Barrella v. Village of Freeport et al

Filing 259

DECISION AND ORDER granting 243 Motion for Attorney Fees; granting 254 Motion to Stay; The Court grants the Villages motion pursuant to Fed. R. Civ. P. 62(d) to stay execution of the judgments dated May 28, 2014 and August 29, 2014, pending the outcome of the Villages appeal. The stay is only in effect as to the Village, not Hardwick, who neither moved for a stay nor posted a supersedeas bond. The Court grants the Plaintiffs motion for supplemental attorneys fees and costs to the extent he is awarded (1) $37,140 in fees for opposing the Defendants post-trial motions; (2) $18,774 in fees incurred in connection with the fee application; and (3) $6,825 in costs for purchasing the trial transcripts. The total amount awarded to the Plaintiff is $62,739. So Ordered by Judge Arthur D. Spatt on 10/29/2014. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CHRISTOPHER BARRELLA,
Plaintiff,
DECISION AND ORDER
12-CV-0348 (ADS)(WDW)

-againstVILLAGE OF FREEPORT and ANDREW
HARDWICK, as both Mayor and in his
individual capacity,
Defendants.
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APPEARANCES:
Fugazy & Rooney LLP
Attorneys for the Plaintiff
126 Glen Street
Glen Cove, NY 11542
By: Amanda M. Fugazy, Esq.
Adam C. Weiss, Esq., Of Counsel
Harris Beach PLLC
Attorneys for the Defendant Village of Freeport
The Omni
333 Earle Ovington Blvd., Suite 901
Uniondale, New York 11553
By: Keith M. Corbett, Esq.
Kadion D. Henry, Esq., Of Counsel
Rivkin Radler, LLP
Attorneys for the Defendant Andrew Hardwick
EAB Plaza
Uniondale, NY 11556
By: Kenneth A. Novikoff, Esq.
Scott Green, Esq., Of Counsel
SPATT, District Judge

Familiarity with the factual and procedural history of this case is presumed.

