Montanez v. City of Syracuse et al
Filing
195
ORDER that the portion of the Court's Order of Dismissal directing that dismissal be "without costs" (Dkt. No. 175 , at 1) is vacated. Plaintiff's Motion for Attorney's Fees and Costs (Dkt. No. 181 ) is GRANTED in part and DENIED in part; Plaintiff is awarded a total of $386,231.36 in attorney's fees and $14,812.43 in costs and expenses for a total of $401,043.79. Signed by Judge Brenda K. Sannes on 8/31/2020. (rjb, )
Case 6:16-cv-00550-BKS-TWD Document 195 Filed 08/31/20 Page 1 of 35
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MALEATRA MONTANEZ,
Plaintiff,
6:16-cv-00550 (BKS/TWD)
v.
CITY OF SYRACUSE, POLICE OFFICER CHESTER D.
THOMPSON, and POLICE CAPTAIN THOMAS
GALVIN,
Defendants.
Appearances:
For Plaintiff:
Edward Sivin
Sivin & Miller, LLP
20 Vesey Street, Suite 1400
New York, NY 10007
For Defendants City of Syracuse and Thomas Galvin:
Kristen E. Smith
Corporation Counsel of the City of Syracuse
Christina F. DeJoseph
Senior Assistant Corporation Counsel
233 E. Washington Street, Suite 300
Syracuse, NY 13202
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.
INTRODUCTION
Plaintiff Maleatra Montanez brought this action against defendants City of Syracuse (the
“City”), Police Officer Chester D. Thompson, Chief of Police Frank L. Fowler, and Police
Captain Thomas Galvin. (Dkt. No. 1). Plaintiff alleged that on February 14, 2015, Thompson—a
patrol officer with the Syracuse Police Department (“SPD”)—reported to her residence in
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response to a 911 call and directed her to engage in sexual acts with him. (Id.). Plaintiff brought:
(1) a battery claim against Thompson and the City; (2) an intentional infliction of emotional
distress (“IIED”) claim against Thompson and the City; (3) a prima facie tort claim against
Thompson and the City; (4) a negligent hiring, training, supervision, and retention claim against
the City; (5) a Fourth Amendment excessive force and unreasonable search and seizure claim
against Thompson; (6) a Fourteenth Amendment substantive due process claim against
Thompson; (7) a supervisory liability claim against Fowler; (8) a supervisory liability claim
against Galvin; and (9) a Monell1 municipal liability claim against the City. (Id.). The Court
granted Defendants’ motion for summary judgment in part, dismissing the battery, IIED, prima
facie tort, and negligent hiring claims against the City and the supervisory liability claims against
Fowler. Montanez v. City of Syracuse, No. 16-cv-550, 2019 WL 315058, 2019 U.S. Dist. LEXIS
10351 (N.D.N.Y. Jan. 23, 2019). Plaintiff withdrew her prima facie tort claim and her Fourth
Amendment claim against Thompson at a final pretrial conference, and the parties prepared to
proceed to trial on the Monell claim against the City, the supervisory liability claim against
Galvin, and the substantive due process claim against Thompson.
Five days before trial was scheduled to begin, these claims were dismissed by reason of
settlement. (Dkt. No. 175). Pursuant to the agreement, Plaintiff accepted $500,000 to settle her
claims against the City. (Dkt. No. 181-1, at 8). Plaintiff now moves for attorney’s fees under 42
U.S.C. § 1998(b). (Dkt. No. 181). Plaintiff seeks an award of attorneys’ fees in the amount of
$994,655.50 for 1,787.64 hours of attorney and paralegal work, and costs in the amount of
1
Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978).
2
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$40,557.41 (Dkt. No. 181-2, ¶ 46; Dkt. No. 194-12, at 3 n.1; Dkt. No. 181-4, at 5).2 Defendants
oppose the motion and seek to reduce Plaintiff’s fees. (Dkt. No. 192). For the reasons that
follow, Plaintiff’s motion is granted in part and denied in part.
II.
DISCUSSION3
A.
Attorney’s Fees in § 1983 Cases
1.
Prevailing Party
To “ensure effective access to the judicial process for persons with civil rights
grievances,” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983), § 1988(b) empowers the Court to
award reasonable attorney fees to the “prevailing party” in a § 1983 action. 42 U.S.C. § 1988(b).
To “qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the
merits of h[er] claim.” Farrar v. Hobby, 506 U.S. 103, 111 (1992). This includes either “an
enforceable judgment against the defendant from whom fees are sought, or comparable relief
through a consent decree or settlement.” Farrar, 506 U.S. at 111 (citations omitted). Plaintiff
litigated this case through summary judgment and then entered into an agreement with the City,
shortly before the scheduled trial, agreeing to accept $500,000 in settlement. Plaintiff is thus a
“prevailing party” under § 1988, entitled to recover attorney’s fees. Accordingly, the Court must
determine the “reasonable attorney’s fee” in this case. Lilly v. City of New York, 934 F.3d 222,
228 (2d Cir. 2019).
2.
Presumptively Reasonable Fee
District courts have “considerable discretion in determining what constitutes reasonable
attorney’s fees in a given case.” Barfield v. New York City Health & Hosps Corp., 537 F.3d 132,
2
This includes Plaintiff’s request concerning the hours spent by her former lawyers, Williams & Rudderow, PLLC—
$13,353.00 in attorney’s fees, for 44.51 hours, and $91.59 in disbursements, (Dkt. No. 181-1, at 5 n.1), as well as the
time spent in connection with the reply papers filed as part of the instant motion, (Dkt. No. 194-12, at 3 n.1).
3
The Court assumes the parties’ familiarity with the facts and procedural history of this case.
3
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151 (2d Cir. 2008). Courts in the Second Circuit generally use the lodestar, or “presumptively
reasonable fee,” approach to calculate reasonable attorney’s fees. See Lilly, 934 F.3d at 229. This
approach requires a court to set a “reasonable hourly rate, taking account of all case-specific
variables,” and determine “the appropriate billable hours expended.” Lilly, 934 F.3d at 230
(quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany & Albany Cty. Bd.
of Elections, 522 F.3d 182, 189–90 (2d Cir. 2008)); see also Grant v. Martinez, 973 F.2d 96, 99
(2d Cir. 1992) (“Under this approach, the number of hours reasonably expended on the litigation
is multiplied by a reasonable hourly rate for attorneys and paraprofessionals.”); DiFilippo v.
Morizio, 759 F.2d 231, 234 (2d Cir. 1985) (“[W]here . . . the party achieves success on the
merits, an award of all reasonable hours at a reasonable hourly rate, i.e., the lodestar figure, is
presumptively appropriate.”).4 The prevailing party is also entitled to attorney’s fees for hours
expended in bringing its § 1988 application. Restivo v. Nassau Cty., No. 06-cv-6720, 2015 WL
7734100, at *2 n.3, 2015 U.S. Dist. LEXIS 160336, at *5 n.3 (E.D.N.Y. Nov. 30, 2015) (citing
Valley Disposal, Inc. v. Cent. Vt. Solid Waste Mgmt. Dist., 71 F.3d 1053, 1060 (2d Cir. 1995))
aff’d sub nom. Restivo v. Hessemann, 846 F.3d 547 (2d Cir. 2017).
a.
Reasonable Hourly Rates
Plaintiff asserts that her attorneys are entitled to an hourly rate consistent with rates
typically awarded in the Southern District of New York, where her attorneys are based.
4
Case-specific factors that may be considered in determining the reasonable hourly rate or hours billed include:
(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.
Lilly, 934 F.3d at 228, 232-33 (quoting Arbor Hill, 522 F.3d at 186 n.3 (2d Cir. 2008)).
4
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Defendants respond that the Court should set the rates consistent with those in the Northern
District. The Supreme Court has explained that district courts should use the “prevailing market
rates in the relevant community” in determining the reasonable hourly rate. Blum v. Stenson, 465
U.S. 886, 895 (1984). The Second Circuit has interpreted the “community” to mean “the district
where the district court sits.” Arbor Hill, 522 F.3d at 190 (citing Polk v. N.Y. State Dep’t of Corr.
Servs., 722 F.2d 23, 25 (2d Cir. 1983)); Grant v. City of Syracuse, 357 F. Supp. 3d 180, 200–01
(N.D.N.Y. 2019).
“[W]hen faced with a request for an award of higher out-of-district rates, a district court
must first apply a presumption in favor of application of the forum rule.” Simmons v. New York
City Transit Auth., 575 F.3d 170, 175 (2d Cir. 2009). To “overcome that presumption, a litigant
must persuasively establish that a reasonable client would have selected out-of-district counsel
because doing so would likely (not just possibly) produce a substantially better net result.” Id.
The party “seeking the award must make a particularized showing, not only that the selection of
out-of-district counsel was predicated on experience-based, objective factors, but also of the
likelihood that use of in-district counsel would produce a substantially inferior result.” Id. at 176.
