 (Braunstein time entry dated 2/22/05
billing
for
“availability
“research[ing]
of
implied
state
causes
law
of
claims”
action
and
under
the
State
Constitution”);5 Pl. Ex. 4, Docket Entry 326-6 at 11 (Mogin time
entry dated 3/17/05 billing for “edit[ing] pro hac vice papers
re 1st auction case”); Pl. Ex. 4, Docket Entry 326-6 at 19
(Braunstein time entry dated 4/11/05 billing for “legal research
re: intentional tort of abuse of process”); Pl. Ex. 6, Docket
Entry 326-13 at 67 (Cross time entry dated 8/4/11 billing for
4
The claims arising out of the 2004 Auction are factually only
minimally related to the claims arising out of the 2001 and 2002
Auctions, and the due process claims arising out of the 2004
Auction are based on legal concepts distinct from Plaintiffs’
other constitutional claims.
5
The Court notes that counsel utilized block time entries--i.e.,
each attorney submitted one time entry per day that described
all of the work performed on this case on that particular day.
The examples of counsel’s time entries cited throughout this
Memorandum and Order often reference only one of a number of
tasks performed by a particular attorney on a given date.
16
“research[ing] case law re bill of attainder, right of intimate
associate, contract damages”); Pl. Ex. 6, Docket Entry 326-8 at
46 (Balber time entry dated 8/25/06 billing for “analysis of
bidders with criminal records”);6 Pl. Ex. 6, Docket Entry 326-10
at
14
(Pulley
“[r]eview[ing]
time
and
entry
dated
distribut[ing]
2/13/08
charts
re:
billing
2001,
2002,
for
and
2004 damages”); Pl. Ex. 6, Docket Entry 326-8 at 39 (Balber time
entry dated 8/2/06 billing for, inter alia, “[p]reparation for
depositions
of
F.
Ford,
L.
Bonacci
and
W.
Thompson”
and
“teleconference with A. Binder”)7.)
In addition to the above examples, Toussie is also
seeking
attorney’s
fees
for:
(1)
the
extensive
time
counsel
6
Although it does not explicitly state in Balber’s time entry,
such research relates to Plaintiffs’ class-of-one equal
protection claims which require proof of differential treatment
of similarly situated individuals. See Toussie, 806 F. Supp. 2d
at 577. (See also, e.g., Pl. Ex. 6, Docket Entry 326-8 at 57
(Hunn time entry dated 9/19/06 billing for “investigation of
previous purchasers of Suffolk County real estate”).)
7
While the individual legislators were integrally involved in
the claims arising out of the 2001 and 2002 Auctions, Isles,
Zielinski, and Sabatino--not the Suffolk County legislators-made the decision to reject Toussie’s bids at the 2004 Auction.
See Toussie, 806 F. Supp. 2d at 570. Thus, any discovery and/or
trial prep with the legislators is not related to the claims on
which Toussie was successful and is not compensable. (See also,
e.g., Pl. Ex. 6, Docket Entry 326-13 at 36 (Zafran time entry
dated 6/25/11 billing for “[r]eview[ing] Gaffney deposition;
add[ing] aspects of Gaffney, Binder, Thompson and Bonacci
depositions to theory of the case; begin[ning] to review minutes
of County and Committee meetings”); Pl. Ex. 6, Docket Entry 3268 at 69 (Lowell time entry dated 10/12/06 billing for
“[r]eview[ing] Suffolk County Ways and Means Minutes”).)
17
spent communicating with his son Isaac (see, e.g., Pl. Ex. 6,
Docket Entry 326-8 at 31 (Balber time entry dated 7/11/06); Pl.
Ex.
6,
Docket
Entry
326-13
at
35
(Lowell
time
entry
dated
6/22/11); Pl. Ex. 6, Docket Entry 326-13 at 61 (Abrahams time
entry
dated
7/29/11);
(Petrosinelli
time
Pl.
entry
Ex.
4,
dated
Docket
Entry
even
3/1/05)),
326-6
at
though
10
Isaac
related only to the intimate association claims,8 see Toussie,
806 F. Supp. 2d at 584; (2) time spent preparing the notice of
pendency (see, e.g., Pl. Ex. 6, Docket Entry 326-8 at 33 (Hunn
time entry dated 7/19/06)), which was a separate cause of action
altogether,
see
(E.D.N.Y.),
and
Toussie
was
v.