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By way of background, on May 30, 2014, following a trial, the jury returned a verdict
against both the Defendants the Village of Freeport and Andrew Hardwick, former Mayor of the
Village of Freeport, for the sum of $150,000 in back pay damages, $1,000,000 in front pay
damages, and $200,000 in punitive damages as against Hardwick only.
On June 11, 2014, the Plaintiff Christopher Barella (the “Plaintiff”) moved pursuant to
Fed. R. Civ. P. 45(d) and 28 U.S.C. § 120 for an award of attorneys’ fees and costs.
On June 25, 2014, the Plaintiff moved for an order (1) upwardly adjusting the back pay
and front pay award to account for the negative tax consequences he would suffer as a result of
receiving the damages award in a lump sum; (2) awarding pre-judgment interest on his back pay
and costs; and (3) awarding post-judgment interest on the entire award he ultimately receives,
including his attorneys’ fees and costs.
On June 25, 2014, Hardwick filed a notice of appeal from the May 30, 2014 judgment.
On June 27, 2014, the Village filed a separate notice of appeal from the May 30, 2014 judgment.
Those appeals are currently pending before the United States Court of Appeals for the Second
Circuit.
On June 27, 2014, Hardwick moved pursuant to Fed. R. Civ. P. 50(b) for judgment as a
matter of law on all claims for which the jury rendered a verdict in favor of the Plaintiff.
Alternatively, Hardwick moved pursuant to Fed. R. Civ. P. 59(a) for a new trial. That same day,
the Village moved pursuant to Fed. R. Civ. P. 50 for judgment as a matter of law, and
alternatively, pursuant to Fed. R. Civ. P. 59(a), for a new trial or reducing the jury’s award
against the Village.
By Memorandum of Decision and Order dated August 28, 2014, the Court (1) denied the
Defendants’ Rule 50 motions for judgment as a matter of law and Rule 59 motions for a new
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trial; (2) granted the Plaintiff’s motion for attorneys’ fees and costs to the extent that the Plaintiff
was awarded $661,139 in attorneys’ fees and $26,612.42 in costs; and (3) granted in part and
denied in part the Plaintiff’s motion to amend or mold the jury verdict. In particular, the Court
granted the motion insofar as the Plaintiff was awarded (1) pre-judgment interest on the back pay
award of $150,000 to be calculated by the Clerk of the Court at the rate prescribed in 28 U.S.C. §
1961(a), compounded annually, from August 1, 2012 through the date of the judgment, May 30,
2014; (2) pre-judgment interest on the costs award of $26,612.42, at the rate prescribed by 28
U.S.C. § 1961(a), compounded annually, from August 1, 2012 through the date of the judgment,
May 30, 2014; and (3) post-judgment interest on the judgment amount of $1,350,000, plus costs
of $26,612.42 from May 30, 2014, at the rate prescribed by 28 U.S.C. § 1961(a) compounded
annually, until paid. The Court denied the motion insofar as the Plaintiff sought (1) an upward
adjustment of the jury award to account for negative tax consequences and (2) post-judgment
interest on the attorneys’ fees award. Judgment was entered on August 29, 2014.
On September 11, 2014, the Plaintiff moved pursuant to Fed. R. Civ. P. 54(d) and 28
U.S.C. § 120 for an award of supplemental attorneys’ fees and costs on the basis that (1) he is the
“prevailing party” on his racial discrimination claim under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, and 42 U.S.C. § 1988; and (2) he is entitled
to recover his attorneys’ fees incurred in opposing the Defendants’ post-trial motions; (3) he is
entitled to recover those fees he incurred after June 9, 2014 in making his initial fee application;
and (4) he is entitled to recover the cost of purchasing the trial transcript for the purpose of
opposing the Defendants’ post-trial motions. According to the Plaintiff, his attorneys’ fees for
opposition to the Defendants’ post trial-motions are $37,990.00 and for work on the attorneys’
fees motion after June 9, 2014 the sum is $20,860.00.
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Also, that day, the Village filed notices of appeal from those parts of the August 29, 2014
judgment denying its motions under Fed. R. Civ. P. 50 and 59 and granting the Plaintiff’s motion
for attorneys’ fees and costs.
On September 12, 2014, Hardwick separately filed a notice of appeal from that part of the
August 29, 2014 judgment granting the Plaintiff’s motion for attorneys’ fees and costs.
On September 25, 2014, the Plaintiff filed a notice of appeal from that part of the August
29, 2014 judgment as denied his motion for an additional monetary award to offset the negative
tax consequences of his receiving the damages award as a lump sum and that part of the April
28, 2014 order as granted the Defendants’ motion for summary judgment dismissing the
Plaintiff’s claim of national origin discrimination.
On October 3, 2014, the Village moved pursuant to Fed. R. Civ. P. 62(d) for an order
staying execution of the judgments entered on May 28, 2014 and August 29, 2014 pending the
Village’s appeal to the Second Circuit. In support of that motion, the Village posted a
supersedeas bond for the full amount of the judgments entered on May 28, 2014 and August 29,
2014.
On October 6, 2014, the Village filed a memorandum in opposition to the Plaintiff’s
motion for supplemental attorneys’ fees and costs. The Village requests that the Plaintiff’s
supplemental attorneys’ fees application be held in abeyance pending the outcome of the crossappeals, lest the Village be forced to expend additional moneys on bond premiums. Hardwick
has not opposed the supplemental motion for attorneys’ fees and costs.
On October 13, 2014, the Plaintiff filed a reply memorandum in support of his motion for
supplemental attorneys’ fees and costs. With respect to the Village’s assertion that it will have to
post additional security if the supplemental fee petition is granted, the Plaintiff stipulates that it
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will not pursue execution for any judgment for fees granted on the supplemental fee petition until
