Monette v. The County of Nassau et al
Filing
139
ORDER granting 133 Motion for Attorney Fees. For the reasons set forth herein, the Court awards plaintiff $222,153.00 in attorneys' fees and $4,576.98 in expenses. Ordered by Judge Joseph F. Bianco on 8/4/2016. (Dolecki, Lauren)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-539 (JFB) (AKT)
_____________________
DENIS J. MONETTE,
Plaintiff,
VERSUS
THE COUNTY OF NASSAU AND LAWRENCE MULVEY,
Defendants.
___________________
MEMORANDUM AND ORDER
August 4, 2016
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff Dennis Monette (“plaintiff”)
brought this employment discrimination
action against the County of Nassau (“the
County”)
and
Lawrence
Mulvey
(collectively “defendants”) after he was
terminated as Assistant Commissioner of the
Nassau County Police Department on
November 13, 2009. Plaintiff alleged that
he was fired for several unlawful purposes,
including in retaliation for the exercise of
his First Amendment rights. After a trial in
January 2014, a jury found for plaintiff on
his First Amendment claim against the
County, brought under 42 U.S.C. § 1983,
and awarded plaintiff $150,000 in
compensatory damages. The parties agreed
that back pay, front pay, and reinstatement
were equitable remedies for the Court’s
determination, and agreed to submit posttrial briefs on these issues. The County also
submitted a post-trial motion seeking
judgment as a matter of law and a new trial
on damages, or remittitur of the $150,000
award. In a March 31, 2015 Order, the
Court denied the County’s post-trial motion
and partially granted plaintiff’s request for
back pay.
Presently before the Court is plaintiff’s
motion for attorneys’ fees, costs, and
expenses. For the reasons set forth below,
the Court awards plaintiff $222,153.00 in
attorneys’ fees and $4,576.98 in expenses.
I. BACKGROUND
A. Factual Background
The Court has set forth the background
facts of this case in the March 31, 2015
Order denying the County’s post-trial
motion and partially granting plaintiff’s
request for back pay, see Monette v. Cty. of
Nassau, No. 11-CV-539 (JFB) (AKT), 2015
WL 1469982, at *2-5 (E.D.N.Y. Mar. 31,
2015), and does not repeat those facts here.
Instead, the Court discusses all relevant facts
Court has fully considered all of the parties’
submissions.
in conjunction with its analysis of each issue
raised by the instant motion.
B. Procedural History
II. DISCUSSION
Plaintiff requests $310,372 in attorneys’
fees incurred through the end of January 14,
2016, plus an upward adjustment to this
figure, as well as $5,433 in expenses
incurred as of January 14, 2016. The
County contends that plaintiff’s requested
attorneys’ fees should be reduced by 40%
based upon billing irregularities and
plaintiff’s limited success at trial. The
County suggests that a reasonable fee award
would be $96,855.60. For the following
reasons, the Court awards plaintiff
$222,153.00 in attorneys’ fees and
$4,576.98 in expenses.
Plaintiff filed the complaint in this case
on February 3, 2011, asserting a variety of
claims of employment discrimination under
42 U.S.C. § 1983, the Americans with
Disabilities Act, the Age Discrimination in
Employment Act, and the New York Human
Rights Law. On January 10, 2013, the Court
denied defendants’ motion for summary
judgment.
A jury trial was held from January 23,
2014 until January 31, 2014. On January
31, 2014, the jury found in plaintiff’s favor
against the County on the Section 1983 First
Amendment claim.
The jury awarded
plaintiff $150,000 in compensatory damages
for emotional distress, after the parties
agreed that back pay, reinstatement, and
front pay were equitable remedies for the
Court’s decision. The parties filed post-trial
briefs concerning plaintiff’s entitlement to
those remedies, and the County also filed a
motion for a new trial under Federal Rule of
Civil Procedure 59, and a renewed motion
under Rule 50 for judgment as a matter of
law based on the policymaker defense. In a
March 31, 2015 Order, the Court denied the
County’s post-trial motion and partially
granted plaintiff’s request for back pay. The
parties filed cross-appeals of this Order, but
ultimately settled by simultaneously
withdrawing their appeals.
