Davis et al v. The City of New York et al

Filing 116

OPINION AND ORDER:#100922 For the reasons stated above, the Settling Plaintiffs are awarded $56,360.25 in attorneys' fees ($32,215.25 in litigation fees and $24,145.00 in fees related to the fee application) and zero costs. The Clerk of the Court is directed to close the motion for attorneys' fees (Docket Entry # 80). (Signed by Judge Shira A. Scheindlin on 10/17/2011) (js) Modified on 10/18/2011 (jab).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------)(
KELTON DAVIS, WILLIAM TURNER,
ALTAGRACIA HERNANDEZ, EDWIN
LARREGUI, ROMAN JACKSON,
KRISTIN JOHNSON, ELEANOR BRITT,
ANTHONY ANDERSON, LASHAUN
SMITH, SHAWNE JONES, HECTOR
SUAREZ, ADAM COOPER, ANDREW
WASHINGTON, P.L. BY HIS PARENT
LISA PIGGOTT, DAVID WILSON, and
GENEVA WILSON, individually and on
behalf of a class of all others similarly
situated,

OPINION AND ORDER
10 Civ. 699 (SAS)

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DOCUMENT

. El..B(;fl\ONICAUX FILED i
DOC #':
__ f'

DATI1FlLED:
Plaintiffs,
- againstTHE CITY OF NEW YORK and NEW
YORK CITY HOUSING AUTHORITY,
Defendants.

-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
Plaintiffs brought this putative class action, on behalf of themselves
and a class of similarly situated persons, against the City of New York (the "City")
and the New York City Housing Authority ("NYCHA") to remedy the continuing
violation of various constitutional rights secured by 42 U.S.C. § 1983 ("section
1983"). Nine of the sixteen original plaintiffs, hereafter referred to as the "Settling
Plaintiffs," accepted offers ofjudgment pursuant to Federal Rule of Civil

'.-~.

Procedure 68 (“Rule 68”)1 and took Judgments Pursuant to Rule 68 (“Rule 68
Judgments”) against the City on February 7, 2011.2 On July 8, 2011, the Settling
Plaintiffs moved for an award of attorneys’ fees and costs which the City opposed.
For the following reasons, the Settling Plaintiffs’ motion is granted but not in the
amount sought.

1

Rule 68 states, in relevant part, as follows: “At least 14 days before
the date set for trial, a party defending against a claim may serve on an opposing
party an offer to allow judgment on specified terms, with the costs then accrued.”
Fed. R. Civ. P. 68(a).
2

The parties dispute whether the Rule 68 Judgments also release
NYCHA from the claims brought by the Settling Plaintiffs. The Rule 68
Judgments state that “this judgment shall act to release and discharge defendants
The City of New York, their successors and/or assigns; and all past and present
officials, employees, representatives, and agents of the City of New York, or any
agency thereof, from any and all claims that were or could have been alleged by
[the Settling Plaintiff.]” (emphasis added). NYCHA is not an agency of the City
of New York. Rather, NYCHA “is ‘a body corporate and politic’ created by state
law.” Romero v. Keeney. 168 F.R.D. 483, 484 (S.D.N.Y. 1996) (quoting N.Y. Pub.
Hous. Law § 401) (“[T]he New York City Housing Authority, although its
members are appointed by the mayor, is not an agency of the City of New York.”).
Accord McLaughlin v. Hernandez, 782 N.Y.S.2d 589, 592 (Sup. Ct. N.Y. Co.
2004) (“NYCHA was created as a public housing authority by act of the State
Legislature to address the widespread and growing need for adequate low-income
housing in New York City.”). Although NYCHA is not an agency of the City of
New York, it is the parties’ intent that will control the scope of the Rule 68
Judgments. I do not address this issue at this time.
2

I.

BACKGROUND
Plaintiffs3 filed the instant action on January 28, 2010, alleging

violations of the Fourth and Fourteenth Amendments of the United States
Constitution, Title VI of the Civil Rights Act of 1964,4 Title VIII of the Civil
Rights Act of 1968,5 the United States Housing Act,6, the Constitution and laws of
the State of New York, and the New York City Human Rights Law.7 Plaintiffs
allege that defendants, operating through the New York City Police Department
(“NYPD”), were engaged in a pattern and practice of “illegal stops, seizures,
questioning, searches, and false arrests” of residents and visitors to housing
developments maintained by the NYCHA.8 In particular, plaintiffs complain about

3

The original sixteen plaintiffs in this action include Kelton Davis,
William Turner, Altagracia Hernandez, Edwin Larregui, Roman Jackson, Kristin
Johnson, Eleanor Britt, Anthony Anderson, Lashaun Smith, Shawne Jones, Hector
Suarez, Adam Cooper, Andrew Washington, P.L. by his parent Lisa Piggott, David
Wilson and Geneva Wilson. On September 23, 2010, Altagracia Hernandez
voluntarily withdrew all of her claims against defendants. See Docket Entry # 22.
4

42 U.S.C. § 2000(d) et seq.

5

Id. § 3601 et seq. (the “Fair Housing Act”).

