Houston v. Cotter et al

Filing 193

ORDER granting 181 Motion for Attorney Fees. For the reasons set forth herein, the Court awards plaintiff $7,500 in attorneys' fees against Officer Cotter ($1.00 of which is to be satisfied from the jury award) and $338,979.55 in attorneys' fees against the County, for a total of $346,479.55. The Court further awards plaintiff $23,856.57 in costs against Officer Cotter and $56,235.33 in costs against the County, for a total of $80,091.90. Pursua nt to plaintiff's unopposed request, the Clerk of the Court, following entry of judgment, is directed to calculate any post-judgment interest on the fees and costs awards in accordance with 28 U.S.C. § 1961(a). SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/14/2017. (Zbrozek, Alex)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 07-CV-3256 (JFB) (AYS)
_____________________

ROBERT HOUSTON,
Plaintiff,
VERSUS

THOMAS COTTER, JOHN WEISS, AND THE COUNTY OF SUFFOLK,
Defendants.
___________________
MEMORANDUM AND ORDER
February 14, 2017
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Robert Houston (“plaintiff”)
brought this action against defendants
Thomas Cotter (“Officer Cotter”), John
Weiss (“Officer Weiss”), and the County of
Suffolk (“the County”) (collectively,
“defendants”) pursuant to 42 U.S.C. § 1983
(“Section 1983”). Plaintiff commenced suit
on July 26, 2007 by filing a pro se complaint
against Officers Cotter and Weiss 1 alleging
that they used excessive force against him on
January 11, 2007. (ECF No. 1.) Counsel
from the law firm Cleary Gottlieb Steen &
Hamilton LLP (“Cleary Gottlieb”) were
subsequently designated to represent plaintiff
(ECF No. 51), 2 and plaintiff filed an amended
complaint on December 16, 2011 (ECF No.
68) that added a Due Process claim against
the County for implementing a policy
1

In his original complaint, plaintiff also sued three
other officers, but voluntarily withdrew those claims
after retaining counsel and filing an amended

whereby corrections officers confined
plaintiff to suicide watch for two weeks as
punishment.
This case was tried before a jury from
February 23, 2015 to March 9, 2015. On
March 9, 2015, the jury returned a verdict in
plaintiff’s favor as to (1) his excessive force
claim against Officer Cotter, awarding
$1,000 in compensatory damages and $4,000
in punitive damages; and (2) his Due Process
claim against the County, awarding $25,000
in compensatory damages. (ECF No. 165.)
The jury found that Officer Weiss was not
liable on the excessive force claim. (Id.)
Presently before the Court is plaintiff’s
motion for attorneys’ fees and costs. (ECF
No. 181.) Plaintiff requests an award of
$89,281.93 in fees and costs against Officer
pleading.
2

See 28 U.S.C. § 1915(e)(1).

claims against Officers Cotter and Weiss and
a Due Process claim against the County (ECF
No. 68).

Cotter and $883,726.77 in fees and costs
against the County. For the reasons set forth
below, the Court awards plaintiff $7,500 in
attorneys’ fees against Officer Cotter ($1.00
of which is to be satisfied from the jury
award) and $338,979.55 in attorneys’ fees
against the County, for a total of
$346,479.55. The Court further awards
plaintiff $23,856.57 in costs against Officer
Cotter and $56,235.33 in costs against the
County, for a total of $80,091.90.

Defendants moved to dismiss the
complaint on January 20, 2012 (ECF No. 70),
and after the Court denied that motion on
August 10, 2012 (ECF No. 79), defendants
and plaintiff cross-moved for summary
judgment on July 26, 2013 and September 6,
2013, respectively (ECF Nos. 111, 113). The
Court denied the cross-motions on March 27,
2014 (ECF No. 125), and the case proceeded
to eight days of trial from February 23, 2015
through March 9, 2015 (see ECF Nos. 14763).

I. BACKGROUND
A. Facts
The Court has set forth the background
facts of this case in the March 27, 2014
Memorandum and Order denying the parties’
cross-motions for summary judgment, see
Houston v. Cotter, 7 F. Supp. 3d 283, 287-89
(E.D.N.Y. 2014), and the March 30, 2016
Memorandum
and
Order
denying
defendants’ post-trial motion for judgment as
a matter of law, Houston v. Cotter, No. 07CV-3256 (JFB) (AYS), 2016 WL 1253391,
at *2-10 (E.D.N.Y. Mar. 30, 2016).
Accordingly, the Court does not repeat those
facts here and instead discusses all relevant
facts in conjunction with its analysis of each
issue raised by the instant motion.

On March 9, 2015, the jury reached a
verdict and found for plaintiff as to (1) his
excessive force claim against Officer Cotter,
awarding $1,000 in compensatory damages
and $4,000 in punitive damages; and (2) his
Due Process claim against the County,
awarding $25,000 in compensatory damages.
(ECF No. 165.) The jury also concluded that
Officer Weiss was not liable on the excessive
force claim. (Id.) On March 15, 2015,
defendants moved to set aside the verdict
only with respect to the Due Process claim
against the County on the ground that the
jury’s determination was against the weight
of evidence. (ECF No. 166.) The Court
denied that motion on March 30, 2016. (ECF
No. 177.)

B. Procedural History
Plaintiff filed his pro se complaint in this
case on July 26, 2007 alleging Section 1983
excessive force claims against Officers
Cotter and Weiss, as well as against Officers
Douglas Gubitosi, Arthur Thomas, and
Gerard Reynolds. (ECF No. 1.) After several
years of discovery, Cleary Gottlieb was
designated as counsel to plaintiff in
December 2010. (ECF No. 51.) Thereafter,
the Court granted plaintiff’s motion to reopen discovery (ECF No. 58), and on
December 16, 2011, plaintiff filed an
amended complaint asserting excessive force

Plaintiff subsequently filed the instant
motion for recovery of attorneys’ fees and
costs on April 26, 2016. (ECF No. 181.)
Defendants submitted their opposition on
June 24, 2016 (ECF No. 187), and plaintiff
submitted his reply on July 22, 2016 (ECF
No. 188). The Court held oral argument on
September 6, 2016 and requested
supplemental letters from the parties. (ECF
No. 190.) Plaintiff submitted his letter on
September 20, 2016 (ECF No. 191), and
defendants filed their letter on October 4,
2

2016 (ECF No. 192). The Court has fully
considered all of the parties’ submissions.

In any action or proceeding to
enforce a provision of sections 1981,
1981a, 1982, 1983, 1985, and 1986
of this title, . . . title VI of the Civil
Rights Act of 1964 [42 U.S.C.A.
§ 2000d et seq.], . . . 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, except that in any action
brought against a judicial officer for
an act or omission taken in such
officer’s judicial capacity such
officer shall not be held liable for
any costs, including attorney’s fees,
unless such action was clearly in
excess of such officer’s jurisdiction.

II. DISCUSSION
Plaintiff requests an award of attorneys’
fees and costs against Officer Cotter in the
amount of $89,281.93 and attorneys’ fees and
costs against the County in the amount of
$883,726.77. 3 Defendants do not dispute that
plaintiff’s calculation of $7,500 is a
reasonable award of attorneys’ fees against
Officer Cotter pursuant to the Prison
Litigation Reform Act (“PLRA”), 42
U.S.C. § 1997e. (Defs.’ Br., ECF No. 187-1,
at 20.) However, defendants do contest the
reasonability of plaintiff’s request for
$81,781.93 in costs with respect to Officer
Cotter and $677,959.10 in fees and
$205,767.67 in costs with respect to the
County. Specifically, defendants contend
that (1) plaintiff achieved limited success in
this action; (2) plaintiff’s requested fees with
respect to the County are unreasonable;
(3) plaintiff failed to adequately document
his costs with respect to both defendants; and
(4) plaintiff should in no event recover more
than $50,000 in total fees and costs.

42 U.S.C. § 1988(b); see also Blum v.
Stenson, 465 U.S. 886, 888 (1984) (“[I]n
federal civil rights actions ‘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.’” (quoting
42 U.S.C. § 1988)).
Generally, to determine reasonable
attorneys’ fees, a court must calculate a
“lodestar figure,” which is determined by
multiplying the number of hours reasonably
expended on a case by a reasonable hourly
rate. See Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); see also Luciano v. Olsten Corp.,
109 F.3d 111, 115 (2d Cir. 1997). “Both [the
Second Circuit] and the Supreme Court have
held that the lodestar . . . creates a
‘presumptively reasonable fee.’” Millea v.
Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir.
2011) (citing Arbor Hill Concerned Citizens
Neighborhood Assoc. v. Cnty. of Albany, 522
F.3d 182, 183 (2d Cir. 2008); Perdue 559
U.S. at 542). “‘[T]he lodestar figure includes

For the following reasons, the Court
awards plaintiff $346,479.55 in attorneys’
fees and $80,091.90 in costs.
A. Applicable Law
“The general rule in our legal system is
that each party must pay its own attorney’s
fees and expenses.” Perdue v. Kenny A. ex
rel. Winn, 559 U.S. 542, 550 (2010).
However, 42 U.S.C. § 1988(b) (“Section
1988”) provides that:

3

Plaintiff originally sought $906,867.42 in attorneys’
fees and costs against the County, but subsequently
reduced the requested attorneys’ fees after applying a
fifty percent cut to time entries reflecting attorney

travel. (See Pl.’s Reply Br., ECF No. 188, at 10 n.17;
Suppl. Decl. of Victor L. Hou (“Suppl. Hou Decl.”),
ECF No. 189.)

