Restivo et al v. Nassau County et al
MEMORANDUM & ORDER granting in part and denying in part 300 Motion for Attorney Fees. SO ORDERED that NSB's supplemental motion for attorneys' fees (Docket Entry 300) is GRANTED IN PART and DENIED IN PART. The Court awards attorney fees in the amount of $572,324.2511 plus $21,806.5412 in costs for a total of $594,130.79 in attorney fees and costs. The Clerk of the Court is directed to enter judgment for $594,130.79 in attorneys' 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. Ordered by Judge Joanna Seybert on 8/28/2017. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JOHN RESTIVO and DENNIS HALSTEAD,
MEMORANDUM & ORDER
-againstNASSAU COUNTY, CAROLANN HESSEMANN,
AS EXECUTRIX FOR THE ESTATE OF
JOSEPH VOLPE, ET AL.,
8/28/2017 12:18 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Barry C. Scheck, Esq.
Monica R. Shah, Esq.
Nick Joel Brustin, Esq.
Anna B. Hoffmann, Esq.
Peter Jon Neufeld, Esq.
Richard W. Sawyer, 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 P.C.
1251 Avenue of The Americas, 42nd Floor
New York, NY 10020
Leon Friedman, Esq.
148 E. 78th St.
New York, NY 10075
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
as executrix of
the Estate of
Peter J. Tomao, Esq.
Richard M. Langone, 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:
Currently pending before the Court is Neufeld Scheck &
Brustin LLP’s (“NSB”) supplemental motion for attorneys’ fees
(Docket Entry 300).
For the reasons that follow, the motion is
GRANTED IN PART and DENIED IN PART.
NSB is awarded $594,130.79 in
fees and costs for its post-judgment work on this matter.
procedural history of this case, particularly its November 30,
2015 Order awarding NSB $4,997,914.55 in attorneys’ fees and costs.
(E.D.N.Y. Nov. 30, 2015).
That award encompassed NSB’s work from
the filing of the case in 2006 to the entry of judgment in 2014.
Restivo, 2015 WL 7734100, at *1-2.
NSB now seeks an additional
award of fees and costs for its work since 2014 on the Second
Circuit appeal and various post-judgment proceedings.
Motion, Docket Entry 300, at 1.)
In light of this matter’s long
history, the Court summarizes only the facts relevant to the
Pre-Trial Proceedings and Trial
(“Plaintiffs”) brought this Section 1983 suit seeking to prove
that Nassau County Police Detective Joseph Volpe (“Volpe”) caused
Discovery included thirty-five depositions, spanning over fiftyfour
(Hoffmann 2014 Decl., Docket Entry 234, ¶ 7.)
was tried twice.
The first trial lasted thirty-one trial days
over eleven weeks and included the presentation of forty-two
The second trial spanned seventeen trial days over
five weeks and included the presentation of forty witnesses.
(Hoffmann 2014 Decl. ¶ 8.)
Both trials were technically complex,
forensic hair comparison.
(Hoffmann 2014 Decl. ¶ 9.)
Plaintiffs originally commenced this case against Volpe, Nassau
County, and others.
offered nine separate expert witnesses and Defendants offered
four. (Hoffmann 2014 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
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. (Hoffmann
2014 Decl. ¶ 10.) This joinder substantially complicated the legal
and factual issues in the case, given that Kogut had confessed to
the crime, while Plaintiffs had not.
(Hoffmann 2014 Decl. ¶ 10.)
At the conclusion of the second trial, the jury found
Volpe liable for unconstitutionally depriving Plaintiffs of their
right to a fair trial and for malicious prosecution.
Sheet, Docket Entry 198.)
The jury awarded Plaintiffs $18 million
Plaintiffs were imprisoned.
Between 2006 and 2014, the parties
endured several rounds of substantial legal briefing, including a
motion for judgment on the pleadings, a motion for reconsideration,
a motion for summary judgment, post-trial briefing after the first
trial, another motion for reconsideration, and post-trial briefing
after the second trial.
(Hoffmann 2014 Decl. ¶ 11.)
Because Volpe died while the case was pending, judgment
was entered against Carolann Hessemann as executrix for the estate
of Volpe (“Defendant” or “the Estate”) on November 14, 2014 (the
(See Stip. and Order, Docket Entry 122; J., Docket
Subsequently, the Estate timely filed a notice of
(See Notice of Appeal, Docket Entry 232.)
also filed a notice of cross appeal related to the dismissal of
certain claims against Nassau County; however, the cross-appeal
was later voluntarily withdrawn.
