Schoolcraft v. The City Of New York et al

Filing 638

OPINION #106703. Based on the conclusions set forth above, Plaintiff's motion for attorney's fees and costs are granted in part and denied in part, Plaintiff's motion to strike is granted in part and denied in part, and Defendant's motion to strike is denied. The Norinsberg, Smith, and Cohen & Fitch teams are awarded a total of $1,046,777.59 and Levine, Gilbert, and Gleason are awarded a total of $46,880.45 as set forth above. Plaintiff's counsel is therefore awarded $1,093,658.04 in attorney's fees and costs. It is so ordered. re: 628 FIRST MOTION for Extension of Time to File Reply Affirmation of Richard A. Gilbert filed by Adrian Schoolcraft, 559 MOTION for Attorney Fees , Costs and Disbursements filed by Adrian Schoolcraft, 566 FINAL MOTION for Attorney Fees for Levine & Gilbert and Peter J. Gleason, Esq. filed by Adrian Schoolcraft. (Signed by Judge Robert W. Sweet on 9/1/2016) (rjm) Modified on 9/7/2016 (ca). (Main Document 638 replaced on 9/9/2016) (ca).

l

UNITED STATES DISTRICT COURT
SOUTHERN DISTR~CT OF NEW YORK

ADRIAN SCHOOLCRAFT ,
Pla intif f ,
1 0 Civ . 6005
- against OPINION
CIT Y OF NEW YORK, ET AL.,
Defendants .

---------------------------------------x
A P P E A RA N C E S :

Attorneys for the Plaintiff
LAW OFFICE OF JON L. NORINSBERG
225 Broadway , Suite 2700
New York , NY 1 0007
By :
Jon L . Norinsberg , Esq .
John J . Meehan , Esq.
COHEN & FITCH LLP
233 Broadway , Suite 1800
New York, NY 10279
By : Gerald M. Cohen , Esq.
COHEN & FITCH LLP
225 Broadway , Suite 2700
New York , NY 10007
By :
Joshua P. Fitch, Esq.
LAW OFFICE OF NATHANIEL B . SM ITH
100 Wall Street , 23rct Floor
New York, NY 10005
By : Nathaniel B . Smith , Esq.
SUCKLE SCHLESINGER PLLC
224 West 35th Street , Suite 1200
New York , NY 10001
1

(RWS)

By:

Howard A. Suckle, Esq.

JOHN DAVID LENOIR
829 Third St. NE
Washington , DC 20002
LEVINE & GILBERT
11 5 Ch rist opher Street
New York , NY 10014
By :
Peter J . Gleason , Esq .
Richard A. Gilbert, Esq .
Harvey A . Le vi ne, Esq.

At t orneys for Defendant Cit y o f New York
NEW
10 0
New
By :

YORK CITY LAW DEPARTMENT
Church Street
York , NY 1 0007
Alan H. Scheiner , Esq .

2

Sweet, D. J.,

Plaintiff's Counsel Jon Norinsberg, Esq.
Nathaniel Smith, Esq.
Gerald Cohen , Esq.

("Norinsberg " ) ,

("Smith " ), Joshua Fitch, Esq.

("Cohen") , John Lenoir, Esq.

Howard A. Suckle , Esq.

("Suckle " )

("Fit ch " ),

("Lenoir " ) , and

(collectively , "Primar y

Counse l"), on beha lf of Plaintiff Adrian Schoolcraft
("Plaintiff " or "Schoolcraft"), move for an award of attorney's
fees, costs, and disbursements pursuant to Federal Rule of Civil
Procedure 54(d) and 42 U.S.C.

§

1988 . Separately and initially

on their own behalves and subsequently on behalf of Plaintiff,
Harvey Levine, Esq ., Richard Gilbert , Esq., and Peter Gleason ,
Esq.

(together , "LGG") likewise move for an award of attorney's

fees and costs. Plaintiff has also moved to strike the expert
report, opinion , and testimony of Judith Bronsther. Defendant
City of New York ("Defendant" or the "City") has moved to strike
ECF No.

631. Based on the conclusions set forth below , the

motion to strike the report, opinion, and testimony of Bronsther
is granted in part and denied in part , the fee applications are
granted in part and denied in part, and the motion to strike ECF
No.

631 is denied as moot.

3

I.

Prior Proceedings

A detailed recitat i on of the facts of the underlying case
is provided in this Court ' s opinion dated May 5 , 2015 , which
granted in part and denied in part five motions for summary
judgment. See Schoolcraft v . City of New York, No. 10 CIV . 6005
RWS , 2015 WL 2070187 , at *l (S . D. N. Y. May 5 , 2015) . Fami l i arity
with those facts is assumed.

Pl aintiff accepted an Offer of Judgment against the Ci ty of
New York (the "City" ) pursuant to Federa l Rule of Civil
Procedure 68 on September 28 , 2015 . The Judgment provides
" p l aintiff sha l l be entitled to reasonable attorney's fees ,
expenses , and costs to the date of this offer for pla i ntiff ' s
federal claims . " Rule 68 Judgment , ECF No . 541 , Ex. A at 4 .
Plaintiff's claims against Michael Marino , Gera l d Nelson ,
Theodore Lauterborn , Wi l liam Gough , Frederick Sawyer, Kurt
Duncan , Christopher Broschart, Timothy Caughey, Shantel James ,
Timothy Trainor , Elise Hanlon , Steven Mauriello, and any other
agent or employee defendants of the City of New York were
dismissed pursuant to the Offer of Judgment on October 16 , 2016.
Following settlement conference on November 3 , 2015 , Plaintiff
reached a settlement agreement with the rema i ning Defendants
Jamaica Hospital Medical Center , Dr. Isak Isakov , and Dr .

4

Lillian Aldana-Bernier (collectively, the "Hospital
Defendants").

The first of the instant motions was submitted December 16,
2016. The City sought Plaintiff's counsel's electronic fee
records before opposing the fee applications and challenged the
standing of Gilbert, Levine, and Gleason. Oral argument was held
on February 11, 2016. By order dated February 25, 2016, Gilbert,
Levine, and Gleason were directed to produce evidence of their
standing to file a fee application of Plaintiff's behalf. The
matter was referred to Magistrate Judge Debra C. Freeman for
conference related to settlement of the fee motions.

Following unsuccessful attempts to settle the matter,
briefing continued. After the City filed its opposition with
Judith Bronsther's expert report, opinion, and testimony,
Plaintiff moved to strike the report, opinion, and testimony by
letter dated April 12, 2016. Following Plaintiff's responsive
submissions, the City moved to strike Smith's Reply, ECF No.
631, as procedurally improper. Oral argument was held on May 12,
2016, at which time the applications and motions to strike were
deemed fully submitted.

