Volpe et al v. Nassau County et al

Filing 72

ORDER granting 62 Motion for Attorney Fees For the reasons set forth herein, the Court awards plaintiffs $145,246.44 in attorneys' fees and $3,385.85 in costs. SO ORDERED. Ordered by Judge Joseph F. Bianco on 10/24/2016. (Shea, Zoe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-CV-2416 (JFB)(AKT)
_____________________

GARY VOLPE, ET AL.,
Plaintiffs,
VERSUS

NASSAU COUNTY, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
October 24, 2016
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiffs Gary Volpe, Matthew F.
Sarter, Wayne Resnick, George Roa, Angelo
Muro, Michael T. Spae, the Estate of Steven
Doran, Thomas G. Guiry, David B. Cullen
III, Alfred Thursland, Richard A. Blanc,
Gregory Bartow, Paul J. Radzewsky, John
G. Russ, Michael Mirenda, Joseph Sperber,
John T. Hoffman, Gerald M. Houck III,
Christopher L. Brandimarte, Paul Klecka,
Richard C. Gotterbarn, Matthew W. Love,
Joseph M. Bartow, Jr., Lawrence P. Vetter,
Robert P. Conti, James Delahunty, Steven T.
White, Scott Kramer, Kenneth R. Blum, and
Dennis
Biancanello
(collectively,
“plaintiffs”) brought this action against
Nassau County, the Nassau County Police
Department, the Nassau County Civil
Service Commission (“County defendants”),
and Edward Mangano (“Mangano”) in his
individual and official capacities as Nassau
County
Executive
(collectively,
“defendants”). Plaintiffs alleged wage
discrimination under the Equal Pay Act, 29

U.S.C. § 206(d) et seq. (the “EPA”), the
New York Equal Pay Act, New York Labor
Law § 194 et seq. (the “NY EPA”), and
Nassau County Government Law § 1307
(“Section 1307”) against the County
defendants as well as violations of their
constitutional rights pursuant to 42 U.S.C. §
1983 (“Section 1983”) against all
defendants.
Specifically, plaintiffs claimed that the
County defendants violated plaintiffs’ rights
under the EPA, the NY EPA, and Section
1307 by paying them wages lower than the
wages paid to women performing
substantially similar work. Plaintiffs also
claimed that defendants’ failure to provide
plaintiffs with compensation correspondent
to that of their female counterparts
constituted an ongoing constitutional
violation. In essence, plaintiffs alleged that,
in an attempt to correct an alleged pay
disparity based upon gender between female
Police Communication Operators (“PCOs”)
and Police Communication Operator

Supervisors (“PCOSs”) in the Nassau
County Police Department and male Fire
Communication Technicians (“FCOs”) and
Fire Communication Technician Supervisors
(“FCOSs”) in the Nassau County Fire
Department – which was resolved as part of
the settlement of a separate lawsuit in this
District – the defendants improperly
instituted a pay disparity among PCOs and
PCOSs, where males in those jobs made less
money than females in the exact same jobs.

motion to dismiss, which the Court decided
on January 3, 2013. On January 27, 2016,
plaintiffs submitted a motion for attorneys’
fees and reimbursement of costs. Defendants
submitted their opposition on February 17,
2016, and plaintiffs submitted their reply on
March 2, 2016. On March 30, 2016,
defendants informed the Court that all of the
settlement payments to plaintiffs had been
made. Oral argument was held on May 10,
2016. The Court has fully considered all of
the parties’ submissions.

On January 3, 2013, the Court denied
defendants’ motion to dismiss with respect
to plaintiffs’ EPA, NY EPA, Section 1307,
and Section 1983 claims against the County
defendants. The Court granted defendants’
motion to dismiss with respect to the Section
1983 claim brought against Mangano. On
September 30, 2015, the parties notified
Judge Tomlinson that the parties had
reached a settlement and had resolved all
issues related to that settlement, and would
file the executed settlement with the Court
by October 14, 2015. The parties’ settlement
awarded plaintiffs $2,489,655, and pursuant
to the terms of the settlement, plaintiffs
applied to the Court for attorneys’ fees and
costs. Plaintiffs’ motion for attorneys’ fees
and costs is presently before the Court.