(See Notice of Cross Appeal,
Docket Entry 237; Mandate, Docket Entry 281.)
The Estate’s appeal included two rounds of briefing and
related motion practice.
During the initial round of briefing,
the Estate requested permission to file a brief approximately twice
ultimately raised eight issues on appeal.
(Hoffmann 2017 Decl.,
November 30, 2015 Order awarding attorneys’ fees, the Estate filed
supplemental briefing on the reasonableness of the fee award. (See
Amended Notice of Appeal, Docket Entry 286; Restivo v. Nassau Cty.,
No. 14-4662, 2d Circuit Docket Entry 177.)
During the appeal, the
parties engaged in additional motion practice, including a motion
to strike, a motion for sanctions and a motion to dismiss.
Restivo v. Nassau Cty., No. 14-4662, 2d Cir. Docket Entries 73,
On January 19, 2017, the Second Circuit issued an 112-
page opinion affirming the Judgment in all respects.
v. Hessemann, 846 F.3d 547 (2d Cir. 2017).
III. Post-Judgment Proceedings
briefed a series of complex motions and appeared for several
hearings in this Court.
The Estate sought to stay enforcement of
the Judgment pending appeal, and for the first time, suggested
that it was unclear whether the County was obligated to indemnify
(See Estate Mot. to Stay, Docket Entry 243.)
time, the County and the Estate were represented by the same firm,
and because their interests appeared to be adverse to each other,
Plaintiffs moved to disqualify counsel from representing both
(See Conflict Mot., Docket Entry 244.)
Plaintiffs filed a petition pursuant to New York C.P.L.R. Section
5227 for a special proceeding and entry of judgment against the
County for the full amount of the Judgment against the Estate.
(See Pls.’ Pet., Docket Entry 253.)
Counsel for the Estate and
the County subsequently withdrew, and both entities were ordered
to retain new counsel.
(See Mar. 17, 2015 Minute Order, Docket
After another round of briefing regarding the County’s
obligation to indemnify, the parties negotiated a Stipulation and
It provided that the County would indemnify the
Estate and that enforcement of the Judgment would be stayed while
the appeal was pending.
278, § II, ¶¶ 4-5.)
(Stip. and Consent Decree, Docket Entry
Additionally, the County agreed to prepare “a
draft ordinance seeking authority to bond forty five million
dollars ($45,000,000.00) to cover its indemnification obligations
. . . [and] present the draft ordinance to the Nassau County
Legislature for consideration at the next regularly scheduled
(Stip. and Consent Decree, § II, ¶ 6.)
so-ordered the Stipulation and Consent Decree on July 1, 2015.
After discovering that the County had failed to draft
and present the bond ordinance to the Nassau County Legislature
until July 11, 2016, Plaintiffs filed a motion to hold the County
in contempt and lift the stay of enforcement of the Judgment on
July 20, 2016.
(See Contempt Mot., Docket Entry 295.)
hearing on February 23, 2017, the Court granted that motion in
demonstrate why a stay of enforcement was warranted given its noncompliance with the Stipulation and Consent Decree.
2017 Minute Order, Docket Entry 304.)
(See Feb. 23,
Thereafter, the County
Treasurer deposited $45 million in a special account designated to
satisfy the Judgment should the appeal fail, and the parties
negotiated an Order renewing the stay, which the Court so-ordered
on March 29, 2017.
(See Letter Mot. to Stay, Docket Entry 310;
Order Renewing Stay, Docket Entry 315.)
Pursuant to that Order,
the County agreed to “pay the Judgment in full within thirty (30)
days after it becomes final,” and to seek court approval before
removing any funds from the account.
(See Order Renewing Stay.)
NSB’s Supplemental Fee Request
$4,997,914.55 in attorneys’ fees and costs.
7734100, at *5.
See Restivo, 2015 WL
For the work on the appeal and various post-
judgment proceedings, NSB requests an additional $615,804.13 in
attorneys’ fees and $21,410.01 in costs.
(Supp. Fee Motion at 3-
During this period, fourteen different lawyers from NSB and
outside counsel Anderson Kill P.C. and two paralegals worked on
(Hoffmann 2017 Decl. ¶ 5.)