Suffolk
voluntarily
Cnty.,
dismissed
by
No.
05-CV-2954
Plaintiffs
via
stipulation on January 24, 2012; (3) all time spent preparing
the motion to consolidate the 2001 Amended Complaint with the
2005 Complaint (see, e.g., Docket Entry 326-8 at 47 (Hunn time
entry dated 8/29/06)), which in no way contributed to Toussie’s
success
on
the
2004
due
process
claims;
(4)
the
time
spent
preparing and reviewing the experts’ property appraisals (see,
e.g.,
Docket
9/25/06)),
Entry
even
326-8
though
the
at
59
jury
(Balber
declined
time
to
entry
award
dated
Toussie
damages equal to the value of the parcels for which he was the
8
Toussie stated that his son had little to no involvement in the
day-to-day operations of his business, so the Court speculates
as to why such a significant amount of time spent communicating
with Issac was necessary.
18
highest bidder; (5) discovery related to Safra Bank (see, e.g.,
Docket Entry 326-8 at 83 (Pulley time entry dated 11/7/06)),
even though the jury declined to award damages arising out of
Safra Bank’s pulling Toussie’s line of credit; (6) discovery
related to a subsequent auction in 2007 (see, e.g., Docket Entry
326-13 at 4 (Pulley time entry dated 12/1/10)), which the Court
precluded Plaintiffs from introducing during the course of the
trial (see Electronic Order, Aug. 4. 2011); and (7) time spent
preparing a jury questionnaire (see, e.g., Docket Entry 326-13
at
38
(Lowell
time
entry
dated
6/29/11))
which
the
Court
declined to use finding “no justification for jurors to complete
such questionnaire” (Order, Docket Entry 247, July 8, 2011).
Such requests shock the conscience given that counsel
affirmatively stated that these fees were being excluded from
the fee request (see Pl. Mot. 9 (“Plaintiff has not included any
fees incurred exclusively in connection with the 2001 Auction,
the additional claims from the 2005 Action, or any other related
disputes,
e.g.,
the
lis
pendens
action
filed
on
May
19,
2005.”)), and, as these unreasonable fee requests so permeate
counsel’s time sheets, they could not have been included by
mistake.
Second, Toussie’s lawyers appear to be seeking fees
for all time entries that do not specifically refer to the 2001
Amended Complaint (see, e.g., Pl. Ex. 4, Docket Entry 326-6 at
19
10
(Braunstein
time
entry
dated
1/25/05
billing
for
“legal
research”); Pl. Ex. 6, Docket Entry 326-8 at 16 (Pulley time
entry
dated
6/15/06
billing
for
“[c]onduct[ing]
research
and
composi[ng] re elements of causes of action”); Pl. Ex. 6, Docket
Entry 326-13 at 38 (Lowell time entry dated 6/28/11 billing for
“[p]repar[ing] for trial”); Pl. Ex. 6, Docket Entry 326-13 at 14
(Abrahams time entry dated 2/26/11 billing for “[a]ttention to
drafting and conducting legal research for opposition to summary
judgment
motion”)),
arguing
that
such
time
is
compensable
because “[a]ll of the claims . . . brought by Plaintiff involved
a
common
theories.”
core
of
facts
and
(Pl. Mot. 9.)
were
based
on
related
The Court disagrees.
legal
There were
three distinct auctions at issue, and although a majority of
Plaintiffs’ claims were brought pursuant to 42 U.S.C. § 1983,
the Court fails to see the overlap between, for example, claims
under the First Amendment or bill of attainder clause and the
due process claims.
Only a fraction of this time would be
considered “reasonable,” given that Toussie only succeeded on
two claims. Yet counsel proposed no reduction related to their
vague and generic entries, such as “research,” “summary judgment
briefing,” and “trial prep.”
Further, counsel have a duty to
“maintain billing time records in a manner that will enable a
reviewing court to identify distinct claims,” Hensley, 461 U.S.
20
at 436, yet counsel frequently failed to identify which claims
they were working on in a given time entry.