II. DISCUSSION
Plaintiffs request $829,885.00 in
attorneys’ fees, representing approximately
one-third of the settlement amount, and
reimbursement of $3,215.75 in costs.
Although plaintiffs calculated the lodestar
amount to be $214,208.35, plaintiffs argue
that such amount is inadequate under the
appropriate legal standards, and that the
Court should apply the percentage of the
recovery method or a lodestar multiplier in
calculating fees. Defendants contend that
plaintiffs’ fee application should be assessed
using the lodestar approach, and that
plaintiffs’ proposed hourly rates and number
of hours billed are unreasonable and should
be reduced. For the following reasons, after
careful consideration of the law and the
particular circumstances of this case, the
Court in its discretion utilizes the lodestar
calculation,
and
awards
plaintiffs
$145,246.44 in attorneys’ fees and
$3,385.85 in costs.

I. BACKGROUND
A. Factual Background
The Court set forth the background facts
of this case in the January 3, 2013 Order
denying in part and granting in part
defendants’ motion to dismiss, see Volpe v.
Nassau County, 915 F. Supp. 2d 284
(E.D.N.Y. 2013), and does not repeat those
facts here.

“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:

B. Procedural History

In any action or proceeding
to enforce a provision of
sections 1981, 1981a, 1982,

Plaintiffs filed this action on May 15,
2012. On July 19, 2012, defendants filed a
2

Plaintiffs’ counsel contends that they are
entitled to a fee of one-third of the
settlement amount. They argue that, even
though this action did not fit the standard for
class certification, the same considerations
for using the percentage of the fund method
for awarding attorneys’ fees in class actions
should apply here, and that the general trend
in this Circuit is to apply the percentage of
the fund method. Defendants argue that the
percentage of the fund method for
calculating attorneys’ fees has never been
awarded in a non-class action suit in this
Circuit and that it would be inappropriate
and contrary to law for the Court to do so
here.

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.

The “trend” toward the percentage of the
fund method plaintiffs’ counsel describes
has indeed been recognized by the Second
Circuit, but only in class action cases or
where a common fund exists. Wal-Mart
Stores, Inc. v. Visa USA, Inc., 396 F.3d 96
(2d Cir. 2005) (recognizing that “[t]he trend
in this Circuit is toward the percentage
method . . . which directly aligns the
interests of the class and its counsel and
provides a powerful incentive for the
efficient prosecution and early resolution of
litigation”) (internal quotation marks and
citation omitted). As defendants point out,
no such fund requiring administration on the
part of counsel is present here. Although
plaintiffs’ counsel argues that the logic
supporting the use of the percentage of the
fund method in class actions applies with
equal force to a case like this with multiple
plaintiffs, the Court disagrees. In fact, in
Blum, the Supreme Court, in holding that a
fifty percent upward adjustment to the fee
award in a civil rights case was not
warranted simply because the outcome “was
of great benefit to a large class of needy
people,” explained the following:

42 U.S.C.A. § 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)).
A. Percentage of the Settlement Value
and Lodestar Multiplier
There are two methods for determining
the reasonableness of a fee request in
connection with a class action settlement:
(1) the lodestar method, in which the hours
reasonably expended on the case are
multiplied by a reasonable hourly rate, and
(2) the common fund method, in which the
amount is calculated as a percentage of the
award to the class. McDaniel v. County of
Schenectady, 595 F.3d 411, 417-22 (2d Cir.
2010). In a class action, a “district court has
the discretion to choose either the lodestar or
percentage-of-fund approach in calculating
attorney’s fees.” Id. at 420.

Nor do we believe that the number of
persons benefited is a consideration
3

of significance in calculating fees
under § 1988. Unlike the calculation
of attorney’s fees under the
“common fund doctrine,” where a
reasonable fee is based on a
percentage of the fund bestowed on
the class, a reasonable fee under §
1988 reflects the amount of attorney
time reasonably expended on the
litigation. Presumably, counsel will
spend as much time and will be as
diligent in litigating a case that
benefits a small class of people, or,
indeed, in protecting the civil rights
of a single individual.

