Restivo et al v. Nassau County et al

Filing 284

MEMORANDUM & ORDER granting 233 Motion for Attorney Fees; granting 240 Motion to Amend/Correct/Supplement; The Court awards attorney fees in the amount of $4,677,897.50 (which includes the cost of the fee petition) plus $320,017.05 i n costs for a total of $4,997,914.55 in attorney fees and costs. The Clerk of the Court is directed to amend the judgment to include attorney fees and costs. Post-judgment interest, calculated pursuant to 28 U.S.C. § 1961(a), shall run on t he award of attorney fees and costs from the date of this Memorandum & Order until the date the fees and costs are paid. In addition, NSB's motion to amend (Docket Entry 240) is GRANTED. So Ordered by Judge Joanna Seybert on 11/30/2015. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
JOHN RESTIVO and DENNIS HALSTEAD,
ET AL.,
Plaintiffs,
MEMORANDUM & ORDER
06-CV-6720(JS)(SIL)

-againstNASSAU COUNTY, CAROLANN HESSEMAN,
AS EXECUTRIX FOR THE ESTATE OF
JOSEPH VOLPE, in his individual
capacity, and CHARLIE FRAAS, in
his individual capacity, ET AL.,

Defendants.
------------------------------------X
APPEARANCES
For Plaintiffs:
Barry C. Scheck, Esq.
Alexandra Lynn Lampert, Esq.
Monica R. Shah, Esq.
Nick Joel Brustin, Esq.
Anna B. Hoffmann, Esq.
Peter Jon Neufeld, Esq.
Neufeld Scheck & Brustin LLP
99 Hudson Street, 8th Floor
New York, New York 10013
Joshua Evan Dubin, Esq.
Joshua E. Dubin, Esq., P.A.
212 NE 16th Terrace
Fort Lauderdale, FL 33301
David Graff, Esq.
Rachael Ann Kierych, Esq.
Anderson Kill & Olick PC
1251 Avenue of The Americas
42nd Floor
New York, NY 10020
Leon Friedman, Esq.
148 E. 78th St.
New York, NY 10075

For Defendants:
Nassau County

Daniel A. Bartoldus, Esq.
Amy E. Bedell, Esq.
Annemarie Susan Jones, Esq.
Lewis Johs Avallone Aviles & Kaufman, LLP
One CA Plaza, Suite 225
Islandia, NY 11749
Liora M. Ben-Sorek, Esq.
Dennis J. Saffran, Esq.
Sondra Meryl Toscano, Esq.
Office of the Nassau County Attorney
One West Street
Mineola, New York 11501

Carolann Hessemann,
as executrix of
the Estate of
Joseph Volpe
Peter J. Tomao, Esq.
Law Office of Peter J. Tomao
600 Old Country Rd, Suite 328
Garden City, NY 11530
Thomas J. McNamara, Esq.
Certilman, Balin, Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, NY 11554
SEYBERT, District Judge:
Pending before the Court is Neufeld Scheck & Brustin
LLP’s (“NSB”) motion for attorney fees (Docket Entry 233), together
with a motion to amend (Docket Entries 240).

For the reasons that

follow both motions are GRANTED.1

Plaintiffs seek through their first motion (Docket Entry 240)
to amend their fee request in light of the fact that Elizabeth
Daniel Vasquez, Esq. worked on Plaintiffs’ case as a paralegal,
a law clerk, and an attorney. She therefore submitted a revised
declaration and fee request which takes her hourly rate at these
different levels into account. (See Mot. to Amend, Docket Entry
240.) Plaintiff’s’ motion to amend is GRANTED and the Court
will consider Plaintiffs’ revised fee request.
1

2

BACKGROUND
The

Court

assumes

familiarity

procedural history of this case.

with

the

facts

and

Thus, only those facts relevant

to NSB’s motions will be discussed.
Plaintiffs

John

Restivo

and

Dennis

Halstead

(“Plaintiffs”) brought this § 1983 suit seeking to prove that
Nassau County Police Detective Joseph Volpe (“Volpe”) caused their
wrongful convictions for the death of Theresa Fusco.2

The case

was vigorously litigated for eight years (Benvenutti Decl., Docket
Entry 234, ¶ 7.)
spanning

over

Discovery included thirty-five depositions,

fifty-four

deposition

separate discovery requests.
was tried twice.

days,

and

twenty-three

(Benvenutti Decl. ¶ 7.)