Third,
Toussie’s
lawyers
have
failed
to
segregate
their hours spent traveling (see, e.g., Pl. Ex. 6, Docket Entry
326-8 at 32 (Balber time entry dated 7/17/06 for “[t]ravel to
and from Hauppauge”)) and are seeking 100 percent compensation
for
such
hours,
even
though
Magistrate
Judge
Arlene
Rosario
Lindsay previously advised that only 50 percent of travel time
is recoverable.
See Toussie v. Cnty. of Suffolk, No. 01-CV-
6716, 2011 WL 2173870, at *2 (E.D.N.Y. May 31, 2011) (Judge
Lindsay’s
order
awarding
Plaintiffs
attorney’s
fees
in
connection with their successful spoliation motion); see also
Anderson v. City of N.Y., 132 F. Supp. 2d 239, 243 (S.D.N.Y.
2001) (stating that travel time is usually compensated at 50
percent of counsel’s hourly rate); Hugee v. Kimso Apartments,
L.L.C., --- F. Supp. 2d ----, 2012 WL 1096086, at *14 (E.D.N.Y.
Apr. 3, 2012) (collecting cases).
Counsel have not provided the
Court with exactly how many hours of travel time for which they
seek
attorney’s
fees,
and,
thus,
the
Court
is
unable
to
calculate the 50 percent discount (without scouring each time
entry in the nearly 450 pages of billing records submitted to
the
Court).
Counsel’s
failure
in
this
regard,
given
Judge
Lindsay’s prior order and applicable case law, appears to be
purposeful and in bad faith.
21
Fourth,
Toussie’s
lawyers
seek
an
award
based
on
hourly rates ranging from $375 to $905 per hour for counsel and
$250 per hour for a paralegal.
However, these rates greatly
exceed the rates currently being awarded in the Eastern and
Southern Districts, see Barkley v. United Homes, L.L.C., Nos.
04-CV-0875, 05-CV-0187, 05-CV-4386, 05-CV-5302, 05-CV-5362, 05CV-5679,
2012
WL
3095526,
at
*7
(E.D.N.Y.
July
30,
2012)
(stating that courts in this district have recently awarded fees
in the range of $300-400 per hour for partners, $200-300 for
senior
associates,
and
$100-200
for
junior
associates
(collecting cases)); Maldonado v. La Nueva Rampa, Inc., No. 10CV-8195,
2012
WL
1669341,
at
*13
(S.D.N.Y.
May
14,
2012)
(stating that courts in that district “have determined that the
range between $250 and $450 is generally an appropriate fee for
experienced civil rights and employment law litigators”), and
Judge Lindsay appropriately reduced Plaintiffs’ fee request in
connection with their spoliation motion to hourly rates ranging
from $450 to $300 per hour, see Toussie, 2011 WL 2173870, at *2.
Yet, counsel in the pending motion nonetheless propose using
their actual billing rates to calculate the amount of attorney’s
fees due here.9
Given Judge Lindsay’s prior order and counsel’s
9
Mr. Balber, in his affidavit submitted in support of Toussie’s
motion for attorney’s fees, states that “[s]everal attorneys
worked on this case from 2005 through 2011, and as such, the
hourly rate has changed over a six year time period.” (Balber
22
failure
to
provide
the
court
with
“satisfactory
evidence--in
addition to the attorneys’ own affidavits--that the requested
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, 465 U.S. 886, 895
n.11, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984), the Court finds
counsel’s proposed rates to be excessive and unreasonable.
Fifth, counsel had indicated that “all fees that were
not reasonably related to the Claims [for which judgment was
entered in Toussie’s favor] were excluded and redacted from the
invoices” provided to the Court in support of Toussie’s motion.
(Balber Aff. ¶ 6.)
The records provided to the Court have been
redacted in two ways:
attorney,
description,
(i) entire time entries--i.e., date,
and
time--are
redacted
or
(ii)
just
portions of the description are redacted (see, e.g., Pl. Ex. 6,
Docket Entry 326-8 at 17 (Balber time entry dated 6/20/06)).
Toussie’s lawyers do not appear to be seeking compensation for
the time entries that were redacted in their entirety.
However,
they do appear to be seeking full compensation for the time
entries that were partially redacted, notwithstanding counsel’s
Aff. ¶ 8.) Yet, the papers do not break down how many hours
each attorney billed at a given rate, so the Court is unable to
verify whether counsel’s proposed figures are even accurate.