(collecting cases). However, as noted in both
Andrews and Green, those non-class action
cases typically have special circumstances
such as, for example, where the settlement
agreement creates a fund of a set amount,
releases defendants from further liability,
and statutory fees are no longer available.
Andrews, 118 F Supp. 3d at 636; Green,
2009 WL 3063059, at *7. No such special
circumstances exist in the instant case and,
for the reasons discussed in more detail
below, the Court in its discretion concludes
that there is no basis to utilize the percentage
of the recovery method, and that the lodestar
method provides a reasonable fee.

465 U.S. at 900 n.16; see also McDaniel,
595 F.3d at 422 n.7 (“We do not suggest that
concerns present in the common fund and
statutory fee-shifting contexts are identical
in every respect . . . .”) (citations omitted).
In short, this Court believes that there are
unique aspects of class actions, not present
in non-class actions such as this case, which
make a percentage of the fund method
particularly appropriate. Nevertheless, and
contrary to defendants’ suggestion, this
Court recognizes that there are situations
where the use of a percentage of the
recovery approach could be warranted even
in a non-class action context. See generally
Andrews v. City of New York, 118 F. Supp.
3d 630, 636 (S.D.N.Y. 2015) (“[T]here are
cases brought pursuant to fee-shifting
statutes where attorney’s fees are awarded at
least in part out of plaintiff’s recovery.”)
(collecting cases); Green v. City of New
York, No. 05-CV-429 (SLT)(ETB), 2009
WL 3063059, at *6 (E.D.N.Y. Sept. 21,
2009) (noting that the common fund
doctrine is not limited to certain types of
commercial litigation and recognizing that
“the common fund doctrine has been applied
by circuit courts in other types of cases,
including cases brought pursuant to statutes
that contain fee-shifting provisions”)

The Court reaches a similar conclusion
with respect to plaintiffs’ request for a
lodestar multiplier. As a threshold matter, to
the extent that defendants suggest that the
Court lacks any authority to make an
upward adjustment to the fee award through
a multiplier under the lodestar method, the
Court again disagrees. See Blum, 465 U.S. at
901 (“We . . . reject petitioner’s argument
that an upward adjustment to an attorney’s
fee is never appropriate under § 1988.”). As
set forth below, the Court retains the
discretion to make an upward adjustment to
a fee award if the circumstances of a
particular case warrant such an adjustment.
In Purdue, the Supreme Court held, in
the context of addressing a “reasonable fee”
under a federal fee-shifting statute, that “the
lodestar method yields a fee that is
presumptively sufficient to achieve this
objective.” 599 U.S. at 552. Moreover, with
respect to whether a multiplier could be
utilized under the lodestar method, the
Supreme Court emphasized that a multiplier
is warranted only in “rare and exceptional”
circumstances, and provided the following
explanation:
[W]e have noted that the lodestar
figure includes most, if not all, of the
4

simple luck. Since none of these
latter causes can justify an enhanced
award, superior results are relevant
only to the extent it can be shown
that they are the result of superior
attorney performance. Thus, we need
only consider whether superior
attorney performance can justify an
enhancement. And in light of the
principles derived from our prior
cases, we inquire whether there are
circumstances in which superior
attorney
performance
is
not
adequately taken into account in the
lodestar calculation. We conclude
that there are a few such
circumstances
but
these
circumstances are indeed “rare” and
“exceptional” and require specific
evidence that the lodestar fee would
not have been “adequate to attract
competent counsel.”

relevant factors constituting a
reasonable attorney’s fee, and have
held that an enhancement may not be
awarded based on a factor that is
subsumed in the lodestar calculation.
We have thus held that the novelty
and complexity of a case generally
may not be used as a ground for an
enhancement because these factors
presumably [are] fully reflected in
the number of billable hours
recorded by counsel. We have also
held that the quality of an attorney’s
performance generally should not be
used to adjust the lodestar because
considerations concerning the quality
of a prevailing party’s counsel’s
representation normally are reflected
in the reasonable hourly rate.
Id. at 553 (quotations and citations omitted).
The Court then, after explicitly rejecting
“any contention that a fee determined by the
lodestar method may not be enhanced in any
situation,” held that superior attorney
performance could only serve as a basis for
an enhancement in narrow circumstances:

Id. at 554. Following the Supreme Court’s
decision in Perdue in 2010, the Second
Circuit reiterated that, although “[a] district
court may adjust the lodestar when it does
not adequately take into account a factor that
may properly be considered in determining a
reasonable fee . . . such adjustments are
appropriate only in rare circumstances
because the lodestar figure [already]
includes most, if not all, of the relevant
factors constituting a reasonable attorney’s
fee.” Millea v. Metro-N. R.R. Co., 658 F.3d
154, 167 (2d Cir. 2008) (quotations and
citations omitted).

In this case, we are asked to decide
either the quality of an attorney’s
performance or the results obtained
are factors that may properly provide
a basis for an enhancement. We treat
these two factors as one. When a
plaintiff’s attorney achieves results
that are more favorable than would
have been predicted based on the
governing law and the available
evidence, the outcome may be
attributable to superior performance
and commitment of resources by
plaintiff’s counsel. Or the outcome
may result from inferior performance
by defense counsel, unanticipated
defense concessions, unexpectedly
favorable rulings by the court, an
unexpectedly sympathetic jury, or

Thus, contrary to defendants’ contention,
a district court has discretion to depart from
the lodestar calculation and make an upward
enhancement, including in the form of a
multiplier or utilizing a percentage of the
recovery approach. However, in its
discretion, the Court declines to apply a
multiplier or to depart from the lodestar in
this case. In doing so, the Court has
5

plaintiffs’ counsel put into this case, the
quality of the representation, or the excellent
result achieved for the multiple plaintiffs;
rather, the Court concludes that these factors
are adequately reflected in the lodestar
calculation below (even with the reductions
made by the Court), including in the Court’s
determination of the reasonable hourly rate
pursuant to the Arbor Hill framework. 1
Moreover, that lodestar calculation is
sufficient to satisfy the public policy
consideration because, given the favorable
circumstances of this case, the lodestar will
incentivize counsel to participate in similar
cases. Finally, under the circumstances of
this case, the Court believes that utilizing a
percentage of the recovery method or a
lodestar multiplier would result in a windfall
to plaintiffs’ counsel. 2 In sum, the Court

carefully considered the factors articulated
by the Second Circuit in Goldberger v.
Integrated Res., Inc., 209 F.3d 43, 47-48 (2d
Cir. 2000), which are “applicable to the
court’s
reasonableness
determination
whether a percentage-of-fund or lodestar is
used, and in the latter context, indicate
whether a multiplier should be applied to the
lodestar.” McDaniel, 595 F.3d at 423
(citation omitted). The Goldberger factors
include: “(1) counsel’s time and labor; (2)
the litigation’s magnitude and complexity;
(3) the risk of the litigation; and (4) the
quality of representation; (5) the requested
fee in relation to the settlement; and (6)
public policy considerations.” Id. at 423
(citing Goldberger, 209 F.3d at 50).
Balancing these factors, the Court
concludes in its discretion that neither a
percentage of the recovery method, nor a
lodestar multiplier, is warranted in this case.
The Court does not view this case as
particularly complex, or a high-risk
endeavor for plaintiff’s counsel. It was
uncontroverted from the start of this case
that plaintiffs, who are male PCOs and
PCOSs, were being paid less than female
PCOs and PCOSs who were performing
substantially similar work. Plaintiffs’ point
to defendants’ statute of limitations
argument and defendants’ argument that no
liability existed because the disparate pay
was the result of the settlement in Ebbert v.
Nassau County. However, it was clear that
there was disparate pay and that it did not
begin until the settlement in Ebbert was
executed in 2011. Therefore, the Court does
not believe these fairly weak arguments
presented significant hurdles to recovery. In
short, this was not a complex case legally or
factually and had a high likelihood of
success from the outset. Thus, there was
nothing exceptional about the legal work in
this case. In analyzing these factors, the
Court does not minimize the effort that