5

II.

Applicable Standards

a. Motion to Strike the Expert Report

The standard for the admissibility of expert testimony is
set forth in Federal Rule of Evidence 702:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if: (a) the expert's
scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to
determine a fact in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is the product
of reliable principles and methods; and (d) the expert has
reliably applied the principles and methods to the facts of
the case.
Fed. R. Evid. 702.

Rule 702 was the subject of extensive analysis by the
Supreme Court in Daubert and Kumho Tire Co. v. Carmichael, 526
U.S. 137

(1999). The Court emphasized in Daubert that

[t]he inquiry envisioned by Rule 702 is .
. a flexible
one.
Its overarching subject is the scientific validity
and thus the evidentiary relevance and reliability of the
principles that underlie a proposed submission.
The focus,
of course, must be solely on principles and methodology,
not on the conclusions that they generate.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594-95, 113
S. Ct. 2786, 2797, 125 L. Ed. 2d 469 (1993).

The Federal Rules

of Evidence assign to the district court the responsibility to
act as a gatekeeper and to ensure that "an expert's testimony
both rests on a reliable foundation and is relevant to the task
6

at hand."

Id. at 597.

"[I]n analyzing the admissibility of expert evidence, the
district court has broad discretion in determining what method
is appropriate for evaluating reliability under the
circumstances of each case."
Corp., 303 F.3d 256, 265

Amorgianos v. Nat'l R.R.

(2d Cir. 2002).

Passenger

However, "[t]he Rules'

basic standard of relevance ... is a liberal one," Daubert, 509
U.S. at 587.

"A review of the caselaw after Daubert shows that

the rejection of expert testimony is the exception rather than
the rule."

Fed.R.Evid. 702, Advisory Comm. Notes.

b. Motions for Attorney's Fees, Costs, and Expenses

Federal statute permits the court, "in its discretion" to
"allow a prevailing party" in a federal civil rights action "a
reasonable attorney's fee as part of the costs." 42 U.S.C.

§

1988(b). "The Second Circuit has held that plaintiffs who accept
Rule 68 offers of judgment qualify as

'prevailing parties'

entitled to attorneys' fees and costs.ff Davis v. City of New
York, No. 10 CIV. 699 SAS, 2011 WL 4946243, at *2
18, 2011)

(S.D.N.Y. Oct.

(citations omitted). On the one hand, the court's

discretion as to what constitutes a reasonable fee is
"considerable." Barfield v. New York City Health & Hosps. Corp.,
7

537 F.3d 132, 151 (2d Cir. 2008); accord CARCO GROUP,
Maconachy, 718 F.3d 72, 85 (2d Cir. 2013)

Inc. v.

("we give wide

latitude to district courts to assess the propriety of
attorneys' fees and costs requests"). On the other, that
discretion is not so unfettered as to allow the court to abandon
binding precedent as to appropriate procedure for determining
fee calculation. Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166
(2d Cir. 2011).

However, the Second Circuit has also maintained that "there
is no precise rule or formula for making fee determinations."
Husain v. Springer, 579 F. App'x 3, 6 (2d Cir. 2014)

(citing

Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76
L.Ed.2d 40 (1983)). The calculation of the product of the number
of hours expended and a reasonable hourly rate, commonly
referred to as the "lodestar method," is the most common
analysis for an appropriate award of attorney's fees. See Perdue
v. Kenny A. ex rel. Winn, 559 U.S. 542, 551, 130 S. Ct. 1662,
1672, 176 L. Ed. 2d 494

(2010); see also Francois v. Mazer, 523

F. App'x 28, 29 (2d Cir. 2013)

("Awards of attorney's fees are

generally calculated according to the 'presumptively reasonable
fee' method, calculated as the product of the number of hours
worked and a reasonable hourly rate."

(citation omitted)). The

lodestar calculation is presumptively reasonable. Millea,
8

658

F.3d at 167.

Notwithstanding the near consistent application of the
lodestar method,

just how the calculation operates has been

inconsistently defined. See Arbor Hill Concerned Citizens
Neighborhood Ass'n v. Cty. of Albany & Albany Cty. Bd. of
Elections, 522 F.3d 182, 186-190 (2d Cir. 2008). The trouble
lies in precisely where and when the district court must assess
the given fee's reasonableness. Id. After a comprehensive review
of competing methodology, the Second Circuit panel in Arbor Hill
abandoned the term "lodestar," recognizing that "[t]he net
result of the fee-setting jurisprudence here and in the Supreme
Court is that the district courts must engage in an equitable
inquiry of varying methodology while making a pretense of
mathematical precision." Id. at 189-90. What remains clear is
that the district court must assess a reasonable hourly rate by
determining "the rate a paying client would be willing to pay."
Id. at 190.

Though the Court must analyze the fees a reasonable client
would be willing to bear, it need not act as a reasonable client
might by "set[ting] forth item-by-item findings concerning what
may be countless objections to individual billing items."
Francois, 523 F. App'x at 29 (2d Cir. 2013)
9

(citing Lunday v.

City of Albany , 42 F.3d 131, 134

(2d Cir.1994)). "Rather, in

dealing with items that are excessive, redundant, or otherwise
unnecessary, 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.'

Id.

(citing Kirsch v. Fleet Street, Ltd., 14 8 F.3d 149, 173 (2d
Cir.1 998)

(citations and internal quotation marks omitted) )

same principle applies to calculation of a cost award.

III.

The

Id .

The Motion to Strike the Declaration and Report of Judith
Bronsther, Esq. is Granted in Part and Denied in Part

Plaintiff's counsel have moved to strike the declaration
and report of Judith Bronsther, Esq.

("Br onsther "), filed in

support of the City Defendants' opposition to the instant fee
applications. See Deel. of A. Scheiner in Opp., ECF No. 598, Ex .
B ("Br onsther Deel."), Ex. C ("Bronsther CV"), Ex. D ("Bronsther
Report")

(collectively the "Br onsther Submissions").

Bronsther's group Accountability Services,

Inc.

("ASI")

audited the invoices submitted by Plaintiff's counsel in this
matter to "render an opinion with respect to the reasonableness
of the hours expended and the reasonableness of the expenses and
whether the billing practices of the various groups are
10

consistent with acceptable billing practices." Bronsther Report
at 1. Bronsther's qualifications include her admission to
practice law in New York, "devot[ion ] ... of her time to issues
surrounding reasonable attorney's fees" since 1992 on behalf of
ASI, review of fee applications in several cases including two
in the last four years

(one in New York state cour t, one in

Fl orida state court) , and publications and speaking engagements
on the issues of legal fees. See id. at 2; Bronsther Deel.
2, 4,

~~

1-

6.