“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) provides that:
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.
On January 15, 2016, plaintiff filed his
motion for attorneys’ fees, costs, and
expenses.
The County submitted its
opposition on February 19, 2016, and
plaintiff submitted his reply on March 14,
2016. Oral argument was held on March 23,
2016. Counsel for plaintiff submitted a
supplemental letter on May 20, 2016. The
42 U.S.C.A. § 1988(b); see also Blum v.
Stenson, 465 U.S. 886, 888 (1984) (“[I]n
2
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)).
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.
Generally, to determine a reasonable
attorney’s fee, 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) (quoting Arbor Hill Concerned
Citizens Neighborhood Assoc. v. Cnty. of
Albany, 522 F.3d 182, 183 (2d Cir. 2008);
citing Perdue, 559 U.S. 542). “‘[T]he
lodestar figure includes 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, 565–66 (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 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
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.
A. Reasonable Hourly Rate
“The reasonable hourly rate is the rate a
paying client would be willing to pay.”
Arbor Hill, 522 F.3d at 190. The Second
Id. at 186 n.3 (quoting Johnson, 488 F.2d at
717–19). Finally, a district court should also
3
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 (internal quotation marks
and citations omitted).
in this action, requests a rate of $450 per
hour and suggests that the Court should even
consider raising his rate. The County argues
that a reasonable hourly rate for Ostrove
would be no more than $400 per hour.
In support of his request, Ostrove
submitted a declaration stating that he has
“almost two decades of experience working
in the field of employment law” and
“extensive federal trial experience in the
field,” and that he “believe[s] there are very
few practitioners that have equivalent trial
experience and success representing
plaintiffs in the Eastern District.” (Ostrove
Decl., at ¶ 16.) Ostrove states that he has
“handled and supervised a caseload which
consists
primarily
of
civil
rights/employment
cases”
and
has
“developed extensive familiarity in this
field.” (Id. at ¶ 18.) Ostrove states that he
“served as lead trial counsel in
approximately thirty cases in Federal and
State Court which were brought to verdict”
and prevailed in eighteen trials in which he
was lead trial counsel. (Id.) Ostrove’s
declaration also includes his experience in
other types of cases, his appeals experience,
his lecturing and speaking appearances, his
leadership in the Nassau County Bar
Association’s Labor and Employment Law
Committee, and awards received.
“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.” (internal quotation marks and
citations omitted)). Of course, in light of the
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 v. Program for the
Dev. of Human Potential, No. 07-CV-2205
(CLP), 2012 WL 1624291, at *30 (E.D.N.Y.
Apr. 30, 2012).
Ostrove
also
submitted
several
declarations from other attorneys. (See Ex.
D to Pl.’s Mem.) For example, Paul S.
McDonough, Esq. states that, in his work
with the Nassau County Bar Association’s
Labor and Employment Committee, he has
“worked extensively with Rick Ostrove” and
believes him to be “exceptionally
knowledgeable in the areas of civil rights
law, employment law, and litigation
generally.” (McDonough Decl., at ¶ 8.)
McDonough states that “[o]ver the years,
[he] often consulted with Rick to get his
input on various employment related issues”
1. Rick Ostrove
Rick Ostrove (“Ostrove”), the partner
who performed work on behalf of plaintiff
4
and that Ostrove’s advice is “always well
reasoned.” (Id.) He also states that he has
“heard many of [his] peers on the Labor and
Employment Committee ask Rick for
advice,” that he “recommended that people
ask Rick’s opinion on various issues,” and
that “[a]fter [he] ceased representing
Plaintiffs in employment matters, [he has]
referred all such clients to Rick because [he]
respect[s] his abilities as a lawyer.” (Id.)
McDonough also states that he “do[es] not
believe that there are more than a handful of
litigators who regularly practice in the field
of labor and employment law that have more
success than Rick in the Eastern District.”
(Id. at ¶ 10.)
