Schoolcraft v. The City Of New York et al

Filing 580

LETTER addressed to Judge Robert W. Sweet from Joshua P. Fitch dated February 5, 2016 Document filed by Adrian Schoolcraft.(Cohen, Gerald)

COHEN & FITCH LLP
233 BROADWAY, SUITE 1800
NEW YORK, NY 10279
TEL: [phone]
FAX: [phone]

February 5, 2016
BY EMAIL & ECF
Honorable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re: Schoolcraft v. City of New York, et al
10 CV 6005 (RWS)
Your Honor:
I am co-counsel for plaintiffs in the above referenced action. I write now in
response to defendants’ “supplemental reply” letter dated February 5, 2016.
Instead of simply addressing the merits of plaintiff’s fee application, defense
counsel continues to engage in frivolous and wasteful motion practice, forcing plaintiff’s
counsel to expend significant time and energy responding to these baseless letters. In
their “supplemental reply,” defendants once again launch a disingenuous attack on
plaintiff’s fee application without a shred of evidence to support their specious claims
that the billing records are “reconstructed.” This claim is simply made up without any
basis in fact or in any of the papers submitted in support of the motion. Indeed, in
support of their claimed “need” for a fishing expedition into all counsels’ billing
practices, defendants have still not identified a single entry – now in three separate letters
to the Court – to warrant such discovery.
Further, despite having presented this Court with no basis upon which to question
plaintiff’s records, defendants have also twisted and misrepresented the case law they cite
in support their frivolous request. For example, defendants’ most recent letter claims that
their request finds support in Your Honor’s decision in Williamsburg Fair Hous. Comm.
v. New York City Hous. Auth., No. 76 CIV. 2125 (RWS), 2005 WL 736146 (S.D.N.Y.
Mar. 31, 2005) opinion amended on reconsideration, No. 76 CIV.2125 RWS, 2005 WL
2175998 (S.D.N.Y. Sept. 9, 2005) – a 2005 case that they apparently just “learned” of.
However, defendants have deliberately taken the quote out of context, and have failed to
apprise the Court that the ruling was, in fact, made only after the original submissions
were found to be deficient by the Court. Specifically, as Your Honor recognized in
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Williamsburg, many of the time entries submitted to the Court in connection with the fee
application in that case were, inter alia, “impermissibly vague” and did not “adequately
describe the subject matter of the tasks purportedly performed” and “fail[ed] to indicate
the subject matter of telephone calls, conferences, and documents reviewed and drafted.”
Id. at 10. By contrast, in this case there are no such deficiencies, and more importantly,
defendants have not alleged any to justify their request. 1
Moreover, People ex rel. Vacco v. Rac Holding, Inc., 135 F. Supp. 2d 359
(N.D.N.Y. 2001), the origin of the singular quote from Williamsburg cited in defendants’
“supplemental reply” involves a fee application that suffered from the same infirmities –
namely, bills that were “impermissibly vague,” and that “‘omit[ed] any explanation of
what work transpired’” – thereby “failing to satisfy the Carey standard.” Id. at 364.
Further, in Vacco, the fee applicants submitted “revised billing records” in response to
these deficiencies that provided more detail that the original submissions. Id. (emphasis
supplied). Consequently, the court found that “unlike transcriptions of the original
records” these supplemental records were not contemporaneous because they had added
“much greater detail than the original[ly] [submitted] records.” Id. at 364 (fn 1). As such,
the purported rationale in both Williamsburg and Vacco is neither applicable in this
matter, nor does it support defendants’ request for discovery on the fee application in this
case. Indeed, contrary to defendants’ position, the Vacco case actually recognized that
“the actual contemporaneous time records need not be submitted to satisfy Carey,”
which is presumably why they chose to “omit” that citation from their letter and why
their requests should be denied.
Similarly, while defendants placed heavy reliance on Handschu v. Special Servs.
Div., 727 F. Supp. 2d 239 (S.D.N.Y. 2010) and Marion S. Mishkin Law Office v. Lopalo,
767 F.3d 144 (2d Cir. 2014) in their second letter 2 their reliance suffers from the same
factual divergences. First, in Handshcu, it was undisputed that the bills submitted to the