The conclusions in Bronsther's Report fail Rule 702 for
inability to aid the Court as the trier of fact as to the
reasonableness of Plantiff's Counsel's fees. To begin , "the
court is itself an expert and can properly cons ider 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 . Si l ver , 553 F. Supp. 485, 497

(S .D.N.Y. 1982), aff'd

in part, vacated in part on other grounds , 713 F.2d 14

(2d Cir.

1983). Bronsther having based her op inion on an after-the-fact
review of this case and its records, her opinions as to
reasonableness do not add value or assistance to the Court in
making a reasonableness determination.
11

Second, Bronsther's Report amounts to an analysis applying her
interpretation of the law to the facts offered by Plaintiff's
Counsel's submissions. Such legal opinions are not helpful to
the Court in this circumstance in which the Court has far
greater familiarity with the circumstances of the case. To
accept them would usurp this court 's role and ob ligati on to
apply that knowledge to reach a reasonability determination. See
Nimely v. City of New York,

414 F.3d 381 , 397

(2d Cir . 2005)

("expert testimony that usurps either the role of the trial
judge in instructing the jury as to the applicable law or the
role of the jury in applying that law to the facts before it by
definition does not aid the jury in making a dec isi on; rather,
it undertakes to te ll the jury what result to reach, and thus
attempts to substitute the expert's judgment for the jury's."
(internal quotation marks, brackets, and citations omitted)) ;
see also De La Paz v. Rubin & Rothman, LLC, No. 11 CIV. 9625 ER,
20 1 3 WL 6184425, at *9n.11

(S.D.N .Y. Nov. 25, 2013) . 1

1

Defendants cite several out of Circu it cases to the contrary.
Defendants' only citation possibly binding on this Court, Webb
County v . Board of Education of Dyer County, Tennessee, is to
footnote supporting a recitation of facts as it related to a
question about fee awards for administrative proceedings. 471
U.S. 234 , 239n .7, 105 S. Ct. 1923, 1926, 85 L. Ed. 2d 233
(1985). Even were the case apposite and any precedent was
suggested, the very next two footnotes note "three experts
offered varying opinions," none of which the District Court
adopted. Id. at 238n.8, 239n . 9. That Court did not address the
appropriate use of expert opinions on the reasonableness of
fees.
12

Accordingly, Bronsther's opinions cannot be considered.

However, separate from the opinions and conclusions offered,
the Bronsther Submissions also summarize Plaintiff's voluminous
billing submissions, disaggregating the number of hours billed
to different elements of this case and providing their sums,
see Bronsther Report 19-27, 32-25, 36-42, 81-85,

92-103, 104-

107, and categorizing expenses, id. at 2, 15-18, 109-112. Under
Federal Rule of Evidence 10006, "a proponent may use a summary,
chart, or calculation to prove the content of voluminous
writings .

. that cannot be conveniently examined in court."

Fed. R. Evid. 1006. Thus, Bronsther's factual observations and
calculations will be accepted as summary figures. See e.g.,
Takeda Chem. Indus., Ltd. v. Mylan Labs., Inc., No. 03 CIV.
8253(DLC), 2007 WL 840368, at *8

(S.D.N.Y. Mar. 21, 2007),

aff'd, 549 F.3d 1381 (Fed. Cir. 2008)

("To the extent that

summary figures from the Marquess report are also contained in
Mylan's brief, they have been considered in connection with
Mylan's arguments on this application.")

2

2

Nathaniel Smith, Esq. challenges Plaintiff's summary
calculations as inadmissible under Rule 10006 because they are
based on a coding system that has not been provided. The
documents underlying summary calculations are counsel's own
billing records, to which Plaintiff's Counsel's access cannot be
doubted. Moreover, the City has since provided the coding data
used. Furthermore, Defendant's request to strike Smith's Reply
is denied as moot, as the Court does not adopt Smith's
13

As set forth above, the Bronsther Submissions are stricken to
the extent they provide conc lusi ons and legal op ini ons regarding
reasonableness, and the factual summary evidence they provide
will be admitted. 3

IV.

The Motions for Awards of Attorney's Fees, Costs, and
Disbursements are Granted in Part and Denied in Part

Having obtained a Rule 68 Judgment against the City,
Plaintiff is a "prevailing party" eligible for a fee award under
§

19 88. Davis, 2011 WL 4946243, at *2

(citations omitted).

a. Primary Counsel

Primary Counsel's fee application seeks a total of
$4 , 260,564 . 70 in attorney's fees,

costs , and expenses for

8 , 830 . 35 hours billed by eight attorneys and five paralegals and
one law graduate as follows:

•
•

Cohen & Fitch LLP: $500 per hour for 1,701.45 hours, a
total of $850,725.
Jon Norinsberg, Esq.: $600 per hour for 1,451.85 hours, a
total of $871 ,110.

arguments.
3 Defendant's request to appoint a Special Master is denied as
moot.
14

•

John Meehan, Esq. (Norinsberg associate): $350 per hour
for 137.80 hours, a total of $48,230.
• Nicole Bursztyn (Norinsberg paralegal): $125 per hour for
103.15 hours, a total of $12,893.75.
• Nathaniel Smith, Esq.: $575 per hour for 2,246 hours
(adjusted for travel time), a total of $1,275,062.50.
• John Lenoir, Esq.: $575 per hour for 1,310 hours
(adjusted for travel time), a total of $736,575.00.
• Lysia Smejika, Jeanette Lenoir, and Jeremy Smith (Smith
paralegals): $125 per hour for 442.18 hours, a total of
$55,272.50.
• James Mccutcheon, Esq. (Smith colleague): $250 per hour
for 23.38 hours, a total of $5,845.
• Howard Suckle, Esq. (Smith of counsel): $575 per hour for
108.90 hours, a total of $62,617.50.
• Magdalena Bauza (law graduate): $150 per hour for
1,305.64 hours (adjusted for travel time), a total of
$193,175.
• Costs and expenses for Smith of $135,235.73, for
Norinsberg of $10,021.85, and for Cohen & Fitch of
$3,800.87, totaling $149,058.45. 4
Mem. of Law in Supp. Pl.'s Mot. for Atty's Fees, ECF No. 561, at
38-9 ("Primary Counsel's Br.").

i.

