Schoolcraft v. The City Of New York et al

Filing 630

LETTER addressed to Judge Robert W. Sweet from Joshua P. Fitch dated May 6, 2016 re: Reply to Defendants' Opposition to Plaintiff's Motion to Strike the Expert Report, Opinion and Testimony of Judith Bronsther. Document filed by Adrian Schoolcraft.(Cohen, Gerald)

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

May 6, 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. The City of New York,
10-cv-6005 (RWS) (DCF)

Dear Judge Sweet:
On behalf of all of plaintiff’s counsel, I am writing this letter in reply to
defendants' opposition to plaintiff's motion to strike the Declaration and Report of Judith
Bronsther, Esq. pursuant to Rule 104(a) and Rule 702 of the Federal Rules of Evidence.
Plaintiff's initial motion, provides all of the relevant reasons to strike the
aforementioned materials ‒ namely, because Bronsther’s “expert” opinion about the
reasonableness of counsels’ fees and their billing practices are not proper subjects of
expert testimony and cannot survive the Daubert analysis. Given that defendants'
opposition has failed to provide any reason to doubt that conclusion, plaintiff will not
burden this Court with any additional arguments on that issue.
Notwithstanding, plaintiff must respond to defendants' suggestion that the
determination of the reasonableness of the fees should be referred to a special referee for
determination in this case. Such a request is wholly improper given Your Honor's own
experience and expertise in this litigation.
Specifically, it is well settled that "[i]n making such a determination the court is
itself an expert and can properly consider its own knowledge and experience concerning
reasonable and proper fees and in light of such knowledge and experience and from the
evidence presented, can form an independent appraisal of the services presented and
determine a reasonable value thereof." Newman v. Silver, 553 F. Supp. 485, 497
(S.D.N.Y. 1982), aff'd in part, vacated in part, 713 F.2d 14 (2d Cir. 1983); Langbein v.
Kirkland (In re TMT Trailer Ferry, Inc., 577 F.2d 1296, 1304 (5th Cir.1978) (“[t]he

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court...is itself an expert on the question (of attorneys' fees) and may consider its own
knowledge and experience concerning reasonable and proper fees.”). Indeed, a "‘judge is
presumed knowledgeable as to the fees charged by attorneys in general and as to the
quality of legal work presented to him by particular attorneys.’” Glenn v. Chatmon, No.
CIV.A. 87-5107, 1988 WL 11677, at *2 (E.D. Pa. Feb. 12, 1988); In re Monahan Ford
Corp. of Flushing, 390 B.R. 493, 504 (Bankr. E.D.N.Y. 2008)(“a judge, who routinely
observes and evaluates the professional performance of attorneys in bankruptcy cases, is
better situated than a law professor to judge the professional competence of debtor's
counsel").
Moreover, under the plain language of FRCP 53, "reference to a master shall be
the exception and not the rule,’" and shall only be made upon a "finding of an exceptional
circumstance." Wilver v. Fisher, 387 F.2d 66, 69 (10th Cir. 1967)("variety, number, and
complicated nature of the problems, the issues involved, and ‘the best interests of justice.’
None of these amount to an exceptional circumstance."); In re U.S., 816 F.2d 1083, 108891 (6th Cir.1987) (calendar congestion, complexity of issues, possibility of lengthy trial,
extraordinary pretrial management in case with 250 parties, and public interest in quick
resolution of case did not satisfy “exceptional condition” for appointment of special
master); Jack Walters & Sons Corp. v. Morton Bldg., 737 F.2d 698, 712 (7th Cir.1984)
(lack of time for lengthy trial, several thousand pages of materials, and large number of
issues did not satisfy “exceptional condition” standard); Hanover Ins. Co. v. Emmaus
Mun. Auth., 38 F.R.D. 470, 473 (E.D. Pa. 1965)("The mere fact, however, that an
accounting may be necessary is not enough to justify a reference ... It is our opinion that
the matters involved in this case are not so complex in nature as to justify the
appointment of a master.").
In addition, while, "Rule 53 of the Federal Rules of Civil Procedure authorizes the
appointment of special masters to assist" the court, it should "not [be used] to replace, the
adjudicator" especially in a matter where this Court has its own expertise and experience
in evaluating the legal and factual issues in connection with the fee application. In re
Bituminous Coal Operators' Ass'n, Inc., 949 F.2d 1165, 1168 (D.C. Cir. 1991). Indeed,
"[t]he use of masters is [only] permitted because they improve the judicial process by
bringing to the court skills and experience which courts frequently lack." Reed v.
Cleveland Bd. of Ed., 607 F.2d 737, 747 (6th Cir. 1979). In this case, the issue of legal
fees is not such an exceptional circumstance that would warrant appointment of a special
referee given that Your Honor has had the experience of presiding over this case - and the
work performed in connection therewith - for the past six years, not to mention the
Court's experience in adjudicating dozens of fee applications in the past. See e.g., id.
("courts are presumed to be informed on legal issues, and the determination of purely
legal questions is the responsibility of the court itself."). Finally, the cost and delay
associated with appointing a special master clearly militates against any such referral here
on an application that has already been pending for six (6) months. See e.g., Goins v.
Hitchcock I.S.D., 191 F. Supp. 2d 860, 867-68 (S.D. Tex. 2002), aff'd sub nom. Goins v.
Hitchcock Indep. Sch, 65 F. App'x 508 (5th Cir. 2003):
In light of the relevant circumstances, the Court concludes that referring
this case to a Special Master would only delay the ultimate resolution of

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this case and bring about considerable added expenses for all involved,
without providing any corresponding benefits to the Parties. This Court
has handled literally hundreds of Title VII and Title IX cases over the past
eleven and one-half years, and to suggest that the Court requires a Special
Master to aid the Court in understanding the issues at hand or in dealing
with routine discovery disputes is wholly unjustified...Such a situation
would violate the explicit directive of Fed.R.Civ.P. 53(b) and lead to an
altogether undesirable result.
Id.; Cityside Archives, Ltd. v. New York City Health & Hosp. Corp., 37 F. Supp.
2d 652, 662 (D.N.J. 1999)(denying "a special master to address the issue of attorney's
fees because the court was "unwilling to create a trial within a trial." there was "a
legitimate question as to whether this Court can actually appoint a special master in a
non-complex case such as the present one," and "the appointing of a special master will
further prolong a final resolution to this matter.").
Based on the reasons set forth in plaintiff's initial motion to strike, defendants'
"fee expert" report should not be considered by this Court. Finally, for the reasons set
forth herein, Your Honor should decline any invitation to appoint a special master to
adjudicate an issue that is more properly in the province of this Court, which has
experience in fee applications and unique knowledge of this particular case.
Thank you for your consideration of this request.

Sincerely,

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

4
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 VIA ECF:
Alan Scheiner
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, New York 10007