after the appeals are decided, obviating any need for the Village to post additional security.
Fed. R. Civ. P. 62(d) provides that, if an appeal is taken, the appellants can stay
enforcement of the district court’s judgment by posting a supersedeas bond. In that scenario, the
stay is “automatic” rather than within the discretion of the Court. In re Holtmeyer, 229 B.R. 579,
582 (E.D.N.Y. 1999); see also Malarkey v Texaco, Inc., 794 F. Supp 1248, 1249 (S.D.N.Y.
1992)(“Fed. R. Civ. P. 62(d) permits a party against whom a monetary judgment is rendered to
stay execution of that judgment pending appeal by ‘giving a supersedeas bond.’ A party is
entitled to a post a bond and stay execution of a monetary judgment as a matter of right.”)
The Plaintiff does not challenge the adequacy of the bond as to the Village. Therefore,
the Court approves the supersedeas bond and grants the Village’s motion pursuant to Fed. R.
Civ. P. 62(d) to stay execution of the judgment pending a final determination of its appeal.
However, the Court makes clear that, Hardwick having failed to separately move for a stay of
execution or to post a supersedeas bond, the stay is in effect as to the Village only.
As to the Village’s request that the Plaintiff’s supplemental attorneys’ fee request should
be held in abeyance pending the outcomes of the Village’s appeal, “[w]here the losing party
takes an appeal on the merits of case, the district court has the discretion to defer ruling on the
prevailing party’s motion for attorney’s fees.” Gill v. Bausch & Lomb Supplemental Ret. Income
Plan I, 6:09–CV–6043 (MAT), 2014 WL 1404902, at *1 (W.D.N.Y. Apr. 10, 2014)(citing 1993
Advisory Committee Notes to Fed. R. Civ. P. 54(d)(stating that “if an appeal on the merits of the
case is taken, the [district] court may rule on the claim for fees, may defer its ruling on the
motion, or may deny the motion without prejudice directing under subdivision (d)(2)(B) [of Rule
54] a new period for filing after the appeal has been resolved”)).
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Here, the Court notes that a Second Circuit reversal of the May 28, 2014 judgment or
those parts of the August 29, 2014 judgment denying the Defendants’ motions under Fed. R. Civ.
P. 50 and 59 would moot the Plaintiffs’ supplemental motion for attorneys’ fees and costs
because the Plaintiff would no longer be the “prevailing party” entitled to such fees under 42
U.S.C. 1988(b). In the typical case, “deferring a ruling on [a] motion for attorneys’ fees until the
Second Circuit resolves [a merits appeal] ensures that the Court only has to address the motion
for attorneys’ fees by the party that ultimately prevails.” Doe ex rel. Doe v. E. Lyme Bd. of
Educ., 3:11 CV 291(JBA), 2014 WL 4370504, at *2 (D. Conn. Sept. 2, 2014)(citing Gill, 2014
WL 1404902, at * 1).
However, in this case, the Court has previously rendered a decision on the Plaintiff’s
main or initial application for attorneys’ fees and costs, and appeals taken by the Village and
Hardwick of that order are pending before the Second Circuit. Thus, if this Court defers a ruling
on the supplemental attorneys’ fees until resolution of the Village’s appeal, and then the Second
Circuit affirms the May 30, 2014 judgment and those parts of the August 29, 2014 judgment
denying the Defendants’ motions for judgment as a matter of law and/or a new trial, the Second
Circuit could be faced with piecemeal appeals, which are disfavored in this circuit. Lake v.
Schoharie Cnty. Com’r of Soc. Servs., CIVA901CV1284 (NAM)(DEP), 2006 WL 1891141, at
*3 n. 2 (N.D.N.Y. May 16, 2006)(“While additional motion practice to address the issue of
additional attorneys’ fees incurred in connection with the pending appeal and any subsequent
proceedings in this court, should plaintiff's claims survive on appeal, may well be unavoidable,
this possible eventuality does not provide a basis to defer ruling upon the pending fee
application. To accept defendants’ argument and defer a ruling on the attorneys’ fees issue until
resolution of the pending cross-appeals would almost certainly prompt a second appellate
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challenge and, accordingly, would run contrary to the Second Circuit's teaching that Rule 54(d)
and its time limit was intended to avoid piecemeal appeals by consolidating of appellate
resolution of issues of the type now raised by the parties in opposition to plaintiff's fee
application with other, substantive arguments raised on appeal.”).
To be sure, in Mhany Mgmt. Inc. v. Inc. Vill. of Garden City, No. 05-CV-2301 (ADS)
(WDW), 2014 WL 4494774, at *2 (E.D.N.Y. Sept. 11, 2014), this Court was faced with a similar
prospect of piecemeal appeals, but nonetheless granted the defendant’s motion to defer ruling on
the plaintiff’s motion for attorneys’ fees until after the Second Circuit rendered a decision on the
defendant’s merits appeal. However, in that case, the Court was presented with a motion to defer
the Plaintiff’s main or initial motion for attorneys’ fees and costs rather than a supplemental
motion and therefore the Court had not previously rendered rulings on the relevant issues, such
as appropriate hourly rates and the plaintiff’s degree of success.
Here, by contrast, these and other issues related to attorneys’ fees and costs have
previously been resolved by the Court. For three related reasons, this distinction undermines any
argument that deferring a ruling on supplemental attorneys’ fees and costs until after the Second
Circuit renders a decision on the Defendants’ merits appeal promotes judicial economy.
First, given that the issues related to attorneys’ fees and costs, such as appropriate hourly
rates and degree of success, are already before the Second Circuit, that court is presumably more
likely to consolidate an appeal from this Court’s order on supplemental fees and costs with the
pending cross-appeals. Second, the parties will brief these issues before the Second Circuit