6

Id. § 1437 et seq.

7

See Complaint ¶ 1.

8

See id. ¶ 2.
3

the use of allegedly unlawful “vertical patrols.”9 These vertical patrols consist of
“roving pedestrian checkpoints in and around NYCHA residences, wherein [police
officers] indiscriminately stop and question every person they observe, without
objective individualized suspicion of a crime, and unlawfully arrest individuals for
trespass without probable cause.”10 Plaintiffs further allege that “[d]efendants
implement and apply these policies, practices, and customs in an intentionally
discriminatory and race-based manner . . . .”11 According to plaintiffs, defendants’
policies are “not explained or justified by underlying crime levels in NYCHA
residences” but instead are based on the “race, ethnicity, and/or national origin” of
the residents and visitors of NYCHA buildings.12 To remedy these constitutional
violations, plaintiffs seek class certification “for the purpose of obtaining
injunctive and declaratory relief only.”13 Plaintiffs also seek “compensatory
damages for their individual claims[.]”14

9

See id.

10

Id. ¶ 3.

11

Id. ¶ 7.

12

Id. ¶¶ 8-9.

13

Id. ¶ 13.

14

Id.
4

Nine of the sixteen original plaintiffs accepted Rule 68 offers. Four
Settling Plaintiffs – Anthony Anderson, Edwin Larregui, William Turner and
David Wilson – were extended Rule 68 offers on September 20, 2010, which they
accepted on October 4, 2010.15 Five other Settling Plaintiffs – Adam Cooper,
Kelton Davis, Shawne Jones, Hector Suarez and Geneva Wilson – were extended
Rule 68 offers on December 7, 2010, which they accepted December 20, 2010.16
When the Settling Plaintiffs accepted the Rule 68 offers, they agreed to dismiss all
claims in exchange for specified dollar amounts. Thus, the Settling Plaintiffs did
not obtain class certification, injunctive relief, or declaratory relief.
In their motion for attorneys’ fees and costs, the Settling Plaintiffs
submitted bills for seven attorneys, four from the Legal Aid Society (“LAS” or
“Legal Aid”) and three from the NAACP Legal Defense and Educational Fund,
Inc. (“LDF” or the “Fund”). Initially, the Settling Plaintiffs sought a total award of
$277,255.58, consisting of $114,102.20 in fees for Legal Aid, $151,109.63 in fees
for LDF, and $12,043.75 in costs for LDF. In their reply papers, the Settling
Plaintiffs seek an additional $5,418.75 in attorneys’ fees for Legal Aid and

15

See Judgment Pursuant to Rule 68, Ex. B to the Declaration of
Morgan D. Kunz, Assistant Corporation Counsel, in Opposition to Plaintiffs’
Motion for Attorneys’ Fees and Costs (“Kunz Decl.”).
16

See Judgment Pursuant to Rule 68, Ex. C to the Kunz Decl.
5

$19,370.00 in attorneys’ fees for LDF.17 When the other adjustments proposed by
the Settling Plaintiffs are taken into account,18 the revised amounts sought in
attorneys’ fees is $118,883.45 for Legal Aid and $138,450.88 for LDF, with the
same costs of $12,043.75 for LDF.19
II.

LEGAL STANDARD
A “prevailing party” in a civil rights action is entitled to an award of

attorneys’ fees and costs.20 The Second Circuit has held that plaintiffs who accept
Rule 68 offers of judgment qualify as “prevailing parties” entitled to attorneys’
fees and costs.21 Furthermore, a prevailing party is also entitled to reimbursement
17

See Attorney Declaration of Nancy Rosenbloom in Support of
Plaintiffs’ Motion for an Award of Attorneys’ Fees and Costs (“Rosenbloom
Decl.”) ¶ 4.
18

The Settling Plaintiffs propose the following reductions to the amount
of fees sought: $637.50 (Legal Aid) and $3,071.25 (LDF) for duplicate entries;
$26,422.50 (LDF) for post-Rule 68 work; and $2,535.00 (LDF) for block billing
entries. See id. ¶¶ 5, 6 and 7.
19

See id. ¶ 8.