“Among the objective factors that may be pertinent is counsel’s special expertise in litigating the
particular type of case, if the case is of such nature as to benefit from special expertise,” id., or
by showing that “local counsel possessing requisite experience were unwilling or unable to take
the case.” Id. (citing In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987)).
Here, Plaintiff seeks out-of-district hourly rates of $700 for partners Edward Sivin and
Glenn Miller, $250 for associate Moses Ahn, $200 for associate Andrew Weiss, $170 for legal
assistant Jake Ethé, and $150 for other legal assistants. (Dkt. No. 181-1, at 15–16). In support of
her motion for fees, Plaintiff submitted: a declaration regarding her difficulty seeking in-forum
5
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representation, (Dkt. No. 181-3), a declaration by Sivin, as well as his time records, (Dkt. Nos.
181-2, 181-12), time records for the other attorneys and legal assistants who worked on the case,
(Dkt. No. 181-13 to -17), and an itemization of litigation expenses, (Dkt. No. 181-19). Plaintiff
argues that the Court should deviate from the forum rule because (i) she was unable to secure
counsel located in the Northern District, (Dkt. No. 18-1, at 10), and (ii) local counsel “would
have produced a substantially inferior result,” (Dkt. No. 194-12, at 11). Neither argument is
persuasive here.
Turning to the first argument, Plaintiff has not satisfied her burden of showing that local
counsel was “unwilling or unable to take the case.” Simmons, 575 F.3d at 175. Plaintiff was
represented initially by Michelle Rudderow of the in-district law firm Williams & Rudderow,
PLLC, who filed a Notice of Claim against the City on Plaintiff’s behalf. (Dkt. No. 181-3, ¶ 2).
Williams & Rudderow terminated the representation nine months later due to a “breakdown in
the relationship between Montanez and W&R.” (Dkt. No. 181-4, ¶ 2). Following that
breakdown, Plaintiff argues she “tried unsuccessfully to find another lawyer in the Syracuse area
to represent” her to pursue this lawsuit. (Dkt. No. 181-3, ¶ 3). Plaintiff also claims she was
unsuccessful in retaining counsel in the Utica area, (Id. ¶ 4), and that “by December 2015, [she]
was ready to give up [her] search for a lawyer and not pursue a lawsuit in connection with what
happened to [her].” (Id. ¶ 5). Plaintiff asserts that the “$500,000 settlement that [she] ultimately
obtained after securing counsel in the SDNY was a ‘substantially better result’” than if she had
“not pursued a lawsuit.” (Dkt. No. 181-1, at 10–11).
Citing Monsour v. New York State Office for People with Developmental Disabilities, 13cv-00336, 2018 WL 3349233, 2018 U.S. Dist. LEXIS 113041 (N.D.N.Y. July 9, 2018),
Defendants argue that because Plaintiff does not name any of the law firms or attorneys she
6
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allegedly contacted in her search for representation located in the Northern District before
contacting Sivin & Miller, she has failed to demonstrate a “diligent and good faith effort to
obtain local counsel.” (Dkt. No. 192-9, at 9, 11) (quoting O’Grady v. Mohawk Finishing Prods.,
Inc., No. 96-cv-1945, 1999 WL 30988, at *3, 1999 U.S. Dist. LEXIS 6076, at *5 (N.D.N.Y. Jan.
15, 1999)). In Monsour, this Court denied the plaintiff’s request for Southern District rates. 2018
WL 3349233, at *18, 2018 U.S. Dist. LEXIS 113041, at *49. The plaintiff asserted, as Plaintiff
does here, that he “reached out to several attorneys” in the Albany and Queensbury area but was
unable to find local representation and had to resort to attorneys located out-of-forum. Id. at *17,
2018 U.S. Dist. LEXIS 113041, at *48. Because the plaintiff did “not identify the in-district
lawyers he contacted or detail the efforts he expended to retain local counsel with the ability or
willingness to take on his case,” the Court found the plaintiff’s “representations about his efforts
to locate local counsel were insufficient to rebut the presumption in favor of the local rule.” Id. at
*18, 2018 U.S. Dist. LEXIS 113041, at *48.
In reply, Plaintiff identifies one of the attorneys, Kevin Kuehner, that she spoke with
during her search for local counsel and asserts that they met and discussed this case, but he
declined to represent her. (Dkt. No. 194-1, ¶ 2). Plaintiff further avers that she believes she had
“one other face-to-face meeting with a lawyer in Syracuse,” whose name she could not
remember, and that she “called at least a dozen other lawyers” in Syracuse and Utica, but none
were willing to take her case. (Id. ¶ 3). Plaintiff does not recall the names of the lawyers she
called. (Id.). A single local attorney’s refusal to represent Plaintiff and Plaintiff’s vague
recollections regarding her efforts to obtain in-district counsel are insufficient to overcome the
presumption in favor of the forum rule.
7
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Plaintiff also asserts that Sivin & Miller obtained a “substantially better result” than local
counsel would have been able to obtain. (Dkt. No. 181-1, at 10–11). Plaintiff notes that “there
are only two published decisions from the NDNY involving attempts to impose liability on a
municipality or municipal supervisors for a sexual assault committed by a municipal employee”
and that “in both of those cases, summary judgment was granted in favor of the municipal
defendants.” (Dkt. No. 181-1, at 10 n.4). Defendants respond that these assertions are insufficient
to overcome the presumption of in-forum rates because Plaintiff failed to show that the hired outof-forum attorneys possessed “skills, experiences, and reputations not easily comparable to or
found in local counsel.” (Dkt. No. 192-9, at 6) (quoting Osterweil v. Bartlett, 92 F. Supp. 3d 14
at 27 (N.D.N.Y. 2015)). Defendants note that “the City has been a named party in multiple
§1983 lawsuits since Plaintiff filed her Complaint” and lists several of these cases and the
plaintiff’s in-forum counsel. (Dkt. No. 192-9, at 10) (citing, inter alia, Buccina v. Onondaga
Cnty. et al., No. 18-cv-00031 (Michael P. Kenny, Esq., Syracuse, NY); Days v. City of Syracuse
et al., 5:18-cv-01334-LEK-ML (Dirk J. Oudemool, Esq., Syracuse, NY); Rosa et al v. City of
Syracuse et al., No. 16-cv-01123 (Legal Services of Central New York – Syracuse)).
Additionally, Defendants assert that Rudderow, who previously represented Plaintiff, has
“successfully litigated § 1983 cases.” (Dkt. No. 192-9, at 9).
Plaintiff relies on her attorneys’ experience and has submitted statements by other
attorneys attesting to Sivin and Miller’s expertise in civil rights litigation as well as newspaper
articles discussing their successful cases, (Dkt. Nos. 181-5 to -9), but does not identify any
particular skill that her attorneys possess that is unavailable in the Northern District. In support
of her fee application, Plaintiff also includes a “[t]able documenting cases filed and adjudicated
within the Second Circuit on the issue of supervisory and/or Monell liability in connection with
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claims alleging violations of the due process right to bodily integrity arising out of allegations of
sexual assaults committed by officers of municipalities.” (Dkt. No. 194, at 1; Dkt. No. 194-2). In
each example, the reviewing court either granted the municipality’s motion to dismiss or motion
for summary judgment. (Dkt. No. 194-2). However, the listed examples are insufficient to show
“that a reasonable client would have selected out-of-district counsel because doing so would
likely (not just possibly) produce a substantially better net result.” Simmons, 575 F.3d at 175.
While the table indicates that other plaintiffs have failed on similar claims within the Second
Circuit, this case involved unique facts regarding Captain Thomas Galvin’s knowledge of and
response to prior complaints of coercive sexual conduct by Thompson. See Montanez, 2019 WL
315058, at *18–19, 2019 U.S. Dist. LEXIS 10351, at *51–54. It does not follow from the failure
of other claims that this case “required[ed] special expertise, that no in-district counsel
possessed.” Simmons, 575 F.3d at 175–76.
Although Plaintiff undoubtedly benefitted from Sivin & Miller’s skillful representation,
Plaintiff has “failed to make a particularized showing to rebut the presumptive forum rule.”
Grant, 357 F. Supp. 3d at 202; see also Simmons, 575 F.3d at 176. Plaintiff failed to show that
local counsel “were unwilling or unable to take the case” or that this was “a case requiring
special expertise [and] that no in-district counsel possessed such expertise.” Simmons, 575 F.3d
175–76. Accordingly, the Court will look to “the hourly rates employed” in the Northern District
to determine the reasonable hourly rates for the attorneys and paralegals who worked on this
case. Bergerson v. New York State Off. of Mental Health, 652 F.3d 277, 290 (2d Cir. 2011)
(quoting Simmons, 545 F.3d at 174).
9
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b.
Reasonable Rates
A review of cases in this District indicates that the following hourly rates (or rate ranges)
are reasonable: $275–$350 for experienced partners;5 $165–$200 for junior associates;6 and $90
for paralegals.7
i.