1

As the Second Circuit explained in McDaniel,
although some district courts have expressed
uncertainty as to whether a different lodestar method
applies in common fund cases as opposed to statutory
fee-shifting cases, the lodestar method is the same for
both. 595 F.3d at 421-22. Thus, this Court notes that,
whether the analysis is done under the Goldberger
factors (as urged by plaintiffs’ counsel here), or under
the modified lodestar approach of Arbor Hill (with
consideration of the Johnson factors in connection
with estimating a reasonable hourly rate), the Court’s
calculations and conclusions are the same for the
reasons set forth herein. Id. at 422 (“From a
mathematical perspective, of course, it makes little
difference whether a court, following Arbor Hill,
considers case-specific factors to estimate a
reasonable rate for an attorney’s services, which is
then multiplied by the number of hours worked, or
whether the court takes the traditional approach and
considers these same factors in calculating a
multiplier to the lodestar. The benefit of Arbor Hill’s
methodology is that by considering case-specific
factors at the outset, the district court’s focus on
mimicking
a
market
is
maintained.”).
2

In their motion papers, plaintiffs’ counsel suggests
that their position is further supported because their
retainer agreement provided that counsel would
receive one-third of the total monies recovered.
However, it is well-settled that a contingency fee
arrangement in a retainer agreement, although a
factor, is not dispositive on the determination by the

6

concludes that the Goldberger factors weigh
strongly in favor of the lodestar calculation
set forth below (using the Arbor Hill
framework), rather than a percentage award,
and weigh against any lodestar multiplier or
upward enhancement. 3

Corp., 109 F.3d 111, 115 (2d Cir. 1997).
As noted supra, “[b]oth [the Second Circuit]
and the Supreme Court have held that the
lodestar . . . creates a ‘presumptively
reasonable fee.’” Millea, 658 F.3d at 166
(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).

B. Reasonable Hourly Rate
Generally, to determine a reasonable
attorneys’ 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
Court of a reasonable fee. See, e.g., Vacation Village,
Inc. v. Clark County, Nevada, 244 Fed. App’x 785,
788 (9th Cir. 2007) (upholding district court’s use of
lodestar approach to calculate a reasonable fee, rather
than a twenty percent contingency fee contained in
the retainer agreement). The existence of the
contingency fee does not alter the Court’s conclusion,
in light of the other factors discussed supra, that the
use of such a percentage, or of some lodestar
multiplier, would result in an unreasonable fee in this
case. Instead, the Court concludes that the lodestar
calculation (including the reductions discussed infra)
provides a reasonable fee. Moreover, the retainer
agreement does not alter the Court’s analysis of the
reasonable hourly rates for plaintiffs’ attorneys, as
discussed infra.

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

3
At oral argument, plaintiffs’ counsel suggested that
Judge Tomlinson’s award of attorneys’ fees in Ebbert
v. Nassau County is analogous to the attorneys’ fees
request here. Although plaintiffs’ counsel correctly
observed that the settlement in Ebbert did not involve
a common fund, plaintiffs’ counsel in that case did
represent a certified class. Moreover, the fees
approved by Judge Tomlinson were agreed to by the
parties pursuant to the settlement agreement and
totaled $770,000, a sum representing, “at most, 11%
of the $7 million Settlement obtained for Class
Members.” Ebbert v. Nassau County, No. 05-CV5445 (AKT), 2011 WL 6826121, at *15 (E.D.N.Y.
Dec. 22, 2011). By contrast, plaintiffs’ counsel here
does not represent a class, fees are disputed, and the
requested fee award using the percentage method
would represent thirty-three percent of the settlement
obtained for plaintiffs.

7

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).

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.

“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).

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.

Plaintiffs’ counsel argues that it has
spent “nearly 682 hours over more than
three (3) years of litigation” (Pls.’ Mem. of
Law at 14) and that multiplying these hours
by the hourly rate of each attorney results in
a lodestar amount of approximately
$214,208.35.

