Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Management Cooperation, Pension and Welfare Funds v. Thalle/Transit Construction Joint Venture
Filing
46
ORDER granting 40 Motion for Attorney Fees. For the reasons set forth herein, the Court awards plaintiffs $6,313.50 in attorneys' fees and $390.94 in costs. SO ORDERED. Ordered by Judge Joseph F. Bianco on 10/20/2014. (Gibaldi, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-CV-5661 (JFB)(ARL)
_____________________
TRUSTEES OF EMPIRE STATE CARPENTERS ANNUITY, APPRENTICESHIP, LABORMANAGEMENT COOPERATION, PENSION AND WELFARE FUNDS,
Plaintiffs,
VERSUS
THALLE/TRANSIT CONSTRUCTION JOINT VENTURE,
Defendant.
___________________
MEMORANDUM AND ORDER
October 20, 2014
___________________
JOSEPH F. BIANCO, District Judge:
I. PROCEDURAL HISTORY
The Trustees (“plaintiffs”) of Empire
State Carpenters Annuity, Apprenticeship,
Labor-Management Cooperation, Pension
and Welfare Funds (the “Funds”)
commenced
this
action
against
Thalle/Transit Construction Joint Venture
(“defendant” or “Thalle/Transit”) to confirm
and enforce an arbitration award. In a
Memorandum and Order dated July 15,
2014, the Court granted plaintiffs’ motion
for summary judgment and confirmed the
arbitration award.
The Court has set forth all relevant
background facts in its July 15, 2014
Memorandum and Order granting plaintiffs’
motion for summary judgment. See Trustees
of Empire State Carpenters Annuity,
Apprenticeship,
Labor-Mgmt.
Co-op.,
Pension & Welfare Funds v. Thalle/Transit
Constr. Joint Venture, No. 12-CV-5661
(JFB)(ARL), 2014 WL 3529728, at *1–2
(E.D.N.Y. July 15, 2014). The Court does
not repeat those facts here.
After the Court issued its July 15, 2014
Memorandum and Order, plaintiffs moved
for attorneys’ fees and costs on July 24,
2014. Defendant opposed the motion on
August 12, 2014, and plaintiffs replied on
September 5, 2014. The Court has fully
considered all submissions of the parties.
Now before the Court is plaintiffs’
motion for attorneys’ fees and costs. For the
reasons set forth below, the Court awards
$6,313.50 in attorneys’ fees and $390.34 in
costs.
1
equitable powers, award attorney’s fees
when opposing counsel acts in bad faith,
attorney’s fees and costs may be proper
when a party opposing confirmation of
arbitration award ‘refuses to abide by an
arbitrator’s decision without justification.’”
N.Y.C. Dist. Council of Carpenters Pension
Fund v. E. Millenium Constr., Inc., No. 03CV-5122 (DAB), 2003 WL 22773355, at *2
(S.D.N.Y. Nov. 21, 2003) (quoting Int’l
Chem. Workers Union, Local No. 227, 774
F.2d at 47); see, e,g., TNS Mgmt. Servs.,
2014 WL 100008, at *4 (citing cases);
Trustees of Nat’l Org. of Indus. Trade
Unions Ins. Trust Fund v. Davis Grande
Co., No. 03-CV-6229 (NG)(SMG), 2006
WL 1652642, at *4 (E.D.N.Y. June 9,
2006).
II. DISCUSSION
A. Plaintiffs’ Entitlement to
Attorneys’ Fees and Costs
“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). Neither
Section 301 of the Labor Management
Relations Act (“LMRA”), 29 U.S.C. § 185,
nor the Federal Arbitration Act (“FAA”), 9
U.S.C. §§ 1 et seq., authorize the award of
attorneys’ fees in an action to confirm an
arbitration award. See, e.g., Trustees of
N.Y.C. Dist. Council of Carpenters Pension
Fund v. TNS Mgmt. Servs., Inc., No. 13-CV2716 (JMF), 2014 WL 100008, at *4
(S.D.N.Y. Jan. 10, 2014); Trustees of N.Y.C.
Dist. Council of Carpenters Pension Fund v.
Dejil Sys., Inc., No. 12-CV-005 (JMF), 2012
WL 3744802, at *4 (S.D.N.Y. Aug. 29,
2012); N.Y.C. Dist. Council of Carpenters
Pension Fund v. Angel Constr. Grp., LLC,
No. 08-CV-9061 (RJS), 2009 WL 256009,
at *2 (S.D.N.Y. Feb. 3, 2009) (citing Int’l
Chem. Workers Union, Local No. 227 v.