20

See 42 U.S.C. § 1988(b) (stating that “the court, in its discretion, may
allow the prevailing party, other than the United States, a reasonable attorney’s fee
as part of the costs” in civil rights actions). See also Raishevich v. Foster, 247 F.3d
337, 344 (2d Cir. 2001) (“Although a district court typically has wide discretion in
choosing whether to deny attorneys’ fees, . . . this discretion is narrowed by a
presumption that successful civil rights litigants should ordinarily recover
attorneys’ fees unless special circumstances would render an award unjust.”).
21

See Lyte v. Sara Lee Corp., 950 F.2d 101, 103-04 (2d Cir. 1991) (“A
plaintiff involved in litigation ultimately resolved by settlement may still be
6

for time reasonably expended in preparing its attorneys’ fee application.22 Thus,
“absent unreasonably dilatory conduct by the prevailing party in ‘any portion’ of
the litigation, which would justify denying fees for that portion, a fee award
presumptively encompasses all aspects of the civil action,” including litigation
over attorneys’ fees.23 “The district court has broad authority to depart from this
basic assumption” where, for example, “the fee claims are exorbitant or the time
devoted to presenting them is unnecessarily high.”24
District courts are afforded considerable discretion in determining the
amount of attorneys’ fees in any given case.25 In calculating a reasonable fee
award, the Second Circuit has adopted the “presumptively reasonable fee”

entitled to an award of attorneys’ fees.” (citing Maher v. Gagne, 448 U.S. 122, 129
(1980)); Baird v. Boies, Schiller & Flexner LLP, 219 F. Supp. 2d 510, 518
(S.D.N.Y. 2002) (“The Second Circuit has also found that a plaintiff who accepts a
Rule 68 offer of judgment can qualify to be a ‘prevailing party’ entitled to
attorneys’ fees and costs.”) (citing Sara Lee, 950 F.2d at 104).
22

See Weyant v. Okst, 198 F.3d 311, 316 (2d Cir. 1999) (“[A]
reasonable fee should be awarded for time reasonably spent in preparing and
defending an application for § 1988 fees.”).
23

Commissioner, INS v. Jean, 496 U.S. 154, 161 (1990).

24

Valley Disposal, Inc. v. Central Vermont Solid Waste Mgmt. Dist., 71
F.3d 1053, 1059, 1060 (2d Cir. 1995) (quotation marks and citation omitted).
25

See Barfield v. New York City Health and Hosps. Corp., 537 F.3d 132,
151 (2d Cir. 2008).
7

approach.26 “Although the term ‘lodestar’ is now disfavored by the Second Circuit,
the applicable approach still contemplates (1) a consideration of the number of
hours actually spent by counsel and other personnel that are deemed reasonably
necessary to a successful outcome for the client, and (2) the setting of reasonable
hourly rates for counsel . . . .”27 “The presumptively reasonable fee boils down to
what a reasonable, paying client would be willing to pay, given that such a party
wishes to spend the minimum necessary to litigate the case effectively.”28
“The reasonable hourly rate is the rate a paying client would be
willing to pay.”29 In determining the reasonable hourly rates to be applied, courts
should look to the market rates “‘prevailing in the community for similar services

26

Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of
Albany and Albany County Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008).
27

Imbeault v. Rick’s Cabaret Int’l Inc., No. 08 Civ. 5458, 2009 WL
2482134, at *1 (S.D.N.Y. Aug. 13, 2009) (“In determining a ‘reasonable’ fee, the
‘most useful starting point . . . is the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.’” (quoting Hensley v. Eckerhart,
461 U.S. 424, 433 (1983) (ellipsis in original)); Metrokane, Inc. v. Built NY, Inc.,
Nos. 06 Civ. 14447, 07 Civ. 2084, 2009 WL 637111, at *1 (S.D.N.Y. Mar. 6,
2009) (citation omitted).
28

Simmons v. New York City Transit Auth., 575 F.3d 170, 174 (2d Cir.
2009) (quotation marks and citation omitted).
29

Arbor Hill, 522 F.3d at 190.
8

by lawyers of reasonably comparable skill, experience, and reputation.’”30 “The
relevant community to which the court should look is the district in which the case
was brought.”31 To compensate for the delay in payment, the hourly rates to be
used should be “‘current rather than historic hourly rates.’”32
There is no rule requiring proportionality between the amount of fees
requested and the damages recovered. The Second Circuit has recently stated that
[w]hile a court may, in exceptional circumstances, adjust
the lodestar, it may not disregard it entirely. Especially for
claims where the financial recovery is likely to be small,
calculating attorneys’ fees as a proportion of damages runs
directly contrary to the purpose of fee-shifting statutes:
assuring that civil rights claims of modest cash value can
attract competent counsel. The whole purpose of
fee-shifting statutes is to generate attorneys’ fees that are
disproportionate to the plaintiff’s recovery. Thus, the
district court abused its discretion when it ignored the
lodestar and calculated the attorneys’ fees as a proportion
of the damages awarded.33

