Miller v. City of Ithaca, New York et al

Filing 785

MEMORANDUM-DECISION and ORDER - That Miller's motion for attorney's fees, costs, and disbursements (Dkt. Nos. 750, 778) is GRANTED IN PART and DENIED IN PART as follows: GRANTED to the extent that attorney's fees in the amount of  6;492,706.73 and expenses in the amount of $27,620.27 are imposed against defendants the City of Ithaca, New York Edward Vallely, John Barber, and Pete Tyler; DENIED in all other respects. That defendants' motion for a stay without bond (Dkt. No. 768) is GRANTED. Signed by Senior Judge Gary L. Sharpe on 1/5/2017. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CHRISTOPHER MILLER,
Plaintiff,

3:10-cv-597
(GLS/DEP)

v.
CITY OF ITHACA, NEW YORK
et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Bosman Law Firm, LLC
201 West Court Street
Rome, NY 13440
FOR THE DEFENDANTS:
Stokes, Roberts Law Firm
858 Kennebec Street
Pittsburgh, PA 15217

AJ BOSMAN, ESQ.

ANNE-MARIE MIZEL, ESQ.

Stokes, Wagner Law Firm
3593 Hemphill Street
Atlanta, GA 30337

HAYDEN R. PACE, ESQ.

Stokes, Roberts Law Firm
1201 W. Peachtree Street, Suite 2400
Atlanta, GA 30309

ARCH Y. STOKES, ESQ.

Stokes, Roberts Law Firm
903 Hanshaw Road
Ithaca, NY 14850

PAUL E. WAGNER, ESQ.

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Pending is plaintiff Christopher Miller’s motion for attorney’s fees in
the amount of $937,430.38 and expenses in the amount of $41,430.41.
(Dkt. Nos. 750, 778.) Defendants City of Ithaca, New York, Edward
Vallely, John Barber, and Pete Tyler move pursuant to Federal Rule of Civil
Procedure 62(b)1 for a stay of the execution of the judgment during their
appeal. (Dkt. No. 768.) For the reasons explained below, Miller’s motion
for fees and expenses is granted in part and denied in part, and
defendants’ motion for a stay is granted.
II. Background
Too much ink has already been spilled in this matter, but the court is
nonetheless compelled to take notice of the following facts that bear on
Miller’s motion for attorney’s fees and put the case in perspective. This

1

Defendants appear to have mistakenly identified Rule 62(b), which is concerned with
stay pending the disposition of a motion, as the basis for the relief they seek. (Dkt. No. 768 at
1.) As discussed below, see infra Part III.B, the authority apparently invoked is the court’s
inherent power to stay the execution of a judgment without any security. See Nken v. Holder,
556 U.S. 418, 421 (2009).

2

litigation, which has been marred by extreme contentiousness, the brunt of
which is attributable to the conduct of Miller’s attorney, AJ Bosman,
commenced in mid-2010. (Dkt. No. 1.) The operative pleading — the third
filed — included twelve separate causes of action against eight named
defendants and other unnamed defendants. (2d Am. Compl. ¶¶ 116-52,
Dkt. No. 88.) Those claims were for discrimination and retaliation under
Title VII2 and the New York Human Rights Law (NYHRL),3 constitutional
violations under 42 U.S.C. § 1983, discrimination and retaliation under 42
U.S.C. § 1981, conspiracy pursuant to § 1983, and for a violation of the
New York State Constitution. (Id.) Only three claims, all alleged pursuant
to Title VII and the NYHRL survived for trial: race-based discrimination,
retaliation related to Miller’s beat assignments, and retaliation related to the
June 1, 2010 notice of discipline. (Dkt. No. 495 at 33.) The matter was
tried before the Honorable Thomas J. McAvoy in September 2012; it took a
month to complete and the jury awarded Miller $2,000,004 on the
retaliation claims, but found no cause of action with respect to
discrimination. (Dkt. Nos. 423, 453, 454.) Judge McAvoy granted a

2

See 42 U.S.C. §§ 2000e-2000e-17.

3

See N.Y. Exec. Law §§ 290-301.