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 plaintiffs’

1. Louis D. Stober, Jr.
Louis D. Stober, Jr. (“Stober”), the
partner who performed work on behalf of
plaintiffs in this action, requests a rate of
$450 per hour. Defendants argue that a
8

awarded $400 per hour in that case. (Id. ¶ 4.)
Christopher 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 percent lodestar multiplier to
his hourly rate of $555 as part of a 2014
settlement of a wage and hour case. (Id.)

reasonable hourly rate for Stober would be
between $325-375 per hour.
In support of his request, Stober
submitted a declaration stating that he has
specialized in labor and civil rights litigation
for over thirty-one years, that he has
“become well known to the judges of the
Eastern District, having litigated numerous
civil rights cases to successful conclusions. .
. ,” and that he has won several “million plus
verdicts.” (Stober Decl. ¶¶ 3, 5.) Stober also
details his experience as a lecturer, an intern
professor at Cornell University’s Industrial
Labor Relations School, and as an active
member of the St. John’s Law School Labor
forum. (Id. ¶¶ 7-8.) Stober states that he has
“personally handled this litigation from
inception through conclusion” and that this
case “was extremely complex and beyond
the pale of the usual Equal Pay clams (sic)
and gender discrimination claims. . . .” (Id.
¶ 10.) Stober further argues that he “litigated
this case with tenacity, vigilance and
efficiency, given the rotation of attorneys
representing the [d]efendants and the review
of thousands of documents and compilation
of complex calculations.” (Pls.’ Mem. of
Law at 14.)

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
Stober. The Court bases this conclusion
primarily on its own observations of
Stober’s abilities over the course of this
litigation. In particular, Stober is an
experienced lawyer, with over 31 years of
experience in employment litigation and
extensive trial experience. Moreover, even
though the Court does not view the case as
particularly complex, plaintiffs’ counsel did
an excellent job handling motion practice,
negotiating the settlement, and addressing
damages issues related to the settlement.
Accordingly, this Court concludes that an
hourly rate near the highest 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 plaintiffs’ counsel has cited
several cases in which an attorney was
awarded an hourly rate of $450, the Court
concludes that such an award would be
unduly high. See, e.g., 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

Stober also attaches “affirmation[s] of
numerous attorneys who practice in the field
of civil rights/employment law which has
been gathered by Rick Ostrove to illustrate
that the hourly rates are in line with the
prevailing rates in the legal community.”
(Stober Decl. ¶ 37.) For example, Robert J.
Valli, who has been practicing law since
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 a case that involved claims of
sexual harassment. (Stober Decl., Ex. B.)
Valli further states that his partners who
have “less tenure in the field and less trial
experience” bill at $450 per hour and were
9

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). 4

(Id.) Stober states that Roswell has worked
at the Law Offices of Louis D. Stober, Jr.,
LLC on employment discrimination and
labor law matters, including on the trial
Fishman v. County of Nassau. (Id. ¶ 17.)
Kataeva began working at the Law
offices of Louis D. Stober, Jr., LLC as an
intern in 2011, and as an associate since her
admission to the bar. (Id. ¶ 18.) Stober states
that she has “handled hundreds of
arbitrations, lawsuits, severances packages,
and trials including sitting second chair in
the federal case Curcio v. Roosevelt Union
Free School District, et al.” (Id.) Stober also
states that Kataeva previously worked in the
New York State Department of Labor and
was the recipient of the American Bar
Association’s Award for Excellence in the
area of Labor and Employment Law in
2012. (Id.)

2. Anthony P. Giustino
Plaintiffs request a rate of $400 per hour
for Anthony P. Giustino (“Giustino”), an “of
counsel” attorney at the Law Offices of
Louis D. Stober, Jr., LLC. Defendants do
not argue for a specific rate for Giustino,
and based on a review of the invoice
submitted by plaintiffs’ counsel, it does not
appear that he billed any time to this matter.
(See Stober Decl., Ex. A.) The Court,
therefore, does not award fees for Guistino.
3. Jamie Roswell and Albina Kataeva

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
Roswell and that $225 is a reasonable rate
for Kataeva. 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.
Supp. 3d at 261 (same). The Court notes
that, although both Roswell and Kataeva
were described as senior associates, Kataeva
only graduated from law school in 2012.
The Court, therefore, concludes that it is
appropriate to award a higher rate for
Roswell than Kataeva. In reaching these
rates, the Court has considered all of the