Attorneys’ Fees in Section 1983 Cases
Section 1988(b) empowers the Court to award reasonable
attorney fees to the prevailing party in a section 1983 action.
See 42 U.S.C. § 1988.
After the court finds that a party has
prevailed, it must determine a reasonable fee to award to the
prevailing party’s attorneys.
(2d Cir. 1992).
Grant v. Martinez, 973 F.2d 96, 99
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”).
Thus, the Court
must arrive at a reasonable hourly rate for the attorneys who
worked on the case 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
Reasonable Hourly Rate
The Court previously held that, based on its experience
and unique expertise in wrongful conviction cases, NSB was entitled
to hourly rates prevailing in the Southern District of New York
rather than the Eastern District of New York.
7734100, at *3.
Restivo, 2015 WL
Specifically, the Court approved the following
hourly rates: $700 for Barry Scheck and Peter Neufeld; $600 for
Nick Brustin; $500 for Anna Benvenutti Hoffmann, Deborah Cornwall,
and Josh Dubin; $400 for Monica Shah; $350 for Sonam Henderson;
$300 for Alexandra Lampert; and $250 for Elizabeth Daniel Vasquez.
Id. at *5, n.7.
The Court also approved Professor Leon Friedman’s
(“Professor Friedman”) hourly rate of $500.
Id. at *5 & n.9.
Finally, the Court awarded $125 per hour for paralegals.
In the supplemental motion, NSB requests the same hourly
rates for Peter Neufeld, Nick Brustin, Anna Benvenutti Hoffmann,
Friedman. (Supp. Fee Mot. at 3.)
Additionally, NSB requests the
same hourly rate for two paralegals who worked on the case between
2014 and 2017.
(Supp. Fee Mot. at 3.)
Defendant suggests that NSB is not entitled to Southern
District rates for this phase of the case because they are not
(Def.’s Opp., Docket Entry 306-1, at 14-15.)
In fact, Defendant
contends, NSB retained outside attorneys to assist it in these
(Def.’s Opp. at 15.)
Defendant argues that the factors
that led to the application of Southern District rates in the
Court’s prior order--that NSB has expertise litigating wrongful
conviction suits, the trials were extensive and complex, and NSB
achieved an excellent result--do not apply to their supplemental
request for fees.
(Def.’s Opp. at 14-15.)
The Court disagrees.
As an initial matter, Defendant has not cited any case
law to support applying rates from different districts in the same
litigation, and the Court is not aware of any.
undoubtedly relied on its expertise in wrongful conviction suits
to prevail on the appeal and during the enforcement proceedings.
The fact that NSB sought assistance from outside experts in order
to achieve the best result for their clients should not lead to
successful on the Estate’s appeal and during the enforcement
Because the Court previously approved these rates,
and there is no reason to revisit the appropriate hourly rates for
these attorneys and paralegals, the Court will use these rates to
calculate the fee award. 2
NSB requests an hourly rate of $250 for Julia Torti
(“Torti”), a former associate at NSB who graduated from law school
(Torti Decl., Docket Entry 300-6, ¶¶ 5, 9.)
This is the
(“Vasquez”), a former NSB associate who also graduated in 2013.
(Vasquez Decl., Docket Entry 300-5, at ¶¶ 5, 9.)
Because the two
previously approved an hourly rate of $250 for Vasquez, the Court
finds that the requested rate of $250 for Torti is reasonable.
Defendant argues that this rate is excessive because Torti handled
“rudimentary” tasks such as cite checking, editing documents, and
Likewise, the Court declines to reduce the requested (and
previously approved) rate of $500 per hour for Professor
Friedman. (See Def.’s Opp. at 19-20.) Considering Professor
Friedman’s considerable experience and expertise, (see Friedman
2014 Decl., Docket Entry 233-9), and the fact that $500 per hour
falls within the range of hourly rates for experienced civil
rights attorneys in the Southern District, the Court sees no
reason to reconsider its prior determination.
preparing exhibits. (Def.’s Opp. at 18-19.) However, as discussed
infra, such tasks occasionally require the attention of an attorney
and are routinely assigned to a junior associate such as Torti.
Additionally, this rate is consistent with rates awarded to junior
associates in cases in the Southern District.