regardless of whether this Court defers a ruling on the supplemental attorneys’ fees and costs.
Third, having previously decided the issues of hourly rates and degree of success in the August
28, 2014 order, and the Defendants having declined to move to reconsider those determinations,
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the Court finds that the marginal time and expense required for this Court to resolve this motion
now is minimal.
Further, the Court identifies little, if any, prejudice to the Village by declining to delay
resolution of the Plaintiff’s request for supplemental fees and costs until after the Village’s
appeal has been decided. This is because, as noted above, the Plaintiff has stipulated that it will
not pursue execution for any judgment for fees granted on the supplemental fee petition until
after the appeal is decided, obviating any need for the Village to post additional security to cover
an award of supplemental attorneys’ fees and costs.
Based on the foregoing, the Court declines to grant the Village’s request to hold the
Plaintiff’s motion for supplemental attorneys’ fees and costs in abeyance pending the outcome of
its appeal.
The Court now turns to the merits of the Plaintiff’s motion for supplemental attorneys’
fees and costs.
“In the United States, parties are ordinarily required to bear their own attorney’s fees —
the prevailing party is not entitled to collect from the loser. . . . Congress, however, has
authorized the award of attorney's fees to the ‘prevailing party’ in numerous statutes.”
Buckhannon Bd. & Care Home, Inc., v. West Virginia Dept. Of Health & Human Res., 532 U.S.
598, 602, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001). 42 U.S.C. § 1988(b) provides:
In any action or proceeding to enforce a provision of [Section 1983] . . . the court,
in its discretion, may allow the prevailing party . . . a reasonable attorneys’ fee as
part of the costs.
The Village does not dispute that the Plaintiff is a “prevailing party” whose reasonable attorneys’
fees and costs are compensable. However, Village does argue that the fee request is
unreasonable.
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The hourly rates proposed by the Plaintiff are consistent with those previously approved
by the Court in the August 28, 2014 Memorandum of Decision and Order, except as to
paralegals. As the Court found in that decision, $115 an hour for paralegal services is excessive.
Compare Todaro v. Siegel Fenchel & Peddy, P.C., 697 F. Supp. 2d 395, 400 (E.D.N.Y.
2010)($85/hr for paralegal); Finkel v. Jones Lang LaSalle Americas, Inc., 08–CV–2333
(RRM)(RML), 2009 WL 5172869, at *5 (E.D.N.Y. 2009)($80/hr for paralegals); Morgenstern v.
County of Nassau, No. CV 04–58(ARL), 2009 WL 5103158, at *9 ($100/hr for paralegals).
Accordingly, again, the Court reduces the paralegals’ hourly rate to $100 per hour.
As required by New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d
1136, 1148 (2d Cir. 1983), the Plaintiff’s counsel has submitted contemporaneous billing records
setting forth the date and amount of time when services were rendered, along with the name of
the attorney and/or paralegals, and a description of the services performed. Those records reflect
that the attorneys and paralegals spent a total of 100 hours opposing the Defendants’ post-trial
motions and 57.7 hours preparing the initial fee petition.
With regard to the number of hours opposing the Defendant’s post-trial motions, the
Court first addresses the 1.3 hours spent by Paul Rooney, Esq. on research related to the
Plaintiff’s letter motion dated June 30, 2014, later withdrawn, to dismiss the Defendants’ posttrial motions as untimely. While “under 42 U.S.C. § 1988, a party is entitled to recover time
spent on an unsuccessful motion as long as that motion was related to the case’s successful
outcome and was not frivolous,” Deferio v. Bd. of Tr. of State Univ. of New York, No. 5:11–
CV–0563 (GTS/RFT), 2014 WL 295842, at *9 (N.D.N.Y. Jan. 27, 2014), the Court finds that
this unsuccessful motion was not sufficiently “related” to the case’s outcome in favor of the
Plaintiff.
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The Court also agrees with the Village that the 1.1 hours spent by Amanda Fugazy, Esq.
to obtain the trial transcripts to oppose the Defendants’ post-trial motion could have been
delegated to a paralegal. Therefore, the Court will reduce Fugazy’s hours by 1.1 and,
concurrently, increase the paralegals’ hours by 1.1.
However, the remaining arguments advanced by the Village challenging the Plaintiff’s
entitlement to the requested supplemental attorneys’ fees are without merit. The Village argues,
without authority, that counsel do not typically bill clients for intra-office conferences. Contrary
to the Village’s contention, courts awarding attorneys’ fees routinely grant fees for intra-office
conferences, provided they are, as here, justified and no more than one attorney bills. See In re
Bennett Funding Grp., Inc., 213 B.R. 234, 245 (Bankr. N.D.N.Y. 1997).
The Village also takes issue with research performed regarding qualified immunity by an
associate, with some additional follow-up research by a partner, arguing that this issue
“permeated” the trial and should not have required additional research. However, this assertion
is belied by the fact that this argument consumed ten pages of Hardwick’s post-trial briefing.
Further, the Court notes the novelty of the underlying question as related to the defense of
qualified immunity – namely, whether hispanic is a race different than the white or black race for
purposes of the anti-discrimination statutes, and whether such a question needed to be resolved
before jury deliberation. With these factors in mind, the Court finds the 11.7 hours spent by the
associate researching qualified immunity, and the additional two hours on the part of the partner,
to be reasonable.
Taking into account the reduced rate awarded for paralegal services; excluding the 1.3
hours spent by Rooney on research related to the Plaintiff’s letter motion dated June 30, 2014;