30

Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998) (quoting
Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)).
31

Marisol A. ex rel. Forbes v. Giuliani, 111 F. Supp. 2d 381, 386
(S.D.N.Y. 2000) (citing In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232
(2d Cir. 1987)).
32

Gierlinger, 160 F.3d at 882 (quoting Missouri v. Jenkins, 491 U.S.
274, 284 (1989)).
33

Millea v. Metro-North R.R. Co., Nos. 10–409–cv, 10–564–cv, 2011
WL 3437513, at *10 (2d Cir. Aug. 8, 2011) (citation omitted, emphasis in
original). Accord Kassim v. City of Schenectady, 415 F.3d 246, 252 (2d Cir. 2005)
9

The Second Circuit has stated, however, “that ‘the most critical factor’
in a district court’s determination of what constitutes reasonable attorney’s fees in
a given case ‘is the degree of success obtained’ by the plaintiff.”34 The “degree of
success” inquiry “is not limited to inquiring whether a plaintiff prevailed on
individual claims.”35 “Both the quantity and quality of relief obtained, as
compared to what the plaintiff sought to achieve as evidenced in her complaint, are
key factors in determining the degree of success achieved.”36 “‘If a plaintiff has
achieved only partial or limited success, the product of hours reasonably expended
on the litigation as a whole times a reasonable hourly rate may be an excessive
amount . . . even where the plaintiff’s claims were interrelated, non-frivolous, and
raised in good faith.’”37 Accordingly, “a district judge’s authority to reduce the
fee awarded to a prevailing plaintiff below the lodestar by reason of the plaintiff’s
(“Reasoning that a rule calling for proportionality between the fee and the
monetary amount involved in the litigation would effectively prevent plaintiffs
from obtaining counsel in cases where deprivation of a constitutional right caused
injury of low monetary value, we have repeatedly rejected the notion that a fee may
be reduced merely because the fee would be disproportionate to the financial
interest at stake in the litigation.”).
34

Barfield, 537 F.3d at 152 (quoting Farrar v. Hobby, 506 U.S. 103,

114 (1992)).
35

Id. (citing Kassim, 415 F.3d at 254).

36

Id. (quotation marks and citation omitted).

37

Id. (quoting Hensley, 461 U.S. at 436).
10

‘partial or limited success’ is not restricted either to cases of multiple discrete
theories or to cases in which the plaintiff won only a nominal or technical
victory.”38
“Congress did not intend the calculation of fee awards to vary
depending on whether plaintiff was represented by private counsel or by a
nonprofit legal services organization.”39 In furtherance of such parity, the Supreme
Court offered the following guidance within the context of the federal civil rights
fee-shifting statute:
Cases may be overstaffed, and the skill and experience of
lawyers vary widely. Counsel for the prevailing party
should make a good faith effort to exclude from a fee
request hours that are excessive, redundant, or otherwise
unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.
In the private sector, “billing judgment” is an important
component in fee setting. It is no less important here.
Hours that are not properly billed to one’s client also are
not properly billed to one’s adversary pursuant to statutory
authority.40

38

Kassim, 415 F.3d at 256.

39

Blum, 465 U.S. at 894.

40

Hensley, 461 at 434 (quotation marks and citation omitted, emphasis

in original).
11

Thus, “[i]n determining what fee is reasonable, the court takes account of claimed
hours that it views as ‘excessive, redundant, or otherwise unnecessary.’”41 In
doing so, “the district court does not play the role of an uninformed arbiter but may
look to its own familiarity with the case and its experience generally as well as to
the evidentiary submissions and arguments of the parties.”42 Moreover, the
“presumptively reasonable fee” is subject to further reduction due to plaintiffs’
limited success.43 “In lieu of making minute adjustments to individual timekeeping
entries, a court may make across-the-board percentage cuts in the number of hours
claimed, ‘as a practical means of trimming fat from a fee application.’”44

41

Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley,
461 U.S. at 434).
42

DiFilippo v. Morizio, 759 F.2d 231, 236 (2d Cir. 1985).

43

See Estrella v. P.R. Painting Corp., 596 F. Supp. 2d 723, 727
(E.D.N.Y. 2009) (“The Second Circuit has observed that district courts retain the
authority to reduce a statutory fee award by reason of the plaintiff’s ‘partial or
limited success.’”) (quoting Kassim, 415 F.3d at 256).
44

Heng Chan v. Sung Yue Tung Corp., No. 03 Civ. 6048, 2007 WL
1373118, at *5 (S.D.N.Y. May 8, 2007) (quoting In re Agent Orange, 818 F.2d at
237). Accord Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (“[I]n
dealing with . . . surplusage, the court has discretion simply to deduct a reasonable
percentage of the number of hours claimed ‘as a practical means of trimming fat
from a fee application[.]’”) (quoting New York State Ass’n for Retarded Children,
Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983)).
12

III.