Reasonable Fees

Arbor Hill set forth guidance for the "reasonable fee"
analysis:
We think the better course-and the one most consistent with
attorney's fees jurisprudence-is for the district court, in
4

Primary Counsel's brief reflects slightly different amounts,
though the variations do not exceed a dollar. Primary Counsel's
Br. at 39. The Court obtains the totals from the submitted
affidavits and billing records. See Master Deel. in Supp. Mot.
Atty's Fees ("Master Deel."), Ex. A~ 55 (claiming Norinsberg
expenses as $10,021.25); id. Ex. B (claiming Smith expenses as
$135,235.73); id. Ex. K (listing Cohen expense in invoice as
$3,800.87).
15

exercising its considerable discretion, to bear in mind all
of the case-specific variables that we and other courts
have identified as relevant to the reasonableness of
attorney's fees in setting a reasonable hourly rate. The
reasonable hourly rate is the rate a paying client would be
willing to pay. In determining what rate a paying client
would be willing to pay, the district court should
consider, among others, the Johnson factors; 5 it should also
bear in mind that a reasonable, paying client wishes to
spend the minimum necessary to litigate the case
effectively. The district court should also consider that
such an individual might be able to negotiate with his or
her attorneys, using their desire to obtain the
reputational benefits that might accrue from being
associated with the case. The district court should then
use that reasonable hourly rate to calculate what can
properly be termed the "presumptively reasonable fee."
Id. at 190.

Primary Counsel argue that, in essence, each attorney
should be awarded the highest fee he might justifiably command
in any situation, without consideration of any limiting factors.
For example, Primary Counsel argues that a $600 per hour rate
for Mr. Norinsberg is reasonable based on similar awards to

"The twelve Johnson factors are: ( 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." Arbor Hill, 522 F.3d at 187. Though they must be
considered, the Court need not "recite and make separate
findings as to all twelve Johnson factors." Lochren v. Cty. of
Suffolk, 344 F. App'x 706, 709 (2d Cir. 2009).
5

16

attorneys in civil rights cases, an award for $550 in a "routine
civil rights case," and rates in New York's finest law firms.
See Primary Counsel's Br. at 20-25. Primary Counsel similarly
frame the $500 rate requested for the Cohen & Fitch attorneys,
emphasizing that a rate of $325 per hour was approved for the
firm in the Eastern District of New York three years ago, and
thus additional experience obtained since that date,

inflation,

and forum in this district necessitate a bump of more than 50 %.
Primary Counsel's Br. at 25-31.

6

These arguments that use a previous fee or fee commanded by
another type of attorney in another type of case as a starting
point, only to be increased by any factor available, are
premised on an understanding of attorney's rates as an everexpanding bubble "untethered from the free market [the
reasonable fee analysis]

is meant to approximate." Arbor Hill,

522 F.3d at 184. They do not consider that the Johnson and Arbor
Hill considerations can just as easily weigh in favor of
reducing a fee award just as they can weigh in favor of
increasing it. Our Circuit has tasked the lower courts with
bursting the proverbial bubble: "the district court
(unfortunately) bears the burden of disciplining the market."

6

Primary Counsel make similar arguments for Mr. Smith, Primary
Counsel's Br. at 31-33, and Mr. Lenoir, id. at 33-35.
17

Id.

The Court agrees that this litigation has been complex and
demanded a great deal of effort from counsel over a long period
of time, and that the Rule 68 Judgment represented an excellent
recovery for Plaintiff. Norinsberg, Cohen & Fitch, and Smith
applied experience and expertise warranting partner-level
compensation. The time and labor required was considerable,
although not preclusive of other employment

(as demonstrated by

the appearance of Plaintiff's counsel on other matters before
this Court during the course of this litigation). However, the
rates requested are excessive for this particular action, even
for partner-level compensation.

Primary Counsel's individually requested fee rates are not
equivalent to what "a reasonable, paying client, who wishes to
pay the least amount necessary to litigate the case effectively"
would be willing to bear in this District. See id. They are more
equivalent to an opening bid in a negotiation; the highest
number one might suggest to frame the conversation before the
first counter-offer. A keen client would have negotiated these
rates down.

Primary Counsel's own comparisons to the rates of large law
18

firms is illustrative; this argument works equally to Primary
Counsel's detriment as it does to their benefit. Primary Counsel
are all solo or small-firm practitioners whose practices are
incomparable to large law-firms employing thousands of
attorneys, where rates factor in massive overhead. See Wise v.
Kelly,

620 F. Supp. 2d 435, 446 (S.D.N.Y. 2008)

("The legal

community at issue here is one that covers small to mid-size
firms in civil rights, or similar, cases.")

(collecting cases

awarding $230-$430 per hour for civil rights litigators).
Furthermore, many clients of large law firms do not actually pay
the hourly rates their counsel command on paper. See Sara
Randazzo and Jacqueline Palank, Legal Fees Cross New Mark:
$1,500 an Hour, Wall St. Journal, Feb. 9, 2016, available at
http://www.wsj.com/articles/legal-fees-reach-new-pinnacle-l-500an-hour-1454960708

("For many firms, the stated rate is simply a

starting point in discussions with corporate law departments.")
As any reasonable clients would, they negotiate creative or
fixed fee arrangements and request discounts. See id. Recent
figures show that clients typically pay 83 % of fees their law
firms charge, a number that has been declining. Id. In other
words, discounts are the norm and stated rates are more often
hypothetical than they are reflective of market rate.
"Untethered" indeed.

19

The instant action was also highly desirable to Plaintiff's
counsel, as evidenced by the widespread media coverage the
action has received and that Primary Counsel actively sought.
The value of such reputational benefits, which Plaintiff's
counsel can and actively did leverage to obtain business into
the future, must be offset against the purely theoretical
highest rates Plaintiff's counsel could command.

A reduction in the requested fee amounts is also consistent
with the awards Primary Counsel received in the past from
contested fee applications. See e.g., Stanczyk v. City of New
York,

990 F. Supp. 2d 242, 248

27 3 ( 2d Cir. 2014)

(E.D.N.Y. 2013), aff'd,

752 F.3d

("the hourly rate for Norinsberg-as lead

trial counsel responsible for the strategy and overall direction
of Stanczyk's case-requires a downward adjustment
$350]")

7;

Marshall v. Randall, 10 Civ. 2714

Jan. 24, 2013)

(JBW) (VVP)

(E.D.N.Y.

(awarding Cohen & Fitch $325 per hour); Arnone v.

CA, Inc., 2009 U.S. Dist. LEXIS 17080, at *2
2009)

[from $450 to

(S.D.N.Y. Mar.