3

posttrial motion for a new trial on the beat assignment retaliation claim,
which consequentially upset the jury’s general damages verdict and
required a new trial on liability for the beat assignment claim and damages
for the retaliation claim related to the June 1, 2010 notice of discipline.
(Dkt. No. 528 at 20.)
The matter was thereafter reassigned to this court. (Dkt. No. 554 at
4.) Additional motion practice ensued, (Dkt Nos. 558, 573), and,
eventually, the case came to trial again. The second trial resulted in a total
verdict of $480, 001. (Dkt. No. 661.) Following that trial, the court ordered
a new trial on damages unless Miller would agree to accept $50,000 on his
beat assignment retaliation claim. (Dkt. No. 697 at 24.) Miller opted to
take his chances and was awarded only $20,000 at the conclusion of the
third trial on that claim. (Dkt. No. 745.) The instant motions were
subsequently filed, along with others of which the court previously
disposed. (Dkt. Nos. 750, 751, 759, 767, 768.)
III. Discussion
A.

Attorney’s Fees and Expenses
Miller seeks “[a]n upward adjustment” of attorneys fees for

“extraordinary success . . . in this extremely difficult case” and “to insure
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attorneys who are willing to invest their time, energy and money, and to
forego immediately paying work, are compensated in a meaningful way.”
(Dkt. No. 750, Attach. 1 ¶ 9.) Nowhere in the motion does Miller specify
the total hours expended in the case, by whom and at what rate, nor does
he provide a grand total of the fee justified by Bosman’s billing records.
This failure has forced the court to undertake a task that can only be
described as onerous at best. The court concludes, although without
absolute certainty based on the aforementioned deficiencies, that Miller
seeks “[a]n upward adjustment” of $937,430.38 in fees and $41,430.41 in
expenses. (Dkt. Nos. 750, 778.)
In opposition to Miller’s request, defendants argue that: (1) no fees,
or “dramatic[ally] reduc[ed]” fees, should be awarded for the limited
success obtained on Miller’s behalf; (2) in light of the third jury’s verdict and
the remittitur order, Miller should not recover any fees related to the third
trial; (3) the rates sought are unreasonable, unsupported by any evidence,
and out-of-line with prevailing fees in this District; (4) poor record keeping
and inadequate documentation do not support the requested fee; and (5)
any award should be offset by the fees incurred by defendants because of
Miller’s unreasonable pursuit of frivolous claims. (Dkt. No. 760 at 2-14.)
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As explained below, Miller is entitled to an award of attorney’s fees, but not
in the amount he seeks.
As relevant here, courts are empowered with the discretion to award
a reasonable attorney’s fee to the prevailing party in a Title VII action. See
42 U.S.C. § 2000e-5(k). While courts may enhance or reduce fees under
certain circumstances, the lodestar method — the hours reasonably spent
to conduct the litigation multiplied by a reasonable hourly rate — ordinarily
yields a reasonable fee amount. See Perdue v. Kenny A. ex rel. Winn, 559
U.S. 542, 546, 552 (2010); Grant v. Martinez, 973 F.2d 96, 101 (2d Cir.
1992). “[T]here is a ‘strong presumption’ that the lodestar figure is
reasonable, but that presumption may be overcome in those rare
circumstances in which the lodestar does not adequately take into account
a factor that may properly be considered in determining a reasonable fee.”
Perdue, 559 U.S. at 554. For example, an enhancement may be
appropriate where “the attorney’s performance includes an extraordinary
outlay of expenses and the litigation is exceptionally protracted” or it
“involves exceptional delay in the payment of fees.” Id. at 555-56. On the
other hand, “[a] district court may exercise its discretion and use a
percentage deduction as a practical means of trimming fat from a fee
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application.” McDonald ex rel Prendergast v. Pension Plan of the
NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96 (2d Cir. 2006) (internal
quotation marks and citation omitted).
“The party seeking an award of fees should submit evidence
supporting the hours worked and rates claimed. Where the documentation
of hours is inadequate, the district court may reduce the award
accordingly.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In
determining whether the requested hourly rate is reasonable, the Supreme
Court has provided guidance on the kind of information that bears on the
“prevailing market rate”:
To inform and assist the court in the exercise of its
discretion, the burden is on the fee applicant to