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and the factoring in the reduced rate for the 1.1 hours obtaining the trial transcripts, the adjusted
total supplemental attorneys’ fees for opposing the Defendants’ post-trial motions is $37,140.
Turning to that part of the Plaintiff’s motion for supplemental attorneys’ fees sought in
connection with his initial fee petition, the Court disagrees with the Village’s characterization of
the fee petition as “simple” and finds that hours spent by a partner supervising another partner
may be compensable. However, the Court recognizes that some of the entries are excessive and
duplicative.
That said, the Second Circuit has stated that the district court is not required to “set forth
item-by-item findings concerning what may be countless objections to individual billing items.”
Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994); see also Daiwa Special Asset Corp.
v. Desnick, No. 00 CV 385 (SHS), 2002 WL 31767817, at *5 (S.D.N.Y. Dec. 3, 2002)(reducing
fee award by 50% due in part to excessive billing). Particularly where, as here, the billing
records are voluminous, “it is less important that judges attain exactitude, than that they use their
experience with the case, as well as their experience with the practice of law, to assess the
reasonableness of the hours spent.” Amato v. City of Saratoga Springs, 991 F. Supp., 62, 65
(N.D.N.Y. 1998)(citing Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992).
Based on an overall assessment of the billing record in relation to the initial fee motion,
the Court will apply a 10% reduction in the number of hours expended. See Francois v. Mazer,
523 F. App’x 28, 29 (2d Cir. 2013)(upholding forty percent across-the-board reduction in hours
following a jury trial). Taking into account this across-the-board reduction and the reduced rate
awarded for paralegal services, the adjusted total supplemental attorneys’ fees for the fee
application is $18,774.

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Separately, the Village has raised no objection to the Plaintiff’s request for supplemental
costs for the purchase of the trial transcripts that it incurred in the amount of $6,825.
Accordingly, the Court awards the Plaintiff that amount.
In sum, the Court grants the Village’s motion pursuant to Fed. R. Civ. P. 62(d) to stay
execution of the judgments dated May 28, 2014 and August 29, 2014, pending the outcome of
the Village’s appeal. The stay is only in effect as to the Village, not Hardwick, who neither
moved for a stay nor posted a supersedeas bond. The Court grants the Plaintiff’s motion for
supplemental attorneys’ fees and costs to the extent he is awarded (1) $37,140 in fees for
opposing the Defendants’ post-trial motions; (2) $18,774 in fees incurred in connection with the
fee application; and (3) $6,825 in costs for purchasing the trial transcripts. The total amount
awarded to the Plaintiff is $62,739.

SO ORDERED.
Dated: Central Islip, New York
October 29, 2014

____Arthur D. Spatt__________________
ARTHUR D. SPATT
United States District Judge

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