Edward Sivin
Sivin & Miller was formed in 1994 and primarily focuses on civil rights cases. (Dkt. No.
181-2, at 3). Sivin was admitted to the New York bar in 1982 and has practiced law for the past
37 years, “exclusively in the area of plaintiff’s litigation.” (Id.). Further, the Court finds that the
result here—a $500,000 settlement—was an excellent outcome for Plaintiff. Considering Sivin’s
commendable work, his status as an experienced partner, and his expertise in litigating civil
rights cases against police officers, Sivin will be “compensated at the rate of $350 per hour,” a
rate on the “high end of the reasonable rates within the Northern District.” Grant, 357 F. Supp.
3d at 202 (awarding out-of-district attorney Northern District rates at $350 per hour in excessive
force case).
5
See, e.g., Doe v. Cornell Univ., No. 17-cv-0402, 2019 WL 1567535, at *7, 2019 U.S. Dist. LEXIS 62986, at *18
(N.D.N.Y. Apr. 11, 2019); Cruz v. Sal-Mark Rest. Corp., No. 17-cv-0815, 2019 WL 355334, at *7, 2019 U.S. Dist.
LEXIS 13529, at *20 (N.D.N.Y. Jan. 28, 2019) (noting that “[r]ecent cases in the Northern District have upheld hourly
rates between $250 and $350 for partners”) (quoting Deferio v. City of Syracuse, No. 16-cv-0361, 2018 WL 3069200,
at *3, 2018 U.S. Dist. LEXIS 103596, at *9 (N.D.N.Y. June 21, 2018)); Parish v. Kosinski, 17-cv-0344, 2018 WL
1475222, at *5, 2018 U.S. Dist. LEXIS 20134, at *16–17 (N.D.N.Y. Feb. 5, 2018) (granting a rate of $350 per hour
for partners); Pope v. Cty. of Albany, No. 11-cv-0736, 2015 WL 5510944, at *10, 2015 U.S. Dist. LEXIS 123379, at
*27 (N.D.N.Y. Sept. 16, 2015) (awarding $350 to a partner).
6
See, e.g., Daniel E. W. v. Berryhill, No. 17-cv-0271, 2019 WL 1986538, at *5, 2019 U.S. Dist. LEXIS 75781, at *14
(N.D.N.Y. May 6, 2019) (“Recent cases in the Northern District have upheld hourly rates between . . . $165 and $200
for associates.” (quoting Stevens v. Rite Aid Corp., No. 13-cv-0783, 2016 WL 6652774, at *3, 2016 U.S. Dist. LEXIS
159468, at *8 (N.D.N.Y. July 6, 2016))); Curves Int’l, Inc. v. Nash, No. 11-cv-0425, 2013 WL 3872832, at *5, 2013
U.S. Dist. LEXIS 104095, at *15 (N.D.N.Y. July 25, 2013) (finding $170 for attorneys with less than four years of
experience to be reasonable); Zalewski v. T.P. Builders, Inc., Nos. 10-cv-0876, 2012 WL 5880327, at *3, 2012 U.S.
Dist. LEXIS 166263, at *13 (N.D.N.Y. Nov. 21, 2012) (awarding $170 per hour for attorney with under four years of
experience).
7
See, e.g., Deferio, 2018 WL 3069200, at *6, 2018 U.S. Dist. LEXIS 103596, at *17; Johnson v. Mauro, No. 16-cv00622, 2019 WL 5842765, at *10, 2019 U.S. Dist. LEXIS 193661, at *26 (N.D.N.Y. Nov. 7, 2019) (finding $90 for
one legal assistant and $80 for two other legal assistants).
10
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ii.
Glenn Miller
Like Sivin, Miller has over two decades of experience representing individuals in civil
rights litigation “with a primary focus on cases involving allegations of police and corrections
officer misconduct and civil rights violations.” (Dkt. No. 181-2, at 3). Considering Miller’s status
as a partner, the quality of his work in this case, and his expertise in litigating civil rights
violations, (Dkt. No. 181-2, at 6, 7, 8, 17-20), the Court also sets Miller’s hourly rate at $350 per
hour.
iii.
Moses Ahn
Ahn joined Sivin & Miller as an associate in April 2017. (Dkt. No. 181-2, ¶ 11). Ahn was
admitted to the New York bar in 2013, and prior to joining S&M, he served as a Supervisor and
Assistant Unit Chief in the Special State law Enforcement Defense Unit of the New York City
Law Department. (Id.). In that role, Ahn “defend[ed] the City of New York and its employees
against lawsuits alleging police and correction officer misconduct and other civil rights
violations.” (Id.). Considering Ahn’s work experience as an attorney, the Court awards $190 per
hour for Ahn’s associate hours on this case.
iv.
Andrew Weiss
Weiss was admitted to the New York bar in 2017 and joined Sivin & Miller in 2018.
(Dkt. No. 181-2, ¶ 12). As Weiss has less than four years of experience, the Court awards Weiss
an associate rate of $170. See Curves Int’l, Inc. v. Nash, No. 11-cv-0425, 2013 WL 3872832, at
*5, 2013 U.S. Dist. LEXIS 104095, at *15 (N.D.N.Y. July 25, 2013) (finding $170 for attorneys
with less than four years of experience to be reasonable).
v.
Legal Assistants
Legal Assistant Jake Ethé graduated from Columbia University in 2017 and has worked
as a legal assistant at Sivin & Miller since April 2018, (Dkt. No. 181-2, ¶ 13). Ethé “participated
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extensively in the litigation of this lawsuit.” (Id.). (Dkt. No. 181-2, ¶ 36). Legal Assistant Nikhil
Dominic graduated from Columbia University and has been a legal assistant at Sivin & Miller
since July 2019. (Dkt. No. 181-2, ¶ 15). As noted, an accepted in-forum rate for paralegals and
legal assistants is $80–$90. See, e.g., Johnson v. Mauro, No. 16-cv-00622, 2019 WL 5842765, at
*10, 2019 U.S. Dist. LEXIS 193661, at *26 (N.D.N.Y. Nov. 7, 2019). Defendants concur with
this range. (Dkt. No. 192-9, at 13). Accordingly, the Court awards a rate of $90 an hour for Ethé
and Dominic’s hours.
Plaintiff requests fees for the time of several other legal assistants who collectively
recorded 8.65 hours of work on this matter. (Dkt. No. 181-1, at 16). Due to Plaintiff’s failure to
outline the experience of these legal assistants, the Court finds an in-forum rate of $80 per hour
is appropriate.
vi.
Travel Time
Defendants also take issue with the fees Plaintiff requests for attorney and staff travel
time, arguing because “Plaintiff chose to hire out-of-district counsel rather than local counsel,
she should not be entitled to attorney fees for travel time” between New York City and Syracuse.
(Dkt. No. 192-9, at 17).
The general rule for courts within the Second Circuit is to compensate travel time “at half
the usual hourly rate.” Critchlow v. First Unum Life Ins. Co. of Am., 377 F. Supp. 2d 337, 343
n.1 (W.D.N.Y. 2005). See, e.g., Anderson v. Rochester-Genesee Reg’l Transp. Auth., 388 F.
Supp. 2d 159, 169 (W.D.N.Y. 2005) (“[Plaintiff’s attorney] will therefore be awarded fees for
travel time at half his normal hourly rate”); Hugee v. Kimso Apartments, LLC, 852 F. Supp. 2d
281, 302 (E.D.N.Y. 2012) (reducing plaintiff’s attorney’s rate by 50% for travel time).
However, as Defendants note, courts within this Circuit also recognize that when it comes to
awarding attorney’s fees for travel time, “[d]efendants should not be penalized for a plaintiff’s
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choice of out-of-district counsel, unless the case required special expertise beyond the
competence of forum district law firms.” Feltzin v. Ciampa Whitepoint LLC, No. 15-cv-2279,
2017 WL 570761, at *3, 2017 U.S. Dist. LEXIS 20323, at *8 (E.D.N.Y. Feb. 13, 2017) (denying
an award of travel-related fees when Plaintiff did not show that the in-district counsel lacked the
requisite expertise); see also Ryan v. Allied Interstate, Inc., 882 F. Supp. 2d 628, 638 (S.D.N.Y.
2012) (denying travel-related expenses that were “a result of [the] plaintiffs’ choice to litigate
the[ir] cases in the Southern District of New York while being represented by a firm based [in
another state]”).
Here, Plaintiff requests compensation for the time recorded by her legal team traveling
primarily from the Southern District to Syracuse: 57 hours for Sivin, 22.5 hours for Miller and 10
hours for Ethé. (Dkt. No. 181-2, at 16; Dkt. Nos. 181-12, -13). As discussed above, Plaintiff did
not adequately show that her out-of-forum counsel possessed special expertise unavailable in the
forum district. Therefore, the Court denies Plaintiff’s request to compensate her legal team’s
travel time from New York to Syracuse as part of the attorney’s fee award. However, Sivin’s
eleven hours of travel time within the district, between Syracuse and Rome, will be compensated
at a rate of half of counsel’s usual rate.
vii.