3

461 U.S. at 440; see also Green v. Torres,
361 F.3d 96, 99 (2d Cir. 2004).

most, if not all, of the relevant factors
constituting a ‘reasonable’ attorney’s fee.’”
Perdue, 559 U.S. at 553 (quoting
Pennsylvania v. Del. Valley Citizens’ Council
for Clean Air, 478 U.S. 546, 566 (1986)).
Thus, the Supreme Court has recognized that
“the lodestar method produces an award that
roughly approximates the fee that the
prevailing attorney would have received if he
or she had been representing a paying client
who was billed by the hour in a comparable
case.” Id. at 551. “The burden is on the party
seeking attorney’s fees to submit sufficient
evidence to support the hours worked and the
rates claimed.” Hugee v. Kimso Apartments,
LLC, 852 F. Supp. 2d 281, 298 (E.D.N.Y.
2012) (citing Hensley, 461 U.S. at 433).

The Supreme Court further explained
that, in cases where a plaintiff pursues
“distinctly different claims for relief that are
based on different facts and legal theories”
(even though brought against the same
defendants), “counsel’s work on one claim
will be unrelated to his work on another
claim” and thus, “work on an unsuccessful
claim cannot be deemed to have been
expended in pursuit of the ultimate result
achieved.” Hensley, 461 U.S. at 434-35.
However, “[a] plaintiff’s lack of success on
some of his claims does not require the court
to reduce the lodestar amount where the
successful and the unsuccessful claims were
interrelated and required essentially the same
proof.” Murphy v. Lynn, 118 F.3d 938, 952
(2d Cir. 1997); see also Kerin v. U.S. Postal
Serv., 218 F.3d 185, 194 n.6 (2d Cir. 2000)
(“The district court therefore has the
discretion to award fees for the entire
litigation where the claims are inextricably
intertwined and involve a common core of
facts or are based on related legal theories.”
(alteration omitted)).

In addition, the Supreme Court has
recognized that “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;
see also Stanczyk v. City of New York, 752
F.3d 273, 284-85 (2d Cir. 2014) (citing
Hensley, 461 U.S. at 434-35). In Hensley, the
Court held that:
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 fee. Where a lawsuit
consists of related claims, a plaintiff
who has won 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.

B. Success
As a threshold matter, defendants argue
that “[t]he total award of $30,000 to the
plaintiff in this litigation represents such an
insignificant degree of success that only a
minimal amount of fees should be awarded.”
(Defs.’ Br. at 7.) Although they acknowledge
that plaintiff was the “prevailing party” in
this Section 1983 action for purposes of
Section 1988 (id.), defendants rely on
Hensley, 461 U.S. at 436, to argue that
plaintiff only achieved “partial or limited
success,” and Farrar v. Hobby, 506 U.S. 103,
115 (1992), to contend that “[i]n some
circumstances, even a plaintiff who formally
‘prevails’ under § 1988 should receive no
attorney’s fees at all.” Farrar held that
4

award. 4 Cf., e.g., Hines v. City of Albany, 613
F. App’x 52, 54 (2d Cir. 2015) (“We are
unpersuaded by Defendants’ attempts to
characterize the $10,000 settlement in this
case as meager. Moreover, the success here
was hardly technical.”).

“[a]lthough the ‘technical’ nature of a
nominal damages award or any other
judgment does not affect the prevailing party
inquiry, it does bear on the propriety of fees
awarded under § 1988,” id. at 114, and in a
concurring opinion, Justice O’Conner wrote
that “[w]hen the plaintiff’s success is purely
technical or de minimis, no fees can be
awarded,” id. at 117 (O’Conner, J.,
concurring).
The Court disagrees with defendants’
characterization of plaintiff’s victory in this
case. First, rather than a nominal sum, the
$30,000 in compensatory and punitive
damages awarded by the jury was substantial
and easily distinguishable from the cases
cited by defendants. See Carroll v. Blinken,
105 F.3d 79, 81-82 (2d Cir. 1997) (affirming
district court’s reduction of requested
attorneys’ fees because, inter alia, “[t]here
was no damage award”); Pino v. Locascio,
101 F.3d 235, 238-39 (2d Cir. 1996) (holding
that district court erred in awarding
attorneys’ fees in civil rights action where
plaintiff only recovered $1 in nominal
damages). In Pino, the Second Circuit
specifically noted that Farrar’s inquiry
applies “whe[re] the plaintiff has won only
nominal damages.”
101 F.3d at 238
(emphasis added) (citing Farrar, 506 U.S. at
103). Thus, Farrar and its progeny are
inapposite here because plaintiff did not
obtain de minimis or technical relief, but
instead an actual and considerable monetary

Second, insofar as defendants assert that
plaintiff achieved only “limited or partial
success” because the jury did not find
liability as to Officer Weiss (see Defs.’ Br. at
6), that argument fails because plaintiff’s
successful excessive force claim against
Officer Cotter and unsuccessful excessive
force claim against Officer Weiss “involve[d]
a common core of facts or [were] based on
related legal theories . . . .” Green, 361 F.3d
at 98; see also Kerin, 218 F.3d at 194;
Monette v. Cty. of Nassau, No. 11-CV-539
(JFB) (AKT), 2016 WL 4145798, at *9
(E.D.N.Y. Aug. 4, 2016) (holding that
although “plaintiff’s claims for disability
discrimination and hostile work environment
were rejected by the jury and plaintiff only
prevailed on his First Amendment retaliation
claim,” no reduction in requested fees was
warranted on partial success grounds because
“the issue of plaintiff’s transfer was
inextricably intertwined with his retaliation
claim”). Accordingly, because this “lawsuit
consist[ed] of related claims” and plaintiff
“won substantial relief,” he “should not have
his attorney’s fee reduced simply because the
[jury] did not adopt each contention raised.” 5
Hensley, 461 U.S. at 440. Cf. Barfield v. New

4

5

Moreover, the Second Circuit has “repeatedly
rejected the notion that a fee may be reduced merely
because the fee would be disproportionate to the
financial interest at stake in the litigation.” Kassim v.
City of Schenectady, 415 F.3d 246, 252 (2d Cir. 2005);
see also Millea, 658 F.3d at 169 (“Especially for
claims where the financial recovery is likely to be
small, calculating attorneys’ fees as a proportion of
damages runs directly contrary to the purpose of feeshifting statutes: assuring that civil rights claims of
modest cash value can attract competent counsel.”).

Moreover, there is no merit to any argument that
plaintiff achieved only “partial success” in this action
because he volitionally chose not to assert claims
against Officers Gubitosi, Reynolds, and Thomas in
the amended complaint. (Defs.’ Br. at 22.) “[W]hile
the voluntary dismissal or withdrawal of inflated
claims may justify a fee reduction, the same will not
be true of claims pursued in good faith, but later
withdrawn for valid reasons, such as the discovery of
additional evidence.” Green, 361 F.3d at 100; see also
Morgenstern v. Cty. of Nassau, No. CV 04-58 (ARL),
2009 WL 5103158, at *10 (E.D.N.Y. Dec. 15, 2009)
(“The court will not, however, deduct from the award

5

York City Health and Hospitals Corp., 537
F.3d 132, 152 (2d Cir. 2008) (affirming
reduction of requested attorneys’ fees
because plaintiff failed to achieve primary
aim of certifying class action).

inter alia, “[t]he jury awarded Toussie only
$12,500–a mere third of a percent of what he
submitted to the jury,” which totaled
approximately $35.8 million. Id. at *4.