DISCUSSION
A.

The February Proposal
On February 25, 2011, plaintiffs presented the City with a fee

settlement proposal (the “February Proposal”). The February Proposal did not
include any attorneys’ fees or costs for work done by the Paul Weiss attorneys.
The February Proposal was intended to only include fees for work through
December 7, 2010, the date of the City’s second round of Rule 68 offers. The
February Proposal states:
Because these settlements are limited to individual damages
and are for a subset of Plaintiffs, our present application is
limited to fees that we attribute to work done on behalf of
the Rule 68 Plaintiffs’ individual damages only. As such,
this application does not seek fees for work done solely in
furtherance of the Monell claims or injunctive relief.
Moreover, where the work is attributable to all of the
Plaintiffs, we have discounted the amount in half since this
application is on behalf of approximately half of the
Plaintiffs.45
The February Proposal sought $41,041.50 in attorneys’ fees for the following
attorneys: Amanda Moretti, Steve Wasserman, Nancy Rosenbloom, Johanna
Steinberg, and Jih Hee Lee.46
45

2/25/11 Letter from Katharine E.G. Brooker, attorney at Paul Weiss,
to Tonya Jenerette and Bradford C. Patrick of the Special Federal Litigation
Division of the Office of the Corporation Counsel at 1.
46

See id., Attorney Hours Summary.
13

Included in the declarations of attorneys William Gibney and Johanna
B. Steinberg in Support of Plaintiffs’ Motion for an Award of Attorneys’ Fees and
Costs is an identical Exhibit B which contains time entries associated with the
Settling Plaintiffs’ individual claims.47 Although the City apparently “absolutely
refused to negotiate a bifurcated fee settlement,”48 this Court finds that the fees
associated with plaintiffs’ pattern and practice claims should be deferred, pending
the ultimate resolution of this action. To allocate a portion of such fees to the
Settling Plaintiffs at this stage of the litigation makes little sense given that the
degree of plaintiffs’ success with regard to their pattern and practice claims has not
yet been determined. The degree of plaintiffs’ success is perhaps the most crucial
factor to be considered when determining the amount of fees to be awarded.
Accordingly, this Court will confine the present fee request to the fees associated
with the Settling Plaintiffs’ individual claims for money damages.
In determining the appropriate amount of such fees, the supporting
documentation found in Exhibit B – detailing each attorneys’ time charges for the

47

See Ex. B to Declaration of William Gibney in Support of Plaintiffs’
Motion for an Award of Attorneys’ Fees and Costs (“Gibney Decl.”); Ex. B to
Declaration of Johanna B. Steinberg in Support of Plaintiffs’ Motion for an Award
of Attorneys’ Fees and Costs (“Steinberg Decl.”).
48

Memorandum of Law in Support of Plaintiffs’ Application for an
Award of Attorneys’ Fees and Costs (“Pl. Mem.”) at 5.
14

Settling Plaintiffs’ claims – will be relied upon and reviewed. Because of a
previous mathematical error in the amount of attorneys’ fees originally included in
Exhibit B, plaintiffs submitted a revised Exhibit B on October 3, 2011. The
amount of fees included in the revised Exhibit B is $38,032.50.
B.

Hourly Rates
The City argues that there is a “disconnect” between the hourly rates

sought for the attorneys seeking fees and the level of experience for those
attorneys. The following chart summarizes the information found in Exhibit B.49
Attorney

Total

27.25

$425

$11,581.25

$7,596.88

17.88

Wasserman

23.25

$425

$9,881.25

$8,659.38

20.38

Rosenbloom

1.50

$425

$637.50

$637.50

1.50

Steinberg
Pre 7/1/10

47.25

$360

$17,010.00

$10,890.00

30.63

Post 7/1/10

25.10

$390

$8,287.50

$7,848.75

23.90

Lee

LDF

Rate

Moretti

LAS

Hour

11.00

$400

$4,400.00

$2,400.00

6.00

Totals

Adjusted
Total

Adj.
Hrs

$38,032.51

49

The last column, Adjusted Hours, is arrived at by dividing the
Adjusted Total by the attorney’s hourly rate. For example, the Adjusted Total for
Moretti is $7,596.88. Dividing that amount by Moretti’s hourly rate of $425 yields
17.88 in Adjusted Hours. Finally, the “Adjusted Total” column differs from the
“Total” column because, as stipulated to by the parties, the attorneys only billed
fifty percent (50%) for those time entries applicable to all plaintiffs as opposed to
one-hundred percent (100%) for those time entries specifically identifying one or
more of the Settling Plaintiffs by name.
15