6,

(awarding Smith the rate he had agreed upon with his

7

Primary Counsel cite Bernabe v. City of New York, 13 Civ. 5531,
where Norinsberg was awarded $550 per hour one year ago, to
argue Norinsberg's reasonable rate is $600. Primary Counsel's
Br. at 24. Norinsberg received that rate in connection with an
unopposed fee application for 18.05 hours of work, yielding less
than $10,000 in fees. The case is inapposite to the instant
contentious $4.2 million application.
20

client, $425, in an ERISA case).

As to Mr. Lenoir, his experience notwithstanding, his role
in the "Smith Team" appears to be in aid to Mr. Smith, rather
than commens urate. See Master Deel., Ex. E. Even were their
roles equal, if the contribut ions of both Mr. Smith and Mr.
Len o ir were partner level, either attorney could have performed
the vast majority of their joint or overlapping work in this
case alone. A reasonable client would not pay for duplicative
work, or partner rates for work that cou ld be performed by an
associate (particularly not where paying for the work of several
other partners), even if the partner performing them has
exceptional experience. Mr. Suckle, though likewise an
experienced litigator, attests he has "litigated numerous Civil
Rights actions, all on the plaintiff's side," though he names
on ly one §1983 and one wrongful conviction trial. His role was
far more limit ed even than Mr. Lenoir's, approximately 100 hours
over five years of active litigati on.

With respect to Mr. Meehan and Mr. Mccutcheon, no previous
award applies. However, "[a]ssociates in civil rights l aw firms
with approximately three years of experience have typically been
awarded amounts ranging from $125 per hour to $200 per hour."
E.S. v. Katonah-Lewisboro Sch . Dist., 796 F. Supp . 2d 421 , 430
21

(S.D.N.Y. 2011)

(citations omitted ) , aff'd sub nom. E.S. ex rel.

B.S. v. Katonah-Lewisboro Sch. Dist., 487 F. App'x 619

(2d Cir.

2012) .

Having considered the factors set out in Arbor Hill and
Johnson, a 35 % reduction in the requested rates is warranted to
align the fees requested by counsel with the market and what a
reasonable client would be willing to pay for their services in
connection with this or a comparable case.

A rate of $100 per hour is generally appropriate for
paralegals in a small firm environment. See e.g., Barile v.
Allied Interstate, Inc., No. 12 CIV. 916 (LAP)

(OF), 2013 WL

795649, at *23 (S.D.N.Y. Jan. 30, 2013), report and
recommendation adopted, No. 12 CIV. 916 (LAP), 2013 WL 829189
(S.D.N.Y. Mar. 4, 2013). Primary Counsel have not established
the applicable experience of most of their paralegals and the
court thus lacks adequate metrics by which to compare their
reasonable rates. A reduction of 20 % brings their rates in line
with the market and the considerations unique to this litigation
detailed above.

Generally, "[a] law clerk should ... be awarded slightly
more than a paralegal." Id. at *19. However, it is not clear
22

what level of value Bauza added. To begin with, her applied
experience is unclear. The only information offered detailing
Bauza's experience is her educational history. Master Deel. Ex.
G,

~

5. In addition, Bauza performed her duties on a subset of

Plaintiff's legal team that, within her office a l one, included
two partner-level attorneys

(Smith and Lenoir) and an associate

(Mccutcheon). Nevertheless, Bauza seeks nearly $200,000 for
"1273:05" hours of work , including travel. A premium of 50 %
beyond that awarded paralegals is unjustified, and a 30 %
reduction in Bauza's rate is warranted .

Accordingly, counsel's rates are reduced by 35 %, Bauza's
rate by 30 %, and staff rates are reduced by 20 % to reach rates a
reasonable paying client wou ld be willing to pay for litigation
of this action by Primary Counsel and their staff. 8

ii.

Hours Expended

The instant action was actively litigated from its filing

8

This amount equals or exceeds what Norinsberg and Cohen & Fitch
have been awarded in the past. Considering the added va lue of
this litigati on in particular as described supra, the amounts
awarded , cons i dered in the light of the value added to their
reputations by this particular litigation, therefore adequately
compensate for the additional experience and for litigation in
this forum.
23

in August 2010 until the Rule 68 Judgment obtained in October
2015. Approximately 15,000 pages of documents were produced and
38 depositions taken. See Def.'s Opp. at 7n.9. Primary Counsel
request compensation for 8,830.35 hours of time. "The district
court also should exclude from this initial fee calculation
hours that were not 'reasonably expended.' Hensley,

461 U.S. at

434. The contentious and lengthy nature of this litigation
notwithstanding, almost 9,000 hours is an unreasonable amount of
time.

First, the requested number of hours is facially
disproportionate when measured against benchmarks of other
litigation, both larger and smaller. For example, in one recent
seven plaintiff §1988 case spanning four years and involving
11,000 pages of discovery, 24+ depositions, and a ten day jury
trial, the court found 2,385 hours excessive. Adorno v.
Auth. of New York & New Jersey,

Port

685 F. Supp. 2d 507, 515

(S.D.N.Y. 2010), on reconsideration in part, No. 06 CIV. 593
(DC), 2010 WL 727480

(S.D.N.Y. Mar. 2, 2010)

("reduc[ing] these

hours by 10 % to account for excess, duplicativeness, and
waste"). In an Eastern District of New York discrimination case
against the Suffolk County Police Department involving six
plaintiffs, spanning five years (including trial), 2,838.25
hours was deemed excessive. Lochren v. Cty. of Suffolk, No. CV
24

01 - 3925 (ARL) , 2008 U. S. Dist. LEXIS 38100, at * 18 (E.D.N . Y. May
8 , 2008)

(performing 25 % reduction). In a 38 p l aintiff cla i m

concerning prison conditions, spanning seven years , a month long
trial , post - trial briefing , and "strenuous" litigation the
district court ca lled "one of the most bitterly f ought battles"
it had seen , on l y 6,036 . 8 hours were claimed . Lightfoot v .
Walker, 826 F.2d 516, 520

(7th Ci r . 1987) . 9

1. Billing Inflation Resulting from Plaintiff's
Litigation Team

The nature of Plaintiff ' s litigation team led to
significant inefficiencies and duplication of effort by all of
plaintiff's counse l and staff . "There is no doubt that greater
economies in attorney time cou ld have been achieved if counsel
had reasonably considered the staffing issues rais ed by their
joint representation ." Simmonds v . N. Y. Ci ty Dep ' t of Corr.,