Finally, to the extent that defendants
argue that a fee reduction is warranted
because the jury award was substantially less
than what plaintiff sought, the Court
disagrees. In determining the prevailing
party’s degree of success, a court must
consider “‘the quantity and quality of relief
obtained,’ as compared to what the plaintiff
sought to achieve as evidenced in her
complaint . . . .” Id. (quoting Carroll, 105
F.3d at 81). Here, however, plaintiff’s
amended complaint—the operative pleading
in this action—did not seek a specific sum,
but rather requested “[a]n award to Plaintiff
of compensatory damages against all
Defendants, jointly and severally, resulting
from Defendants’ unlawful conduct, the
precise amount to be supplied to the Court
upon a trial on the merits . . . .” (Am. Compl.
at 16.) At trial, plaintiff’s counsel also did
not ask for an exact award from the jury;
instead, he said during summations that
“[t]he law requires [plaintiff] to ask for
money damages, but you can give him
as little or as much as you think is necessary
. . . .” (Trial Tr. 1267:3-5, ECF No. 166-8.)
Thus, there is no baseline comparison in this
case between the damages plaintiff sought
and the damages the jury actually awarded,
and defendants’ reliance on Toussie v.
County of Suffolk, No. 01-CV-6716 (JS)
(ARL), 2012 WL 3860760 (E.D.N.Y. Sept. 6,
2012), is therefore misplaced. In that case,
the court declined to award fees because,

Nevertheless, defendants argue that the
Court should use the parties’ settlement
negotiations as a touchstone. They aver that
“[p]laintiff’s award of $30,000 represents a
recovery of a mere 2% of the ‘actual
damages’ he was seeking during the
pendency of this action and at trial” (Defs.’
Br. at 7), and that “on September 18, 2012 the
plaintiff presented a demand to settle the
claim in the amount of $1.5 million dollars”
(id. at 5; see also Decl. of Brian Mitchell Ex.
C, ECF No. 187-4.). However, defendants
offer no authority for the proposition that a
court may consider a prior settlement offer as
a relevant comparator for determining the
prevailing party’s degree of success, and the
Second Circuit has held that a “district court
should not rely on informal negotiations and
hindsight to determine whether further
litigation was warranted and, accordingly,
whether attorney’s fees should be awarded.”
Ortiz v. Regan, 980 F.2d 138, 140 (2d Cir.
1992); see also Siracuse v. Program for the
Dev. of Human Potential, No. 07 CV 2205
CLP, 2012 WL 1624291, at *20 (E.D.N.Y.
Apr. 30, 2012) (holding that “defendant has
failed to provide any support for the novel
argument that plaintiff should be denied fees
because, in defendant’s view, plaintiff’s
counsel acted unreasonably in failing to
accept defendant’s settlement offer,” and that
consideration of settlement discussions on a
motion for attorneys’ fees is barred by
Federal Rule of Evidence 408); Rozell v.
Ross-Holst, 576 F. Supp. 2d 527, 542

the amounts incurred for legal services rendered in
connection with the breach of contract, civil service
law, or human rights law claims that were voluntarily
dismissed . . . [because] [t]he court agrees with the
plaintiff that the work done in relation to those claims
contributed to the ultimate success of the
lawsuit . . . . (citing Grant v. Martinez, 973 F.2d 96,

99 (2d Cir. 1992) (holding that the relevant inquiry is
not “whether hindsight vindicates an attorney’s time
expenditures, but whether, at the time the work was
performed, a reasonable attorney would have engaged
in similar time expenditures”))). There is nothing in
the record that indicates that plaintiff’s voluntarily
dismissed claims were inflated or specious.

6

(S.D.N.Y. 2008) (“Nor is it appropriate to
reduce the lodestar on the grounds that the
plaintiff might have settled earlier and still
obtained a substantial recovery at that
time.”). Accordingly, the Court will not
consider any settlement offer made by
plaintiff in assessing the reasonability of his
request for attorneys’ fees. 6

Arbor Hill, 522 F.3d at 190. The Second
Circuit’s “‘forum rule’ generally requires use
of ‘the hourly rates employed in the district
in which the reviewing court sits in
calculating the presumptively reasonable
fee.’” Bergerson v. N.Y. State Office of
Mental Health, Cent. N.Y. Psychiatric Ctr.,
652 F.3d 277, 290 (2d Cir. 2011) (quoting
Simmons v. N.Y.C. Transit Auth., 575 F.3d
170, 174 (2d Cir. 2009)). “Fees should not
be awarded at higher out-of-district rates
unless ‘a reasonable client would have
selected out-of-district counsel because
doing so would likely . . . produce a
substantially better net result.’” Id. (quoting
Simmons, 575 F.3d at 172). In Arbor Hill, the
Second Circuit also instructed district courts
to consider the factors set forth in Johnson v.
Georgia Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974), abrogated on other
grounds by Blanchard v. Bergeron, 489 U.S.
87, 92-93, 96 (1989). See 522 F.3d at 190.

In sum, the Court declines to award
plaintiff no fees or impose a fee
reduction based on limited success at trial
because (1) the compensatory and punitive
damages were substantial rather than
nominal; (2) plaintiff’s unsuccessful excessive force claim was factually intertwined
with his successful excessive force claim;
and (3) plaintiff did not request a specific
monetary award in his amended complaint or
at trial.
C. Reasonable Hourly Rates
The Court proceeds to calculate the
lodestar for the attorneys’ fees pertaining to
plaintiff’s Due Process Claim against the
County7 by determining reasonable hourly
rates and hours expended.
Because
defendants do not dispute the hourly rates
propounded by plaintiff, the Court will only
brief address that prong of the lodestar
analysis.

The twelve Johnson factors
are: (1) the time and labor required;
(2) the novelty and difficulty of the
questions; (3) the level of skill
required to perform the legal
service properly; (4) the preclusion
of employment by the attorney due
to acceptance of the case; (5) the
attorney’s customary hourly rate;
(6) whether the fee is fixed or
contingent; (7) the time limitations
imposed by the client or the

“The reasonable hourly rate is the rate a
paying client would be willing to pay.”
6

In any event, even if the Court considered those
discussions, it would not alter the Court’s view
regarding plaintiff’s degree of success in this lawsuit.

attorney’s fee award greater than 150 percent of the
monetary judgment may be entered against a
defendant” (citing 42 U.S.C. § 1997e(d)(2))).
Pursuant to 42 U.S.C. § 1997e(d)(2), the Court applies
a nominal offset of $1.00 to be collected from the
judgment. See, e.g., Hernandez v. Goord, No. 01-CV9585 SHS, 2014 WL 4058662, at *13 (S.D.N.Y. Aug.
14, 2014) (holding that under 42 U.S.C. § 1997e(d)(2),
“[a] district court may apply less than 25 percent of the
judgment (as long as it applies some portion of the
judgment) to satisfy the attorney’s fee award” (quoting
Parker v. Conway, 581 F .3d 198, 205 (3d Cir. 2009))).

7

As noted surpa, defendants do not dispute that
$7,500 is an appropriate measure of attorneys’ fees
under the PLRA with respect to plaintiff’s excessive
force claim against Officer Cotter. The Court has
independently reviewed plaintiff’s calculations and
determined that that sum, which by law is capped at
150 percent of plaintiff’s $5,000 jury award, is
reasonable. See Shepherd v. Goord, 662 F.3d 603, 607
(2d Cir. 2011) (holding that under the PLRA, “no

7

circumstances; (8) the amount
involved in the case and the results
obtained; (9) the experience,
reputation, and ability of the
attorneys; (10) the “undesirability”
of the case; (11) the nature and
length
of
the
professional
relationship with the client; and
(12) awards in similar cases.

numerous factors that courts in this circuit
consider to determine a reasonable hourly
rate, “the range of ‘reasonable’ attorney fee
rates in this district varies depending on the
type of case, the nature of the litigation, the
size of the firm, and the expertise of its
attorneys.” Siracuse, 2012 WL 1624291, at
*30.
Here, plaintiff requests an hourly rate of
$400 for Clearly Gottlieb partner Victor L.
Hou; $225 for senior and mid-level
associates Christopher P. DeNicola,
Matthew C. Vogele, and Laura A.
Zuckerwise; and $175 for junior associates
Andrew M. Darcy, Stewart C. Dearing,
Christopher P. DeNicola, Sarah E. Edwards,
Tracy L. Edwards, Diarra M. Guthrie,
Benjamin L. Leffler, and Laura A.
Zuckerwise. 8 Upon review of the declaration
and exhibits in support of plaintiff’s motion
for attorneys’ fees and costs (see Hou Decl.
and accompanying exhibits), and upon
consideration of the Johnson factors and the
prevailing local hourly rates discussed above,
the Court finds that these uncontested rates
are reasonable and will use them to calculate
the lodestar for plaintiff’s Due Process claim
against the County. 9

Id. at 186 n.3 (quoting Johnson, 488 F.2d at
717-19). Finally, a district court should also
consider “that a reasonable, paying client
wishes to spend the minimum necessary to
litigate the case effectively,” and “that such
an individual might be able to negotiate with
his or her attorneys, using their desire to
obtain the reputational benefits that might
accrue from being associated with the case.”
Id. at 190. “The burden rests with the
prevailing party to justify the reasonableness
of the requested rate,” and plaintiff’s attorney
“should establish his hourly rate with
satisfactory evidence—in addition to the
attorney’s own affidavits.” Hugee, 852 F.
Supp. 2d at 298 (citations omitted).
“Courts in the Eastern District of New
York award hourly rates ranging from $200
to $450 per hour for partners, $100 to $300
per hour for associates, and $70 to $100 per
hour for paralegals.” D’Annunzio v. Ayken,
Inc., No. 11-CV-3303 (WFK) (WDW), 2015
WL 5308094, at *4 (E.D.N.Y. Sept. 10,
2015); see also Sass v. MTA Bus Co., 6 F.
Supp. 3d 238, 261 (E.D.N.Y. 2014) (“Recent
opinions issued by courts within the Eastern
District of New York have found reasonable
hourly rates to be approximately $300-$450
for partners, $200-$325 for senior associates,
and $100-$200 for junior associates.”
(citations omitted)). Of course, in light of the

D. Reasonable Hours
Defendants argue that the number of
hours expended by plaintiff’s counsel in
litigating this action were “not reasonably
spent” and “far exceed[ed] the minimum that
was necessary to effectively litigate the case
. . . .” (Defs.’ Br. at 21.) Specifically, they
assert that the Court should “deduct any
hours billed that reflect excessive and
duplicative charges,” and that “[t]here are
multiple instances where the several

8
Several attorneys are listed as both junior and
senior/mid-level associates because they advanced in
class rank over the course of this litigation. (See Decl.
of Victor L. Hou (“Hou Decl.”), ECF No. 183, at 2526.)