1991 and has been focusing on labor and
employment law since 1997, states that he
currently bills at a rate of $500 per hour and
that, in August 2015, he was awarded $450
per hour in D’Ammunzio, a case that
involved claims of sexual harassment.
(Valli Decl. at ¶¶ 1, 3.) Valli further states
that his partners who have “less tenure in the
field and less trial experience than Ostrove”
bill at $450 per hour and were awarded $400
per hour in D’Ammunzio. (Id. at ¶ 4.)
Marlborough, who has been practicing law
since 2003 and focusing on labor and
employment and consumer class action law
since 2007, states that he was awarded a
1.15% lodestar multiplier to his hourly rate
of $555 as part of a 2014 settlement of a
wage and hour case. (Marlborough Decl. at
¶¶ 3-4.)
Robert J. Valli, Esq., states that he cocounseled with Ostrove on various
discrimination cases from about June 1997
to June 2007, and that they “have both been
practicing in the area of civil rights law for
approximately the same amount of time.”
(Valli Decl. at ¶ 6.) Valli states that he has
“watched Ostrove develop into an extremely
knowledgeable and skilled employment
discrimination litigator” and that he and his
partners “all view him as one of the
preeminent lawyers in the field of
employment discrimination” and “believe[s]
many of [his] peers hold similar feelings
towards him.” (Id. at ¶ 7.) Christopher
Marlborough, Esq., who focuses on
litigation in the areas of labor and
employment and consumer class action law,
states that he has “tremendous respect for
Mr. Ostrove’s knowledge of litigation tactics
and civil rights law” and that he has
“consulted with him to obtain his insights
and thoughts regarding various litigation
issues” and found Ostrove to be a “valuable
resource.” (Marlborough Decl. at ¶¶ 3, 5.)
In light of the prevailing hourly rates in
this district, and all other factors set forth in
Arbor Hill, the Court concludes that $425
per hour is a reasonable hourly rate for
Ostrove. The Court bases this conclusion
primarily on its own observations of
Ostrove’s abilities over the course of this
litigation.
In
particular,
Ostrove’s
performance—along with the affidavits
submitted in support of his fee request—
show that he is an experienced lawyer, with
almost two decades of experience in
employment litigation and extensive trial
experience.
Accordingly, this Court
concludes that an hourly rate at the high end
of the range in this district is warranted. See
Hugee, 852 F. Supp. 2d at 300 (“The highest
rates in this district are reserved for expert
trial attorneys with extensive experience
before the federal bar, who specialize in the
practice of civil rights law and are
recognized by their peers as leaders and
experts in their fields.”). Although plaintiff
has cited a few cases in which an attorney
was awarded an hourly rate of $450 (some
of which involved a different subject
The declarations also include other
attorneys’ hourly rates and rates awarded to
them by courts in prior cases. For example,
Valli, who has been practicing law since
5
matter), the Court concludes that such an
award would be unduly high given counsel’s
level of experience and the particular
circumstances of this case.
See, e.g.,
Anderson v. Cty. of Suffolk, No. CV 09-1913
(GRB), 2016 WL 1444594, at *4 (E.D.N.Y.
Apr. 11, 2016) (holding that rate of $450 per
hour was warranted for well-known civil
rights attorney with almost thirty years of
experience who is regarded as an expert and
leader in his field); Sass, 6 F. Supp. 3d at
263 (awarding $425 per hour rather than the
requested $450 for attorney with “33 years
of experience trying approximately 500
employment discrimination cases”); Luca v.
Cnty. of Nassau, 698 F. Supp. 2d 296, 301–
02 (E.D.N.Y. 2010) (holding that $400 per
hour was a reasonable hourly rate for
leading civil rights attorney with over
twenty-five years of experience in the field);
Todaro v. Siegel Fenchel & Peddy, P.C.,
697 F. Supp. 2d 395, 399 (E.D.N.Y. 2010)
(holding that $400 per hour was a
reasonable rate for a partner with seventeen
years of employment discrimination
litigation experience).1
2. Matthew
Okano
Weinick
and
Weinick has practiced law since January
2009. (Weinick Decl. at ¶ 9.) After law
school, from 2008 to 2010, Weinick worked
for the Nassau County Attorney’s Office
General Litigation Bureau, where he
primarily represented the County and its
employees in civil rights and employment
litigation. (Id. at ¶ 10.) He joined Leeds
Brown in March 2010 as an associate and
was eventually promoted to senior associate.