The hourly rates sought by the Settling Plaintiffs, the rates proposed
by the City, and the rates determined by this Court are summarized in below.
Attorney

Years
Experience

Hourly Rate
Sought

Hourly Rate
Proposed

Hourly Rate
Set by Court

Wasserman

31

$425

$400

$425

Moretti

20

$425

$350

$400

Rosenbloom

24

$425

$350

$400

Steinberg pre 7/1/10

9

$360

$300

$350

Steinberg post 7/1/10

9

$390

$300

$375

Lee

11

$400

$300

$375

Wasserman has the most experience, thirty-one years, and is therefore
entitled to the highest rate sought by the Settling Plaintiffs. Moretti and
Rosenbloom have considerably less experience than Wasserman, twenty and
twenty-four years respectively, but the Settling Plaintiffs seek the same hourly rate
of $425 per hour for both attorneys.50 To account for the differences in experience,
this Court finds that a small reduction, to $400 per hour, is appropriate for these
50

In their reply papers, plaintiffs suggest that “[i]f the Court finds that
different rates are appropriate, it would be more appropriate to raise the rates of the
most senior attorneys rather than reduce the rates of the next most experienced.”
Reply Memorandum of Law in Support of Plaintiffs’ Application for an Award of
Attorneys’ Fees and Costs (“Reply”) at 3. Because the most experienced attorney
is being compensated at an appropriate level, this Court declines plaintiffs’
suggestion.
16

attorneys. Finally, Steinberg and Lee have roughly half of the experience of
Moretti and Rosenbloom yet the Settling Plaintiffs seek rates of $360/$390 and
$400 per hour for these attorneys. Surely, a reasonable paying client would not
pay an attorney with ten years experience the same hourly rate he would pay an
attorney with twenty or thirty years experience. Accordingly, the Court sets the
rates for Steinberg and Lee at $350 per hour. The rates established above are in
accord with relevant case law.51
C.

Pre-Complaint Work
The City objects to a number of time entries that pre-date the filing of

the Complaint on the ground that the work billed must be expended on the
litigation itself.52 In Webb v. Board of Education of Dyer County, Tennessee, the
51

See, e.g., Handschu v. Special Servs. Div., 727 F. Supp. 2d 239, 246
(S.D.N.Y. 2010) (approving $400 per hour for seasoned civil rights attorneys
admitted to the bar in the 1960s and 1970s) (citing Simmonds v. New York City
Dep’t of Corr., No. 06 Civ. 5298, 2008 WL 4303474, at *5 (S.D.N.Y. Sept. 16,
2008) (where, in the context of a Title VII civil rights case, the court relied upon
her “independent knowledge of the rates charged by attorneys for similar services
and of recent awards in the district for complex civil rights matters” in
compensating the two lead attorneys at $425 per hour)); Rahman v. Smith &
Wollensky Rest. Grp., Inc., No. 06 Civ. 6198, 2008 WL 1899938, at *4 (S.D.N.Y.
Apr. 29, 2008) (compensating an attorney with ten years experience at $350 per
hour); Heng Chan, 2007 WL 1373118, at *4 (finding $400 per hour to be a
reasonable rate for an attorney at the Urban Justice Center who had fifteen years of
civil rights litigation experience).
52

See Defendant City of New York’s Memorandum of Law in
Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Costs (“Def. Mem.”) at
17

Supreme Court noted that “[t]he time that is compensable under § 1988 is that
‘reasonably expended on the litigation.’”53 The Supreme Court suggested that the
standard to use to determine if pre-complaint work is compensable is whether the
work “was both useful and of a type ordinarily necessary to advance the civil rights
litigation to the stage it reached before settlement.”54 The question, then, is how
much of the work performed prior to the filing of the complaint was useful to
advance the federal claims subsequently asserted herein.
Wasserman’s time charges begin on January 15, 2009 and end on
December 10, 2009.55 Thus, for purposes of the instant fee award, all of
Wasserman’s time is pre-complaint. Steinberg’s time charges begin on May 27,
2009, and continue through January 22, 2010.56 According to the supporting
documentation, the vast majority of Wasserman’s time entries list the actual

16-17.
53

471 U.S. 234, 242 (1985) (emphasis in original).

54

Id. at 243.