See, e.g., Rozell
v. Ross-Holst, 576 F. Supp. 2d 527, 546 (S.D.N.Y. 2008) (awarding
$250 per hour for junior associates in employment discrimination
NSB requests an hourly rate of $650 for David Goldberg
consulted on the Second Circuit appeal.
(Hoffmann 2017 Decl. ¶ 5;
Goldberg Decl., Docket Entry 300-7, ¶ 2.)
Goldberg, a former Law
Clerk at the Court of Appeals for the D.C. Circuit and the Supreme
Court, specializes in “public law and civil rights litigation,
primarily before the U.S. Supreme Court and federal appellate
(Goldberg Decl. ¶¶ 5-6.)
He also co-founded Donahue &
Goldberg, LLP, a public interest law firm, and has been involved
in more than 120 cases before the Supreme Court and served as
counsel to a party in approximately twenty Supreme Court cases.
(Goldberg Decl. ¶¶ 8, 13.)
Goldberg’s experience and expertise in
appellate practice is undisputed, and the Court finds that an
hourly rate of $650 is reasonable for his work on the case.
e.g., Abdell v. City of N.Y., No. 05-CV-8453, 2015 WL 898974, at
experienced counsel in civil rights action); Powell v. Metro One
Loss Prevention Servs. Grp. (Guard Div. NY), Inc., No. 12-CV-4221,
2015 WL 9287121, at *3 (S.D.N.Y. Feb. 5, 2015), R&R adopted, 2015
WL 9255338 (S.D.N.Y. Dec. 17, 2015) (awarding $650 per hour for
partner with thirty-five years of experience); Rozell, 576 F. Supp.
2d at 546 (awarding $600 per hour for partners and counsel in
employment discrimination case).
See also De Curtis v. Upward
Bound Int’l, Inc., No. 09-CV-5378, 2011 WL 4549412, at *8 (S.D.N.Y.
Sept. 27, 2011) (“Consistent precedent in the Southern District
reveals that rates awarded to experienced civil rights attorneys
over the past ten years have ranged from $250 to $600 . . . with
average awards increasing over time.”) (internal quotation marks,
citation, and alterations omitted).
III. Hours Expended
Excluding the hours expended by outside counsel Anderson
attorney and paralegal time for its work between 2014 and 2017. 3
(Supp. Fee Mot. at 3.)
Defendants object to the hours expended on
several grounds, including that certain hours were redundant,
excessive, and unnecessary.
(Def.’s Opp. at 9-13.)
(Def.’s Opp. at 12.)
The Court will address the work performed by Anderson Kill P.C.
in a separate section.
Defendant argues that NSB “assigned an inordinate number
attorneys and paralegals, as well as outside counsel, to certain
(Def.’s Opp. at 9-10.)
As an example, Defendant points
out that three NSB attorneys--two partners (Hoffmann and Brustin)
(Def.’s Opp. at 10.)
Further, it argues that while NSB
was working on various enforcement issues, as well as drafting the
appellate brief, the attorneys and paralegals were duplicating
(Langone Decl., Docket Entry 306, ¶¶ 14, 16.)
The fact that more than one attorney worked on the
It is common for several attorneys and paralegals to
collaborate on the same project, especially, for example, drafting
an appellate brief in a case of this size and complexity.
Regarding the time billed for the Second Circuit oral
argument, the Court declines to deduct the 2.5 hours billed by
Brustin and Torti.
(Langone Decl. ¶ 12.)
It is not unusual to
have more than one attorney attend significant court appearances
such as oral argument, and the Court finds that having three
attorneys present is not excessive.
See N.Y. State Ass’n for
Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.
1983) (“Under section 1988, prevailing parties are not barred as
a matter of law from receiving fees for sending a second attorney
to depositions or an extra lawyer into court to observe and
Additionally, Defendant contends that the Court should
“reduce the claim by any fees unnecessarily assigned to senior
staff which could have been performed by a more junior attorney or
(Def.’s Opp. at 10.)
Specifically, it argues that
one NSB associate—-Torti—-performed tasks that could have been
assigned to a paralegal, such as “cite-checking cases, compiling
prior briefing, preparing exhibits, making phone calls, speaking
(Langone Decl. ¶ 17.) The Court does not share Defendant’s concern
in this regard.
Some of the tasks listed are ones that require
the attention of an attorney, and, in light of the fact that Torti
was a junior associate, the time spent on these activities was not
unreasonable. In the absence of other specific examples, the Court
declines to reduce the fee award on this basis.