(Id. at ¶ 11.) Weinick opened his own law
firm, Farmighetti & Weinick, PLLC, in
February 2014. (Id. at ¶ 15.) Weinick states
that he drafted the complaint in this case;
handled discovery, including deposing the
former Nassau County Commissioner of
Police; drafted and argued the oppositions to
defendants’ motions for summary judgment
and motions in limine; served as co-counsel
at trial, where he handled the opening
statement and direct examination of
plaintiff, argued against defendants’
policymaker defense, worked with Ostrove
to make decisions on jury selection, trial
strategy, and to prepare the summation; and
has reviewed and edited the post-trial
papers. (Id. at ¶¶ 3–4, 6, 12.) Weinick
states that his standard billing rate ranged
from $300–375 per hour when he worked at
Leeds Brown. (Id. at ¶ 7.) Weinick also
states that he served as co-counsel in five
federal employment discrimination trials,
independently handled a state court Article
78 hearing and an arbitration, has argued
appeals before the Second Circuit and
Second Department, and has prepared at
least three to four other federal cases for trial
that ultimately settled.
(Id. at ¶ 13.)
Weinick’s declaration also details awards
that he has received, articles that he has
published, and classes that he has taught.
(Id. at ¶¶ 14, 16–17.) Weinick also states
that he was previously awarded $350 per
hour in an uncontested default judgment
motion for a FLSA minimum wage case in
the Southern District of New York and as
Brandon
Plaintiff requests a rate of $325 per hour
for Matthew Weinick and $300 per hour for
Brandon Okano. The County argues that a
reasonable rate for Weinick is no more than
$300 per hour, and for Okano is no more
than $200 per hour.
1
In arriving at this hourly rate, the Court has also
considered all of the Johnson factors. See Arbor Hill,
522 F.3d at 190. For example, the Court has
determined that this case involved some complex and
novel issues, such as the issue of plaintiff’s back pay,
for which there was a “lack of directly analogous
authority.” Monette, 2015 WL 1469982, at *16.
However, the case was not so complex as to warrant
the requested $450 per hour rate.
6
part of an FLSA overtime/retaliation
settlement
before
Magistrate
Judge
Tomlinson. (Id. at ¶¶ 19–20.)
Supp. 3d at 261 (same). The Court notes that
although both Weinick and Okhano were
described as senior associates, Okhano only
began
focusing
on
employment
discrimination cases in May 2012, whereas
Weinick practiced almost exclusively in the
area of employment law since he began his
legal career in 2008. Further, Weinick
appears to have had a more significant role
throughout the litigation. Thus, the Court
concludes that it is appropriate to award a
higher rate for Weinick than Okhano.
Okhano began his legal career at Pyror
& Madelup, LLP in October 2009, where he
worked for approximately two years.
(Okhano Decl at ¶ 3.) Okhano states that
Pyror & Madelup focused on bankruptcy,
bankruptcy litigation, and commercial
litigation, and that “his primary role at P&M
was as a researcher and writer, drafting
memoranda of law and legal briefs filed in
state and federal court.” (Id.) Okhano
became an associate at Leeds Brown in May
2012, where he has “worked almost
exclusively on matters relating to
employment discrimination” and where his
“primary role is as a researcher and writer,
drafting memoranda of law and legal briefs
filed in state and federal court.” (Id. at ¶ 4.)
Okhano states that his hourly rate at Leeds
Brown ranges from $300 to $375 per hour.
(Id. at ¶ 5.) Okhano states that he began
working on this case after Weinick left the
firm, assumed Weinick’s co-counsel role,
and worked on the “post-trial activities,”
including the post-trial briefs, under
Ostrove’s supervision. (Id. at ¶ 6.)