55

See Attorney Time Detail – Steve Wasserman (LAS), Ex. B to the
Gibney and Steinberg Decls.
56

See Attorney Time Detail –Johanna Steinberg (LDF), Ex. B to the
Gibney and Steinberg Decls.
18

plaintiff with whom the work was associated.57 For those entries that do not
identify a particular plaintiff, the Settling Plaintiffs allocate half the amount as
compensable, in accordance with the parties’s stipulation.58 Conversely, most of
Steinberg’s pre-complaint time entries do not identify a particular plaintiff.59 As
with Wasserman, the Settling Plaintiffs include only fifty percent of Steinberg’s
unidentifiable pre-complaint work in the instant fee request.
This Court finds that most of Wasserman’s and Steinberg’s precomplaint work was relevant and related to the instant litigation and is thus
compensable. However, for those time entries that relate to “potential plaintiffs,”
the following adjustments are needed: Wasserman – 2.50 hours (8/24/09), 1.25
hours (8/26/09) (3.75 hours total reduction); Steinberg – 2.50 hours (8/24/09),
1.25 hours (8/26/09), 0.50 hours (9/5/09) (4.25 hours total reduction, all pre
7/1/10).60

57

See, e.g., 1/15/09 (Adam Cooper: conferred with Legal Aid Attorney);
4/18/09 (Anthony Anderson; wrote letter to Plaintiff); 5/27/09 (met with Edwin
Larregui).
58

See 8/24/09; 8/26/09; 10/14/09.

59

The time entries that do identify a particular plaintiff include 6/10/09;
11/23/09; 1/19/10; 1/22/10. The remaining entries are described in terms more
general such as “plaintiffs,” “potential plaintiffs,” and “clients.”
60

The fact that only minor adjustments were made to adjust for precomplaint work is not intended to bind this Court with respect to any future fee
19

D.

Travel Time
The City acknowledges that the Settling Plaintiffs seek compensation

for travel time at fifty percent (50%) of their normal rates. Nonetheless, the City
argues that “given the wide availability of electronic means of communication, . . .
a reasonable paying client would not agree to pay for travel time.”61 The City has
therefore identified two areas for possible deductions: (1) those time entries
specifically designated as travel time only, for which a 100% reduction is
suggested; and (2) those time entries that list meetings held in outside offices but
do not contain separate entries for travel time, for which a 33% reduction is
proposed.62
This Court rejects the City’s proposal to eliminate, in their entirety,
those time entries specifically designated as travel only, which were billed at fifty
percent (50%) of the attorneys’ normal rates. Courts in this district typically allow

requests, where more substantial reductions may be necessary for work not
reasonably expended on the litigation, pre-complaint and otherwise. Furthermore,
this Court does not intend for this Opinion and Order to have any res
judicata/collateral estoppel effect or otherwise affect the objections, challenges,
and/or defenses that could be raised by the defendants in the future.
61

Def. Mem. at 15-16.

62

See id. at 16.
20

for travel time at fifty percent.63 However, this Court agrees with the second
category of adjustments but does not agree with the suggested discount rate of
33%. Accordingly, the following adjustments, in hours, are needed to discount
travel time: Moretti – 0.50 hours (5/24/10); 0.50 hours (9/24/10) (1 hour total
reduction); Wasserman – 1.00 hours (4/18/09), 0.50 hours (5/27/09) (1.50 hours
total reduction); Steingberg – 1.00 hours (11/5/09), 1.00 hours (11/23/09), 0.50
hours (8/17/10), 1.00 hours (9/23/10) (3.5 hours total reduction, 2 hours pre 7/1/10
and 1.5 hours post 7/1/10); Lee - 0.50 hours (5/25/10), 0.50 hours (8/17/09) (1 hour
total reduction).
E.

Class Certification
Attorney Jin Hee Lee charged one hour on October 26, 2010 for

“Draft class cert declaration for S. Jones.” The Settling Plaintiffs, however,
achieved no class-wide relief, only money damages for their individual claims.
Thus, work related to class certification did not advance the settlement efforts of
the Settling Plaintiff and is therefore non-compensable. Accordingly, one hour of

63

See, e.g., Colburn Family Found. v. Chabad’s Children of Chernobyl,
No. 06 Civ. 2351, 2011 WL 1758639, at *5 (S.D.N.Y. Apr. 12, 2011); In re
Painewebber Ltd. P’ships Litig., No. 94 Civ. 8547, 2003 WL 21787410, at *4
(S.D.N.Y. Aug. 4, 2003) (“When determining attorneys’ fees, courts in the
Southern District of New York generally do not credit travel time at the attorney’s
full hourly rate and customarily reduce the amount awarded for travel to at least
50% of that rate.”).
21

Lee’s time will be deducted from the instant award.
F.