The case

The first trial lasted thirty-one trial days

over eleven weeks and included the presentation of forty-two
witnesses.

The second trial spanned seventeen trial days over

five weeks and included the presentation of forty witnesses.
(Benvenutti Decl. ¶ 8.)
involving

extensive

Both trials were technically complex,

expert

forensic hair comparison.

testimony

about

DNA

evidence

(Benvenutti Decl. ¶ 9.)

and

Plaintiffs

offered nine separate expert witnesses and Defendants offered

Plaintiffs originally commenced this case against Defendants
Volpe, Nassau County, and Charlie Fraas (collectively
“Defendants”), and others.
2

3

four. (Benvenutti Decl. ¶ 9.)

There was litigation over the

admissibility of the opinion testimony of eight of these experts,
and the parties conducted a five-day Daubert hearing at which
Plaintiffs largely prevailed.

(Benvenutti Decl. ¶ 9.)

Throughout

most of discovery and the first trial, Plaintiffs’ case was joined
with that of a third man, John Kogut, who also claimed he was
wrongfully convicted of the Theresa Fusco murder.
Decl. ¶ 10.)

(Benvenutti

This joinder substantially complicated the legal and

factual issues in the case, given that Kogut had confessed to the
crime, while Plaintiffs had not.

(Benvenutti Decl. ¶ 10.)

At the

conclusion of the second trial, the jury found Volpe liable to
Plaintiffs for unconstitutionally depriving them of their right to
a fair trial and for malicious prosecution.
Docket Entry 198.)

(See Verdict Sheet,

The jury awarded Plaintiffs $18 million each

in damages, which amounts to $1 million for each year Plaintiffs
were imprisoned.

(Judgment, Docket Entry 228.)

The parties also

endured several rounds of substantial legal briefing, including a
motion for judgment on the pleadings; a motion for reconsideration
of the Court’s ruling; a motion for summary judgment; post-trial
briefing

after

the

first

trial;

another

motion

for

reconsideration; and post-trial briefing after the second trial.
(Benvenutti Decl. ¶ 11.)
Over

the

eight

years

this

case

was

litigated,

ten

different NSB attorneys and four paralegals worked on the matter.
4

(See Benvenutti Decl. ¶¶ 18, 24.) The case was staffed by anywhere
from two to eight attorneys during the various phases of the
litigation.

(Defs.’ Opp. Br., Docket Entry 241, at 10-11.)

NSB

now seeks attorney fees and costs for their work on this case.
(Docket Entry 233, at 1-2.)
DISCUSSION
I.

Attorney Fees in 1983 Cases
Section 1988(b) empowers the Court to award reasonable

attorney fees to the prevailing party in a § 1983 action.
U.S.C. § 1988.

See 42

After the court finds that a party has prevailed,

it must determine a reasonable fee to award to prevailing party’s
attorneys.

Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992).

The lodestar approach is generally used to calculate reasonable
attorney

fees.

“Under

this

approach,

the

number

of

hours

reasonably expended on the litigation is multiplied by a reasonable
hourly rate for attorneys and paraprofessionals.”

Id.; DiFilippo

v. Morizio, 759 F.2d 231, 234 (2d Cir. 1985) (“where . . . the
party achieves success on the merits, an award of all reasonable
hours at a reasonable hourly rate, i.e., the lodestar figure, is
presumptively appropriate”).3

Thus, the Court must arrive at a

reasonable hourly rate for the attorneys who worked on the case

The prevailing party is also entitled to attorney fees for
bringing its § 1988 application. Valley Disposal, Inc. v. Cent.
Vt. Solid Waste Mgmt. Dist., 71 F.3d 1053, 1060 (2d Cir. 1995)
3

5

and “examine the hours expended by counsel and the value of the
work product of the particular expenditures to the client’s case.”
Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998) (quoting
DiFilippo v. Morizio, 759 F.2d 231, 235–36 (2d Cir. 1985)).
II.