3. Paraprofessionals
Plaintiff seeks $100 per hour for the
paraprofessionals who worked on this case,
Ricardo Guerra and Laura Bove.
The
County does not object to this rate. Guerra
has worked at Leeds Brown for almost eight
years, Bove has worked at Leeds Brown for
almost six years, and Ostrove states that
both were “experienced paralegal[s]” when
they worked on this matter. (Ostrove Decl.
at ¶¶ 33-34.) Ostrove states that both
“performed substantial legal work including,
but not limited to, drafting, discovery
requests/responses, correspondence, helping
prepare pre-trial orders, preparation of trial
exhibits, as well as other paraprofessional
responsibilities.” (Id.) In light of the
prevailing hourly rates in this district and all
other factors set forth in Arbor Hill and
Johnson, the Court concludes that $100 per
hour is a reasonable rate for Guerra and
Bove given their experience. See, e.g.,
Barrella v. Vill. of Freeport, 56 F. Supp. 3d
169, 174 (E.D.N.Y. 2014) (awarding $100
for paralegals’ hourly rate).
In light of the prevailing hourly rates in
this district and all other factors set forth in
Arbor Hill and Johnson, the Court concludes
that $300 per hour is a reasonable rate for
Weinick and that $225 is a reasonable rate
for Okhano. Courts within the Eastern
District of New York have found reasonable
hourly rates to be approximately $200–$325
for senior associates. See, e.g., Mary Jo C. v.
Dinapoli, No. 09-CV-5635 (SJF) (ARL),
2014 WL 7334863, at *5 (E.D.N.Y. Dec. 18,
2014) (“Recent prevailing hourly rates for
attorneys practicing in the Eastern District of
New York are . . . between two hundred to
three hundred twenty-five dollars ($200.00–
$325.00) for senior associates or attorneys
with more limited experience.”); Sass, 6 F.
B. Reasonable Hours
Having determined the reasonable
hourly rates, the Court must determine the
reasonable number of hours expended by
plaintiff’s counsel in this litigation.
7
“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.” 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 fifty percent
across-the-board reduction in hours in light
of
“concerns
regarding
unspecified
conferences,
telephone
calls,
email
correspondence, and reviews.” 757 F.3d 31,
64 (2d Cir. 2014) (internal quotation marks
and citations omitted); see also Francois v.
Mazer, 523 F. App’x 28, 29 (2d Cir. 2013)
(upholding 40% across-the-board reduction
in hours); Green v. City of New York, 403 F.
App’x 626, 630 (2d Cir. 2010) (upholding
15% across-the-board reduction); Kirsch,
148 F.3d at 173 (upholding “20% reduction
for vagueness, inconsistencies, and other
deficiencies in the billing records”).
In the instant case, the records submitted
indicate that Ostrove spent 295 hours on this
litigation plus 21.08 hours on travel,
Weinick spent 266.25 hours on this
litigation plus 13.5 hours on travel, Okano
spent 272 hours on this litigation plus 1.75
hours on travel, Bove spent 4.25 hours on
this litigation, and Guerra spent 18.67 hours
on this litigation. The County argues that
plaintiff’s request for attorneys’ fees should
be reduced by 40% across the board due to
questionable billing practices, including (1)
inconsistent billing entries; (2) block-billed
entries; (3) vague billing entries; (4)
excessive billing; (5) duplicated efforts; and
(6) clerical work by attorneys or paralegals.
(County’s Opp. at 10–11.) The Court
determines that counsel’s hours should be
reduced by twenty percent because of
several major problems with plaintiff’s
counsel’s billing records. See, e.g., Grievson
v. Rochester Psychiatric Ctr., 746 F. Supp.
2d 454, 466–469 (W.D.N.Y. 2010)
(applying 20% reduction for excessive,
redundant, and vague time entries); Lucerne
Textiles, Inc. v. H.C.T. Textiles Co., No. 12
CIV. 5456 (KMW) (AJP), 2013 WL
174226, at *10 (S.D.N.Y. Jan. 17, 2013)
(applying 20% reduction for time spent by
attorneys completing administrative tasks,
and excessive billing), report and
recommendation adopted, No. 12 CV 5456
(KMW) (AJP), 2013 WL 1234911
(S.D.N.Y. Mar. 26, 2013); Auscape Int’l v.
