Schoolcraft v. The City Of New York et al

Filing 579

LETTER addressed to Judge Robert W. Sweet from Alan H. Scheiner dated February 2, 2016 re: Reply Letter in Support of Application. Document filed by The City Of New York.(Scheiner, Alan)

ZACHARY W. CARTER
Corporation Counsel

THE CITY OF NEW YORK

ALAN H. SCHEINER
Senior Counsel
phone: [phone]
fax: [phone]
[e-mail]

LAW DEPARTMENT
100 CHURCH STREET
NEW YORK, NY 10007

February 2, 2016
BY ECF & EMAIL
([e-mail])
Honorable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re: Schoolcraft v. Jamaica Hospital Medical Center, et al.
10-CV-6005 (RWS)
Your Honor:
I am a Senior Counsel in the office of Zachary W. Carter, Corporation Counsel of the
City of New York, representing the motion respondent City of New York (the “City”), in
connection with the above-captioned matter.
The City writes in Reply to plaintiff’s eight-page letter opposing the defendants’
application of January 28, 2016. Most notably, plaintiff does not attempt to distinguish or even
discuss the City’s principal authority on point, Handschu v. Special Servs. Div., 727 F. Supp. 2d
239, 250 n. 5 (S.D.N.Y. 2010), where a Southern District court plainly stated that “the City could
have sought the original source [billing] documents in discovery and did not do so . . . .”
Handschu post-dates all of the authorities relied on by plaintiff. It is hardly “frivolous,” as
plaintiff contends, for the City to seek information that a Southern District court noted that it
could have sought in another case directly on point, which post-dates plaintiff’s authorities in
some cases by more than two decades.
Plaintiff’s submission cites inapposite authority to obscure the issue presented. The City
does not contend that plaintiff is always required to submit original billing records and that its
later-prepared typescripts are per se insufficient. Rather the City contends that where, as here,
plaintiff’s declarations do not contain facts establishing contemporaneous recording of the same
detailed information that it has submitted to the Court, then the City is entitled to more data
about what was recorded and when.

Sweet, J.
February 2, 2016
Page 2
Very few of plaintiff’s case authorities addresses a request for discovery, rather they
discuss objections to any fee recovery at all based on the record submitted in those particular
cases.1 As such they are inapposite.
The authorities are also distinguishable due to the paucity of the record here concerning
when the time records were created. In the 2014 decision of Marion S. Mishkin Law Office v.
Lopalo, 767 F.3d 144, 149 (2d Cir. 2014) the Second Circuit discussed the three principal
authorities on fees on which plaintiff here relies.2 The court then distinguished those cases,
stating:
Here [in contrast], it is not clear from the record whether or not Mishkin kept
contemporaneous time records. Mishkin's attorney told the district court that she
tracked her time contemporaneously, and that "she did have everything timestamped." App'x at 1395. . . . . On this evidence, the district court could not make
a determination that Mishkin did, or did not, keep contemporaneous records of
the date, the hours expended, and the nature of the work . . . .
767 F.3d at 149-150 (emphasis added) (quotations omitted). Although reversing the District
Court’s denial of all fees in that case, the Second Circuit instructed the court below on remand,
notwithstanding counsel’s assertion of contemporaneousness, to make “further inquiry into
[counsel’s] timekeeping practices.” Id. at 150; see also Jerolmon v. Astrue, 2013 U.S. Dist.
LEXIS 7654, *8-9 (D. Conn. Jan. 18, 2013) (requiring for fees under EAJA a sworn statement of
“the Firm practices, procedures, record-keeping technology and the like” sufficient to establish
contemporaneousness). To the extent prior authority supports plaintiff’s view (and it does not), it
is superseded by Mishkin.
The “further inquiry” called for by Mishkin is warranted here. Plaintiff does not dispute
that the Second Circuit requires contemporaneous recording of “for each attorney, the date, the
hours expended, and the nature of the work done.” Handschu, 727 F. Supp. 2d at 242 (quoting
New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)).
Most of plaintiff’s authorities do not quote the attorney declarations that they find sufficient on
this issue. But in Lenihan, the attorney declarations stated that time was recorded on a “daily
basis.” 640 F. Supp. at 824. In another case, the attorney declaration stated “I have recorded the
time spent on this matter either on a daily basis, or sometimes at the end of the business week.”
1