Williams & Rudderow, PLLC
Plaintiff also requests attorney’s fees for the work performed by Michelle Rudderow at
Williams & Rudderow, PLLC, who first represented her in connection with this matter. (Dkt.
No. 181-1, at 16). Rudderow seeks reimbursement at the rate of $300 per hour for 44.51 hours.
(Dkt. No. 181-4, at 5). Defendants respond that Williams & Rudderow “is not entitled to a
separate fee award” because it has a lien “on the file,” and “[w]hen the agreement between
Plaintiff and the City was reduced to writing, Plaintiff agreed to ‘satisfy any and all liens, claims
or demands for payment by any third parties for medical treatment, wages, attorneys’ fees or any
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other costs incurred that relate to the events giving rise to the claims set forth in the Lawsuit, or
the injuries sustained from those events.’” (Dkt. No. 192, ¶ 10; see also Dkt. No. 181-4, at 2
(billing entry dated December 2, 2016 (“Lien letter to Sivin”)). Plaintiff has not disputed
Defendants’ assertion. Thus, Plaintiff’s request for an award of attorney’s fees for Williams &
Rudderow’s work is denied.
Having determined the reasonable rates, the Court must evaluate the reasonability of the
number of hours expended on this litigation.
3.
Reasonable Number of Hours
Excluding Williams & Rudderow’s hours and hours for travel to and from New York
City, Plaintiff seeks an award of attorney’s fees for 1,664.63 hours of attorney and legal assistant
work on this case. (Dkt. No. 181-2, at 16–17; Dkt. No. 194-12, at 3 n.1). Defendants contend that
a “very significant reduction in any . . . award” is warranted on the grounds that the hours billed
in this case are “vague, duplicative, excessive” and “otherwise not compensable.” (Dkt. No. 1929, at 15).
A fee applicant “bears the burden of documenting the hours spent by counsel, and the
reasonableness thereof.” Stevens v. Rite Aid Corp., No. 13-cv-783, 2016 WL 6652774, at *4,
2016 U.S. Dist. LEXIS 159468, at *9 (N.D.N.Y. July 6, 2016). “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). In determining a reasonable fee, “the district court should
exclude . . . hours that were not reasonably expended, including hours that are excessive,
redundant, or otherwise unnecessary.” Osterweil, 92 F. Supp. 3d at 28 (citing Hensley, 461 U.S.
at 434) (internal quotations omitted). “In excluding hours that were not reasonably expended, the
court has discretion simply to deduct a reasonable percentage of the number of hours claimed as
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a practical means of trimming fat from a fee application.” Id. (citing Kirsch, 148 F.3d at 173
(internal quotations omitted)). With these principles in mind, the Court considers the hours spent
on this case.
a.
Vague and Duplicative Billing Entries
Vague entries “which do not indicate the nature of subject matter of the work being
performed” “do not enable a court to determine whether the hours are duplicative or excessive.”
Shannon v. Fireman’s Fund Ins. Co., 156 F. Supp. 2d 279, 301 (S.D.N.Y. 2001). Accordingly,
courts have applied reductions where billing entries are vague. See Sheet Metal Workers’ Nat.
Pension Fund v. Coverex Corp. Risk Sols., No. 09-cv-0121, 2015 WL 3444896, at *17, 2015
U.S. Dist. LEXIS 69146, at *42–46 (E.D.N.Y. May 28, 2015) (reducing hours thirty percent
finding billing entries “such as ‘prepare for trial’” vague and where attorney billed for clerical
tasks); Dotson v. City of Syracuse, No. 04-cv-1388, 2011 WL 817499, at *24, 2011 U.S. Dist.
LEXIS 20374 at *66 (N.D.N.Y. Mar. 2, 2011) (reducing hours for vague entries “file review”
and “meetings”), aff’d, 549 F. App’x 6 (2d Cir. 2013).
Defendants have highlighted the entries in Plaintiff’s counsel and staff’s time records
they contend are vague. (Dkt. Nos. 192-2 to -8). Many of the entries, however, do not qualify as
vague. For instance, Defendants highlighted Sivin’s April 1, 2016 entry: “More on-line research
and review of file to formulate complaint.” (Dkt. No. 192-2, at 1). The Court finds that
sufficiently specific: viewed together with the other entries in April 2016, the month before the
Complaint was filed in this case, the entry enables the Court to evaluate whether the hours spent
on the Complaint are duplicative or excessive. Congregation Rabbinical Coll. of Tartikov, Inc. v.
Vill. of Pomona, 188 F. Supp. 3d 333, 343 (S.D.N.Y. 2016) (“[A]ttorneys seeking reimbursement
‘must provide enough information for the [c]ourt, and the adversary, to assess the reasonableness
of the hours worked on each discrete project.’” (quoting Themis Cap. v. Dem. Rep. of Congo,
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No. 09-cv-1652, 2014 WL 4379100, at *7, 2014 U.S. Dist. LEXIS 124208, at *19–20 (S.D.N.Y.
Sept. 4, 2014)). Defendants’ contention is not, however, entirely without merit—there are entries
in each billing record the Court finds vague. (See Dkt. No. 192-2 (Sivin’s billing entries: “review
file,” “more on-line research re case,” “discussions with [Miller] re case,” “multi-tasking”); Dkt.
No. 192-3 (Miller’s billing entries: “communication with” investigator, “Firm meeting on
matter”); Dkt. No. 192-4 (Ahn’s billing entries: “start reviewing file,” “More review of file”);
Dkt. No. 192-5 (Weiss’ billing records: “Review file”); Dkt. No. 192-6 (Ethé’s billing entry:
“Firm meeting in conference room”); Dkt. No. 192-7 (Dominic’s billing entries: “Firm meeting
in conference room”; “Meeting w/[Sivin] and [Ethé] on preparing exhibit/witness list (incl. oneon-one with [Sivin])”);8 Dkt. No. 192-8 (Miscellaneous paralegal entries: “[p]hone intake,” “med
requests”)).
Further, certain entries in Weiss’ time records are vague in the sense that they do not
allow the Court to determine whether they are duplicative. Weiss, who worked 18.7 hours on this
case, spent approximately half this time reading and indexing the “Thompson E[xamination]
B[efore] T[rial].” (Dkt. No. 192-5). There were, however, three individuals with the last name
Thompson in this case: Sivin indexed Chester Thompson’s deposition and Ethé indexed Shakina
Thompson’s deposition. (Dkt. No. 181-12, at 10; Dkt. No. 181-16, at 2). Given the vagueness of
Weiss’ entry, the Court has no basis to evaluate whether his indexing work was duplicative. The
Court will consider these problems in counsel’s billing in determining an appropriate reduction.
However, with the exception of the entries addressed above, having carefully reviewed the
billing descriptions, the hours claimed for those descriptions, and the timing of the work claimed,
the Court finds that the hours expended appear to be adequately documented.
8
Alternatively, this entry of 9.5 hours reflects excessive billing. (Dkt. No. 192-7).
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b.
Billing for Clerical or Paralegal Work
Defendants object to billing by Plaintiff’s attorneys for paralegal work and to billing by
legal assistants for secretarial tasks. (Dkt. No. 192-9, at 16, 18). “[D]istrict courts have the legal
authority and discretion to . . . reduce an attorney’s hourly rate for time spent on clerical tasks . . .
(or block-billed time entries reflecting a mix of clerical and legal work).” Lilly, 934 F.3d at 234.
Courts have identified clerical tasks as “sending and receiving faxes, requesting and receiving
medical records, serving papers,” id., “filing documents,” Gayle v. Harry’s Nurses Registry, Inc.,
No. 07-cv-4672, 2020 WL 4381809, at *4, 2020 U.S. Dist. LEXIS 125630, at *12 (E.D.N.Y.
July 31, 2020), “preparing a summons and complaint for service,” and “ECF filings,” Torcivia v.
Suffolk Cty., 437 F. Supp. 3d 239, 253 (E.D.N.Y. 2020). “[S]ecretarial tasks” such as “copying a
file, informing individuals about hearing scheduling, preparing a bill, and other ministerial
communications with witnesses or clients,” “are considered part of a firm’s overhead and are not
to be included as part of an award for costs and fees.” O.R. v. New York City Dep’t of Educ., 340
F. Supp. 3d 357, 368 (S.D.N.Y. 2018); see also Missouri v. Jenkins, 491 U.S. 274, 288 n.10
(1989) (“[P]urely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of
who performs them.”). Courts have identified “work on a discovery index and related work,” as
paralegal work. Doe v. Cornell Univ., No. 17-cv-0402, 2019 WL 1567535, at *9, 2019 U.S. Dist.
LEXIS 62986, at *26–27 (N.D.N.Y. Apr. 11, 2019),
Sivin’s time records contain a number entries reflecting paralegal work. (See Dkt. No.