Reasonable Hourly Rate
The

prevailing

party

in

a

§ 1983

action

should

be

compensated at “market rates ‘prevailing in the community for
similar

services

by

lawyers

experience, and reputation.”

of

reasonably

comparable

skill,

Gierlinger, 160 F.3d at 882 (quoting

Blum v. Stenson, 465 U.S. 885, 895 n.11, 104 S. Ct. 1541, 1547, 79
L. Ed. 2d 891 (1984)).

NSB argues that to arrive at reasonable

billing rates, the Court should use hourly rates prevailing in the
Southern District of New York, rather than the Eastern District.
(Pls.’ Br. at 15.)

Specifically, NSB seeks reimbursement for time

expended at hourly rates of $700 for Barry Scheck and Peter
Neufeld; $600 for Nick Brustin; $500 for Anna Benvenutti Hoffmann,
Deborah Cornell, and Josh Dubin; $400 for Monica Shah; $350 for
Sonam Henderson; $300 for Alexandra Lampert; and $250 for Elizabeth
Daniel Vasquez.

(Pls.’ Br. at 13.)

“[W]hen faced with a request

for an award of higher out-of-district rates, a district court
must first apply a presumption in favor of application of the forum
rule.”

Simmons v. New York City Transit Auth., 575 F.3d 170, 175-

76 (2d Cir. 2009).
persuasively

To overcome the presumption, “a litigant must

establish

that

a

reasonable
6

client

would

have

selected out-of-district counsel because doing so would likely
(not just possibly) produce a substantially better net result.”
Id.

The Second Circuit explained in Simmons that “[t]he party

seeking the award must make a particularized showing, not only
that the selection of out-of-district counsel was predicated on
experience-based, objective factors, but also of the likelihood
that use of in-district counsel would produce a substantially
inferior result.”
pertinent

is

Id.

“Among the objective factors that may be

counsel’s

special

expertise

in

litigating

the

particular type of case, if the case is of such nature as to
benefit from special expertise.”

Id.

With these rules in mind, the Court finds that NSB has
overcome the presumption that forum district rates should apply.
NSB has particular expertise litigating § 1983 wrongful conviction
suits and has successfully litigated dozens of such cases around
the country.

(See Pls.’ Br. at 17.)

Even Defendants admit that

“at one time [NSB] might have held a monopoly on ‘DNA law.’”
(Defs.’ Opp. Br., at 25.)
arduous

and

complex,

Moreover, this case was exceedingly

involving

extensive

expert

analysis

and

presentation of DNA evidence, spanning eight years and two trials.
And Defendants do not dispute that no lawyers with primary offices
in the Eastern District of New York have obtained a successful
jury verdict in a § 1983 wrongful conviction suit, as NSB did here.
Likewise, there is no dispute that NSB achieved excellent results
7

on behalf of both of their clients.

Therefore, it is appropriate

to apply Southern District, rather than Eastern District rates in
this case.
The Court must set a fee, which is “adequate to attract
competent counsel but which do not produce windfalls.”

Blum v.

Stenson, 465 U.S. 886, 893-94, 104 S. Ct. 1541, 1546, 79 L. Ed. 2d
891 (1984) (quoting S. REP. NO. 94-1011, at 6, as reprinted in 1976
U.S.C.C.A.N. 5908, 5913). Although the $700 an hour rate requested
for Messrs. Scheck and Neufeld is high, the Court find that it is
a reasonable rate in light of the complexity of the issues involved
in this dispute; the forty years of experience litigating civil
rights that both attorneys brought to the case; and the market for
legal services in the Southern District of New York, which supports
a $700 per hour rate for senior partners. While the highest hourly
rate awarded for a successful § 1983 cited by NSB is $650 per hour,
most of the cited cases are from 2011 and involved significantly
simpler disputes.

See, e.g., Mawere v. Citco Fund Servs., (USA)

Inc., No. 09-CV-1342, 2011 WL 6779319, at *5 (S.D.N.Y. Sept. 16,
2011) report and recommendation adopted, No. 09-CV-1342, 2011 WL
6780909 (S.D.N.Y. Dec. 27, 2011) (awarding $650 dollars an hour to
an

attorney

with

32

years

of

experience

in

an

employment

discrimination case); Kim v. Kum Gang, Inc., No. 12-CV-6344, 2014
WL

2514705,

at

*2

(S.D.N.Y.