9
Plaintiff has not requested fees for work performed
by paralegals, law clerks, and summer associates.
(Pl.’s Br., ECF No. 182, at 11.)

8

attorneys billed for interactions vaguely
described as ‘conversation’ ‘communication’
or ‘e-mails’ with each other or the ‘team’,
rather than actual work on the
claims . . . .” (Id. at 21-22.) In addition,
defendants contend that there are “a number
of instances in the records provided where
work that has been previously billed for a
certain task is preformed [sic] again by the
same or a different associate.” (Id. at 22.)
Accordingly, defendants “submit that a 50%
across the board reduction is proper” for the
total hours worked by Clearly Gottlieb. 10 (Id.
at 23.)

Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173
(2d Cir. 1998). “Hours that are ‘excessive,
redundant, or otherwise unnecessary,’ are to
be excluded, and in dealing with such
surplusage, the court has discretion simply to
deduct a reasonable percentage of the number
of hours claimed ‘as a practical means of
trimming fat from a fee application.’” Id.
(quoting Hensley, 461 U.S. at 434; N.Y. Ass’n
for Retarded Children, Inc. v. Carey, 711
F.2d 1136, 1146 (2d Cir. 1983)); see also
Lunday v. City of Albany, 42 F.3d 131, 134
(2d Cir. 1994) (“We do not require that the
court set forth item-by-item findings
concerning what may be countless objections
to individual billing items.”). For example,
in Matusick v. Erie County Water Authority,
the Second Circuit upheld a district court’s 50
percent across-the-board reduction of hours
in light of “concerns regarding unspecified
conferences,
telephone
calls,
email
correspondence, and reviews.” 757 F.3d 31,
64 (2d Cir. 2014) (citation omitted); see also
Francois v. Mazer, 523 F. App’x 28, 29 (2d
Cir. 2013) (upholding 40 percent across-theboard reduction in hours); Green v. City of
New York, 403 F. App’x 626, 630 (2d Cir.
2010) (upholding 15 percent across-theboard reduction); Kirsch, 148 F.3d at 173
(upholding “20% reduction for vagueness,
inconsistencies, and other deficiencies in the
billing records”).

Plaintiff counters that the time entries and
other records provided are sufficiently
detailed; that Clearly Gottlieb appropriately
staffed this case; and that no duplicative work
was performed. (Pl.’s Reply Br., ECF No.
188, at 6-9.) For the reasons set forth below,
the Court agrees with defendants that the
hours expended by plaintiff’s counsel were
unreasonably excessive and will adopt a 50
percent
across-the-board
cut
before
calculating the lodestar.
1. Legal Principles
“The party seeking attorney’s fees also
bears the burden of establishing that the
number of hours for which compensation is
sought is reasonable.” Custodio v. Am. Chain
Link & Const., Inc., No. 06-CV-7148 (GBD),
2014 WL 116147, at *9 (S.D.N.Y. Jan. 13,
2014) (citing Cruz v. Local Union No. 3 of
Int’l Bhd. of Elec. Workers, 34 F.3d 1148,
1160 (2d Cir. 1994)). “Applications for fee
awards should generally be documented by
contemporaneously created time records that
specify, for each attorney, the date, the hours
expended, and the nature of the work done.”

In addition, a district court has discretion
to reduce requested attorneys’ fees where the
prevailing party assigned an inordinate
number of attorneys to litigate the action. See
Luciano v. Olsten Corp., 109 F.3d 111, 117
(2d Cir. 1997) (holding, in a Title VII case,
that “it was within the purview of the court’s
discretion to determine whether or not the

10
In addition to asking the Court to reduce the total
hours expended by half because of “vague, redundant
and excessive billing,” defendants contend that further
reduction is warranted due to plaintiff’s purported
limited success and the “time spent on claims that have

been effectively shown to be baseless, such as
those against defendants Thomas, Gubitosi and
Reynolds . . . .” (Id. at 22.) For the reasons discussed
supra, the Court finds that such reductions are
unjustified.

9

memoranda, nor can it explain why three
attorneys’ time was necessary.”); Tucker v.
City of N.Y., 704 F. Supp. 2d 347, 355
(S.D.N.Y. 2010) (“[U]sing multiple attorneys
in a simple case, which this certainly was,
poses the serious potential—fully realized in
this instance—for duplication of work or
overstaffing.”); Auscape Int’l v. Nat’l
Geographic Soc’y, No. 02 CIV. 6441
LAKHBP, 2003 WL 21976400, at *4
(S.D.N.Y. Aug. 19, 2003), aff’d sub nom.
Auscape Int’l v. Nat. Geographic Soc’y, No.
02 CIV. 6441 (LAK), 2003 WL 22244953
(S.D.N.Y. Sept. 29, 2003) (“I have reviewed
each of the entries in the time records, and
although I do not find that specific tasks were
staffed in a redundant manner, I do find that
the relatively large number of attorneys—six
partners and associates plus the managing
attorney—assigned to the specific, narrow
discovery dispute in issue did, no doubt, give
rise to inefficiencies.”); Nat’l Helicopter
Corp. of Am. v. City of N.Y., No. 96 CIV.
3574 SS, 1999 WL 562031, at *7 (S.D.N.Y.
July 30, 1999) (Sotomayor, J.) (“It is also
apparent that this matter was staffed with
more attorneys, at higher rates, than
necessary and that in certain respects, these
attorneys either duplicated each other’s
efforts or performed services unnecessary to
this litigation.”); Kim v. Dial Serv. Int’l, Inc.,
No. 96 CIV. 3327 (DLC), 1997 WL 458783,
at *19 (S.D.N.Y. Aug. 11, 1997), aff’d, 159
F.3d 1347 (2d Cir. 1998) (“In addition, the
lodestar should be reduced to reflect
duplicative work by the two plaintiff’s
attorneys. Many of the entries show that both
attorneys did the same work at the same time
when only one attorney’s time was
necessary.”); Mendoza v. City of Rome, 162
F.R.D. 260, 264 (N.D.N.Y. 1995) (reducing
hours because it was unnecessary for two
attorneys to attend examinations before trial
and the trial).

actual time expended by an additional
attorney was reasonable”). In Luciano, the
Second Circuit cited approvingly Stryker
Corporation v. Intermedics Orthopedics,
Inc., 898 F. Supp. 116 (E.D.N.Y.1995), aff’d,
96 F.3d 1409 (Fed. Cir. 1996), where the
district court adopted a 25 percent reduction
because
it simply was not necessary for
[counsel] to have five attorneys and
several clerks attend the trial.
Moreover, despite [counsel’s] highly
professional trial and witness
exhibits, the Court believe[d] much of
the exhibit preparation and pre-trial
discovery, and other legal work, was
duplicative. In addition, [counsel’s]
records
for
the
trial
time
demonstrate[d] an aggregation of
attorney time and tasks performed in
certain matters.
Id. at 127. Similarly, in Lochren v. County of
Suffolk, 344 F. App’x 706, 709 (2d Cir.
2009), the Second Circuit affirmed a 25
percent cut “because plaintiffs overstaffed
the case, resulting in the needless duplication
of work and retention of unnecessary
personnel.”
Other district and appellate courts have
also pared hours based on overstaffing. See,
e.g., Copeland v. Marshall, 641 F.2d 880,
891 (D.C. Cir. 1980) (holding that “where
three attorneys are present at a hearing when
one would suffice, compensation should be
denied for the excess time”), accord Luciano,
109 F.3d at 117; Mazzei v. Money Store, No.
O1CV5694 (JGK) (RLE), 2015 WL
2129675, at *4 (S.D.N.Y. May 6, 2015)
(“Although [counsel] drafted multiple letters
and participated in multiple telephone
conferences with the Court, these events
alone cannot explain the inordinate number
of hours contributed to standard letter
motions, legal research, and supporting