Revised Summary of Charges
In light of the adjustments made above, to both the hourly rates and

the number of hours, the following chart summarizes the attorneys’ fees that relate
to the litigation of the Settling Plaintiffs’ claims.64

Attorney

Adjusted
Hours

Adjusted
Rates

Amanda Moretti

16.88

$400

$6,752.00

Steve Wasserman

15.13

$425

$6,430.25

Nancy Rosenbloom

1.5

$400

$600.00

Johanna Steinberg pre 7/1/10

24.38

$350

$8,533.00

post 7/1/10

22.4

$375

$8,400.00

Jin Hee Lee

4

$375

$1,500.00

Total

Adjusted
Fees

$32,215.25
The Settling Plaintiffs also seek attorneys’ fees relating to the filing of

the instant fee application. The hours requested, and the adjusted rates, are as
follows: Lee - 7 hours at $375 per hour ; Rosenbloom - 12.75 hours at $400 per

64

Because this award encompasses only the fees relating to the
individual damages claims, the City’s suggestion of an across-the-board reduction
due to plaintiffs’ limited success and vague and block billing is unnecessary.
22

hour; Smith - 45.25 hours at $280 per hour;65 Steinberg - 10.00 hours at $375 per
hour. The corresponding amounts are as follows: Lee - $2,625.00; Rosenbloom $5,100.00; Smith - $12,670.00; Steinberg - $3,750.00, all of which total
$24,145.00.
G.

Expert Fees
Pursuant to section 1988, courts only have the discretion to tax expert

fees as costs in actions brought under 42 U.S.C. §§ 1981 and 1981a, not section
1983.66 The Supreme Court has held that section 1988 does not authorize courts to
shift expert fees to the losing party as part of a “reasonable attorney’s fee” in a
section 1983 case.67 “After Casey, Congress enacted the Civil Rights Act of 1991,
which amended 42 U.S.C. § 1988 to give courts discretion to shift expert fees to
the losing party in cases arising under 42 U.S.C. §§ 1981 and 1981(a). As

65

Jonathan Smith has four years experience and, as such, his hourly rate
of $280 per hour is appropriate.
66

See 42 U.S.C. § 1988(c) (“In awarding an attorney’s fee under
subsection (b) of this section in any action or proceeding to enforce a provision of
section 1981 or 1981a of this title, the court, in its discretion, may include expert
fees as part of the attorney’s fee.”); Tatum v. City of New York, No. 06 Civ. 4290,
2010 WL 334975, at *13 (S.D.N.Y. Jan. 28, 2010) (“Finally, the law is clear that
counsel may not recover under Section 1988 for expert fees paid in connection
with a Section 1983 action.”) (citing Wilder v. Bernstein, 975 F. Supp. 276, 287
(S.D.N.Y. 1997)).
67

See West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 102

(1991).
23

Congress explicitly limited the amendment to cases arising under § 1981, Casey
still prohibits the award of expert fees in § 1983 cases."68 Consequently, plaintiffs
cannot recover any amounts paid in expert witness fees.

IV.

CONCLUSION
For the reasons stated above, the Settling Plaintiffs are awarded

$56,360.25 in attorneys' fees ($32,215.25 in litigation fees and $24,145.00 in fees
related to the fee application) and zero costS.69 The Clerk of the Court is directed
to close the motion for attorneys' fees (Docket Entry # 80).

SO ORDERED:

Dated:

68

New York, New York
October 17,2011

Wilder, 975 F. Supp. at 287, n.12 (citation omitted).

69
Because all of plaintiffs' costs represent expert witness fees, see Ex. C
to the Steinberg Decl., they are disallowed in their entirety.
24

- Appearances For Plaintiffs:
William D. Gibney, Sr., Esq.
Amanda C. Moretti, Esq.
Nancy Rosenbloom, Esq.
The Legal Aid Society
199 Water Street, 6th Floor
New York, NY 10038
[phone]

John Payton, Esq.
Johanna B. Steinberg, Esq.
Jonathan J. Smith, Esq.
Jin H. Lee, Esq.
NAACP Legal Defense & Educational
Fund, Inc.
99 Hudson Street, Suite 1600
New York, NY 10013
[phone]

Katherine E.G. Brooker, Esq.
Daniel J. Leffell, Esq.
David G. Clunie, Esq.
Andre D. Williams, Esq.
Jason D. Williamson, Esq.
Paul, Weiss, Rifkin, Wharton & Garrison, LLP
1285 Avenue of the Americas
New York, NY 10019
[phone]
For Defendant City of New York:

For Defendant NYCHA:

Morgan D. Kunz
Bradford C. Patrick
Brenda E. Cooke
Tonya Jenerette
Assistant Corporation Counsel
Corporation Counsel of the
City of New York
100 Church Street, Room 3-189
New York, NY 10007
[phone]

Steven Jay Rappaport, Esq.
New York City Housing Authority
250 Broadway, 9th Floor
New York, NY 10007
[phone]

25