Nat’l Geographic Soc’y, No. 02 CIV. 6441
(LAK)(HBP), 2003 WL 21976400, at *5
(S.D.N.Y. Aug. 19, 2003) (applying 20%
reduction “to compensate for inefficiencies
due to over-staffing and excessive time
expenditures”), 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).
The County argues that an across the
board reduction is warranted based on
8
counsel’s vague and block-billed time
entries. Although the County points to two
entries that it contends are impermissibly
vague, the Court has reviewed the invoices
and finds that, overall, the invoices describe
the work performed in sufficient detail.
However, the Court notes, with respect to a
break-down of time spent on each item,
there was repeated use of block-billing such
that the reasonableness of each entry could
not be as easily determined. Thus, 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. 07-CV-5249
(TCP), 2013 WL 867533 (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% 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% 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% reduction to billed
hours because of attorneys’ “substantial” use
of block-billing).
billed 8 hours and Weinick billed 9.5 hours
for their appearances at trial (in addition to
their travel time), although the Court’s
Minute Entry indicates that the parties were
in Court for only 6 hours. (ECF No. 66.) In
response, plaintiff contends that the Court’s
docket entry is inaccurate and that Ostrove
and Weinick performed different tasks on
this day in addition to their trial work. (Pl.’s
Reply at 6–7.) As an initial matter, the
Court disagrees with plaintiff’s contention
that the docket entry is incorrect. In any
event, the notion that the billing entries are
different because Weinick’s entry includes
preparation work as well attendance at trial
underscores the larger issue of block-billing
in the majority of counsel’s entries. Plaintiff
also attempts to justify the inconsistencies in
the January 7, 2014 and January 13, 2014
entries by claiming that Ostrove and Wenick
performed different tasks that day in
addition
to
participating in
court
conferences. As previously discussed, such
block-billing makes it difficult to determine
whether each entry was reasonable and
warrants a reduction in hours billed in this
case.
The County further argues that a
reduction is warranted based on excessive
billing and duplicative entries. The Court
concludes that the requested amount of
hours is excessive and warrants an acrossthe-board percentage cut in order to trim the
excess from counsel’s billing entries. See,
e.g., Kirsch, 148 F.3d at 173. For example,
counsel spent approximately 84 hours
preparing plaintiff’s motion for attorneys’
fees. Although plaintiff’s counsel explained
at oral argument why they believed their
hours spent on the case were reasonable and
the Court does not doubt that counsel
actually spent this amount of time preparing
the motion, such extensive preparation is
excessive and warrants a further fee
reduction. See Hensley, 461 U.S. at 434
The County also argues that a reduction
is warranted based upon inconsistent billing
entries between attorneys attending the same
event. In particular, the County points to a
January 27, 2014 entry in which Ostrove
9
(“Counsel for the prevailing party should
make a good faith effort to exclude from a
fee request hours that are excessive,
redundant, or otherwise unnecessary.”);
Anderson v. Rochester-Genesee Reg’l
Transp. Auth., 388 F. Supp. 2d 159, 163
(W.D.N.Y. 2005) (reducing hours where
“based on the Court’s familiarity with this
case and the issues presented,” it believed
that some of the time billed was excessive).
The County also argues that a number of
billing entries are non-compensable because
they comprise clerical or administrative
work. The Court agrees that a number of
tasks for which Ostrove, Okano, and
Weinick billed were “non-legal or
ministerial tasks that need not be performed
by – or billed at the rate of – a lawyer with
[their] experience.” Harty v. Par Builders,
Inc., No. 12-CV-2246 (CS), 2016 WL
616397, at *5 (S.D.N.Y. Feb. 16, 2016). For
example, Weinick billed at his full rate
multiple times for filing motions with the
Court (including on March 7, 2012, March
9, 2012, May 23, 2012, November 6, 2012,
March 11, 2013). (See Ex. A to Pl.’s Mem.)