Plaintiffs request a rate of $350 per hour
for associates Jamie Roswell (“Roswell”)
and
Albina
Kataeva
(“Kataeva”).
Defendants argue that $175-250 is a
reasonable rate.
Roswell has practiced law since 2004.
(Stober Decl. ¶¶ 16-17.) After law school,
from 2003-2004, Roswell interned at the
Administration for Children’s Services,
from 2004-2006, Roswell was an associate
at Rubin, Weisman, Colasanti, Kajko &
Stein, and from 2006-2009, Roswell was an
associate at Kaufman Dolowich & Voluck.
4

In arriving at this hourly rate, the Court has
considered all of the Johnson case-specific factors.
See Arbor Hill, 522 F.3d at 190. For example, as
noted above, the Court has determined that this case
involved some contested issues, including the statute
of limitations applicable to each plaintiff, the
recovery available to plaintiffs who had different
positions over time, and the compensation due to
each plaintiff. However, the case was not so complex
as to warrant the requested $450 per hour rate.

10

B. Reasonable Hours

relevant factors, including, inter alia, their
experience, the nature of the work
performed, and the quality of the work.

Having determined the reasonable
hourly rates, the Court must determine the
reasonable number of hours expended by
plaintiffs’ counsel in this litigation.

4. Paralegal and Administrative
Assistant Nimisha Patel

“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 forty percent across-the-board

Plaintiffs’ counsel Stober states in his
declaration both that he seeks $100 per hour
and that he seeks $150 per hour for the
paralegal who worked on this case. (Stober
Aff. ¶¶ 14, 37.) Defendants argue that $7080 per hour is a reasonable rate for legal
assistants. Plaintiffs’ counsel does not
identify the paralegal or paralegals for
whom fees are sought, but from the invoice
submitted by plaintiffs’ counsel, it appears
that there is only one entry potentially
relating to work performed by a paralegal
identified with the initials “PAB” for
“[r]eview of file for male CB operators and
prep notice of claim.” (Stober Decl. Ex. A.)
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 $90 per hour is a reasonable rate for the
paralegal who worked on this case. See
Finkel v. Rico Elec., Inc., No. 11-CV-4232
(SJ), 2012 WL 6569779 (E.D.N.Y. Oct. 1,
2012), adopted by 2012 WL 6561270
(E.D.N.Y. Dec. 17, 2012) (recognizing that
$90 per hour is a reasonable rate for a
paralegal).
Plaintiffs’ counsel also request $90 for
administrative work performed by Nimisha
Patel (“Patel”), which defendants do not
appear to dispute. However, the entries
billed to “NP” in plaintiffs’ invoice appear
to indicate the filing fee ($350) and serve
processing fees ($240.75). (Stober Decl. Ex.
A.) The Court, therefore, does not award
fees for Patel.

11

sufficient detail. However, the Court notes,
with respect to a breakdown of time spent on
each item, plaintiffs’ counsel repeatedly
used
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. 07-CV-5249
(TCP)(ARL), 2012 WL 7660124, at *7
(E.D.N.Y. Dec. 19, 2012), report and
recommendation adopted, No. 07-CV-5249
(TCP), 2013 WL 867533 (E.D.N.Y. Mar. 7,
2013) (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”); Melnick v. Press, No. 06CV-6686 (JFB)(ARL), 2009 WL 2824586,
at *6 (E.D.N.Y. Aug. 28, 2009) (applying
ten 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, No. 94-CV-2622 (FB)(WDW),
2005 WL 1397202, at *3 (E.D.N.Y. June 13,
2005) (applying ten percent reduction to
billed hours because of attorneys’
“substantial” use of block-billing).