BASF Wyandotte Corp., 774 F.2d 43, 47 (2d
Cir. 1985)). Moreover, although Section
502(g) of the Employee Retirement Income
Security Act (“ERISA”) requires the award
of attorneys’ fees to a plan that prevails in
an action to recover delinquent contributions
pursuant to a collective bargaining
agreement, see 29 U.S.C. § 1132(g)(2)(D),
“this does not necessarily mean that a
successful party is also entitled to its costs
and attorney’s fees in bringing a petition to
confirm an arbitration award.” Abondolo v.
Jerry WWHS Co., Inc., 829 F. Supp. 2d 120,
130 (E.D.N.Y. 2011) (holding that ERISA
authorizes award of costs, but not attorneys’
fees,
in
arbitration
confirmation
proceedings); accord TNS Mgmt. Servs.,
2014 WL 100008, at *4; Dejil Sys., 2012
WL 3744802, at *4. Nonetheless, “because a
court may, in the exercise of its inherent
Here, the Court need not decide whether
defendant refused to abide by the arbitrator’s
award without justification because the
parties’ Collective Bargaining Agreement
(“CBA”) and the Funds’ Joint Policy for
Collection of Delinquent Contributions,
incorporated by referenced into the CBA,
explicitly obligate employers who fail to
make timely contributions to the Funds to
pay attorneys’ fees and costs incurred in
recovering the delinquent contributions. (See
Pls.’ Mot. for Summ. J., Craven Decl. Exs.
A (CBA art. 16(b)) & B (Collection Policy
art. 6.2).) The parties’ agreements are a
sufficient basis upon which to award
attorneys’ fees and costs. See N.Y.C. Dist.
Council of Carpenters Pension Fund v.
Dafna Constr. Co., Inc., 438 F. Supp. 2d
238, 242 (S.D.N.Y. 2006) (“Whether Dafna
had no justification in refusing to comply
with the arbitrator’s ruling is irrelevant,
however, because the Agreement itself
requires Dafna to pay attorneys’ fees
incurred by the Trustees in seeking
confirmation . . . . Since the parties
bargained for the awarding of attorneys’ fees
in this precise circumstance, the Court
respects their agreement and orders Dafna to
2
pay the costs incurred by the Trustees in
seeking confirmation of the arbitrator’s
award.”); see also Trustees of N.Y.C. Dist.
Council of Carpenters Pension Fund,
Welfare
Fund,
Annuity
Fund,
&
Apprenticeship, Journeyman Retraining,
Educ. & Indus. Fund v. Alliance Workroom
Corp., No. 13-CV-5096 (KPF), 2013 WL
6498165, at *6 (S.D.N.Y. Dec. 11, 2013)
(holding that CBA authorized award of
attorneys’ fees and costs in action to confirm
arbitration award). Additionally, the Court
notes that defendant does not dispute
plaintiffs’ entitlement to attorneys’ fees and
costs under the CBA; rather, defendant
confines its opposition to the specific
submissions supporting plaintiffs’ motion.
Accordingly, for the reasons discussed
supra, the Court concludes that plaintiff is
entitled to recover attorneys’ fees and costs.
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 (emphasis in
original). “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).
1. 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
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 (1989). See 522 F.3d at
190.
B. Attorneys’ Fees
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
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
3
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.
associates, and that $100 to $200 is a
reasonable hourly rate for more junior
associates. See, e.g., Pall Corp. v. 3M
Purification
Inc.,
No.
97-CV-7599
(RRM)(ETB), 2012 WL 1979297, at *4
(E.D.N.Y. June 1, 2012). Courts have also
concluded that $85 to $100 per hour is a
reasonable rate for paralegals. See, e.g.,
Barrella v. Vill. of Freeport, No. 12-CV0348 (ADS)(WDW), 2014 WL 4273339, at
*51 (E.D.N.Y. Aug. 28, 2014) (citing cases).
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).
Id. at 186 n.3 (quoting Johnson, 488 F.2d at
717–19). Finally, a district court should also
consider “that a reasonable, paying client
wishes to spend the minimum necessary to
litigate the case effectively,” and “that such
an individual might be able to negotiate with
his or her attorneys, using their desire to
obtain the reputational benefits that might
accrue from being associated with the case.”