192-2, at 2, 4, 6, 10 (“phone call . . . re service of process,” “notifying United Process that they
have to serve order,” “file affidavits of service ECF,” “send away for additional medical
records,” “file ECF letter,” “separating and scanning file into searchable PDFs,” indexing
depositions)). Miller’s time records also contain entries indicating paralegal work, (see Dkt. No.
192-3, at 1, 3, 5 (“[o]rganize folders on computer,” “[c]ontinue to organize folders on computer,”
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“[a]rrange for meetings with witnesses,” “[n]otification of all subpoenaed individuals”), as do
Weiss’s, (see Dkt. No. 192-5 (indexing depositions)). To the extent these records contain
paralegal work by attorneys, and the records of legal assistants Ethé, Dominic, and others, reflect
noncompensable secretarial work, (see, e.g., Dkt. No. 192-6 (“Print, hole punch, bind . . .
depositions”), Dkt. No. 192-7 (“[s]canning exhibits”)), the Court accounts for this work in
applying an overall reduction to the hours billed.
c.
Non-Contemporaneous Billings
Defendants argue that the majority of the time record for associate Moses Ahn should not
be compensated due to a discrepancy between when Plaintiff first claimed Ahn was hired by
Siving & Miller and when he performed the work recorded in the time record. (Dkt. Nos. 192-9,
at 14; 192-4). In his declaration, Sivin states that Ahn was hired in April 2017. (Dkt. No. 181-2,
¶ 4). This conflicts with the time record from Ahn, which primarily includes work performed in
February 2017. (Dkt. No. 181-14). Sivin clarifies in his Reply Declaration that he mistakenly
wrote that Ahn “joined as an associate of S&M in April 2017” and clarified that Ahn began
working at the firm in February 2017. (Dkt. No. 194, ¶ 3; see also Dkt. No. 194-3 (email from
Miller to Sivin regarding Ahn’s February 2017 start date)). The Court accepts Sivin’s
explanation as a typographical error and finds the time record submitted by Ahn to contain
contemporaneous and therefore compensable time.
d.
Unsuccessful Claims
Defendants argue that time and costs related to Plaintiff’s “unsuccessful claims must be
excluded from any fee award.” (Dkt. No. 192-9, at 16). Defendants contend that Plaintiff was not
a prevailing party on her claims against Thompson, Galvin or on her “state law claim against the
City (which does not trigger fee shifting)” all of which were extinguished by the settlement
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(Id.).9 Defendants also argue that the claims against Chief Fowler, which the Court dismissed at
the summary judgment stage, and those that “Plaintiff withdrew before trial” are “severable
unsuccessful claims” and are therefore non-compensable. (Dkt. No. 192-9, at 16). Defendants
aver that “the court may exclude hours spent on ‘severable unsuccessful claims.’” (Id. (citing
Green v. Torres, 361 F.3d 96, 98 (2d Cir. 2004)). In Green, however, the court stated that where,
as here, the plaintiff’s claims involve a common core of facts or are based on related legal
theories “and are therefore not severable, ‘[a]ttorney’s fees may be awarded for unsuccessful
claims as well as successful ones.’” 361 F.3d at 98 (quoting Quaratino v. Tiffany & Co., 166
F.3d 422, 425 (2d Cir. 1999)); see also Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir.
1994) (“So long as the plaintiff’s unsuccessful claims are not ‘wholly unrelated’ to the
plaintiff’s successful claims, hours spent on the unsuccessful claims need not be excluded from
the lodestar amount”); LeBlanc–Sternberg v. Fletcher, 143 F.3d 748, 762 (2d Cir. 1998) (“When
a plaintiff has . . . prevailed on fewer than all of his claims, the most important question in
determining a reasonable fee is whether the failed claim was intertwined with the claims on
which he succeeded.”).
i. Claims Against Thompson, Galvin and Chief Fowler
Plaintiff’s theory of municipal liability was based upon Galvin’s failure to adequately
investigate the allegations of coercive sexual misconduct by Thompson, and failure to supervise
him properly. Montanez, 2019 WL 315058, at *22–23, 2019 U.S. Dist. LEXIS 10351, at *65–69.
Her supervisory liability claim against Galvin, alleging that he acted with gross negligence and
deliberate indifference in supervising and disciplining Thompson clearly involves “a common
9
Plaintiff asserts that she was a prevailing party as to Galvin because the settlement agreement required that she
release the City’s employees. (Dkt. No. 194-12, at 4). The settlement agreement is not in the record and, in any event,
the Court need not consider that issue because Plaintiff’s claim against Galvin is not severable from her claim against
the City of Syracuse.
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core of facts” and a “related legal theor[y]” and is not severable from the Monell claim. Green,
361 F.3d at 99 (quoting Hensley, 461 U.S. at 435). Time spent working on the claims against
Galvin will therefore be included in the calculation of hours.
With respect to Fowler, the Court found insufficient evidence “to create a material issue
of fact as to whether [he] had notice that there was a high degree of risk that Thompson would
coerce sex from women while on duty,” and granted Fowler’s motion for summary judgment.
Montanez, 2019 WL 315058, at *20, 2019 U.S. Dist. LEXIS 10351, at *58–59. However,
Plaintiff’s claim against Fowler not only arose from the same “common core of facts,” i.e.,
supervisors’ response to allegations of Thompson’s coercive sexual conduct, it was also based on
the same supervisory liability “legal theor[y].” The claim against Fowler is intertwined with
Plaintiff’s successful Monell claim.
Plaintiff’s claim against Thompson, under 42 U.S.C. § 1983, for violating her right to
bodily integrity in violation of the Fourteenth Amendment, is the constitutional violation
underlying her Monell claim against the City. See Montanez, 2019 WL 315058, at *22–23, 2019
U.S. Dist. LEXIS 10351, at *65–69. That claim is not severable. Plaintiff’s remaining state tort
claims against Thompson for battery and intentional infliction of emotional distress all arise out
of the same February 15, 2015 incident with Plaintiff; they are all “grounded in a common core
of facts, and were based on related legal theories, such that it would have been difficult for
plaintiffs’ attorneys to divide the hours expended in the ligation on a claim-by-claim basis.”
Grant, 357 F. Supp. 3d at 205.
ii.
Claims Withdrawn Before Trial
Defendants argue that time related to the claims that “Plaintiff withdrew before trial . . .
must be excluded” from any fee award. (Dkt. No. 192-9 at 16). At oral argument on Defendants’
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motion for summary judgment, Plaintiff withdrew her state tort claims and her negligent hiring
claim as to the Defendant City of Syracuse. (See Text Minute, Entry Jan. 8, 2019). In the final
pretrial conference Plaintiff withdrew her state law prima facie tort claim against Defendant
Thompson and her Fourth Amendment claim against Defendant Thompson. (See Text Minute,
Entry Sept. 10, 2019). Plaintiff responds by arguing that “even if [P]laintiff, for the purposes of
this fee application, is deemed to have ‘prevailed’ only against the City, and only on her Monell
claim,” Defendant would still not be “entitled to a reduction in plaintiff’s fee award” because “so
long as the successful and unsuccessful claims were not wholly unrelated, it is extremely
difficult, if not impossible, to identify hours that were spent exclusively on unsuccessful claims.”
(Dkt. No. 194-12, at 7).
The district court has discretion to “to weigh the withdrawn claims in determining the
appropriate fee award.” Green, 361 F.3d at 99; see Hensley v. Eckerhart, 461 U.S. 424, 435
(1983) (noting that when plaintiff failed to prevail on claims involving “a common core of facts”
or “based on related legal theories . . . making it difficult to divide the hours expended on a
claim-by-claim basis,” the court “should focus on the significance of the overall relief obtained
by the plaintiff in relation to the hours reasonable expended on the litigation”). A court may
“attempt to identify specific hours that should be eliminated, or it may simply reduce the award
to account for the limited success.” Hensley, 461 U.S. at 436-37.
Here, with the exception of a negligent hiring theory of liability, all of Plaintiff’s claims
are based upon Thompson’s conduct on February 15, 2014, and the alleged failure of supervision
of Thompson that led to that conduct. There is no suggestion that Plaintiff brought any claims
that were inflated or not pursued in good faith, and the settlement amount was an excellent result
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for Plaintiff. The Court thus rejects Defendants’ request to exclude hours based on “unsuccessful
claims.”
e.
Criminal Proceedings
Defendants argue that Plaintiff’s fee request for time related to the criminal prosecution
of Thompson must be excluded as irrelevant, (Dkt. No. 192-9 at 17), and flag two specific entries
in Sivin’s time as non-compensable. (Dkt. No. 192-2, at 1, 8). One of the entries lists “phone call
with DA’s office,” among five other tasks relevant to this instant action, which total 2.1 hours.