On February 21, 2014, Okano billed at his
full rate for converting the jury charge to a
Word document and emailing it to Ostrove.
(Id.) Such tasks are clearly non-legal and
clerical in nature, and thus, should not be
billed at attorney rates. See, e.g., Harty,
2016 WL 616397, at *5 (reducing rate for
hours billed for assembling and filing
motions, briefs, and exhibits); Osterweil v.
Bartlett, 92 F. Supp. 3d 14, 36 (N.D.N.Y.
2015) (reducing hourly rate so as to apply
paralegal rate for clerical tasks, such as
preparing and filing notice of appearance,
administrative forms, and scheduling
notifications, and conferring with court
regarding filings); Sheet Metal Workers’
Nat. Pension Fund v. Coverex Corp. Risk
Sols., No. 09-CV-0121 (SJF) (ARL), 2015
WL 3444896, at *15 (E.D.N.Y. May 28,
2015) (reducing attorney’s fees where
counsel “improperly include[d] clerical
tasks, e.g., docketing filing and transmitting
documents and information.”)
Further, the billing records reflect that
counsel’s standard practice was to record
their time in quarter-hour increments. Many
phone calls and e-mails throughout the
billing record are billed at a quarter of an
hour.2 Although some of these entries are
billed as “no charge,” a large percentage of
them are charged at counsel’s full rate. It
seems very unlikely that each phone call and
e-mail exchange took fifteen minutes, and
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, Annuity Fund,
Pension Fund, Apprenticeship Fund,
Vacation Funds, Scholarship Fund, & Other
Funds v. Brookman Const. Co., No. 12-CV2180 (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.” (internal quotation marks and
citations omitted)).
2
In light of these problems with plaintiff’s
counsel’s billing records, the Court
concludes that a twenty percent across-theboard reduction in counsel’s hours is
warranted. Thus, the Court calculates the
lodestar amount based on 236 hours
The County points to two examples of entries billed
at .25, in support of their argument that a reduction is
warranted: reviewing the scheduling order on July
11, 2011, and emailing County attorneys to secure an
adjournment on December 16, 2015. (See County’s
Opp. at 15.) Plaintiff’s counsel concedes in the reply
brief that they have no objection to treating these
entries as “no charge.” (Pl.’s Reply at 12–13.)
10
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 (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.”
(internal quotation marks and citation
omitted)).
expended by Ostrove, 213 hours expended
by Weinick, 217.6 hours expended by
Okano in this litigation.3
C.
Success
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; 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 Supreme 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.
Here, the County argues that a fee
reduction is warranted because 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. The
County argues that plaintiff’s disability
discrimination claim involved a distinct set
of facts from his First Amendment
retaliation claim, and thus, that the Court
should not award fees for the efforts
expended on pursuing plaintiff’s disability
claim.
461 U.S. at 440; see also Green v. Torres,
361 F.3d 96, 99 (2d Cir. 2004). 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
However, the Court finds that the issue
of plaintiff’s transfer was inextricably
intertwined with his retaliation claim, and
that most of the evidence regarding the
transfer would be relevant background for
purposes of the retaliation claim. Thus, the
evidence on the retaliation claim
substantially overlapped with all the other
claims. Despite the substantial overlap, the
Court recognizes there was some extremely
limited testimony and evidence regarding
the alleged disability that was unrelated to
the retaliation claim. However, the Court
Ostrove: 295 – (295 * .20) = 236
Weinick: 266.25 – (266.25 * .20) = 213
Okano: 272 – (272 * .20) = 217.6
3
11
hour,4 213 hours of Weinick’s time at a rate
of $300 per hour, 13.5 hours of Weinick’s
travel time at a rate of $150 per hour, 217.6
hours of Okano’s time at a rate of $225 per
hour, 1.75 hours of Okano’s travel time at a
rate of $112.50 per hour, 4.25 hours of
Bove’s time at a rate of $100 per hour, and
18.67 hours of Guerra’s time at a rate of
$100 per hour.5 Moreover, the Court sees no
reason to depart from the lodestar figure in
this case, see, e.g., Perdue, 559 U.S. at 553
(noting that lodestar figure includes “most,
if not all,” relevant factors in setting
reasonable attorney’s fee), and thus awards
plaintiff $222,153 in attorneys’ fees.
concludes that the twenty percent acrossthe-board reduction in hours adequately
accounts for any limited additional work by
plaintiff’s counsel on claims that were
ultimately unsuccessful.