For instance, in ACE Ltd. v. CIGNA
Corp., No. 00 CIV. 9423 (WK), 2001 WL
10

1286247 (S.D.N.Y. Oct. 22, 2001), counsel
from Skadden, Arps, Slate, Meagher & Flom
LLP sought attorneys’ fees in connection
with a motion to compel arbitration, 11 and the
court reduced the requested sum by 50
percent after determining that the “nine
attorneys and fourteen paraprofessionals
[used] to litigate this matter . . . was excessive
for this type of common motion involving
straightforward issues.” Id. at *3. The court
observed that several associates staffed on
the matter billed excessive hours for the types
of tasks they were assigned, and that “[w]hile
parties to a litigation may fashion it according
to their purse and indulge themselves and
their attorneys . . . they may not foist their
extravagances upon their unsuccessful
adversaries.” Id. at *4 (alteration in original)
(quoting King World Productions, Inc. v.
Financial News Network, Inc. 674 F. Supp.
438, 440 (S.D.N.Y. 1987)); see also General
Electric Co. v. Compagnie Euralair, S.A.,
1997 WL 397627, at *4 (S.D.N.Y. July 3,
1997) (“It is well recognized, of course, that
when more lawyers than are necessary are
assigned to a case, the level of duplication of
efforts increases.” (footnote omitted));
Gillberg v. Shea, 1996 WL 406682, at *5
(S.D.N.Y. May 31, 1996) (“Obviously, more
lawyers leads to more ‘conference’ time as
well as to a certain amount of repetition or
‘learning curve’ billing which should not be
compensable.” (footnote omitted)).

conferences.” Pope v. Cty. of Albany, No.
1:11-CV-0736 LEK/CFH, 2015 WL
5510944, at *13 (N.D.N.Y. Sept. 16, 2015).
Likewise, in Stevens v. Rite Aid Corp., No.
6:13-CV-783, 2016 WL 6652774, at *4
(N.D.N.Y. July 6, 2016), the “fee application
contain[ed] billing entries for fifteen (15)
different attorneys (partners and associates)”
totaling “more than $560,000.00 in legal
expenses [for] the prosecution of a civil
action that took eight days to try and
which . . . did not involve overly complex
issues.” The court imposed a 30 percent
across-the-board cut because, inter alia, it
found it “unreasonable to utilize multiple
attorneys for routine tasks,” and that “the
sheer excessiveness of the time spent on all
of the details of this case” was “problematic.”
Id. at *5-6. The court observed that “[l]aw
firms generally operate with a profit motive
where efficiency is the rule demanded in
every case. These firms do not have the
luxury to address every detail of a case ad
infinitum.” Id. at *6. Instead, to calculate the
lodestar, courts must look to “‘what a
reasonable, paying client would be willing to
pay,’ given that such a party ‘wishes to spend
the minimum necessary to litigate the case
effectively.’” Id. (quoting Simmons, 575
F.3d at 174).
Finally, the Second Circuit has said that
calculating reasonable hours expended is
“best made by the district court on the basis
of its own assessment of what is appropriate
for the scope and complexity of the particular
litigation.” Carey, 711 F.2d at 1146; see also
Lore v. City of Syracuse, 670 F.3d 127, 175
(2d Cir. 2012) (holding that “the district
court, which is intimately familiar with the
nuances of the case,” is in the best position to
determine an appropriate fees award). “In
making this examination, the district court

In another case involving a large law
firm, the Northern District of New York
reduced the attorneys’ fees requested by
Gibson, Dunn & Crutcher LLP in a civil
rights case after determining that, inter alia,
“an excessive number of attorneys were
present at trial,” and that there was a “larger
pattern of consistent overstaffing,” including
the
“proliferation
of
intra-office
11

Although this was not a civil rights action
implicating Section 1988, the court still applied the
lodestar method to calculate the fees award. Id. at *2.

11

does not play the role of an uninformed
arbiter but may look to its own familiarity
with the case and its experience generally as
well as to the evidentiary submissions and
arguments of the parties.” Gierlinger v.
Gleason, 160 F.3d 858, 876 (2d Cir. 1998)
(quoting DiFilippo v. Morizio, 759 F.2d 231,
235-36 (2d Cir. 1985)).

Phase III: Discovery on Due Process
Claim (August 11, 2012 –
June 27, 2013)
Total Hours: 1,067.25
Phase IV: Motions for Summary
Judgment (June 28, 2013 –
March 27, 2014)
Total Hours: 653.5

2. Analysis
Phase V: 14 Trial (March 28, 2014 –
March 9, 2015)
Excessive Force Claim
Total Hours: 1,034.51

Plaintiff argues that its counsel at Cleary
Gottlieb “reasonably expended 3,541.7612
hours between October 15, 2011, when
[p]laintiff’s counsel considered adding a due
process claim against Suffolk County, and
July 30, 2015, when this Court heard oral
argument on Suffolk County’s motion for
judgment as a matter of law.” (Pl.’s Br. at
15.) In support of the motion, plaintiff
submitted records delineating the amount of
time Cleary Gottlieb attorneys expended on
various phases of this litigation, which
plaintiff divided into six tranches as
summarized below: 13

Due Process Claim
Total Hours: 1,034.51
Phase VI: Post-Verdict Motion for
JMOL (March 10, 2015 –
July 30, 2015)
Total Hours: 473.75
(Hou Decl. at 25-26; see also Hou Decl. Ex.
B.)

Phase I – Discovery on Excessive
Force Claim (December 2010 –
October 14, 2011)
Total Hours: 1,307

The Court find the number of hours
expended on this litigation to be
unreasonably excessive. First, the matter was
overstaffed. From the inception of Cleary
Gottlieb’s representation through the
resolution of defendants’ post-trial motion,
plaintiff’s counsel assigned 10 different
attorneys to this case, who spent more than
3,500 hours litigating the Due Process claim
against the County (not accounting for the 50
percent time cut for attorney travel), and
more than 1,000 hours 15 on the trial phase

Phase II: Amended Complaint
(October 15, 2011 –
August 10, 2012)
Total Hours: 312.75

12

This sum does not reflect the 50 percent cut for
travel time voluntarily applied by plaintiff with respect
to fees for the Due Process claim. (See Suppl. Hou
Decl. at 3.)

14

Because plaintiff’s counsel worked on both the
excessive force and the Due Process claims during the
trial phase, Cleary Gottlieb apportioned an identical
number of hours to each. (Pl.’s Br. at 16 n.12.)

13

15

These values do not reflect the 50 percent travel time
reduction. (Compare Hou Decl. at 25-26, with Suppl.
Hou Decl. at 3.)

Although the Court’s analysis is limited to the Due
Process claim because of the compensation cap
imposed by the PLRA with respect to the excessive

12

alone. Further, as plaintiff acknowledged
during oral argument, Cleary Gottlieb had
four attorneys present during the trial,
whereas defendants were represented by a
single lawyer. The Court is cognizant that
large law firms like Cleary Gottlieb
experience attrition and accordingly need to
replace attorneys who have departed, and that
those firms also use pro bono matters such as
the instant action to provide young associates
with valuable experience—a worthwhile
endeavor. Nevertheless, other courts have
correctly found that large law firms cannot
take advantage of fee-shifting schemes by
running up the bill and “foist[ing] their
extravagances upon their unsuccessful
adversaries.” ACE Ltd., 2001 WL 1286247
at *4; see also Pope, 2015 WL 5510944, at
*13; Stevens, 2016 WL 6652774, at *4.
Indeed, “[i]t is well recognized . . . that when
more lawyers than are necessary are assigned
to a case, the level of duplication of efforts
increases.” General Electric Co., 1997 WL
397627, at *4.

of this case, the attendance of four and six
attorneys at [court] hearings was clearly
excessive”); see also Robinson v. City of
N.Y., No. 05 CIV. 9545 (GEL), 2009 WL
3109846, at *8 (S.D.N.Y. Sept. 29, 2009)
(Lynch, J.) (reducing hours because “there is
no reason that four lawyers needed to be
present at counsel table throughout the
fourteen-day trial”). This Court presides over
many Section 1983 actions as a matter of
course, and it has routinely observed one or
two attorneys vigorously and effectively
litigate civil rights actions, even those
involving complex legal and factual issues.
Cf. Yea Kim v. 167 Nail Plaza, Inc., No.
05CV8560GBDGWG, 2009 WL 77876, at
*5 (S.D.N.Y. Jan. 12, 2009) (“While Carey
indicates that it may be appropriate to have a
‘second’ attorney on a matter, 711 F.2d at
1146, and some case law reflects awards for
even more attorneys, no showing has been
made as to the need for or role of each of the
eight attorneys on this case. This Court
routinely sees cases brought under the FLSA
where a single attorney for plaintiffs handles
the entire matter. The defendants here had a
single attorney. The billing records suggest
that as many as five of plaintiff's attorneys
(and one paralegal) were in the courtroom for
trial. Nothing in the plaintiff’s application
explains why plaintiff needed to have such a
large number of attorneys.”).