June

2,

2014)

(awarding

an

“experienced” litigator $600 per hour in a wage and hour case).
8

Therefore, Messrs. Scheck and Neufeld should be compensated at an
hourly rate of $700 per hour, in line with rates charged for
similar complex federal work in the Southern District.

Amaprop

Ltd. v. Indiabulls Fin. Servs. Ltd., No. 10-CV-1853, 2011 WL
1002439, at *5 (S.D.N.Y. Mar. 16, 2011) aff’d, 483 F. App’x 634
(2d Cir. 2012) (approving an hourly rate of $761 for a senior
partner in a case about compelling arbitration).

In addition, the

Court finds that the requested hourly rates for all other NSB
attorneys are in line with court-approved rates in successful
§ 1983 cases in the Southern District.

See, e.g., Rozell v. Ross-

Holst, 576 F. Supp. 2d 527, 546 (S.D.N.Y. 2008) (awarding slightly
lesser rates in an employment discrimination case in 2008).
III. Hours Expended
NSB

seeks

compensation

for

11,222.6

hours

of

total

attorney time during the eight years this case was litigated.
(Pls.’ Reply Br., Docket Entry 256, at 2.)

Defendants claim that

the number of hours NSB billed was excessive and attack NSB’s time
expenditures and billing practices in an effort to reduce their
proposed fee.
A.

(Defs.’ Opp. Br. at 1-2.)

Time Spent on Dismissed, Withdrawn or Abandoned Claims
Defendants first argue that the Court should reduce

NSB’s

hours

across-the-board

to

account

dismissed, withdrawn, and abandoned claims.
2.)

for

time

spent

on

(Defs.’ Opp. Br. at

Defendants specifically assert that Plaintiffs’ state law
9

claims seeking to hold Defendants liable for alleged misconduct
during the murder investigation is not compensable.

(See Defs.’

Opp. Br. at 2-7.) Generally, “[i]n determining the number of hours
reasonably expended for purposes of calculating the lodestar, the
district court should exclude excessive, redundant or otherwise
unnecessary

hours,

as

unsuccessful claims.”
425 (2d Cir. 1999).

well

as

hours

dedicated

to

severable

Quaratino v. Tiffany & Co., 166 F.3d 422,
However, the Supreme Court made it clear in

Hensley v. Eckerhart, 461 U.S. 424, 434-35, 103 S. Ct. 1933, 1940,
76 L. Ed. 2d 40 (1983), that the critical factor in determining
whether to reduce counsel’s hours because of unsuccessful claims
is the degree to which counsel achieved success in the lawsuit as
a whole.

As the Court explained:
Where a plaintiff has obtained excellent
results, his attorney should recover a fully
compensatory fee. Normally this will encompass
all
hours
reasonably
expended
on
the
litigation, and indeed in some cases of
exceptional success an enhanced award may be
justified. In these circumstances the fee
award should not be reduced simply because the
plaintiff
failed
to
prevail
on
every
contention raised in the lawsuit. Litigants
in good faith may raise alternative legal
grounds for a desired outcome, and the court’s
rejection of or failure to reach certain
grounds is not a sufficient reason for
reducing a fee. The result is what matters.

Id. (internal citation omitted).

In addition, when claims that

were not meritorious “involve a common core of facts or [are] based
on related legal theories,” they are compensable. Hensley v.
10

Eckerhart, 461 U.S. at 435, 103 S. Ct. at 1940; Green v. Torres,
361 F.3d 96, 98 (2d Cir. 2004).

Here, NSB achieved excellent

results

eight

for

their

clients

after

years

of

litigation.4

Moreover, it cannot be legitimately argued that Plaintiffs’ claims
related to the conduct of the murder investigation do not contain
“a common core of facts” with the Sixth Amendment and Malicious
prosecution claims Plaintiffs ultimately prevailed on.

Both sets

of allegations are firmly tethered to the theory that Plaintiffs
were wrongfully imprisoned for a murder they did not commit.
Especially in a complex case, competent counsel is entitled to
raise “alternative legal grounds for a desired outcome, and the
court’s rejection of or failure to reach certain grounds is not a
sufficient reason for reducing a fee.”
B.