Further, to the extent that the County
argues that a fee reduction is warranted
because the jury award was substantially
less than what the plaintiff sought, the Court
disagrees. The jury award, in this case, did
not involve nominal damages, but rather a
substantial award of $150,000 in
compensatory damages. Although plaintiff
sought significantly more from the jury in
damages, the Court views the jury’s award
as “substantial relief” and plaintiff clearly
achieved substantial success in the litigation.
Thus, the amount of the award provides no
basis for a reduction in the fees based on
limited success. See, e.g., Siracuse v.
Program for the Dev. of Human Potential,
No. 07 CV 2205 (CLP), 2012 WL 1624291,
at *21–22 (E.D.N.Y. Apr. 30, 2012)
(declining to reduce fee award on basis that
plaintiff sought $700,000 in damages but
was awarded only $72,000); Insinga v.
Cooperatieve
Centrale
Raiffeisen
Boerenleenbank B.A., 478 F. Supp. 2d 508,
512 (S.D.N.Y. 2007) (rejecting argument
that plaintiff’s success was “limited” where
jury awarded plaintiff $2.5 million was less
than the $21 million sought). Thus, the
Court declines to impose a further fee
reduction based upon limited success at trial.
*
*
D. 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 LeBlancSternberg 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. 10CV-696 (KAM)(SMG), 2013 WL 950573,
“Courts in this Circuit regularly reduce attorneys’
fees by 50 percent for travel time,” see, e.g., LV v.
New York City Dep’t of Educ., 700 F. Supp. 2d 510,
526 (S.D.N.Y. 2010), and plaintiff’s counsel charged
50% of their billing rate for travel time in this case,
(see Ex. A. to Pl.’s Mem.) Thus, the Court uses 50%
of the rate awarded to each attorney to compensate
for the travel time in this case.
4
*
Accordingly, the Court calculates the
lodestar figure to be $222,153.00, which
represents 236 hours of Ostrove’s time at a
rate of $425 per hour, 21.08 hours of
Ostrove’s travel time at a rate of $212.50 per
Although plaintiff’s counsel was retained on a
contingency-fee basis, “the contingency fee may not
serve as a cap on an attorney fee award.” Porzig v.
Dresdner, Kleinwort, Benson, N. Am. LLC, 497 F.3d
133, 142 (2d Cir. 2007).
5
12
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).
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 4, 2016
Central Islip, NY
***
Plaintiff is represented by Rick Ostrove and
Matthew Brian Weinick of Leeds Brown
Law, P.C., One Old Country Road, Suite
347, Carle Place, NY, 11514. The County is
represented by Marc S. Wenger and Daniel
Sergio Gomez-Sanchez of Jackson Lewis
LLP, 58 S Service Road, Suite 410,
Melville, NY 11747.
Here, plaintiff requests $5,433 for
expenses incurred in this action. However,
plaintiff’s own expense sheet correctly
indicates that the total expenses amount to
$4,645.30 as opposed to $5,433. (See Ex. G
to Pl.’s Mem.) Plaintiff includes as
expenses: the filing fee ($350), process
servers ($747), transcripts ($2,796.60),
supplies
($28.47),
Federal
Express
($166.77), payment of the Second Circuit
docketing fee ($455), and type write word
processing service for EDNY conference
($101.46). (See id.)
Plaintiff includes
documentation for all but $68.32 of Federal
Express expenses. (See id.) Accordingly, the
Court awards plaintiff $4,576.98 in
expenses.
III. CONCLUSION
For the reasons set forth herein, the
Court awards plaintiff $222,153.00 in
attorneys’ fees and $4,576.98 in expenses.
13
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