Id. at 190. “The burden rests with the
prevailing party to justify the reasonableness
of the requested rate,” and plaintiff’s
attorney “should establish his hourly rate
with satisfactory evidence—in addition to
the attorney’s own affidavits.” Hugee, 852
F. Supp. 2d at 298.
Here, plaintiffs request the following
hourly rates: Michael Isaac ($225); Elina
Turetskaya ($200); Richard Epstein ($200 to
$225); Legal Assistants ($90). (See Isaac
Decl. ¶¶ 3–6.) Isaac, Turetskaya, and
Epstein are associates of Virginia and
Ambinder, LLP. (Id. ¶¶ 3–5.) Isaac
graduated Rutgers University School of
Law-Newark in 2007 (id. ¶ 3); Turetskaya
graduated Fordham University School of
Law in 2011 (id. ¶ 4); and Epstein graduated
Brooklyn Law School in 2010 (id. ¶ 5). All
three aver that they have “regularly
represented multiemployer employee benefit
plans in ERISA litigation.” (Id. ¶¶ 3–5.)
Isaac has declared that “[t]he foregoing
hourly rates are consistent with V&A’s
customary billing arrangement with
Plaintiffs, as negotiated with Plaintiffs’
Board of Trustees.” (Id. ¶ 7.) Defendant
does not contest the reasonableness of these
requested rates.
“Courts have awarded rates of $200 to
$400 per hour for partners in this district.”
Capone v. Patchogue-Medford Union Free
Sch. Dist., No. 04-CV-2947 (JS)(MLO),
2011 WL 743573, at *2 (E.D.N.Y. Feb. 23,
2011); see also United States v. Jones, No.
11-CV-2869 (JFB), 2013 WL 6408639, at
*3 (E.D.N.Y. Dec. 9, 2013) (noting that
“recent Eastern District cases have indicated
that the range of appropriate billing rates in
this District is $200-$375 for partners”). As
for associates, courts in this district have
concluded that approximately $200 to $300
is a reasonable hourly rate for senior
In light of the prevailing hourly rates in
this district and all other factors set forth in
4
“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.”).
Arbor Hill and Johnson, the Court concludes
that $225 is a reasonable rate for Isaac, who
is a more senior associate; $200 is a
reasonable hourly rate for Turetskaya and
Epstein, who are more junior associates; and
$90 is a reasonable hourly rate for the work
of legal assistants. In addition, the Court
reduces the amount of Epstein’s hourly rate
for all travel time by fifty percent. See, e.g.,
Hugee, 852 F. Supp. 2d at 302 (reducing
attorney’s hourly rate by fifty percent for
travel time, and noting that courts in this
circuit usually reduce attorneys’ fees by fifty
percent for travel time); Adusumelli v.
Steiner, No. 08-CV-6932 (JMF), 2013 WL
1285260, at *5 (S.D.N.Y. Mar. 28, 2013)
(noting that “courts in the Second Circuit
regularly reduce attorneys’ fees by 50
percent for travel time” (internal quotation
marks omitted)); accord Barfield v. N.Y.C.
Health & Hospitals Corp., 537 F.3d 132,
139 (2d Cir. 2008) (referring to fifty percent
reduction in attorneys’ rate for travel time as
“established court custom”).
Here, plaintiffs have submitted the
printout of an invoice sent by Virginia and
Ambinder, LLP to plaintiffs for professional
services rendered in connection with the
case at bar. (See Isaac Decl. Ex. A.) These
records show that the attorneys and legal
assistants spent the following number of
hours on this litigation: Michael Isaac (4.3
hours); Elina Turetskaya (2.3 hours);
Richard Epstein (28.4 hours); Legal
Assistants (5.4 hours). (See id.)
2. Reasonable Hours
Having determined a reasonable hourly
rate for plaintiffs’ counsel, the Court must
determine the reasonable number of hours
expended by plaintiffs’ counsel in this
litigation.
As an initial matter, the Court concludes
that the invoice printout satisfies the
contemporaneous records requirement,
notwithstanding defendant’s argument that
the
records
were
not
created
contemporaneously
with
the
work
performed because the invoice is dated July
22, 2014. (See Def.’s Opp’n, at 2.) Courts
have accepted the printout of an invoice that
provides “a clear description of the work
performed, the time spent on the respective
matter, the attorney who rendered services,
and the date the services were performed.”
Big R Food Warehouses v. Local 338
RWDSU, 896 F. Supp. 292, 295 (E.D.N.Y.