Id. at 100.

Time Entry Issues
Defendants also raise certain deficiencies they claim

exist in NSB’s time entries. (Defs.’ Opp. Br. at 8.) The principal
issues Defendants point to are: (1) the staffing of the case, (2)
the practice of block billing, (3) travel time being billed as

The only relevant case cited by Defendants is inapplicable
because it deals with a situation in which counsel’s hours were
reduced because they achieved limited success in the underlying
litigation. See Zhiwen Chen v. Cnty. of Suffolk, 927 F. Supp.
2d 58, 74-76 (E.D.N.Y. 2013), appeal withdrawn (July 2, 2013)
(reducing the total number of hours billed by fifteen percent to
account for time spent on unsuccessful claims and noting that
only “partial success [was] achieved on the sole issue that went
to the jury”)
4

11

attorney time, and (4) the excessive amount of time spent on
(See Defs.’ Opp. Br. at 8-21.)

meetings and phone calls.5
1.

Staffing

Without citing to any specific law, Defendants claim
that NSB staffed too many attorneys on the case.
Defendants,

between

two

and

five

NSB

According to

attorneys

represented

Plaintiffs from 2006 and 2011 during the discovery phase of the
case; eight attorneys were staffed during the first trial; and six
attorneys and one law clerk worked on the case during the second
trial.

(Defs.’

Opp.

Br.

at

10.)

Defendants

Plaintiffs’ staffing choices were unreasonable.

assert

that

However, tallying

the number of attorneys who worked on a case is not enough to prove
the case was overstaffed.

See Lochren v. Cty. of Suffolk, No. 01-

CV-3925, 2010 WL 1207418, at *3 (E.D.N.Y. Mar. 23, 2010) (awarding
attorney fees to thirteen lawyers who worked on a discrimination
case spanning five years); In re Nassau Cty. Strip Search Cases,
12 F. Supp. 3d 485, 500 (E.D.N.Y. 2014) (awarding attorney fees to
twenty-seven attorneys and twenty-three paralegals).

Moreover,

Defendants do not present any persuasive evidence that a particular

Defendants also complain that certain of NSB’s attorney time
records reflect that work completed by attorneys was secretarial
in nature. However, Defendants do not point to any specific
time entries in support of their claim, and the Court will not
parse through NSB’s time records in an effort find support for
it. (See Freeman Decl., Docket Entry 242, at 12.)
5

12

phase of the case was overstaffed.

The balance of Defendants’

argument on staffing consists of abstract references to specific
attorneys’ hours during various time periods, which the Court will
not parse through.
2.

Block Billing and Generic Entries

Defendants argue that NSB’s hours should be reduced
because of the “numerous block billing” entries they submitted.
(Defs.’ Opp. Br. at 15.)

The Court disagrees.

Although “block

billing makes it more difficult for the Court to determine with
precision exactly how much time was spent on each task, the
practice of block billing is not prohibited in this Circuit.”
Rodriguez v. McLoughlin, 84 F. Supp. 2d 417, 425 (S.D.N.Y. 1999).
The Court will not penalize NSB for the work it completed based
upon such a trivial issue as block billing, which is pervasive in
the legal industry.
3.

Travel Time Billed as Attorney time

One legitimate concern Defendants point to are instances
in which NSB lawyers billed travel time as attorney time.
Opp. Br. at 15.)

(Defs.’

NSB acknowledges that a number of NSB’s entries

for legal work include travel time, which should be billed at onehalf the attorneys regular rate.

(Pls.’ Br. at 10.)

In response

to Defendants’ concern, NSB submitted a chart detailing these
specific

entries

and

asks

the

13

Court

to

omit

these

entries

completely from its time request. Therefore, the Court will strike
these problematic entries from NSB’s fee request.
4.

Excessive Time Spent on Meetings and Phone Calls

Finally,

Defendants

argue

that

the

length

attorneys’ phone calls and meetings was excessive.

of

NSB

(Defs.’ Opp.