reduction in hours); Green v. City of New
York, 403 F. App’x 626, 630 (2d Cir. 2010)
(upholding fifteen percent across-the-board
reduction); Kirsch, 148 F.3d at 173
(upholding “20% reduction for vagueness,
inconsistencies, and other deficiencies in the
billing records”).
Defendants argue that many of the tasks
billed are unreasonable, duplicative, or
excessive. The Court determines that the
hours billed by plaintiffs’ counsel should be
reduced by fifteen percent because of
several substantial problems with billing
records. See, e.g., Miroglio S.P.A. v.
Conway Stores, Inc., 629 F. Supp. 2d 307,
314 (S.D.N.Y. 2009) (“Because the time
records here contain some vague entries and
block entries that prevent the Court from
determining whether the time expended was
reasonable . . . the Court will deduct a
reasonable percentage of the number of
hours claimed – in this case fifteen percent .
. . .” (internal citation and quotation marks
omitted)); Spalluto v. Trump Int’l Hotel &
Tower, No. 04-CV-7497 (RJS)(HBP), 2008
WL 4525372, at *8-9 (S.D.N.Y. Oct. 2,
2008) (applying fifteen percent reduction for
substantial use of block-billing and vague
time entries); Molefi v. Oppenheimer Trust,
No. 03-CV-5631 (FB)(VVP), 2007 WL
538547, at *7-8 (E.D.N.Y. Feb. 15, 2007)
(applying fifteen percent reduction for, inter
alia, a “substantial amount” of blockbilling); Sea Spray Holdings, Ltd. v. Pali
Fin. Group, Inc., 277 F. Supp. 2d 323, 32526 (S.D.N.Y. 2003) (applying fifteen
percent reduction for block-billing and
excessive time entries).

Defendants also argue that fees for travel
time are beyond the accepted rate within this
circuit and are therefore excessive. The
Court agrees that the billing by plaintiffs’
attorneys for all of their travel time is
excessive and should be reduced by half.
“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). Thus, the Court uses fifty
percent of the rate awarded to each attorney
to compensate for the travel time in this
case.

Defendants assert that “certain hours
delineated as spent on tasks are
unreasonable, insufficiently described, and
are accordingly impossible to review.”
(Defs. Mem. of Law at 6.) The Court has
reviewed the invoice and finds that, overall,
the invoice describes the work performed in
12

In light of these problems with the
billing records submitted by plaintiffs’
counsel, the Court concludes that a fifteen
percent across-the-board reduction in
counsels’ hours and a fifty percent reduction
in counsels’ travel hours is warranted.
*

*

First Keystone Consultants, Inc. v.
Schlesinger Elec. Contractors, Inc., No. 10CV-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).

*

Accordingly, the Court calculates the
lodestar figure to be $145,246.44, which
represents 147.9 hours of Stober’s time at a
rate of $425 per hour, 17 hours of Stober’s
travel time at a rate of $212.50 per hour,
111.435 hours of Roswell’s time at a rate of
$300 per hour, 5 198.6875 hours of Kataeva’s
time at a rate of $225 per hour, 4.5 hours of
Kataeva’s travel time at a rate of $112.5 per
hour, and 1.5 hours of paralegal time at a
rate of $90 per hour. 6 Moreover, as
discussed in detail supra, 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
plaintiffs $145,246.44 in attorneys’ fees.

Here, plaintiffs’ counsel requests
$3,215.75 for expenses incurred in this
action. Plaintiffs’ counsel includes as
expenses: expert fees ($2,625), the filing fee
($350), and serve processing fees ($240.75).
Plaintiffs’ counsel includes documentation
for these expenses, and defendants do not
oppose them. Plaintiffs’ counsel also
includes in its invoice entries for a total of
$170.10 in mileage related to travel.
Accordingly, the Court awards plaintiffs’
counsel $3,385.85 in costs.

C. 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
5

Roswell did not bill any time specifically to travel.

6

Stober: 174 – (174 * .15) = 147.9. Roswell: 131.1 –
(131.1 * .15) = 111.435. Kataeva: 233.75 – (233.75 *
.15) = 198.6875.

13

III. CONCLUSION
For the reasons set forth herein, the
Court awards plaintiffs $145,246.44 in
attorneys’ fees and $3,385.85 in costs.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: October 24, 2016
Central Islip, NY
***
Plaintiffs are represented by Louis D.
Stober, Jr. and Jamie A. Roswell of the Law
Offices of Louis D. Stober, Jr. LLC, 250 Old
Country Road, Suite 205, Garden City, New
York 11530. The County is represented by
Michael Paul Siravo and Andrew Kenneth
Preston of Bee Ready Fishbein Hatter &
Donovan, LLP, 170 Old Country Road,
Suite 200, Mineola, New York 11501

14