Finally, Defendant argues that NSB has not offered any
justification for the hours requested for outside lawyers Goldberg
(Def.’s Opp. at 10.)
For example, Defendant points
out that while Friedman was working on Plaintiffs’ reply brief,
attorneys from NSB spent an excessive number of hours working on
the same reply brief.
(Def.’s Opp. at 10.)
The Court is not
convinced that a reduction is warranted for this reason.
Friedman was collaborating with NSB attorneys on this project, it
is not surprising that both Friedman and NSB attorneys were working
on the brief at the same time.
argument preparation was excessive. 4
Decl. ¶ 11.)
(Def.’s Opp. at 11; Langone
According to Defendant’s analysis, Hoffmann spent
87.3 hours preparing for oral argument, including moot sessions,
while the remaining hours were split between Torti, Brustin,
Lampert, Neufeld, and outside attorney Goldberg. (Coded Fee Chart,
Docket Entry 307-1, at 1.)
Further, the time records show that
Hoffmann, who argued the appeal, spent approximately three weeks
preparing and received minor assistance from the other attorneys.
Defendant concludes that “spending that much time in preparation
for what was scheduled to be an eight-minute oral argument was
(Langone Decl. ¶ 11.)
The Court disagrees.
Defendant cannot have it both ways; it chose to file an oversize
Defendant reviewed NSB’s time entries and assigned an activity
code to each entry in order to determine the number of hours
spent by NSB and outside attorneys on particular tasks. (See
Langone Decl. ¶¶ 8-9.) They organized the time entries into
thirteen categories, including tasks such as meetings, various
motions, and preparation for oral argument on the appeal. (See
Langone Decl. ¶ 9.) While the Court has concerns about the
accuracy of Defendant’s analysis, see infra n.6, for the purpose
of responding to Defendant’s arguments, the Court will assume
that the figures calculated by Defendant are accurate unless
brief with eight separate grounds for the appeal, and as a result,
NSB had to expend the time necessary to prepare for an oral
argument that might involve any combination of those issues.
light of the complexity of this case and the breadth of the appeal,
the Court does not find these hours to be unreasonable.
Defendant also contends that the 107 hours sought in
connection with work on the fee applications should be reduced. 5
(Def.’s Opp. at 11; Langone Decl. ¶¶ 20-22.)
Defendant does not
dispute that NSB is entitled to attorneys’ fees for this work;
rather, it argues that the request is unreasonable because “NSB
assigned a senior associate, a junior associate, and two paralegals
to these tasks” and also engaged Friedman, an outside attorney, to
assist in the fee litigation.
(Langone Decl. ¶ 20.)
also suggests that the hours expended “strongly suggests that its
billing was not contemporaneous with the work that was done.”
(Langone Decl. ¶ 21.)
The Court disagrees.
In connection with
the attorneys’ fees motions, NSB had to compile and review its
time entries for the relevant periods, draft affidavits and respond
to Defendant’s objections to the requested fees.
application, which led to additional work for NSB.
Defendant represents that this figure includes work on the
reply brief in further support of NSB’s initial fee application
and preparing the supplemental fee application under
consideration here. (Def.’s Opp. at 11.)
2015 Opp., Docket Entry 241.)
For these reasons, the Court
Hours Spent on NSB Retainer
Defendant argues that the eight hours spent on NSB’s
retainer should be disallowed because this time is non-compensable
(Langone Decl. ¶ 19.)
The Court disagrees.
A retainer agreement is a binding and enforceable contract, and
accordingly, drafting or editing such an agreement constitutes
See Revson v. Cinque & Cinque, P.C., 221 F.3d 59, 67
(2d Cir. 2000) (“Fee arrangements between an attorney and client
are scrutinized with particular care, and an attorney who has
drafted a retainer agreement ordinarily has the burden of showing
understood by the client.”).
Moreover, Defendant fails to point
to any authority to support this reduction.
There is no basis to
exclude these hours from the fee award.
Hours Spent on Enforcement Efforts
enforcement issues and substantial post-judgment motion practice.
(See supra 5-8.)
Defendant argues that the Court should not award
fees for the hours expended on enforcing the Judgment, including
the hours related to the contempt proceedings, because these
enforcement efforts were directed at the County, not the Estate.