(Id. at 1). The second entry reflects 1.1 hours for “[m]ultiple calls and emails with Montanez re
her recent communications w/ADA Cali; research harassment statute.” (Id. at 8). Defendants
note that “Plaintiffs cite no authority for the proposition these fees and any associated costs are
compensable” and cite several cases in which courts ruled that “attorney fees incurred for a
plaintiff’s defense in prior criminal proceedings has been held to be not compensable under §
1988.” (Id. (citing McKever v. Vondollen, 681 F. Supp. 999, 1003 (N.D.N.Y. 1988); Greer v.
Holt, 718 F.2d 206, 208 (6th Cir. 1983); Venuti v. Riordan, 702 F.2d 6, 9 (1st Cir. 1983);
Lenihan v. City of New York, 640 F. Supp. 822, 830 (S.D.N.Y. 1986))). These cases, however,
relate to an underlying criminal proceeding against the plaintiffs who were bringing civil actions,
not whether an attorney’s work in staying abreast of the criminal proceedings against a defendant
stemming from the events at issue in civil rights action is recoverable. The Court notes, however,
that Plaintiff does not explain on what basis these hours are compensable and does not respond to
Defendants’ opposition to these fees in her reply. Therefore, the Court will consider these hours
in determining the appropriate reduction.
f.
Fee Application
With respect to Plaintiff’s fee motion, including the reply submissions—66.8 attorney
hours and 44.7 paralegal hours—the Court also finds Plaintiff’s hours expended to be reasonable.
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Defendants argue that “even in a complex case, a fee application should only take 30 hours.”
(Dkt. No. 192-9, at 16) (citing Murray v. Mills, 354 F. Supp. 2d 231, 241 (E.D.N.Y. 2005)).
Citing this Court’s decision in Johnson, 2019 WL 5842765, 2019 U.S. Dist. LEXIS 193661,
Plaintiff replies that Defendants’ “argument can be summarily rejected.” (Dkt. No. 194-12, at
13). In Johnson, this Court assessed the reasonability of overall time spent on a fee motion by
considering “the hours expended as a proportion of the total time claimed in the fee application.”
Johnson, 2019 WL 5842765, at *8, 2019 U.S. Dist. LEXIS 193661, at *20; see also Nat. Res.
Def. Council, Inc. v. Fox, 129 F. Supp. 2d 666, 675 (S.D.N.Y. 2001). In Johnson, This Court
found the 62.4 hours dedicated to a fee motion to be reasonable considering that the request
amounted to 11 percent of the total time claimed. Johnson, 2019 WL 5842765, at *8, 2019 U.S.
Dist. LEXIS 193661, at *20
By the Court’s calculation, including the time Plaintiff spent replying to Defendants’
opposition to this motion (which took an additional 22.1 attorney hours and 42.95 paralegal
hours), (Dkt. No. 194-12, at 3 n.1), the fee application comprises less than 7 percent of the more
than 1,700 total hours claimed in the fee application. (Id. at 13). While the total hours Plaintiff
seeks for preparation of the fee application are high, Defendants vigorously challenged her
application, requiring a detailed and well-supported reply. See Colbert v. Furumoto Realty, Inc.,
144 F. Supp. 2d 251, 262 (S.D.N.Y. 2001) (“[C]ourts within this Circuit have awarded fee
application awards in the range of 8 to 24 percent of the total time claimed.” (quoting Natural
Resources Defense Council, 129 F. Supp. 2d at 675)). The Court agrees with Plaintiff that the
hours requested in relation to the fee application are reasonable.
g.
Excessiveness of Time Records
Defendants argue that Plaintiff’s request contains excessive billing and overstaffing.
(Dkt. No. 192-9, at 15–16). Defendants primarily take issue with time records devoted to
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reviewing documents, court decisions, and records. (Dkt. Nos. 192-2, 192-3, 192-4, 192-5, 1926, 192-7).10 The billing records do not support Defendant’s claim of overstaffing. Although there
were two partners on this case, in general, the billing records reflect that they divided their
responsibilities: only one partner handled the discovery litigation; only one lawyer appeared for
depositions and court proceedings; and only one partner prepared witness direct and cross
examinations for trial.
However, after carefully reviewing the records, and because “hours that are excessive,
redundant, or otherwise unnecessary” should be excluded just as a lawyer would exclude such
hours from a bill to paying client, Hensley, 461 U.S. at 434, upon review, the Court finds the
total number of hours, 1,664.63, to be excessive, noting in particular the approximately 200
attorney hours spent in connection with the litigation of the motion for summary judgment and
motion to strike, see Grant, 357 F. Supp. 3d at 206 (finding 117 hours billed by the plaintiff’s
counsel to oppose a motion for summary judgment was excessive and warranted a reduction in
the overall fee award); Dotson v. City of Syracuse, 5:04-cv-1388, 2011 WL 817499, at *25, 2011
U.S. Dist. LEXIS 20374, at *67–68 (N.D.N.Y. March 2, 2011) (finding that 115.30 hours to
oppose a motion for summary judgment was excessive and warranted a reduction). At the same
time, the Court notes that while the approximately 400 attorney hours spent in trial preparation,
including on motions in limine, is high, given the complex nature of this case and the extensive
motion in limine litigation, this is not outside the range of reasonableness. See Brady v. WalMart Stores, Inc., 455 F. Supp. 2d 157, 213 (E.D.N.Y. 2006), aff’d, 531 F.3d 127 (2d Cir. 2008)
10
Defendants have highlighted certain entries in the time-keeping record they deem to be excessive, and assert that
the billing entries are “fraught with vague, duplicative, excessive, non-contemporaneous, unnecessary and otherwise
not compensable entries,” warranting “a very significant reduction” in any fee award. (Dkt. No. 192-9, at 14).
Defendants’ highlighting includes numerous specific descriptions of legal work, and entries for work that was clearly
done in furtherance of Plaintiff’s successful Monell litigation, and to that extent, was not helpful. The Court encourages
more discernment in flagging time entries in the future.
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(finding reasonable approximately 400 hours of work for trial preparation in ADA/NYSHRL
case); Tatum v. City of New York, No. 06-cv-4290, 2010 WL 334975, at *8, 2010 U.S. Dist.
LEXIS 7748, at *26 (S.D.N.Y. Jan. 28, 2010) (finding nearly 300 hours spent on trial preparation
in § 1983 pretrial detainee assault case “not unreasonable in light of the ‘big picture’”).
h.
Adjustment for Degree of Success
Plaintiff argues she is entitled to an “upward adjustment” in any attorney’s fee award and
asserts “a significant risk of not prevailing coupled with a contingent fee arrangement may be
sufficient to merit the upward adjustment.” (Dkt. No. 181-1, at 13 (citing Lewis v. Coughlin, 801
F.2d 570, 576 (2d Cir. 1986))). While a plaintiff’s attorney should “recover a fully compensatory
fee” for obtaining “excellent results,” “in some cases of exceptional success an enhanced award
may be justified.” Hensley, 461 U.S. at 435. An upward adjustment may be awarded “only in the
rare case where the fee applicant offers specific evidence to show that the quality of service
rendered was superior to that one reasonably should expect in light of the hourly rates charged
and that the success was ‘exceptional.’” Blum, 465 U.S. at 899.
Plaintiff recounts four obstacles she had to surmount before obtaining the $500,000
settlement and argues that, viewed against these obstacles, the settlement constitutes an
“exceptional success.” (Dkt. No. 181-1, at 13). First, Plaintiff asserts that “it is clear that the
municipal defendants could not be held vicariously liable” for the sexual assault committed by
Thompson, requiring her instead to develop a Monell claim. (Dkt. No. 181-1 at 13). Second,
Plaintiff claims that, in order to “impose liability against the municipal defendants based on their
inadequate response to prior reports of malfeasance by Thompson,” she had to overcome
arguments of governmental immunity for the City and qualified immunity for defendants Fowler
and Galvin. (Dkt. No. 181-1, at 13–14). Third, Plaintiff argues that she still faced “formidable
obstacles” to “persuade the trier of fact” after most of her claims survived a motion for summary
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judgment. (Id. at 14). Finally, Plaintiff claims that “S&M faced additional obstacles in the actual
production of many of the witnesses it sought to call at trial.” (Id.). Although the Court
recognizes the able work done by Plaintiff’s counsel in the face of significant obstacles, having
considered this case in its entirety, the Court concludes Plaintiff has not shown “exceptional
success” warranting an “upward adjustment.”
For its part, Defendants assert that because the settlement amount is 7.14% of the total
$7,000,000 sought in the complaint against four defendants, the fee award should be “reduced
accordingly.” (Dkt. No. 192-9, at 19). When considering a reasonable rate for attorney’s fees,
“the most critical factor is the degree of success obtained.” Hensley, 461 U.S. at 436. In
evaluating the level of success obtained, the court may consider “both the quantity and quality of
the relief obtained, as compared to what the plaintiff sought to achieve as evidenced in [the]
complaint.” Indep. Project, Inc. v. Ventresca Bros. Constr. Co., 397 F. Supp. 3d 482 (S.D.N.Y.