See e.g., Cruz v. Local Union No. 3, Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994); Video-Cinema
Films, Inc. v. CNN, Inc., 2004 U.S. Dist. LEXIS 1428, *12 (S.D.N.Y. Feb. 3, 2004); Lenihan v. City of New York,
640 F. Supp. 822, 824 (S.D.N.Y. 1986); Brennan v. New York Law Sch., 2012 U.S. Dist. LEXIS 135095, *32-33
(S.D.N.Y. Aug. 15, 2012); David v. Sullivan, 777 F. Supp. 212, 223 (E.D.N.Y. 1991); Pastre v. Weber, 800 F. Supp.
1120, 1123 (S.D.N.Y. 1991); Castillo v. Time Warner Cable of New York City, No. 09 CIV. 7644 PAC, 2013 WL
1759558, at *2 (S.D.N.Y. Apr. 24, 2013); Koster v. Perales, 1989 U.S. Dist. LEXIS 8444, *10 (E.D.N.Y. July 11,
1989) (same), aff'd, 903 F.2d 131 (2d Cir. 1990); see also Morin v. Sec'y of Health & Human Servs., 835 F. Supp.
1431, 1439 (D.N.H. 1993) (fee reduction not warranted under First Circuit law, not Carey).
2

767 F.3d at 149 (discussing Cruz, David v. Sullivan, and Lenihan).

Sweet, J.
February 2, 2016
Page 3
Brennan v. New York Law Sch., 2012 U.S. Dist. LEXIS 135095 at *33 (S.D.N.Y. Aug. 15,
2012).3 In Pastre v. Weber, 800 F. Supp. 1120, 1124 (S.D.N.Y. 1991), the time records were the
computerized output of “daily time sheets of each attorney or paralegal for whose services
reimbursement is sought.” Id. (emphasis added). Most of the attorney declarations submitted by
plaintiff here4 state no such facts.
The few cases cited by plaintiff actually discussing discovery are also readily
distinguishable. In Bingham v. Zolt, 66 F.3d 553, 565 (2d Cir. 1995), decided under the RICO
statute, the Court rejected a blanket request for a “jury trial, discovery and a hearing” on
attorneys’ fees: no specific discovery requests were mentioned. The City does not request a jury
trial or generalized discovery, and any request for a hearing – while not barred as a matter of law
– would be premature. Rather, the City seeks focused and narrow discovery on threshold issues,
of information readily available to the plaintiff.5
While plaintiff purports to add to the record to establish contemporaneousness, in fact
plaintiff’s counsel adds only that their time was initially recorded by hand, not electronically, and
fails to state precisely what information was recorded by hand or when it was recorded in
relation to the work performed. See Plaintiff’s Counsel’s Feb. 1, 2016 Letter (“Plf. Ltr.”) at 4, 6.
Instead, counsel continues merely to utter the ambiguous magic word “contemporaneous.” This
deliberate hand waiving over crucial facts engenders further doubt whether the time was
recorded in necessary detail “while the work is being done or, more likely, immediately
thereafter.” Handschu, 727 F. Supp. 2d at 250.
Plaintiff’s case law is also distinguishable by the amounts in dispute, which are dwarfed
by the fee application here. The Federal Rules of Civil Procedure were recently amended to
3

“At the end of the business week” would not be sufficient under Handschu or Carey.