(Def.’s Opp. at 12-13.)
Defendant points out that the Court
granted Plaintiffs leave to file a separate motion for attorneys’
fees in connection with the contempt proceedings, which further
supports the notion that fees should be separately awarded against
the County for those hours.
(Def.’s Opp. at 12-13.)
Defendant requests that the Court “reserve ruling on the fees
relating to the indemnity issue until a later time to allow Nassau
County to respond.”
(Def.’s Opp. at 13.)
According to Defendant’s analysis, NSB spent 309 hours
on these efforts.
(Langone Decl. ¶ 14.)
tasks are included in this estimate. 6
It is not clear what
Nonetheless, based on the
Court’s review of the time records, it appears that Defendant is
requesting that the Court strike the hours spent on the following
tasks: (1) Plaintiffs’ opposition to Defendant’s motion to stay
enforcement of the Judgment filed in 2015, (2) Plaintiffs’ Order
to Show Cause for entry of judgment directly against the County,
and (3) Plaintiffs’ contempt motion, which sought to remove the
stay of enforcement of the Judgment.
(See Coded Time Entries at
The estimate is also inaccurate. For example, Defendant’s
analysis shows that Hoffmann spent 99.5 hours on the contempt
motion and related efforts. (Coded Fee Chart at 1.) However,
Hoffmann’s time entries for this activity code total
approximately 60.9 hours. (Coded Time Entries, Docket Entry
306-2, at 9.)
Plaintiffs respond that the Court should award fees for
this work because: (1) “the contempt motion was brought as part of
the present action to enforce the judgment against the [E]state,”
and (2) “because Nassau County will be paying any judgment against
Volpe’s estate--including attorneys’ fees--there is no meaningful
Plaintiffs’ contempt motion.”
(Pls.’ Reply, Docket Entry 311, at
5, n.2 (emphasis omitted).)
The Court has been unable to locate cases involving
similar facts, and the parties have cited none.
However, for the
reasons that follow, the Court will award attorneys’ fees for the
hours spent enforcing the Judgment, including the proceedings
Plaintiffs “‘may recover fees in connection with enforcement of a
De Curtis v. Upward Bound Int’l Inc., No. 09-CV-5378,
2015 WL 5254767, at *2 (S.D.N.Y. Aug. 28, 2015) (quoting Diaz v.
Paragon Motors of Woodside, Inc., No. 03-CV-6466, 2008 WL 2004001,
at *7 (E.D.N.Y. May 7, 2008)); see also Hines v. City of Albany,
No. 06-CV-1517, 2015 WL 12828107, at * 1 (N.D.N.Y. May 13, 2015).
Further, the Court may award fees incurred in connection with a
contempt motion under section 1988. 7
See Joel, 1997 WL 543091, at
Defendant’s argument that the Court should address the fees
incurred during the enforcement proceedings at a later time is
unavailing. At the hearing on the contempt motion, the Court
granted Plaintiffs leave to file a motion for attorneys’ fees
*2 (awarding attorneys’ fees pursuant to Section 1988 for contempt
motion regarding a settlement agreement).
Second, because the
County is indemnifying the Estate for the full amount of the
Judgment, including attorneys’ fees, the enforcement proceedings
against the County were necessary to enforce the Judgment against
After the Judgment was entered, the County indicated
whether it was required to indemnify the Estate, prompting the
first round of post-judgment motions and petitions.
Mot. to Stay, Docket Entry 243.)
Later, after the County agreed
to indemnify the Estate, Plaintiffs discovered that the County had
violated a Stipulation and Consent Decree and filed the contempt
(See Contempt Mot., Docket Entry 295.)
over this matter since its inception, including during the postjudgment proceedings, the Court finds that the work performed by
NSB during this phase of the case was undoubtedly necessary to
enforce the Judgment against the Estate, particularly in light of
the County’s intransigence.
To the extent that the County’s
litigation strategy resulted in additional litigation and fees,
incurred in connection with the contempt motion, along with the
necessary documentation. (See Feb. 23, 2017 Minute Order,
Docket Entry 304.) At that time, the Court was unaware that NSB
requested those fees in this motion. Because the Court may
properly award such fees under Section 1988, there is no reason
to separately address them or further delay resolution of this
matter. See Joel v. Vill. of Kiryas Joel, No. 95-CV-8378, 1997
WL 543091, at *2 (S.D.N.Y. Sept. 4, 1997).
the County will shoulder that burden.