Br. at 20-21.) If Defendants actually hired NSB as their attorneys
and had the privilege of receiving monthly bills, perhaps lengthy
meetings and phone calls would be a relevant line of inquiry.

But

at the conclusion of this litigation saga, rendering an opinion on
how long a strategy meeting should take in a complicated case does
not seem productive.

Therefore, the Court will not endeavor to do

so.6
IV.

Calculating NSB’s Fee
The below chart uses NSB’s amended hourly figures in

their reply brief, which accounts for the revision to the fee
calculation due to travel time being billed as attorney time.7

The Court also declines to address Defendants’ argument that
the number of hours billed on the fee application were
excessive. Defendants’ brief does not cite to any relevant
precedent and makes only conclusory arguments. (See Defs.’ Opp.
Br. at 27-29.) It is apparent that compiling attorney billing
records from eight years of litigation and responding to
Defendants’ pedantic arguments took a fair amount of time.
6

NSB’s chart setting forth their fee request is found on the
first two pages of NSB’s reply brief. The hours subtracted from
NSB’s original figures because of travel time improperly
reported as attorney time are found within Exhibit A to NSB’s
reply brief. The Court notes that the sum of the dollar figures
7

14

HOURLY
NAME
RATE
HOURS
Barry Scheck
$ 700.00
633.2
Barry Scheck (Travel)
$ 350.00
41
Peter Neufeld
$ 700.00
48.2
Nick Brustin
$ 600.00
744.6
Anna Benvenutti Hoffman
$ 500.00 2161.1
Anna Benvenutti Hoffman (Travel)
$ 250.00
53.7
Deborah Cornwall
$ 500.00
2938
Deborah Cornwall (Travel)
$ 250.00
228
Monica Shah
$ 400.00
329
Monica Shah (Travel)
$ 200.00
8
Sonom "Sandy" Henderson
$ 350.00
999.2
Sonom "Sandy" Henderson (travel)
$ 175.00
20
Alexandra Lampert
$ 300.00
333.4
Alexandra Lampert
$ 150.00
17.3
Elizabeth Daniel Vasquez
$ 250.00
55.3
Elizabeth Daniel Vasquez (Law Clerk) $ 175.00
533.3
Elizabeth Daniel Vasquez (Paralegal) $ 125.00
231.9
Josh Dubin
$ 500.00
177.6
Rachel Shur (Paralegal)
$ 125.00
688.3
James Earl
$ 125.00
114.2
Sophie Glickstein
$ 125.00
128
Ashley Lewis (Paralegal)
$ 125.00
739.3

TOTAL
$
443,240.00
$
14,350.00
$
33,740.00
$
446,760.00
$
1,080,550.00
$
13,425.00
$
1,469,000.00
$
57,000.00
$
131,600.00
$
1,600.00
$
349,720.00
$
3,500.00
$
100,020.00
$
2,595.00
$
13,825.00
$
93,327.50
$
28,987.50
$
88,800.00
$
86,037.50
14,275.00
$
$
16,000.00
$
92,412.50
$ 4,580,765.00

Based upon the Court’s calculations, NSB is entitled to
recover $4,580,765 in attorney fees, plus $320,017.05 in costs,8
plus $97,132.50 for the cost of the fee petition,9 for a total of
$4,997,914.55 in attorney fees and costs.

for attorney time contained on page two of NSB’s reply brief is
incorrect.
8

(See Brustin Decl., Docket Entry 235, ¶ 29.)

9

(See Pl.’s Br. at 5.)
15

CONCLUSION
The

Court

awards

attorney

fees

in

the

amount

of

$4,677,897.50 (which includes the cost of the fee petition) plus
$320,017.05 in costs for a total of $4,997,914.55 in attorney fees
and costs. The Clerk of the Court is directed to amend the judgment
to include attorney fees and costs.

Post-judgment interest,

calculated pursuant to 28 U.S.C. § 1961(a), shall run on the award
of attorney fees and costs from the date of this Memorandum & Order
until the date the fees and costs are paid.

In addition, NSB’s

motion to amend (Docket Entry 240) is GRANTED.

SO ORDERED

/s/ JOANNA SEYBERT
_
Joanna Seybert, U.S.D.J.
DATED:

November
30 , 2015
Central Islip, New York

16