Although, plaintiff relies on Carey, 711
F.2d at 1146, for the proposition that
“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 assist,” this
is not a case involving the attendance of one,
two, or even three attorneys at discrete court
proceedings. Here, four Cleary Gottlieb
attorneys attended eight days of trial, and
“courts . . . have generally frowned upon
awarding fees to more than two attorneys for
court appearances unless the case is uniquely
complex.” Ng v. King Henry Realty, Inc., No.
16CIV0013PAEJCF, 2016 WL 6084074, at
*6 (S.D.N.Y. Oct. 7, 2016) (reducing hours
because, “[g]iven the straightforward nature

For instance, this Court heard a six-day
Section 1983 trial in Monette v. County of
Nassau, No. 11-CV-539 (JFB) (AKT)
(E.D.N.Y.), where the plaintiff was ably
represented by only two attorneys who
secured a favorable verdict in a case
comparable to the instant lawsuit in factual
and legal scope. See 2016 WL 4145798, at
*1. Plaintiff’s counsel spent 667 hours

force claim, see supra note 7, the Court notes that
Cleary Gottlieb expended more than 2,000 hours on
both claims during the trial phase. That staggering
sum is approximately equivalent to what the average

large law firm expects each of its associates to bill in
a single year. In this case, four Cleary Gottlieb
attorneys accumulated those hours in less than a year.

13

Solomon v. Nassau Cty., 759 F. Supp. 2d 251,
263 (E.D.N.Y. 2011) (finding issues of fact
on Due Process claim against county
regarding penal policies).

litigating that action, as opposed to the over
3,000 hours expended in this case. Id. at *10.
Likewise, in Tatum v. City of N.Y., No. 06CV-4290 PGG GWG, 2010 WL 334975,
(S.D.N.Y. Jan. 28, 2010), two attorneys
represented a Section 1983 plaintiff during
three and one-half years of litigation and a
five-day trial. Id. at *2. The jury awarded the
plaintiff $1 million in damages based on a
successful deliberate indifference claim
against a corrections officer, and plaintiff’s
counsel sought $514,445 in attorney’s fees.
Id. The court held that while the plaintiff was
“entitled to a substantial attorneys’ fee award
in light of the length and complexity of the
litigation and the successful jury verdict, the
requested amount [was] not reasonable,” and
it instead awarded $321,788.12. Id. at *2, 14.

Further, the more than 3,000 hours
expended by Cleary Gottlieb on the Due
Process claim and $677,959.10 in related fees
requested by plaintiff are inconsistent with
comparable litigation. At oral argument, the
Court said that it was not aware of another
civil case with a similar procedural history
and length of trial that resulted in a
commensurate fees award, and it asked both
parties to submit supplemental letters. After
reviewing those submissions and conducting
its own survey, it is clear to the Court that
plaintiff’s request is anomalous. Cf., e.g.,
Husain v. Springer, 579 F. App’x 3, 6 (2d Cir.
2014) (holding that plaintiffs’ “attorney’s
claim of 2,741.4 hours of attorney time was
extravagant” in a Section 1983 litigation that
“established no new principle of law,” but
rather “concerned a ‘straightforward’
application of existing law, calling into
question
their
attorney’s
enormous
expenditure of time” (citing DiFilippo, 759
F.2d at 235-36 (vacating fee award and
remanding for reduction where hours claimed
were “facially excessive” in comparison to
“the straightforward and non-novel nature of
the [plaintiff’s] case”))); Anderson v. Cty. of
Suffolk, No. CV 09-1913 (GRB), 2016 WL
1444594, at *12 (E.D.N.Y. Apr. 11, 2016)
(awarding approximately $313,000 in fees
after two trials and an interim appeal);
Monette, 2016 WL 4145798, at *11
(awarding $222,153.00 in attorneys’ fees
after six-day trial and approximately 667
hours expended); Tatum, 2010 WL 334975,
at *2 (S.D.N.Y. Jan. 28, 2010); Cruz v. Henry
Modell & Co., No. CV 05-1450 (AKT), 2008
WL 905351, at *13 (E.D.N.Y. Mar. 31, 2008)
(awarding $80,326.50 in attorneys’ fees for
civil rights case that resulted in a six-day
trial); cf. also Stevens, 2016 WL 6652774, at
*4 (despite $560,000 request, awarding

Second, and relatedly, the Court does not
find the Due Process claim to have involved
such thorny and unusual legal issues to
warrant so many attorneys. Plaintiff argues
that “[t]he hours spent . . . were reasonable
and necessary given the novelty and
complexity of Mr. Houston’s due process
claim and the amount of work required to
litigate it from the complaint through posttrial phases,” and highlights Cleary
Gottlieb’s efforts to re-open discovery,
conduct new discovery, file an amended
complaint, litigate dispositive and post-trial
motions, and conduct trial. (Pl.’s Br. at 16.)
However, the Second Circuit observed in
Pino, 101 F.3d at 239, that the “vast majority
of civil rights litigation does not result in
ground-breaking conclusions of law,” and
based on this Court’s “own familiarity with
the case and its experience generally” with
Section 1983 litigation, Gierlinger 160 F.3d
at 876, the Court finds that the Due Process
claim in the instant action did not advance a
“novel issue of law,” Pino, 101 F.3d at 239.
On the contrary, it was akin to other cases
alleging unconstitutional municipal policies
pertaining to incarceration.
See, e.g.,
14

$393,445.55 for “the prosecution of a civil
[discrimination] action that took eight days to
try and which . . . did not involve overly
complex issues”); Claudio v. MattituckCutchogue Union Free Sch. Dist., No. 09CV-5251 JFB AKT, 2014 WL 1514235, at
*17 (E.D.N.Y. Apr. 16, 2014) (awarding
$83,447.50 in fees in discrimination case
following trial); Yea Kim, 2009 WL 77876, at
*5 (S.D.N.Y. Jan. 12, 2009) (after four-day
wage claims trial, holding that the 1778.7
hours plaintiff sought “(after some laudable
voluntary reductions by the plaintiff)” were
excessive “[i]n light of the relative simplicity
of this case and the shortness of the trial”);
Luca v. Cty. of Nassau, No. 04-CV-4898
(FB), 2008 WL 2435569, at *8 (E.D.N.Y.
June 16, 2008) (holding that counsel
reasonably expended 618.9 hours on
discrimination litigation that “spanned more
than three years and ha[d] been vigorously
defended at every stage; it resulted in a
motion for summary judgment, a motion for
reconsideration, a six-day trial and a two-day
evidentiary hearing on front pay”), aff’d in
part, vacated in part, and remanded, 344 F.
App’x 637 (2d Cir. 2009); Petrovits v. New
York City Transit Auth., 2004 WL 42258, at
*6 (S.D.N.Y. Jan. 7, 2004) (awarding
$215,550.00 in fees for employment
discrimination case involving a summary
judgment motion and a six-day jury trial).

No. CV 01-6763 (LDW), 2010 WL 2076949,
at *1 (E.D.N.Y. May 19, 2010), aff’d sub
nom. Konits v. Karahalis, 409 F. App’x 418
(2d Cir. 2011), spanned over a decade and
included an interim appeal resulting in
reversal of a summary judgment order and
remand for trial. Finally, Rodriguez ex rel.
Kelly v. McLoughlin, 84 F. Supp. 2d 417, 425
(S.D.N.Y. 1999), involved “a series of novel
and difficult questions concerning the scope
and character of the procedural protections of
the Due Process Clause of the Fourteenth
Amendment.” As previously discussed, the
instant action does not present issues of
analogous complexity. 16
Third, the Court concludes that a
reduction in hours is appropriate based on
vague and block-billed time entries. The
Court has reviewed plaintiff’s submissions
and noted repeated use of block-billing such
that the reasonableness of each entry cannot
be as easily determined. For instance, there
are numerous inscrutable entries that mention
“[c]ommunications regarding records and
status” or “[r]eview communications” (see,
e.g., Hou Decl. Ex. B at 7-8; 74-75);
“Houston team mtg.” (see, e.g., id. at 58);
“trial prep” (see, e.g., id. at 57, 69); and “team
correspondence” (see, e.g., id. at 71).
Accordingly, the Court, in its discretion, has
determined that a reduction to billed hours is
appropriate in this case. See, e.g., Spence v.
Ellis, No. CV 07-5249 (TCP) (ARL), 2012
WL 7660124, at *7 (E.D.N.Y. Dec. 19, 2012)
(reducing hours in attorneys’ fees application
because the “substantial amount of block
billing in the fee requests here renders it
difficult to determine whether, and/or the
extent to which the work done by plaintiff’s
attorneys is duplicative or unnecessary”),
report and recommendation adopted, No. 07CV-5249 (TCP), 2013 WL 867533

Several of the cases that plaintiff cites in
his supplemental authority letter are
distinguishable on their facts. (See ECF No.
191.) Gonzalez v. Bratton, 147 F. Supp. 2d
180, 188 (S.D.N.Y. 2001), aff’d, 48 F. App’x
363 (2d Cir. 2002), and Selzer v. Berkowitz,
477 F. Supp. 686, 688 (E.D.N.Y. 1979),
involved three-week and nine-week trials,
respectively. The litigation in Konits v.
Valley Stream Central High School District,
16

With respect to the remaining cases cited in
plaintiff’s supplemental letter, the Court concludes,
based on its familiarity with this case and Section 1983

litigation generally, that a comparable fee award is not
warranted in this action. See Lore, 670 F.3d at 175;
Gierlinger, 160 F.3d at 876; Carey, 711 F.2d at 1146.