This also prevents the Court from simply applying more
reasonable rates to the hours billed.
23
assertion
that
portions
of
this
time
are
“not
reasonably
related” to the 2004 due process claims.10
Sixth,
Mr.
Balber’s
affidavit
states
that
lawyers
Joseph G. Petrosinelli, Paul Mogin, and Todd F. Braunstein of
Williams
&
Connolly
respectively.
billed
(Balber
Aff.
19.25,
¶
7.)
131.5
and
However,
64.25
the
hours
Court
has
reviewed the records submitted in support of such figures (see
Pl. Ex. 4) and finds that Toussie has only provided support for
14.75, 107, and 42 hours respectively--a difference of 72 hours
or $29,366.25.11
Finally, and perhaps most egregiously, Judge Lindsay
previously
awarded
$47,640.10
requested)
Plaintiffs’
in
attorney’s
their motion for sanctions.
*2.
counsel
fees
$21,385
in
(of
the
connection
with
See Toussie, 2011 WL 2173870, at
Counsel have included all of the hours for which they were
compensated
by
attorney’s fees.
Judge
Lindsay
in
the
pending
request
for
They multiplied those hours by their actual
10
The Court notes that counsel may be redacting entries that
they believe are protected by attorney-client privilege.
However, the Court is speculating, as Toussie has not invoked
the privilege.
11
The Court has compared the hours of Hamburger, Maxson, Yaffe,
Knauer & McNalley, LLP and McDermott Will & Emery as stated in
the Balber Affidavit with the firms’ billing records and finds
them to be accurate. The Court has not confirmed whether the
total number of hours submitted by Chadbourne & Parke (nearly
4,500 hours) is accurate.
24
hourly rates, and then subtracted the $21,385 awarded by Judge
Lindsay
from
the
total.
(Balber
Aff.
¶
5.)
However,
in
subtracting the monetary award from the final calculation, as
opposed to the hours spent in connection with the motion for
sanctions from the total hours per lawyer, counsel are seeking
to recover the fees that Judge Lindsay already determined were
unreasonable
(i.e.,
the
difference
between
the
$47,640.10
requested and the $21,385 awarded).
The
Court
finds
that
the
above
examples
clearly
evidence counsel’s bad faith in seeking almost $2.8 million in
attorney’s
fees
attorney’s fees.12
and
more
than
justify
a
complete
denial
of
As the Seventh Circuit stated in Brown,
If . . . the Court were required to award a
reasonable
fee
when
an
outrageously
unreasonable
one
has
been
asked
for,
claimants
would
be
encouraged
to
make
unreasonable demands, knowing that the only
unfavorable consequence of such misconduct
would be reduction of their fee to what they
should have asked for in the first place.
612 F.2d at 1058.
fee
application
Here, counsel have so grossly inflated their
to
a
figure
more
than
200
times
Toussie’s
recovery--by ignoring prior directives of Judge Lindsay, seeking
12
While there are four separate law firms seeking attorney’s
fees, the issues discussed above permeate all of the firms’
billing records, with the exception of the fees submitted by Mr.
Hamburger in connection with his testifying on behalf of
Toussie. Mr. Hamburger’s witness fees, however, are more
appropriately characterized as costs, as he was no longer
representing Toussie when he testified on his behalf, and the
parties resolved the issue of costs without Court intervention.
25
fees related to claims on which Plaintiffs obviously did not
prevail, misrepresenting the total number of hours billed, and
providing extraordinarily vague descriptions of billable hours
in block time entries such that the Court cannot even begin to
determine
how
many
hours
were
actually
spent
on
Toussie’s
successful claims--in the hopes that the Court would award even
a small fraction of that.13
Such conduct will not be tolerated,
and, accordingly, the Court declines to award any attorney’s
fees.
CONCLUSION
For
the
foregoing
reasons,
Toussie’s
motion
for
attorney’s fees is DENIED in its entirety.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
September 6, 2012
Central Islip, New York
13
The Court notes that although counsel frequently applied ten
percent discounts to their fees to Toussie (see, e.g., Pl. Ex.
6, Docket Entry 326-13 at 16; Pl. Ex. 4, Docket Entry 326-6 at
9), no such discount was proposed in the pending motion.
26
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