9

Pr i mary Co unsel a rgue these cases cannot be relied upon as
grounds for reduction because fees are a necessarily case speci f ic inquiry , and because the fact of redu ct i ons in those
cases is not relevant to whether reduction i s appropriate i n
this case . Th e Court does not rely upon them for either
proposition or to support a conclusion that the number of hours
reasonably expe nde d in this case must have been similar to the
number of hours expended in the cases cited . Rather , these cases
are helpful to bring into relief the vas t gulf between what
Primary Counsel have claimed here is reasonable and what has
been deemed reasonable in other similar , if distinguishable ,
contexts.
25

2008 U.S. Dist. LEXIS 74539, at *23 (S .D.N. Y. Sep. 15, 2008).
Eight attorneys was excessive, and a reasonable c li ent would not
have chosen nor compensated counse l for such inefficient and
duplicative staffing. 1 0 This unreasonable use of time is apparent
both in a review of Primary Counsel ' s billing records, and from
observation of this litigation . For example , records show
Primary Counsel and staff spent a sign ificant amount of time
communicating and coordinating with one another, an unnecessary
(or at least significantly less necessary) use of time than it
would be for an appropriately staffed team for which a
reasonable client would be willing to pay. Billing entry after
billing entry shows duplicative work between counsel, far
exceeding what should be necessary to complete a single task.
Plaintiff was often represented at oral argument by five or more
attorneys .

Three specific examp l es using Bronsther's summaries
demonstrate the wasteful time spent by involving so many
attorneys . First, Primary Counsel attended 38 of 41 depositions

Primary Counsel seek to recover for 8 attorneys, while arguing
there were practically on l y five Plaintiff 's counsel in this
matter . Reply on Behalf of Norinsberg Team in Further Supp.
Pl .'s Mot . for Atty's Fees at 4 . Because Primary Counsel seek to
recover for 8 attorneys , the Court address a team of 8
attorneys .
10

26

in teams of two (and sometimes three 11 ) , resulting in 1,443 hours
related to deposing 34 witnesses - 42 billed hours per witness.
Second , Primary Counsel seek compensation for 1,435 trial
preparation hours. This case was settled short of trial. To be
sure, trial in this matter threatened to be long and protracted.
However, even assuming it was reasonable for Plaintiff's counsel
to fully prepare for trial , this is an unreasonable amount of
time . This amount of hours would be equivalent to two attorneys
billing 12 h o ur days , seven days per week , for two full months,
or two attorneys working a more "reasonable" schedule billing 10
hour days , six days per week for nearly three months. Taking
into account an attorney cannot bill his every working hour, the
number is even more facially unreasonable. Plaintiff's counsel
argues they prepared for trial twice due to an adjournment of
some months. Under these circumstances , efficient counsel would
not need to duplicate such efforts already thoroughly expended .
Third , 1,380 hours were spent for meet i ngs, telephone calls , and
conferences. Ev en meetings that were not intra-counsel were
often attended by 2 - 3 attorneys. Counsel needed an entire Team
Meeting Weekend to coordinate . These three examples alone total
4 , 258 billed hours, nearly 50 % of the total hours for which

Primary Counsel do not seek to recover for Bauza's attendance
at depositions with two other Plaintiff ' s counsel . See Master
Deel ., Ex. G.
11

27

Primary Counsel seek to recover. Even if Bronsther's summaries
are not accurate reflections, a review of the billing records
establishes that such excessive intra - counsel coordination is
not necessary for a reasonably sized team of attorneys
prosecuting a similar action .

These are not the only areas in which Plaintiff's counsel
billed excessive time or charged at excessive rates . In sum ,
review of the materials submitted demonstrates this case could
have been competently litigated in far fewer hours by a much
smaller team, or a team with an eye toward billing efficiency ,
warranting an unusually large deduction. Plaintiff's counsel
cannot recoup compensation as highly experienced partner -l evel
attorneys , while also staffing matters as if no single (or less
experienced) attorney was capable of performing routine
litigation tasks . See Andert v . Allied Interstate, LLC , 2013
U. S. Dist . LEXIS 104422, at *8

(S.D.N . Y. July 17, 2013)

(rejecting fees for "tasks billed at a partner -l evel rate could
have been performed equally well by a junior attorney or a
paralegal" and "unnecessarily duplicative work such as e-mails ,
telephone calls, direct conversations, and the creation and
review of internal memos and the client ' s case file").

In such

circumstances , an across - the - board reduction is warranted. See
Lochren, 344 F. App ' x at 709.
28

The excess and waste of this inflation of effort was not
adequately trirruned from Primary Counsel ' s requests. See
generally, Hensley, 461 U.S . at 434 . Accordingly and as reasoned
above, a 35 % reduction in hours expended is warranted to account
for the amount of time expended to keep Primary Counsel apprised
of one another and manage such a large litigation team , rather
than to reasonably litigate this action .

Plaintiff also cycled through counsel over the course of
this litigation . Plaintiff hired Norinsberg , Cohen , and Fitch in
June 2010. The complaint was filed in August 2010 , but that team
lost contact with Plaintiff, and the representation was
terminated in late 2012 . Plaintiff then retained Levine ,
Gilbert, and Gleason . A few months later, Plaintiff hired Smith
and Lenoir. In April 2013 , Levine, Gilbert , and Gleason
experienced difficulty corrununicating with Plaintiff and ceased
working on the matter. Plaintiff believed he had terminated
their employment in May 2012 (not 20 13) , and Smith and Lenoir
continued to represent Plaintiff. See Schoolcraft Deel ., ECF No.
594 - 3 . Norinsberg , Cohen , and Fitch were rehired in early 2015.

As a result , numerous hours were b il led resulting solely
from the shifts, such as time spent reviewing the file,
29

learning

the developments of the case, and navigating relationships and
coordinating with prior counsel and Plaintiff (and his father).
"[D]efendants should not bear the cost of the inefficiencies
necessarily created by plaintiff ' s change in representation."
Ganci v . U.S. Limousine Serv . Ltd. , No. 10-CV-3027 JFB AKT , 2015
WL 1529772, at *6 (E .D.N. Y. Apr. 2, 2015) . These staffing
choices led to a significant number of hours that would not have
been necessary for a reasonable client represented consistently
by competent counsel . 12 After a review of the billing records , a
further reduction of 2 % is warranted for Primary Counsel .