Third, the Court sees no
reason to prolong this matter to allow the County to respond to
this application. The County would likely raise similar objections
to NSB’s requested fee, and the County has not requested leave to
file a response.
Therefore, the Court will not deduct the hours
spent on enforcement proceedings.
Nevertheless, based on the Court’s review of all of NSB’s
time entries, the Court agrees with Defendant that there is a small
amount of duplicative and excessive hours.
Therefore, the Court
will exercise its discretion and reduce the requested fee by five
percent, or $28,735.75, to account for those hours.
See Mary Jo
C. v. Dinapoli, No. 09-CV-5635, 2014 WL 7334863, at *10 (E.D.N.Y.
Dec. 18, 2014) (“In reducing the amount of attorney’s fees, the
court may exclude the excessive and unreasonable hours from its
calculation by making an across-the-board reduction, or percentage
cut, in the amount of hours.”).
Costs Incurred by NSB
NSB also requests $21,410.01 in costs for copying and
duplication, printing, transcripts, and research expenses.
Fee Mot. at 3-4; Brustin Decl., Docket Entry 300-2, ¶¶ 7-18.)
Defendant has not objected to these expenses, and the Court finds
them to be reasonable.
Accordingly, the Court will award NSB
$21,410.01 in costs.
Fees and Costs Incurred by Anderson Kill P.C.
Defendant objects to the $40,692.60 billed to NSB by
Anderson Kill P.C. (“Anderson Kill”) in connection with Anderson
Kill’s work during the enforcement proceedings.
(Def.’s Opp. at
Defendant argues that NSB has not justified the hourly
rates sought by Anderson Kill or provided sufficient background
information about several Anderson Kill attorneys.
Plaintiffs respond that because Anderson Kill “billed at
(Pls.’ Reply at 4.)
looks to “market rates ‘prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience,
Gierlinger, 160 F.3d at 882 (quoting Blum v.
Stenson, 465 U.S. 886, 895 n.11, 104 S. Ct. 1541, 1547, 79 L. Ed.
2d 891 (1984)).
For work performed in 2015, NSB seeks the
following rates for Anderson Kill attorneys: (1) $695.00 for
Partner Jeffrey Glen; (2) $725.00 for Partner David Graff; (3)
$415.00 for Associate Rachael Kierych; (4) $295.00 for Associate
Middlebrooks; and (6) $495.00 for Associate Christopher Ayers.
(Graff Decl., Docket Entry 300-8, at 11.)
For work performed in
2016, NSB seeks the following rates for Anderson Kill attorneys:
(1) $695.00 for Partner Jeffrey Glen; (2) $750.00 for Partner David
Graff; (3) $450.00 for Associate Rachael Kierych; (4) $295.00 for
Associate Christopher Paolino; (5) $295.00 for Associate Ethan W.
Middlebrooks; (6) $520.00 for Associate Christopher Ayers; and (7)
$245.00 for Law Clerk Alexander Haberman.
(Graff Decl. at 11.)
According to Anderson Kill, “[t]hese are ‘market rates’-- rates
that lawyers at Anderson Kill P.C. regularly charge to paying
(Graff Decl. ¶ 12.)
They represent that these rates
are “regularly paid by our clients and are equivalent to or less
than the going market rate for attorneys practicing in New York
(Graff Decl. ¶ 12.)
Based on these representations, and
the fact that Anderson Kill is located in the Southern District of
New York, it appears that NSB is requesting that the Court award
hourly rates prevailing in the Southern District for the work
performed by Anderson Kill.
“[W]hen faced with a request for an award of higher outof-district rates, a district court must first apply a presumption
in favor of application of the forum rule.”
Simmons v. N.Y. City
Transit Auth., 575 F.3d 170, 175-76 (2d Cir. 2009).
the presumption, “a litigant must persuasively establish that a
substantially better net result.”
Id. at 175.
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-of24
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.”
Id. at 176.
“Among the objective factors that may be pertinent is 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. at 175-76.
The Court finds that NSB has failed to demonstrate that
Anderson Kill should be compensated at Southern District rates.
Although David Graff (“Graff”), a partner at Anderson Kill, has
expertise in enforcing judgments, NSB and Anderson Kill have not
shown that retaining Anderson Kill led to a substantially better
result or that retaining counsel in this district would have led
to diminished success.