4

As the City previously explained, two of Nat Smith’s team’s declarations stated that handwritten time notes were
prepared daily, but did not state what information those notes contained or whether the final submissions added
information, but the most of the attorneys submitting time did not aver any facts about how and when the time was
recorded. See City’s Letter Application of January 29, 2016, at 4 n. 2, Docket No. 576.
5

One other case cited by plaintiff on discovery was already cited and discussed by the City. See Plf. Ltr. at 3 n. 3;
City Ltr. at 3 (citing Indu Craft v. Bank of Baroda, 1996 U.S. Dist. LEXIS 14342 at *18-19 (S.D.N.Y. Sep. 30,
1996)). In Indu Craft, a private fee dispute decided under state law, the court found that depositions were warranted
to resolve factual issues, but that sweeping discovery of the law firm’s books and records (not just billing
information) was not warranted. Id. The other authority on discovery cited by plaintiff, Cassese v. Williams, 503
Fed. Appx. 55, 58 (2d Cir. 2012), rejected a request by class-member objectors to the fees of class counsel – not
parties in the case liable for the fees. Id. Moreover, unlike the City here, those class members failed to articulate
how the records would have been relevant to their objections. Id. In the 1988 decision in Richards v. New York City
Bd. of Educ., No. 83 CIV. 7621 (CBM), 1988 WL 70209, at *9, n.21 (S.D.N.Y. June 27, 1988), heavily relied on by
plaintiff, the City received handwritten time record requested from plaintiff’s counsel, but then asked the Court to
exclude the time spent to retrieve the records. Id. In any event, the Richards decision is a ruling on a discretionary
matter that is not binding on this Court, and the record in that case is unclear: the court found that plaintiff’s
attorneys “submitted contemporaneous time records” but also that “there were no contemporaneous time records.”
Id. at *8.

Sweet, J.
February 2, 2016
Page 4
emphasize the long-standing rule that discovery should suit “the needs of the case,” including
inter alia “the importance of the issues at stake in the action, the amount in controversy, [and]
the parties’ relative access to relevant information . . . .” Fed. R. Civ. P. 26(b)(1). Unlike the
$4.2 million in fees and expenses claimed here, plaintiff’s principal authorities involve fee
claims ranging only from $5,000 to $150,000. See e.g., Lenihan, 640 F. Supp. at 831, Table 1
(less than $150,000 in fees awarded); Richards, 1988 WL 70209, at *9 (less than $60,000
awarded); David v. Sullivan, 777 F. Supp. at 234 (less than $70,000 awarded); Castillo, 2013
WL 1759558, at *7 ($5,000 awarded). In contrast, Handschu concerned a $274,000 fee claim
in a class action, 727 F. Supp. 2d at 256, Table 1, and Mishkin concerned a $418,999 fee claim.
767 F.3d at 146. Moreover, plaintiff’s counsel has sole access to information about how they
recorded their time, and the information sought is readily available to plaintiff since it was
compiled for the purposes of the fee application itself. For these reasons, the Court should
exercise its discretion to allow the limited discovery sought here.6
In opposition to the City’s request for an extension of time, plaintiff refers the Court to
briefing periods for oppositions to summary judgment or appeals. Plf. Ltr. at 7. These examples
are inapposite. Motions for summary judgment and appeals are based on a record and legal
issues with which counsel are typically intimately familiar well before the motions or appeals are
filed. In contrast, the present motion is in essence a new proceeding, based on a dense record
with which defense counsel (unlike plaintiff’s counsel) has no prior familiarity. After conversion
of plaintiff’s time entries to calculable form the City has determined that plaintiff’s counsel
submitted approximately 6,400 time entries (900 more than its prior estimate). If each entry
requires on average even only one minute to review and compare to other information for
minimal factual verification – such as comparison to other entries and known events at that time
– that requires 6400 minutes, or 106.7 hours, solely for a single pass-through of basic review. Of
course much, much more is required in terms of analysis, research and writing to fully respond to
the submission, all while attending to several other active matters. Accordingly, the request for
an extension is reasonable.
We thank the Court for its consideration in this matter.
Respectfully submitted,
/s/
Alan H. Scheiner
Senior Counsel
Special Federal Litigation Division
cc:

6

All counsel by ECF

Plaintiff makes no mention of the City’s request for proof of standing by the attorneys who moved for fees on
December 24, 2015. For reasons previously set forth, if those attorneys move on their own behalf and not
plaintiff’s, which appears to be the case (see Notice of Motion, December 24, 2015, Docket No. 566), the motion
should be stricken.