2. Medical Defendants

Plaintiff's Rule 68 Judgment was obtained against the City
and dismissed all Municipal Defendants . Plaintiff's case against
Jamaica Hospital Medical Center , Dr . Lilian Aldana-Bernier , and
Dr. Isak Isakov continued . Plaintiff's counsel do not
disaggregate the hours attributable to the Medical Defendants
from their fee request, and argue the City is unentitled to such
reductions . See Reply on Behalf of Norinsberg Team ("Norinsberg

12

In addition to the time clearly attributable to overlap , such
as Norinsberg's time spent negotiating a return to Plaintiff ' s
legal team , Plaintiff shifted his point of communication and
hierarchy of counsel throughout this litigation. Time must
necessarily have been billed sorting through and navigating the
staffing consequences of those choices .
30

Rep l y " ) at 13 - 22 .

The Second Circui t has stated that "in simple justice the
[ settling Defendant] should not be required to pay for the
processing of appellees ' claim against the [non - settl i ng
Defendant]. " J . G. by Mrs . G. v. Bd. of Educ. of Rochester City
Sch . Di st ., 830 F . 2d 444 , 447-48

(2d Cir . 1 987) . Where a

Plaint i ff is entitled to an award of attorney ' s fees u nder§
1988 , inclusion of fees i n an award as against one defendant for
a claim attributable to another constitut es error . Id .
(" remand[ing] to the district court for a reduction in its award
by an amount that the court finds to be a ll ocable to the
prosecution of appel l ees ' claim against the [non - settling
Defendant ] ) ."

Plaintiff ' s threshold ground for opposing the request for
reduct i on is grounded in contract law ; because the Rule 68 offer
of judgment states "plainti f f shall be enti t led to reasonable
attorney ' s fees ," no limit was imposed on the fees for wh i ch the
City is liable under the Judgment . Id . at 13 - 14 . Th i s argument
is without merit . Plaintiff ' s counsel emphasizes the " sha l l be
entitled to " language , but the notion that the City is not
liable for costs relating to the case against the Hospital
Defendants , which it d i d not and could not settle by the Rule 68
31

Offer of Judgment, turns on the exp li cit limi t of "reasonable
fees." The City cannot be deemed reasonably liable for the costs
of prosecuting Defendants not covered by the Rule 68 Judgment .
Under Plaintiff's logic, the City would be unentitled to any
reduction for having agreed to pay fees in the Rule 68 Judgment,
no matter how unreasonable the request, an impossible
construct i on . The Court therefore analyzes the reasonableness of
the fees accrued relating to the Hospital Defendants.

Primary Counsel next argue that the work against all
defendants was "inextricably intertwined" and thus cannot be
allocated. Norinsbe rg Rep l y at 14 -1 7. The only in-circuit law
cited for this proposition contrary to J.G. does not support
Plaintiff's position . In Cabral v. City of New York , the court
stated "[a]s a general matter, if a plaintiff prevails on a
claim that generates a fee award , he may recover for work done
on other claims if they were substantia ll y related to the cla im
on which he prevailed." No. 12 CIV . 4659 LGS, 2015 WL 4750675,
at *10 (S .D.N. Y. Aug . 11, 2015)
York, 704 F.Supp.2d 347 , 358

(citing Tu cker v . City of New

(S .D.N. Y. 2010)) . However, in the

very next sentence, that court declined to award fees for the
allegedly related claim , and the Court subtracted hours spent on
the criminal predicate to Plaintiff's civil unlawful search and
arrest claims . Id. The only other in-circuit law Plaintiff
32

cites , Martinez v . Port Auth . of N. Y. & N.J. , No . 01 CIV . 721
(PKC) , 2005 WL 2143333 , at *24

(S . D.N . Y. Sept . 2 , 2005), aff'd

sub n om . Martinez v . The Port Auth. of New York & New Jersey ,
445 F . 3d 158 (2d Cir. 2006) , concerns pretrial discovery as it
relates to claims Plaintiff succeeded upon as well as th ose that
were unsuccessful .

The issue here is not the difference between the successful
and unsuccessful c laims arising from identi ca l circumstances ,
for example succeeding on a claim of assault but not battery.
Rather , Plaintiff seeks to intertwine the claims against the
Municipal Defendants , which arose largely out of the
circumstances of Plaintiff ' s employment and the events that
occurr ed at his apartment o n October 31 , 2009. Plaint i ff's
c laims against the Medical Defendants implicated that universe
of facts, but turned inst ead on events that occurred at Jamaica
Hospital Medical Center following the events that occurred at
Plaintiff ' s home. To be sure , the two universes of facts and th e
c laims stemming therefrom are unquestionably r elated , in the
broad and colloquial senses . But they are also practically and
logi ca ll y disaggregated and can b e allocated to the appropriate
Defendants.

The fact that Plaintiff billed hours to trying a case
33

against the Medical Defendants after having obtained the Rule 68
Judgment illustrates the practicality of a distinction .
Plaintiff's counsel point to factual elements of this case that
relate the cases against the Municipal Defendants and Hospital
Defendants . This perspective ignores scope . That Sergeant James
may have made a statement relevant to the Medical Defendants'
defenses , NYPD officers may have been present at the hospital ,
or Lamstein spoke with Hospital personnel makes the cases
against the Municipal Defendants and the Hospital Defendants
somewhat related, but it does not make the relation
inextricable. These are tangential facts that may fall under the
broad scope of relevance at trial , but had the Medical
Defendants '

case turned on the case against the City , there

would have been little to try follow i ng acceptance of the Rule
68 Judgment . Counsel cannot plausibly claim hundreds of hours
for preparing their case against the Medical Defendants while
also claiming the two cases were so inextricably interrelated
that the City is liable to the hilt for fees for the case
against the Medical Defendants.

All of Plaintiff's claims against the Medical Defendants
except medical malpractice were dismissed on May 5, 2015 . The
remaining claims were settled .

34

The fees related to the prosecution of the claims against
the Medical Defendants are not reasonably attributable to the
City under the Rule 68 Judgment and the law of this Circuit .
Because Plaintiff ' s fee applications fail to adequately
disaggregate the hours spent relating solely to prosecution of
claims against the Medical Defendants , an additional across-theboard reduction of 15 % is warranted to deduct those hours
attributable solely to the c laims against the Medical Defendants
for which the City is not liable.