court were “not a contemporaneous record.” Id. at 250 (“counsel do not pretend that it
is” contemporaneous). Here, on the other hand, plaintiff’s counsel have submitted
declarations detailing their billing practices and the defendants have simply made up a
claim of “reconstructed” records for the purpose of providing a justification for massive
discovery over thousands of billing entries. Further, while defendants represent that
Handschu would invalidate declarations that merely state that bills were
“contemporaneous” without greater detail into practices, the reality is that the Handschu
court did accept such a proclamation but found that the bills failed to “satisfy the element
of content.” Id. (“I accept that they were made at the times described,” but they failed to
specify “‘the date, the hours expended, and the nature of the work done,’ as Carey
requires.”). The same is true for Marion, where the court only required discovery
because the attorney “argue[d] that she need not produce contemporaneous time records
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It should be noted that Williamsburg did not concern any discovery requests but in fact
was addressing the merits of the fee application itself.
2
Plaintiff did not intend to issue any response to defendants letter until they submitted
their “supplemental reply,” thus necessitating a further expenditure of time and resources
by plaintiff’s counsel to respond to this improper and wasteful filing.
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to get paid” and “need not track time contemporaneously for a court to award fees.” Id. at
147 (emphasis added). Indeed, the only reason the case was remanded to the district
court was because the Second Circuit found that it “was clear error to deny Mishkin any
fee on the basis of her failure to keep contemporaneous time records without further
inquiry into her timekeeping practices.” Id. at 150. None of those deficiencies exist in
this case and defendants – despite two months and three letters later – have failed to
articulate any.
Here, plaintiffs’ counsels have submitted detailed records, outlining the date, the
specific nature of the work performed and the attorney who performed the work. Further,
counsel have all submitted declarations that the bills were kept contemporaneously.
Defendants’ misplaced citations to cases where courts have either found deficiencies in
the bills themselves, or where counsel has never even submitted contemporaneous
records in the first instance, have no application here. Rather, defendants continue to
burden this Court and plaintiff’s counsel with requests and applications which have no
articulable basis outside of rank speculation and sheer conjecture. While plaintiff
acknowledges that, under very limited circumstances (not present here), discovery may
be allowed with respect to fee applications, this rule is not an entitlement to conduct such
discovery without some cognizable basis upon which to justify such discovery. 3
Accordingly, having failed on three separate occasions to allege any articulable
basis upon which to question the billing records submitted in this case, defendants’
request should be denied and they should be required to file a response to the merits of
the application itself when it is presently due on February 29, 2016.
Thank you for your consideration of this request.

Very truly yours,

_______/s________
JOSHUA P. FITCH
GERALD M. COHEN
COHEN & FITCH LLP
233 Broadway, Suite 1800
New York, N.Y. 10279
[phone]
3

Equally baseless and unavailing is defendants’ claim that plaintiff’s counsel has failed
to produce records regarding fees that have been reimbursed. Apart from the fees
remitted to Mr. Norinsberg, which are already expressly set forth in his Declaration
(Docket No. 560-2, Ex. H, at 20, n.7), no other fees have been reimbursed to plaintiff’s
counsel. Therefore, defense counsel’s purported “need” for these records is, once again,
baseless.
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[e-mail]
[e-mail]
NATHANIEL B. SMITH
100 Wall Street, 23rd Floor
New York, New York 10005
212-227-7062
[e-mail]
JON L. NORINSBERG
225 Broadway, Suite 2700
New York, New York 10007
[phone]
[e-mail]
JOHN LENOIR
100 Wall Street, 23rd Floor
New York, New York 10005
212-335-0250
[e-mail]

Cc:

Alan Scheiner, Esq.
Assistant Corporation Counsel
The City of New York Law Department
100 Church Street
New York, New York 10007

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