The Court recognizes that Anderson Kill’s
work was necessary and that Anderson Kill assisted in achieving a
favorable result for Plaintiffs.
However, the Court finds that
awarding hourly rates prevailing in this district is appropriate
In this district, courts typically award hourly rates of
$300.00 to $450.00 for partners, $200.00 to $325.00 for senior and
mid-level associates and $100.00 to $200.00 for junior associates.
Dinapoli, 2014 WL 7334863, at *5; Small v. N.Y.C. Transit Auth.,
No. 03-CV-2139, 2014 WL 1236619, at *5 (E.D.N.Y. Mar. 25, 2014);
Struthers v. City of N.Y., No. 12-CV-0242, 2013 WL 5407221, at *7
(E.D.N.Y. Sept. 25, 2013).
Despite the fact that the attorneys’
qualifications and experience are important considerations, NSB
(See Graff Decl. ¶¶ 1-6; Graff Decl. Ex. A.)
Court has not been provided with any information about the six
other attorneys involved in the case.
However, the Court has located a recent decision from
the Southern District in which Anderson Kill was awarded attorneys’
fees in connection with a commercial dispute.
See Euro Pac.
Capital, Inc. v. U.S. China Mining Grp., Inc., No. 15-CV-4636,
2017 WL 89023 (S.D.N.Y. Dec. 15, 2016), R&R adopted, Euro Pac.
Capital, Inc. v. U.S. China Mining Grp., Inc., 15-CV-4636, Docket
Entry 50 (S.D.N.Y. Jan. 10, 2017).
In that case, Anderson Kill
requested and was awarded the following hourly rates: (1) $375.00
for David Graff; (2) $250.00 for Associate Christopher Ayers; (3)
$250.00 for Associate Christopher Paolino; and (4) $250.00 for
Associate Rachael Kierych.
Euro Pacific, 2017 WL 89023, at *6.
The Court finds this case to be instructive. 8
While this is a
civil rights matter, Anderson Kill’s work focused exclusively on
enforcing the Judgment, and the work performed is similar to what
Although these rates were awarded based on the prevailing rates
in the Southern District, they also fall within the permissible
range of hourly rates in this district.
would be required to enforce any judgment—-whether it arose out of
a commercial dispute or otherwise.
Therefore, the Court finds that the following rates are
reasonable: (1) $375.00 for Partner Jeffrey Glen; (2) $375.00 for
Partner David Graff; (3) $250.00 for Associate Rachael Kierych;
(4) $250.00 for Associate Christopher Paolino; (5) $250.00 for
Associate Ethan W. Middlebrooks; and (6) $250.00 for Associate
The Court further finds that $125.00 is a
D’Annunzio v. Ayken, Inc., No. 11-CV-3303, 2015 WL 5308094, at *5
(E.D.N.Y. Sept. 10, 2015) (awarding $125 for law clerk).
these hourly rates, NSB is awarded the following for work performed
by Anderson Kill 9:
Ethan W. Middlebrooks
Defendant has not objected to the hours expended by Anderson
Kill. Based on the Court’s review of the time entries, there is
no basis for a reduction. As a result, the Court will multiply
the hours requested by the reduced hourly rates to compute the
final award. (See Graff Decl. at 11.)
Because there has been no objection to Anderson Kill’s
request for legal research costs, the Court awards an additional
$396.53 in costs. 10
(See Graff Decl. at 11.)
Therefore, the total
award for Anderson Kill’s work is $26,741.53.
[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]
Anderson Kill provided a breakdown of the research costs to
support this request. (See Graff Decl. at 21.)
For the foregoing reasons, NSB’s supplemental motion for
attorneys’ fees (Docket Entry 300) is GRANTED IN PART and DENIED
$572,324.25 11 plus $21,806.54 12 in costs for a total of $594,130.79
in attorney fees and costs.
The Clerk of the Court is directed to
enter judgment for $594,130.79 in attorneys’ fees and costs. Postjudgment 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.
/s/ JOANNA SEYBERT___
Joanna Seybert, U.S.D.J.
August 28 , 2017
Central Islip, New York
This includes $545,979.25 for NSB’s work and $26,345.00 for
Anderson Kill’s work.
This includes $21,410.01 in costs incurred by NSB and $396.53
incurred by Anderson Kill.
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