produce satisfactory evidence—in addition to the
attorney’s own affidavits—that the requested rates
are in line with those prevailing in the community for
similar services by lawyers of reasonably comparable
skill, experience and reputation.
Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). The court is also within
its discretion to rely on “its knowledge of the relevant market when
determining the reasonable hourly rate.” McDonald, 450 F.3d at 96-97
(citing Miele v. N.Y. State Teamsters Conference Pension & Ret. Fund,
831 F.2d 407, 409 (2d Cir.1987)). While there are no hard limits, in this
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District, the prevailing rate for experienced attorneys with specialized
expertise in handling particular matters is generally $225; a reasonable
rate for associates, depending on whether they have more or less than four
years of experience, is $150 and $120, respectively; and paralegals are
deserving of a rate of $80. See generally C.H. Robinson Worldwide, Inc. v.
Joseph Aiello & Sons, Inc., No. 1:15-CV-1321, 2016 WL 4076964, at *4
(N.D.N.Y. Aug. 1, 2016) (citing Lore v. City of Syracuse, 670 F.3d 127, 175
(2d Cir. 2012); Zhou v. SUNY Inst. of Tech., 08-CV-0444, 2014 WL
7346035, at *3 (N.D.N.Y. Dec. 24, 2014).
In making the fee determination, trial courts are granted “substantial
deference.” Fox v. Vice, 563 U.S. 826, 838 (2011). “[R]ough justice,” and
not “auditing perfection,” is the goal of fee shifting provisions. Id. Thus,
“trial courts may take into account their overall sense of a suit, and may
use estimates in calculating and allocating an attorney’s time.” Id.
The court is troubled by and skeptical of Miller’s request for a variety
of reasons. Most problematic is the complete failure of Miller to identify the
attorneys that worked on his case, other than Bosman, and their
qualifications and experience. Indeed the only affirmation in support of
fees is Bosman’s. (Dkt. No. 750, Attach. 1.) As an attachment to her
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affirmation, Bosman included a copy of her résumé and provided some
details that bear on her skill, experience, and reputation. (Id. ¶ 5; Dkt. No.
750, Attach. 2 at 195-96.) To substantiate her requested hourly rate of
$275, she points to decisions on attorney’s fees rendered in this District
and argues that they lag behind what she claims is market rate for
attorneys of her experience, education and skill. (Dkt. No. 750, Attach. 1
¶ 7.) She also argues that the requested rate reflects the difficulty of
litigating cases “of this nature” and intimates that the fee was driven up by
“combative, obstructive and evasive defense tactics.” (Id. ¶¶ 7, 9) What is
starkly absent from Bosman’s affirmation, however, is any explanation of
the qualifications of the other attorneys who worked on the case. Bosman
merely claims that the requested rate of $200 for her “associates” is
reasonable without more. (Id. ¶ 8.) As with the associate attorneys,
Bosman summarily asserts that the $100 hourly rate sought for work
performed by paralegals is reasonable. (Id.)
First, defendants’ arguments that no fee, or a reduced fee, should be
awarded for limited success, (Dkt. No. 760 at 2-6), is rejected. Although
there were a multitude of claims that did not survive until trial, the success
ultimately obtained cannot fairly be categorized as limited, and the claims
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all stem from series of related facts. See Grant v. Martinez, 973 F.2d 96,
101 (2d Cir. 1992). Defendants argument against fees related to the third
trial, (Dkt. No. 760 at 6-7), are likewise rejected. While the court is
appreciative of the point made by defendants that Miller unnecessarily
caused additional fees in connection with the third trial, the analogy to a
Rule 68 Offer of Judgment is inapt. Foolish as it may have eventually
appeared, Miller was entitled to forego, as he did, the remittitur in favor of a
third trial on damages for the beat assignment claim. Had Miller achieved
greater success than the remittitur amount in the third trial, it may have
anecdotally strengthened his position on appeal as to certain issues.
As referenced above, a reasonable hourly rate in this case for
Bosman’s time is $225. As for the associate attorneys, the court is left
entirely unable to discern what a reasonable hourly rate would be in light of
Miller’s failure to provide any information that bears on the experience and
qualifications of those lawyers. As such, the prevailing rate for less
experienced associates, $120, is the only assuredly reasonable rate here.
Finally, Miller has offered no reason to depart from the prevailing rate of