2019) (quoting Barfield v. New York City Health & Hosps. Corp., 537 F.3d 132 (2d Cir. 2008)).
While Plaintiff received less than she originally sought, the Court concurs in Plaintiff’s
assessment that Plaintiff’s substantial settlement with the City was a very successful result,
particularly given the obstacles she faced. The Court declines to adopt the mechanical approach
Defendants advocate and reduce the fee award based on a percentage reflecting the difference
between the settlement amount and the amount sought in the complaint, and declines to make
any reduction based on a lack of success. See Rozell v. Ross-Holst, 576 F. Supp. 2d 527, 542
(S.D.N.Y. 2008) (“A plaintiff may still be viewed as having ‘obtained a significant and valuable
level of success’ even if she did not achieve the precise result originally sought.” (quoting
Marisol A. ex rel. Forbes v. Giuliani, 111 F.Supp.2d 381, 398 (S.D.N.Y. 2000))).
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4.
Attorneys’ Fee Award
Although the number of billable attorney hours is large, after carefully reviewing the
billing records, and based on the Court’s familiarity with this case, the Court finds that a
significant number of hours are warranted. While this litigation did not involve novel legal issues
or establish a new principle of law, this was not a run-of-the-mill civil rights case. As Plaintiff
asserts, this action involved “difficult issues of law and challenging facts.” (Dkt. No. 181-1 at 7).
The Court recognizes that the work underlying this settlement against the Defendants, which
initially took a “no pay” position, was challenging and time-consuming. Plaintiff litigated this
case for over three years. During that time, Plaintiff’s counsel litigated discovery disputes, took
twelve depositions, retained an expert witness, opposed a motion for summary judgment,
opposed a motion to strike evidence, engaged in extensive litigation concerning four motions in
limine in anticipation of trial, filed pretrial submissions, and prepared for a six to seven-day trial,
before the case settled on the eve of trial. The case was hard-fought and cogently litigated by
counsel for all parties. Defendants City of Syracuse, Galvin and Fowler were represented by the
Syracuse Corporation Counsel and by Hancock Estabrook LLP. The discovery and summary
judgment litigation, which resulted in raising a triable issue of fact for a Monell claim against the
City, was difficult and skillfully handled by Plaintiff’s counsel.
Having carefully reviewed the billing records, and based on the Court’s familiarity with
this case and the work of Plaintiff’s counsel, the Court finds that Plaintiff is entitled to a
substantial attorney’s fee award in light of the length, complexity and success of this litigation.
However, the above-identified issues in Plaintiff’s counsel’s billing records, including
vagueness, duplications, billing of the full attorney rate for paralegal tasks, billing of secretarial
work, billings in connection with the criminal prosecution of Chester Thompson, and the
excessive hours including hours spent at the summary judgment stage warrant a percentage
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reduction. Accordingly, based on these factors, the Court applies a twenty percent reduction to
the hours billed by Sivin & Miller in this case. See Lilly, 934 F.3d at 234 (affirming district
court’s reduction of attorney “hours by ten percent to account for clerical tasks,” noting that it
was “confident that the district court achieved ‘rough justice,’ if not ‘auditing perfection,’ in its
calculation of the appropriate fee award”); Kirsch, 148 F.3d at 172–73 (determining that a
district court was within its discretion to reduce a fee award by 20 percent on the grounds that a
number of the attorneys’ time entries, including “letter to court,” “staff conference,” or “work on
motion,” were “too vague to sufficiently document the hours claimed”); Ravina v. Columbia
Univ., No. 16-cv-2137, 2020 WL 1080780, at *10, 2020 U.S. Dist. LEXIS 39478, at *31
(S.D.N.Y. Mar. 6, 2020) (concluding that because “the majority of the entries were appropriately
detailed . . . only a modest reduction of compensable hours by five percent is appropriate” for
vague entries); Mango v. BuzzFeed, Inc., 397 F. Supp. 3d 368, 377 (S.D.N.Y. 2019) (finding a
twenty percent reduction should apply for “vague entries” and “block billing” and an additional
five percent for paralegal work billed by attorney).
The Court finds that the final attorney’s fee award calculated by the Court, $386,231.36,
in this case, which did not go to trial, is consistent with awards in other civil rights cases. See
Grant, 357 F. Supp. 3d 180, 209 (awarding attorney’s fees in the amount of $584,920.50
following nine-day trial); Alicea v. City of New York, 272 F. Supp. 3d 603, 613 (S.D.N.Y. 2017)
(awarding attorney’s fees after four-day trial in the amount of $410,071.25); Houston v. Cotter,
234 F. Supp. 3d 392, 407–410 (E.D.N.Y. 2017) (surveying attorney’s fees awards in civil rights
cases). Although this case, unlike Grant and Alicea, did not go to trial, it settled on the eve of
trial, following heavily-litigated pretrial proceedings, and the work undertaken by that point was
extensive.
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B.
Costs
Plaintiff seeks reimbursement of litigation expenses in the amount of $40,465.82. (Dkt.
No. 181-19, at 1). In addition to objecting to certain costs, Defendants argue that (i) Plaintiff’s
request should be denied because the Court dismissed this action “without costs” or (ii) the
amount Plaintiff seeks should be reduced by seventy-five percent “given [the City] is the only
party of the four original parties who Plaintiff ‘prevailed’ against.” (Dkt. No. 192-9, at 20).
The Order the Court issued following the parties’ settlement directed that dismissal was
to be “without costs.” (Dkt. No. 175, at 1). Because Defendants do not dispute that Plaintiff is
entitled to attorney’s fees “as part of the costs” recoverable under § 1988, which includes legal
expenses in addition to those costs “ordinarily recoverable” under 28 U.S.C. § 1920 and Rule
54(d)(1), and because it appears that the parties contemplated such recovery, in abundance of
caution, and in accordance with Rule 60(b), the Court vacates the part of its prior Order directing
that dismissal was “without costs.”
The Court declines to grant Defendants’ request to reduce the costs by seventy-five
percent because the City of Syracuse was one of four defendants. “Unless a federal statute, these
rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed
to the prevailing party.” Fed. R. Civ. P. 54. “[A]ttorney’s fees awards include those reasonable
out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” LeBlancSternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (quoting United States Football League
v. Nat’l Football League, 887 F.2d 408, 416 (2d Cir. 1989)). The Court will therefore examine
the costs incurred to determine whether they are appropriate and appropriately charged to the
Defendants.
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1.
Expert Witness Fees
Defendants claim that “absent explicit statutory authorization, a district court may not
award reimbursement for expert fees beyond the allowances authorized by 28 U.S.C. § 1920, as
limited by 28 U.S.C. § 1821.” (Dkt. No. 192-9, at 20) (citing Gortat v. Capala Bros., 795 F.3d
292, 296 (2d Cir. 2015)). Defendants rightly point out that §1988(c) “only permits a court to
award expert fees in discrimination cases under § 1981.” (Dkt. No. 192-9, at 20).
Plaintiff counters by arguing that caselaw concerning whether §1983 actions allow
reimbursement for expert witness fees “is not unanimous.” (Dkt. No. 194-12, at 14). Plaintiff
cites Weather v. City of Mount Vernon, where the district court allowed the plaintiff in a § 1983
action to recover an expert fee as part of the attorney’s fees under 42 U.S.C. § 1988(c), No. 08cv-192, 2011 WL 2119689, 2011 U.S. Dist. LEXIS 57144 (S.D.N.Y. May 27, 2011). (Dkt. No.
194-12, at 14–15). But at least one other court has concluded that Weather was “wrongly
decided,” Walker v. City of New York, No. 11-cv-314, 2015 WL 4568305, at *13, 2015 U.S.
Dist. LEXIS 101253, at *33 (E.D.N.Y. July 28, 2015) (“Weather misread both the plain text of
the statute and failed to distinguish the relevant precedent.”), and the majority of courts to have
considered the issue have concluded that exert fees are not recoverable as costs. See Ortiz v. City
of New York, No. 15-cv-2206, 2020 WL 755878, at *8, 2020 U.S. Dist. LEXIS 26241, at *21–22
(S.D.N.Y. Feb. 14, 2020) (“Expert fees are not recoverable by a § 1983 plaintiff.”); Grant, 357
F. Supp. 3d at 208 (concluding the plaintiff “cannot recover any amounts paid in expert witness
fees” as part of request for costs in § 1983 action); Amara v. Cigna Corp., No. 01-cv-2361, 2018
WL 6242496, at *5, 2018 U.S. Dist. LEXIS 202717, at *14–15 (D. Conn. Nov. 29, 2018)
(explaining “§ 1988’s own provision for attorney’s fees has not been interpreted to include
expert witness costs”).
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The Court agrees with this caselaw and finds expert fees are not recoverable as costs.
While § 1988(b) authorizes the court to award “a reasonable attorney’s fee as part of the costs,”
“‘costs’ is a term of art that generally does not include expert fees.” Arlington Cent. Sch. Dist.