15

Annuity Fund, Pension Fund, Apprenticeship
Fund, Vacation Funds, Scholarship Fund, &
Other Funds v. Brookman Const. Co., No.
12-CV-2180 (ARR) (LB), 2013 WL
5304358, at *5 (E.D.N.Y. Sept. 19, 2013)
(“Quarter-hour billing tends substantially to
overstate the amount of time spent when
many tasks require only a short time span to
complete and adds an upward bias in virtually
all cases.” (citations omitted)).

(E.D.N.Y. Mar. 7, 2013); Molefi v.
Oppenheimer Trust, No. 03 CIV. 5631 (FB)
(VVP), 2007 WL 538547, at *7-8 (E.D.N.Y.
Feb. 15, 2007) (applying 15 percent
reduction for, inter alia, a “substantial
amount” of block-billing); Melnick v. Press,
No. 06-CV-6686 (JFB) (ARL), 2009 WL
2824586, at *6 (E.D.N.Y. Aug. 28, 2009)
(applying 10 percent reduction based on
counsel’s “repeated use of block-billing such
that the reasonableness of each entry could
not be as easily determined”); Aiello v. Town
of Brookhaven, 94 CIV. 2622 (FB) (WDW),
2005 WL 1397202, at *3 (E.D.N.Y. June 13,
2005) (applying 10 percent reduction to
billed hours because of attorneys’
“substantial” use of block-billing).

Finally, that plaintiff’s counsel decided to
apportion an identical amount of time to the
excessive force and the Due Process claims
during the trial phase (see Pl.’s Br. at 16 n.12)
demonstrates that Cleary Gottlieb did not
adequately distinguish between work product
on the two causes of action in its time entries.
As a result, the unadjusted 1,034.61 Due
Process trial hours may include work on the
excessive force claim, fees for which, as
discussed supra note 7, are capped at 150
percent of the jury award. Such possible
conflation and the Court’s inability to
independently distinguish which trial phase
hours pertain to the Due Process claim also
necessitate a reduction in hours.

In addition, Cleary Gottlieb’s time entries
indicate a substantial number of hours
expended by new associates to the matter on
familiarizing
themselves
with
the
background facts of the case. (See, e.g., Hou
Decl. Ex. B at 61, 66, 71.) Plaintiff is not
entitled to fees for such duplicative efforts.
See General Elec., 1997 WL 397627, at *4
(“It is well recognized, of course, that when
more lawyers than are necessary are assigned
to a case, the level of duplication of efforts
increases.”); Gillberg, 1996 WL 406682, at
*5 (“Obviously, more lawyers leads to more
‘conference’ time as well as to a certain
amount of repetition or ‘learning curve’
billing which should not be compensable.”
(footnote omitted)). The billing records also
reflect that counsel’s standard practice was to
record their time in quarter-hour increments.
Many phone calls and correspondence
throughout the billing record are billed at a
quarter of an hour, and it seems very unlikely
that each phone call and e-mail exchange
took fifteen minutes. Thus, the Court finds
that a reduction is further warranted based on
counsel’s quarter-hour billing. See, e.g.,
Local No. 46 Metallic Lathers Union &
Reinforcing Iron Workers Welfare Trust,

In light of these problems with Cleary
Gottlieb’s billing records, the overstaffing of
this case, and the Court’s experience with this
and other Section 1983 actions, the Court
concludes that a 50 percent across-the-board
reduction in counsel’s hours is warranted.
See, e.g., Kirsch, 148 F.3d at 173. The Court
appreciates the dedication demonstrated by
plaintiff’s counsel; however, law “firms do
not have the luxury to address every detail of
a case ad infinitum” and then use a feeshifting scheme to pass along the costs of
those efforts to the losing party. See Stevens,
2016 WL 6652774, at *4.
***
In sum, with respect to the Due Process
claim against the County, the Court adopts
the uncontested hourly rates submitted by
16

Here, plaintiff requests $81,781.93 in
costs against Officer Cotter and $205,767.67
in costs against the County. Defendants
argue that “[n]otwithstanding the extensive
volume of records provided by [] plaintiff
relating to costs, in many instances the
records fail to sufficiently document the need
for the costs that are reflected or, in other
instances, the nature and purpose of the cost.”
(Defs.’ Br. at 23.) With respect to the
excessive force claim, they request an 80
percent reduction because plaintiff recovered
damages against only one of the five
corrections officers that he originally sued on
that cause of action. (Id. at 24.) They also
argue that the Due Process claim “costs
should likewise be severely reduced . . . .”
(Id.)

plaintiff—$400 for partner Victor L. Hou;
$225 for senior and mid-level associates; and
$175 for junior associates—but concludes
that the number of hours expended is
excessive and warrants an across-the-board
percentage cut in order to trim the excess
from counsel’s billing entries. After applying
that 50 percent cut, the Court calculates the
lodestar to be $338,979.55 in attorneys’ fees
against the County. In addition, the Court
awards $7,500 in attorneys’ fees against
Officer Cotter ($1.00 of which is to be
exacted from the jury award), for a total fees
award of $346,479.55.
E. Costs
“As for costs, a court will generally
award ‘those reasonable out-of-pocket
expenses incurred by attorneys and ordinarily
charged to their clients.’” Pennacchio v.
Powers, No. 05-CV-985 (RRM)(RML), 2011
WL 2945825, at *2 (E.D.N.Y. July 21, 2011)
(quoting LeBlanc-Sternberg v. Fletcher, 143
F.3d 748, 763 (2d Cir. 1998)). “The fee
applicant bears the burden of adequately
documenting and itemizing the costs
requested.” Id.; see also First Keystone
Consultants, Inc. v. Schlesinger Elec.
Contractors,
Inc.,
No.
10-CV-696
(KAM)(SMG), 2013 WL 950573, at *10
(E.D.N.Y. Mar. 12, 2013) (same). In
particular, under Local Civil Rule 54.1, “the
party must include as part of the request ‘an
affidavit that the costs claimed are allowable
by law, are correctly stated and were
necessarily incurred,’” and “[b]ills for the
costs claimed must be attached as exhibits.”
D.J. ex rel. Roberts v. City of New York, No.
11-CV-5458 (JGK)(DF), 2012 WL 5431034,
at *9 (S.D.N.Y. Oct. 16, 2012) (quoting
Local Civ. R. 54.1(a)), report &
recommendation adopted sub nom. Roberts
v. City of New York, 2012 WL 5429521
(S.D.N.Y. Nov. 7, 2012).

The Court agrees that reductions are
appropriate. In its submission, plaintiff lists
the following types of costs: (1) faxes;
(2) fees for retrieving records; (3) printing
and duplicating; (4) private investigator;
(5) research; (6) scanning; (7) service of
process; (8) shipping and postage;
(9) transcripts; (10) travel (lodging);
(11) travel (transportation); (12) shipping
and postage; (13) transcripts; and
(14) messengers. (Hou Decl. at 27-29.) The
costs breakdown is as follows:
Phase I – Discovery on
Excessive Force Claim
(Total: $19,927.10)
Fax: $58.19
Retrieving Records: $873.27
Printing & Duplicating: $8,512.00
Private Investigator: $2,690.05
Research: $2,243.38
Scanning: $3,646.50
Service of Process: $333.95
Shipping & Postage: $456.98
Transcripts: $82.50
Travel (Lodging): $313.50
Travel (Transportation): $716.78
17

Phase II: Amended Complaint
(Total: $5,323.80)

Due Process Claim
(Total: $61,854.83)

Fax: $62.13
Printing & Duplicating: $870.20
Research: $4,014.30
Scanning: $152.10
Shipping & Postage: $225.07

Retrieving Records: $165.40
Messengers: $45.00
Printing & Duplicating: $6,863.53
Research: $44,040.45
Scanning: $138.13
Shipping & Postage: $207.99
Transcripts: $180.61
Travel (Lodging): $9,510.12
Travel (Transportation): $703.60

Phase III: Discovery on
Due Process Claim
(Total: $29,062.59)
Fax: $36.51
Printing & Duplicating: $7,528.85
Research: $12,294.23
Scanning: $1,118.65
Shipping & Postage: $125.28
Transcripts: $7,959.07

Phase VI: Post-Verdict
Motion for JMOL
(Total: $80,970.96)
Messengers: $75.00
Printing & Duplicating: $11,356.64
Research: $ 26,584.44
Scanning: $2.60
Shipping & Postage: $ 36.48
Transcripts: $42,915.80

Phase IV: Motions for
Summary Judgment
(Total: $28,555.49)
Printing & Duplicating: $3,809.40
Research: $24,453.42
Scanning: $108.55
Shipping & Postage: $184.12