1995); see, e.g., Home Loan Inv. Bank,
F.S.B. v. Goodness & Mercy, Inc., No. 10CV-4677 (ADS)(ETB), 2012 WL 1078963,
at *7 (E.D.N.Y. Jan. 4, 2012), report &
“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, 148 F.3d at 173.
5
default judgment. Contrary to defendant’s
position, plaintiffs are entitled to recover
attorneys’ fees for this motion even though
the motion was ultimately unsuccessful. See,
e.g., Gortat v. Capala Bros., No. 07-CV3629 (ILG), 2014 WL 3818614, at *11
(E.D.N.Y. Aug. 4, 2014) (“Attorney’s fees
are properly awarded even for plaintiffs’
unsuccessful motion practice.”); Rozell v.
Ross-Holst, 576 F. Supp. 2d 527, 538
(S.D.N.Y. 2008) (“[A] court should not
disallow fees for every motion that a
prevailing party did not win.”); Etna Prods.
Co. v. Q Mktg. Grp., Ltd., No. 03-CV-3805
(SAS)(FM), 2005 WL 2254465, at *8
(S.D.N.Y. June 6, 2005) (“As the Second
Circuit has noted, the standard for
determining whether a party may recover
fees for a motion is not whether the motion
was unsuccessful, but whether it was
frivolous.” (citing Seigal v. Merrick, 619
F.2d 160, 164–65 (2d Cir. 1980))). Certainly
the motion for default judgment was not
frivolous in this case, where defendant failed
to answer, and the Clerk of the Court noted
its default. Furthermore, the Court does not
deduct the 3.2 hours spent by Epstein to
review the case file and travel to the
courthouse on March 19, 2013, merely
because that conference was adjourned. See
Sunstone Behavioral Health, Inc. v.
Alameda Cnty. Med. Ctr., 646 F. Supp. 2d
1206, 1216 (E.D. Cal. 2009) (awarding fees
for travel time to deposition that had been
canceled, where counsel did not know about
cancelation before traveling); Citizens for
Better Forestry v. U.S. Dep’t of Agric., No.
C-01-0728
(MJJ)(EMC),
2006
WL
5692819, at *13 (N.D. Cal. Nov. 3, 2006)
(awarding fees for travel time to hearing that
was cancelled by the court). Epstein has
declared under penalty of perjury that he did
not know about the adjournment until he
was en route to the courthouse (see Epstein
Reply Decl. ¶ 3), and the Court has no
reason to question Epstein’s explanation.
recommendation adopted, 2012 WL
1078886 (E.D.N.Y. Mar. 30, 2012); Fuerst
v. Fuerst, No. 10-CV-3941, 2012 WL
1145934, at *4 (E.D.N.Y. Apr. 5, 2012);
New Paltz Cent. Sch. Dist. v. St. Pierre, No.
02-CV-981 (FJS/RFT), 2007 WL 655603, at
*1–2 (N.D.N.Y. Feb. 26, 2007); Boster v.
Braccia, No. 06-CV-4756 (JG)(RER), 2007
WL 4287704, at *2 (E.D.N.Y. Dec. 4,
2007). The invoice submitted by plaintiffs
provides all of this information in sufficient
detail, and plaintiffs’ counsel avers that the
information was entered contemporaneously
as the work was performed. (See Isaac Decl.
¶ 2; Epstein Reply Decl. ¶ 2.) The Court
does not find otherwise merely because the
printout is dated July 22, 2014, which is
clearly the date the invoice was printed, not
when it was created. See N.Y. Dist. Council
of Carpenters Pension Fund v. Perimeter
Interiors, Inc., 657 F. Supp. 2d 410, 424
(S.D.N.Y. 2009) (“[T]he defendants note
that the date on the top of the plaintiffs’ fee
invoice is April 16, 2009, and they suggest
that counsel’s fees were formulated on that
date. However, there is nothing in the record
to suggest that this date is anything but the
date on which the hours were summarized
for the Court’s convenience.”); (see also
Epstein Reply Decl. ¶ 2). Moreover, the
Court is not persuaded by defendant’s
arguments that plaintiffs’ entire submission
is unreliable because one entry for May 13,
2014, is out of chronological order in that it
follows, rather than precedes, the entry for
May 14, 2014, or because the invoice
apparently omits certain work that plaintiffs’
counsel probably performed, but for which
they did not bill. (See Isaac Decl. Ex. A.)