Bd. of Educ. v. Murphy, 548 U.S. 291, 297 (2006). Plaintiff cannot recover expert fees as part of
her costs “because § 1988 does not allow the shifting of expert witness fees in § 1983 actions.”
Walker v. City of New York, No. 11-cv-314, 2015 WL 4568305 at *12, 2015 U.S. Dist. LEXIS
101253 at *31 (E.D.N.Y. July 28, 2015); see also W. Virginia Univ. Hosps., Inc. v. Casey, 499
U.S. 83, 102 (1991). Plaintiff argues that Congress abrogated Casey by amending § 1988, which
is now codified as § 1988(c). However, “because that subsection speaks only to suits under
§ 1981 or § 1981a, it authorizes expert-fee shifting only in those instances and leaves intact the
Casey rule with respect to all other claims, including those under § 1983.” Walker, 2015 WL
4568305, at *13, 2015 U.S. Dist. LEXIS 101253, at *32; see also Wilder v. Bernstein, 975 F.
Supp. 276, 287 n.12 (S.D.N.Y. 1997). Therefore, Plaintiff may not recover costs for expert fees.
Plaintiff argues in the alternative that costs charged by her expert, Robert E. Brown, Esq.
(“Brown”), “are recoverable as an attorney’s fee charged by ‘outside counsel.’” (Dkt. No. 19412, at 15). Plaintiff seeks to recover the $22,387.50 Brown charged as Plaintiff’s “police expert,”
(Dkt. No. 181-19), and contends that “Brown acted ‘of counsel’ to S&M during the course of
this litigation, a role that is compensable in the context of a fee application.” (Dk. No. 194-12, at
15–16). Brown charged $425 per hour. (Dkt. No. 194-12, at 16 n.17). Plaintiff claims that Brown
“not only is an expert on police procedure” but that he also provided “insight into the relevance
of those procedures to the legal issues in this case.” (Dkt. No. 194-12, at 15). The Court rejects
Plaintiff’s recasting of Brown as of counsel in this action; while he may be a practicing attorney,
he was retained as an expert witness and included on Plaintiff’s Witness List as her “expert
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witness on police procedures.” (Dkt. No. 138, at 3). Moreover, the Court has reviewed Brown’s
billing records, (Dkt. No. 181-19, at 9–10), and finds that Brown’s description of his work as an
expert witness does not support a fee award. Accordingly, Plaintiff’s request for expert fees is
denied.
2.
Travel Expenses
Plaintiff requests $1,588.37 in hotel costs and $2,197.44 in compensation for travel
expenses for “nine round trips” by Plaintiff’s counsel “between Manhattan and Syracuse.” (Dkt.
No. 181-19, at 1; Dkt. No. 181-2, ¶ 45 (“The mileage for those trips totaled 4,035, and S&M
seeks reimbursement at a rate of $0.545 per mile.”)). Defendants argue that “travel costs should
be denied where local counsel is competent and available.” (Dkt. No. 192-9, at 20).
“Identifiable, out-of-pocket disbursements for items such as photocopying, travel, and
telephone costs are generally taxable under § 1988[.]” Kuzma v. IRS, 821 F.2d 930, 933–34 (2d
Cir. 1987). However, expenses for travel to the Northern District of New York are not
compensable for out-of-district counsel for the reasons outlined above. See Congregation
Rabbinical Col. of Tartikov, Inc. v. Vill. of Pomona, 188 F. Supp. 3d 333, 345 (S.D.N.Y. 2016)
(denying travel related expenses for out-of-district counsel because ‘the Second Circuit has
instructed that defendants should not be penalized for a plaintiff’s choice of out-of-district
counsel, unless ‘the case required special expertise beyond the competence of forum district law
firms.’” (quoting Dzugas-Smith v. Southold Union Free Sch. Dist., No. 09-cv-7360, 2010 WL
3852003, at *3, 2010 U.S. Dist. LEXIS 101750, at *8 (E.D.N.Y. Sept. 27, 2010))). Even indistrict counsel within our large district, however, may incur hotel costs during trial, and district
courts within this Circuit regularly award hotel costs for out-of-district counsel. See Grant, 357
F. Supp. 3d at 208 (N.D.N.Y. 2019) (awarding $25,475.98 in lodging costs to out-of-district
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counsel); Cornell Univ., 2019 WL 1567535, at *10–11, 2019 U.S. Dist. LEXIS 62986, at *29–30
(awarding hotel costs). Thus, hotel costs are granted.
3.
Witness Fees
Defendants object to reimbursing Plaintiff $591 in “Subpoena fees” paid to trial
witnesses on the ground that this matter settled prior to trial. (Dkt. No. 192-, at 21). In
anticipation of the September 23, 2019 trial, Plaintiff sent checks with witness and mileage fees
dated August 27 and 28, 2019, to thirteen witnesses. (Dkt. No. 181-19, at 39–43). Under 28
U.S.C. § 1821, “[a] witness shall be paid an attendance fee of $40 per day” and provided a
“mileage allowance” for travel. 28 U.S.C. § 1821(b), (c)(2). Although Plaintiff’s counsel notified
“all subpoenaed individuals” of the settlement on September 18, 2019, there is no indication the
checks were recouped. (Dkt. No. 192-9, at 21; Dkt. No. 181-19, at 39–43; Dkt. No. 181-13, at 5).
“There is a general presumption that only the costs of those witnesses who actually testify at trial
may be shifted” to the losing party. U.S. for Use & Benefit of Evergreen Pipeline Const. Co. v.
Merritt Meridian Const. Corp., 95 F.3d 153, 173 (2d Cir. 1996). However, “the presumption
‘can be overcome if it appears that a court order or some other extrinsic circumstance rendered
his testimony unnecessary.’” Id. (quoting McGuigan v. CAE Link Corp., 155 F.R.D. 31, 35–36
(N.D.N.Y. 1994)). Because this matter settled just days before trial, the Court finds the witness
fees reasonable and therefore recoverable. Here, Plaintiff has provided copies of the checks,
which reflect payments from $25 to $100 for 13 witnesses. (Dkt. No. 181-19, at 39–43).
Accordingly, the Court concludes these disbursements are recoverable.
Plaintiff also seeks reimbursement in the amount of $1,000 for “Elizabeth Taetsch
(plaintiff’s therapist; testimony fee),” in addition to a $40 witness fee and mileage addressed
above. (Dkt. No. 181-19, at 1). As Defendants note, Plaintiff provides no explanation for this fee.
Accordingly, this request is denied.
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4.
Other Expenses
Defendants object to reimbursement of $68.45 for “a letter sent to a prospective witness.”
(Dkt. No. 192-9, at 22 (quoting Dkt. No. 181-2, ¶ 42 and citing Dkt. No. 181-19, at 21)). As
Plaintiff does not respond to this objection or provide further information regarding this cost, her
request is denied.
Defendants also object to the costs of a subpoena duces tecum, obtaining Plaintiff’s
medical records, and her criminal history on November 2, 2016 and July 12, 2019. (Dkt. No.
192-9, at 22–23). The Court has reviewed the receipts Plaintiff provided, (Dkt. No. 181-19, at 3–
4, 15, 18–20), and all remaining litigation expenses, and finds these costs reasonable.
C.
Final Calculation
In sum, after carefully considering all the relevant factors, adjusting the requested rates
and the requested hours as discussed above, the Court finds Plaintiff is entitled to attorney’s fees
in the total amount of $386,231.36.
Attorney/Paraprofessional Adjusted Rate
Hours (excluding
Total Fees
travel to and from New
York City)
Edward Sivin (Partner)
$350
835.9
$292,565.00
Travel Rate: $175
Travel Time: 11
Travel: $1,925.00
Glenn Miller (Partner)
$350
429.4
$150,290.00
Moses Ahn (Associate)
$190
16.5
$3,135.00
Andrew Weiss (Associate)
$170
18.7
$3,179.00
Jake Ethé (Paralegal)
$90
304.23
$27,380.70
Nikhil Dominic (Paralegal)
$90
40.25
$3,622.50
Other Legal Assistants
$80
8.65
$692.00
1,664.63
$482,789.20
TOTAL
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Reduction
20% reduction
Final Fee
$386,231.36
In addition, Plaintiff is awarded $14,812.43 in costs and expenses for a total of
$401,043.79.
III.
CONCLUSION
For these reasons, it is hereby
ORDERED that the portion of the Court’s Order of Dismissal directing that dismissal be
“without costs” (Dkt. No. 175, at 1) is vacated; and it is further
ORDERED that Plaintiff’s Motion for Attorney’s Fees and Costs (Dkt. No. 181) is
GRANTED in part and DENIED in part; and it is further
ORDERED that Plaintiff is awarded a total of $386,231.36 in attorney’s fees and
$14,812.43 in costs and expenses for a total of $401,043.79.
IT IS SO ORDERED.
Dated: August 31, 2020
Syracuse, New York
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