As an initial matter, several of these
categories are not compensable. An award of
costs under Section 1983 is generally limited
to “[i]dentifiable, out-of-pocket disbursements for items such as photocopying, travel,
and telephone costs . . . and are often
distinguished from nonrecoverable routine
office overhead, which must normally be
absorbed within the attorney’s hourly rate.”
Kuzma v. I.R.S., 821 F.2d 930, 933-34 (2d
Cir. 1987). To determine what type of
expenses are reimbursable, courts generally
look to 28 U.S.C. § 1920, Kuzma, 821 F.2d at
933, which enumerates the following taxable
costs:

Phase V: Trial
Excessive Force Claim
(Total: $61,854.83)
Retrieving Records: $165.40
Messengers: $45.00
Printing & Duplicating: $6,863.53
Research: $44,040.45
Scanning: $138.13
Shipping & Postage: $207.99
Transcripts: $180.61
Travel (Lodging): $9,510.12
Travel (Transportation): $703.60

(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically
recorded transcripts necessarily
obtained for use in the case;

18

may be awarded.” United States v. City of
N.Y., No. 07-CV-2067 NGG RLM, 2013 WL
5542459, at *14 (E.D.N.Y. Aug. 30, 2013)
(collecting cases). In United States v. City of
New York, the court correctly found it
“extremely skeptical that a reasonable client
would pay twenty-five cents per page for
photocopies, and [determined] ten cents per
page to be appropriate.” Id. (citing Brady v.
Wal–Mart Stores, Inc., 455 F. Supp. 2d 157,
216
(E.D.N.Y.
2006)
(awarding
photocopying costs at a rate of ten cents per
page rather than twenty cents per page on the
reasoning that the lower rate “is more
consistent with a reasonable commercial
rate”). For that reason alone, a 50 percent cut
to photocopying costs is warranted. Further,
plaintiff has not made “clear what documents
were copied . . . and why the copies were
necessary.” Robinson, 2009 WL 3109846, at
*11. In addition, for the reasons discussed
supra, this Court finds that this matter was
overstaffed and concludes that the
considerable amount of money plaintiff’s
counsel spent on printing photocopying
alone—$45,804.15—was due in part to
generating copies of previously produced
materials for the 10 attorneys who worked on
this matter at various times. The Court does
not find such expenditures to be
“reasonable,” Pennacchio, 2011 WL
2945825, at *2, and will, in its discretion
apply an 80 percent cut to all printing and
duplicating expenses, resulting in a
$12,300.42 cut to the excessive force claim
costs and $24,342.90 to the Due Process
claim costs. See, e.g., Robinson, 2009 WL
3109846, at *11. Similarly, the Court will
also deduct 50 percent of the lodging
expenses for the trial phase due to
overstaffing, yielding a $4,755.06 reduction
in cost as against each defendant.

(3) Fees and disbursements for
printing and witnesses;
(4) Fees for exemplification and the
costs of making copies of any
materials where the copies are
necessarily obtained for use in the
case;
(5) Docket fees under section 1923 of
this title;
(6) Compensation of court appointed
experts, compensation of interpreters,
and salaries, fees, expenses, and costs
of special interpretation services
under section 1828 of this title.
28 U.S.C. § 1920. In addition, Local Civil
Rule 54.1(c) identifies ten categories of
potentially taxable items: (1) transcripts;
(2) depositions; (3) witness fees, mileage,
and subsistence; (4) interpreting costs;
(5) exemplifications and copies of papers;
(6) maps, charts, models, photographs, and
summaries; (7) attorneys’ fees and related
costs; (8) fees of masters, receivers,
commissioners, and court appointed experts;
(9) costs for title searches; and (10) docket
and miscellaneous fees. Local Civ. R.
54.1(c).
Faxing and scanning are not covered
under either 28 U.S.C. § 1920 or Local Civil
Rule 54.1(c), and the Court deems such
expenses to be non-compensable overhead.
See Kuzma, 821 F.2d at 933-34.
Accordingly, the Court will deduct $3,842.82
from the excessive force claim costs and
$1,618.67 from the Due Process claim costs.
In addition, Cleary Gottlieb’s records
indicate that it charges $0.20 per page for
copies and duplication. (See, e.g., Hou Decl.
Ex. C at 2 (noting 0.2 rate for “NY
DUPLICATING”).)
“Although photocopying is an expense typically considered
compensable, only a reasonable rate per page

In addition, plaintiff seeks reimbursement
for legal research expenses. The Second
Circuit has said that “the charges
for . . . online research may properly be
19

included in a fee award.” Arbor Hill, 369
F.3d at 98. “However, some courts decline
to award electronic research costs, reasoning
that the charges are already accounted for in
the attorney’s hourly rates.” City of N.Y.,
2013 WL 5542459, at *12 (collecting cases).
Here, plaintiff seeks a total of $152,905.29 in
research costs, $26,584.44 of which is for the
post-trial phase alone. These expenses are
grossly excessive given the nature of the legal
issues presented in this case. Moreover, the
legal issues were largely static throughout the
course of the litigation; for instance, there
was significant overlap between the crossmotions for summary judgment and
defendants’ post-trial motion for judgment
notwithstanding the verdict. Because such an
award is discretionary, the Court finds “it
more appropriate in this case to award the
costs with . . . reductions.” Id. at *13; see also
ACE Ltd., 2001 WL 1286247 at *7 (applying
50 percent reduction to requested $16,459.48
in computer research charges because
“Skadden Arps’ junior associate engaged in
egregiously excessive amounts of research”);
Morris v. Eversley, 343 F. Supp. 2d 234, 248
(S.D.N.Y. 2004) (Chin, J.) (counsel at
Milbank, Tweed, Hadley & McCloy LLP
sought approximately $58,000 in Section
1983 action, but the court found that the
“requested costs, particularly office expenses
and electronic legal research costs, [were]
excessive” and awarded $25,000). Cf.
Robinson, 2009 WL 3109846, at *11
(awarding $7,595.24 in Westlaw charges).
At a minimum, a 50 percent reduction would
be warranted given the corresponding
reduction in attorney hours, see ACE Ltd.,
2001 WL 1286247 at *7, but given the
substantial fees award, the Court finds that an
80 percent cut is appropriate. As a result, the
Court reduces the excessive force claim costs

by $37,027.06 and the Due Process claim
costs by $85,297.17.
Finally, plaintiff seeks reimbursement for
$42,915.80 in transcript costs pertaining to
the post-trial phase. That extraordinary sum
is largely the result of Cleary Gottlieb’s
decision to pay for eight separate real-time
transcript feeds during the trial, an
extravagant expense—to put it mildly—that
should not be passed on to the County. See
Husain, 579 F. App’x at 6; ACE Ltd., 2001
WL 1286247, at *4. The Court finds that
ordering daily transcripts would have been
more than sufficient, see Perks v. Town of
Huntington, 331 F. App’x 769, 770 (2d Cir.
2009), and E.D.N.Y. Administrative Order
2008-01 sets a per page rate of $6.66 for daily
transcripts. The trial transcript is 1,411 pages
long, yielding a total cost of $9,397.26. The
Court has reviewed the other expenditures
claimed by plaintiff and finds them to be
adequately documented and itemized. 17
In sum, the Court will cut $57,925.36
from plaintiff’s request for costs against
Officer Cotter, generating a total of
$23,856.57; and $149,532.34 from plaintiff’s
request for costs against the County,
generating a total of $56,235.33
III. CONCLUSION
For the foregoing reasons, the Court
awards plaintiff $7,500 in attorneys’ fees
against Officer Cotter ($1.00 of which is to
be satisfied from the jury award) and
$338,979.55 in attorneys’ fees against the
County, for a total of $346,479.55. The Court
further awards plaintiff $23,856.57 in costs
against Officer Cotter and $56,235.33 in

17

For the reasons discussed above, the Court rejects
defendants’ unsupported assertion that it should
deduct 80 percent of the excessive force claim costs
due to plaintiff’s voluntarily withdrawn claims against

Officers Gubitosi, Reynolds, and Thomas and his
unsuccessful claim against Officer Weiss. See supra
page 5 and note 5.

20

costs against the County, for a total of
$80,091.90. 18
Pursuant to plaintiff’s unopposed request
(see Pl.’s Reply Br. at 1 n.1), the Clerk of the
Court, following entry of judgment, is
directed to calculate any post-judgment
interest on the fees and costs awards in
accordance with 28 U.S.C. § 1961(a).
SO ORDERED.
________________________
JOSEPH F. BIANCO
United States District Judge

Dated:

February 14, 2017
Central Islip, NY

***
Plaintiff is represented by Victor L. Hou and
Diarra M. Guthrie of Cleary Gottlieb Steen &
Hamilton LLP, One Liberty Plaza, New
York, New York 10006. Defendants are
represented by Brian C. Mitchell, Suffolk
County Attorney’s Office, 100 Veterans
Memorial Highway, Hauppauge, New York
11788.

18

Accordingly, the Court rejects defendants’ argument
that the total award of fees and costs should not exceed
$50,000.

21