Having rejected defendant’s arguments
that the invoice as a whole is unreliable or
defective in some way, the Court proceeds
to analyze the reasonableness of the specific
hours billed. First, the Court concludes that
plaintiffs are entitled to fees for the hours
expended in connection with its motion for
6
Next,
defendant
challenges
the
reasonableness of spending 12.4 hours to
draft the motion for summary judgment and
6.8 hours to attend the oral argument on the
motion (including travel time). With respect
to the time taken to prepare the motion, the
Court concludes that 12.4 hours was a
reasonable amount of time to prepare the
notice of motion, memorandum of law, Rule
56.1 statement, and supporting declaration
with attached exhibits. See, e.g., Big R Food
Warehouses, 896 F. Supp. at 299 (holding
that 26.5 hours was reasonable amount of
time to research, draft, and review motion
for summary judgment and confirmation of
arbitration award involving issue that was
“not complex or novel”). As for Epstein’s
time attending the oral argument on the
motion for summary judgment, oral
argument itself lasted twenty minutes (or
approximately 0.4 hour, if a few minutes of
wait time are included) according to the
minute entry. (See Minute Entry, July 11,
2014, ECF No. 37.) As for travel time,
Epstein’s office at Virginia and Ambinder,
LLP is located in Manhattan, and “[t]he
Court takes judicial notice that it takes
approximately three hours to travel to and
from Central Islip from Manhattan.” Home
Loan Inv. Bank, 2012 WL 1078963, at *7
n.6. Thus, the Court determines that 3.4
hours (rather than the requested 6.8 hours) is
a reasonable time to bill for these activities.
Individual
*
Hours Total
Isaac
$225
4.3
$967.50
Turetskaya $200
2.3
$460
Epstein
$200
(non-travel)
19
$3,800
Epstein
(travel)
6
$600
5.4
$486
$100
Legal Assts. $90
A few words of explanation concerning the
fee for Epstein’s work are in order. First, the
Court reduced the requested hours from 28.4
to 25, because the Court has concluded that
3.4 hours, and not 6.8 hours, was a
reasonable amount of time to spend in
connection with oral argument on the
summary judgment motion. See supra. Of
those 25 hours, 6 represent travel time: 3
hours of travel on July 11, 2014, and 3 hours
of travel on March 19, 2013 (assuming a
roundtrip time of three hours from Epstein’s
office in Manhattan to the courthouse in
Central Islip). The hourly rate for those six
hours must be halved for the reasons
discussed 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).
Therefore, the Court awards plaintiffs
$6,313.50 in attorneys’ fees.
Finally, the Court concludes that all
other hours expended were reasonable, and
the Court notes that defendant does not
challenge any other hours in the invoice.
*
Rate
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 LeBlanc-
Accordingly, the Court calculates the
lodestar figure to be $6,313.50. The Court
bases this figure on the following
calculations:
7
Sternberg v. Fletcher, 143 F.3d 748, 763 (2d
Cir. 1998)). “The fee applicant bears the
burden of adequately documenting and
itemizing the costs requested.” Id.; see also
First Keystone Consultants, Inc. v.
Schlesinger Elec. Contractors, Inc., No. 10CV-696 (KAM)(SMG), 2013 WL 950573,
at *10 (E.D.N.Y. Mar. 12, 2013). 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, 2012 WL
5429521 (S.D.N.Y. Nov. 7, 2012).
III. CONCLUSION
For the reasons set forth herein, the
Court awards plaintiffs $6,313.50 in
attorneys’ fees and $390.34 in costs.
SO ORDERED.
_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: October 20, 2014
Central Islip, NY
*
*
*
Plaintiffs are represented by Charles R.
Virginia, Richard B. Epstein, and Elina
Turetskaya, Virginia & Ambinder, LLP, 111
Broadway, Suite 1403, New York, NY
10006. Defendant is represented by Todd
Allan Bakal, Law Office of Todd A. Bakal,
445 Hamilton Avenue, Suite 1102, White
Plains, NY 10601.
Here, plaintiffs request $390.74 for the
following litigation costs: the filing fee
($350), transportation ($17.75), unnamed
($0.40), and UPS ($22.59). (See Pls.’ Mem.,
at 5.) All costs except the unnamed $0.40
expense are recoverable, 1 and defendant’s
counsel does not object to an award of these
costs. (See Bakal Decl. ¶ 23.) Accordingly,
the Court awards plaintiffs $390.34 in costs
but denies their request for the remaining
$0.40.
1
Because the $0.40 expense is not described, the
Court cannot discern if it is recoverable.
8
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