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$80 per hour for paralegals.4
When lumped together by category, Miller claims that Bosman spent
1978.79 hours in this litigation, the associate attorneys, 848.50 hours, and
paralegals, 2401.86 hours. (Dkt. No. 750, Attach. 2 at 191; Dkt. No. 750,
Attach. 5 at 10; Dkt. No. 778 at 3, 17.) Defendants point out several bases
for a downward adjustment of the hours billed. (Dkt. No. 760 at 9-14.)
Among other things, it is true that the bill was driven up by “self-inflicted
wounds,” particularly during the discovery phase, and the behavior of
Miller’s counsel throughout the entirety of the litigation, which was, at
times, abysmal. (Id. at 12; Dkt. No. 677 at 49-52.) The court is in
agreement that the hours billed are unreasonable for the reasons offered
by defendants.5 Instead of engaging in an interminable review of the billing
records and making a corresponding reduction to the hours in line-by-line
fashion, the more sane approach is to simply impose a percentage
4

There is one obvious outlier. Again, because Miller has failed to identify anyone other
than Bosman as having worked on this matter on his behalf, the court is uncertain as to who
“LKT” is, but that individual was billed at a rate of $75 for 27.29 hours. (Dkt. No. 750, Attach. 2
at 191.) Regardless of that individual’s experience and skill, the hourly rate billed is a tolerable
rate for even a paralegal and will not be adjusted.
5

Notably, in a submission ordered by the court to help it make some sense of Miller’s
billing records, he “corrected some errors,” which resulted in a decrease in fees, largely
stemming from a single entry. (Dkt. No. 778 at 1; compare Dkt. No. 750, Attach. 2 at 141, with
Dkt. No. 778 at 11.) However, the great majority of “corrections” were in Miller’s favor.
(Compare Dkt. No. 750, Attach. 2 at 6, 12, 22, 23, 42, 112, with Dkt. No. 778 at 5-10.)

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reduction on the lodestar. See McDonald, 450 F.3d at 96.
At the hourly rates previously specified, $225, $120, and $80 and the
billed hours of 1,978.79, 848.5, and 2,374.57, the lodestar before
adjustment is $739,060.10.6 The court’s overall sense of the case,
including Miller’s “self-inflicted wounds” warrants a one-third reduction,
yieldind a total fee award of $492,706.73.
The court now turns to Miller’s request for $41,430.41 in expenses.
(Dkt. No. 750, Attach. 2 at 163, 167, 193; Dkt. No. 750, Attach. 5 at 10;
Dkt. No. 778 at 17.) Defendants only argument in opposition is that Miller
should have filed a bill of costs “as required by the Federal Rules.” (Dkt.
No. 760 at 13.) While defendants are correct that, in this District, the
prevailing party in civil litigation must seeks costs by filing a bill of costs
within thirty days of entry of judgment, see N.D.N.Y. L.R. 54.1(a), technical
compliance may be excused under certain circumstances, see Farberware
Licensing Co. LLC v. Meyer Mktg. Co., No. 09 Civ. 2570, 2009 WL
5173787, at *4 (S.D.N.Y. Dec. 30, 2009), aff’d, 428 F. App’x 97 (2d Cir.

6

As mentioned above, see supra note 4, 27.29 hours were billed at the lower rate of
$75 and have been excluded from the hours billed at the $80 rate for paralegal time.
However, the fee generated by those 27.29 hours have been added back into the total preadjustment lodestar.

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2011). More importantly, however, “[e]xpenses recoverable under Title VII
are not limited to the costs taxable by 28 U.S.C. § 1920.” Dotson v. City of
Syracuse, No. 5:04-CV-1388, 2011 WL 817499, at *33 (N.D.N.Y. Mar. 2,
2011) (citation omitted). In fact, “expenses” include “[o]ut-of-pocket costs
that are normally charged to clients . . . , even when such disbursements
fall outside of 28 U.S.C. § 1920.” Id. A review of the documentation
suggests that the expenses were incidental and necessary to the
prosecution of the case. However, for similar reasons as explained above,
they are reduced by the same measure that fees were reduced. See id.
(citing Kim v. Dial Serv. Int’l, Inc., No. 96 CIV. 3327, 1997 WL 458783, at
*20 (S.D.N.Y. Aug. 11, 1997)). Accordingly, Miller is entitled to expenses
in the amount of $27,620.27.
B.

Stay
Rule 62 of the Federal Rules of Civil Procedure is a codification of

procedural rules that govern stay of proceedings to enforce a judgment.
As relevant here, the rule does not expressly permit a stay of judgment
without bond on appeal where the appealing party is other than the United
States, although it does allow for an appeal with a supersedeas bond. See
Fed. R. Civ. P. 62(d). “While Rule 62 outlines the mechanism for how a
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stay may be obtained while an appeal is pending, it does not limit the
district court’s inherent power to issue a stay in a manner that does not fall
within the scope of the Rule.” Hizam v. Clinton, No. 11 Civ. 7693, 2012 WL
4220498, at *2 (S.D.N.Y. Sept. 20, 2012). “The party requesting a stay
bears the burden of showing that the circumstances justify an exercise of
[judicial] discretion.” Nken v. Holder, 556 U.S. 418, 433-34 (2009). That
discretion may be triggered upon satisfaction by the movant of the
following factors, the first two of which “are the most critical”:
“(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.”
Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
Here, defendants argue that permitting execution of the $280,004
judgment — which will be paid out of City of Ithaca coffers — to proceed
will “burden . . . the City’s right to appeal, and will burden the city taxpayers
and potentially prevent the City from providing for public functions to which
its budget had already been allocated.” (Dkt. No. 768 at 2.) In support of
the notion that Miller will not be harmed by the issuance of a stay,

14

defendants contend that the City of Ithaca is solvent with a high grade
bond rating, and it is obligated by New York law to pay its debts before any
expenditures. (Id. at 2-3.)
Notably absent from defendants submission is any argument about
their likelihood of success on appeal. Having presided over two trials and
disposed of several motions, the court cannot begin to guess how this case
may play out on appeal. Accordingly, the first factor weighs against
issuance of a stay. Defendants have not done much better to convince the
court that the City will be irreparably harmed absent a stay. While it is
doubtless true that satisfaction of the judgment will have some impact on
the City’s budget, defendants have only suggested that satisfaction of the
judgment will require “the City . . . to allocate funds that were previously
intended for providing services in order to meet that debt.” (Dkt. No. 768,
Attach. 1 ¶ 5.) This factor also weighs against defendants. The court is
satisfied that substantial injury to Miller will not be caused by the issuance
of the stay and, therefore, the third factor tips in favor of granting
defendants’ request. Finally, the last factor, dealing with the public
interest, is a close call. On the one hand, the citizens of the City of Ithaca
may be deprived of some “public functions,” and, on the other, there is a
15

more generic public interest in the satisfaction of judgments for violations
of labor and employment laws. While the court tends to side with the more
tangible interests of the City of Ithaca taxpayers, the factors on balance do
not support issuance of a stay without bond.
In any event, the court will dispense with the bond requirement
because there is virtually no probability that the City will be unable to
satisfy the judgment after appeal. See In re Nassau Cty. Strip Search
Cases, 783 F.3d 414, 417 (2d Cir.2015) (setting forth additional criteria to
consider in dispensing with the bond requirement that seek to “ensure
recovery for a party who ultimately prevails on appeal, and to protect the
judgment creditor from the risk of losing money if the decision is reversed
[on appeal]”). For all of these reasons, defendants’ motion for a stay. (Dkt.
No. 768), is granted.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Miller’s motion for attorney’s fees, costs, and
disbursements (Dkt. Nos. 750, 778) is GRANTED IN PART and DENIED
IN PART as follows:
GRANTED to the extent that attorney’s fees in the amount of
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$492,706.73 and expenses in the amount of $27,620.27 are imposed
against defendants the City of Ithaca, New York, Edward Vallely, John
Barber, and Pete Tyler; and
DENIED in all other respects; and it is further
ORDERED that defendants’ motion for a stay without bond (Dkt. No.
768) is GRANTED; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
January 5, 2017
Albany, New York

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