3. Non-Compensable Tasks

Plaintiff's counsel has requested reimbursement for media,
public relations , and administrative matters. 13 Such tasks are
non - compensable. Webb, 471 U.S . at 241 (" Congress only
authorized the district courts to allow the prevailing party a
reasonable attorney's fee in an action or proceeding to enforce
§

1983 . Administrative proceedings estab lishe d to enforce tenure

rights created by state law simply are not any part of the
proceedings to enforce

§

19 83 , and even though the petitioner

obtained relief fr om his dismissal in the lat er civil rights

13

Hours billed relating to Plaintiff's motion to stay the
administrative disciplinary proceeding in this action are
compensable . Work on that adjudication itself is not .
35

action , he is not automatically entitled to claim attorney's
fees for time spent i n the admin i strat i ve process ** 1 928 on this
theory ." (internal quotation marks and brackets omitted)) ;
Williamsburg Fair Hous. Comm . v . New York City Hous. Auth. , No .
76 CIV. 2125 (RWS) , 2005 WL 736146 , at *11 (S.D.N.Y. Mar . 31 ,
2005) , opinion amended on reconsideration , No. 76 CIV . 2125 RWS ,
2005 WL 2175998
include

(S.D.N . Y. Sept. 9 , 2005)

("non - compensable tasks

. publicity efforts , lobbying, and clerical work " ) .

Plaintiff's counse l argue that some , though not all , of the
time Defendants attribute to non - compensable efforts was
necessary review of existing media art i c l es . Norinsberg Reply at
32 - 33. Alternatively , Plaintiff ' s counsel argue both that media
attention was essential to Plaintiff ' s efforts to obta i n
evidence, and that an independent public interest required
counsel to oversee that media attention . Plaint i ff ' s counsel did
not exercise billing judgment to remove any part of these tasks
from their fee request, and do not provide persuasive evidence
that the sought - after atte n t i on was related to or necessary for
evidence gathering. Counse l chose to fan the flames of attention
in this case (evidenced , for example , by schoolcraftjustice.com
and billing entries for consu l ting a documentarian) , and cannot
n o w charge the City with the cost of keeping an eye on the
resulting fire .
36

Accordingly , 3 % will be further deducted to account for
non - compensable charges .

4 . Billing Practices

It has been noted in this district that , where extremely
detailed time records are submitted , " that very detail often
hides exaggeration and excess ." Barile , 2013 WL 795649 , at *7 .
Such is the case here , with the records of over ten billing
attorneys and staff .

For example , where "attorneys and s t aff have billed
multip l e entries of ' 0 . 1 hour ' -often severa l on one day-for very
brief , mundane tasks such as emailing a document , e - filing , or
receiv i ng a notice of appearance or other notification from the
Court ' s a u tomated Elect r on i c Case Filing ( ' ECF ' ) system . This
excess i ve specific i ty appears designed to inflate the total
n umber of hours bi ll ed , by attr i buting a separate 6 mi n utes to
each brief task . " I d. In such a long and excess i ve l y b il led case
such as this one , such practices are compounded and result in
even greater unjustified fees than usua l. Bronsther ' s report
found Norinsberg billed 0.1 hours for 267 discrete tasks , Cohen
for 173 tasks , Fitch for 182 tasks . Bronsther Report at 46-47 .
37

These 6-minute incr ements were routinely billed for email and
review of short documents. Such billing is excessive.

In addition, a substantial number of hours are billed with
standardized, vague descriptions. For example , Bauza billed nine
separate five-hour b l ocks to "jury instructions project" and
three separate five-hour blocks to "timeline project." See
Master Deel, Ex. N. The paralegals billed pages of entries in
separate blocks to "summarize deposition of [deponent]" or
"[deponent] summary deposition," where each review of each
deposition was billed in multiple blocks. See id., Ex. I. Lenoir
billed pages of distinct blocks to summarizing depositions the
same way , such as "Summarize [deponent] deposition transcript"
and "summariz e deposition of [deponent]," again with each
individual deposition appearing in several blocks of time. Smith
billed five distinct b l ocks of t i me between 7 . 5 hours and 12
hours each with no more specific entry than "dr afting summary
judgment motion ," or "draft ing reply," "drafting opposition to
[named] motion ." I d . Cohen , Norinsberg , and Fitch each billed
several entr i es to some vers i on of the entry "r ev i ew of
deposition exhibits ." These examples are illu strative of entries
that, when billed repeatedly and by separate time-keepers, are
too vague to allow the Court a meaningful opportunity to review
whether all of the time allocated to the task was reasonable.
38

" Courts frequently respond to vague and difficult - to - decipher
billing statements with an across -the -b oard percentage reduction
in the fees claimed , often in the range of 20-30 percent." ThaiLao Lignite (Thailand) Co . v. Gov't of Lao People 's Democratic
Republic, No . 10 CIV. 05256 KMW OF , 2012 WL 58 1 6878 , at *11
(S . D. N.Y. Nov . 14, 2012)

(collecting citations) . In light of the

other reductions already applied , a further 10 % reduction is
warranted.
iii.

Fees on Instant Motion

Smith requests fees-on-fees related to the instant motions.
See Smith Group ' s Mem . of Law, ECF No.

620 , at 36 - 7 .

The Rule 68 Judgment provides "plaintiff shall be entitled
to reasonable attorney 's fees , expenses, and costs to the date
of this offer[.]" Rule 68 Offer of Judgment at 3 . On the terms
of the agreement alone, fees-on-fees are denied.

Moreover, "plaintiff's counsel is not entitled to fees and
expenses for work done preparing and filing this motion . The
Rule 68 judgment limited recoverable fees and expenses to those
incurred prior to the date of the offer. " Long v. City of N.Y. ,
2010 U.S . Dist. LEXIS 8 1 020 , at *6 (S . D.N. Y. Aug.
Although some courts have permitted such fees,
39

6 , 2010) .

Lee v. Santiago,

No . 12 CIV. 2558 PAE OF , 2013 WL 4830951, at *13 (S . D.N. Y. Sept.
10 , 2013) , they are not warranted here where Plaintiff's counsel
did not attempt to settle the matter prior to filing, and did
not exercise billing (or filing)

judgment in their fee request

and motion practice despite an awareness of the issues
presumably raised in settlement discussions with a Magistrate
Judge . See Long, 2010 U. S. Dist . LEXIS 81020 , at *6 ("If the
City ' s dispute over recoverable fees were in bad faith,

than

compensation for the work necessary for plaintiffs fee
application may be justified. No such showing has here been
made ." ). Any failure of the City to settle is counterweighted by
Plaintiff ' s own role in perpetuating the in stant dispute.

iv.

Primary Counsel's Fee Award

Having reviewed Defendants' remaining objections , Primary
counse l' s arguments , and Plaintiff ' s time records , the
aforementioned across -the -board reductions appropriately address
all issues . As set forth above, a 35 % deduction to counsel ' s
requested rates, a 30 % reduction to Bauza's rate, a 20 %
deduction to staff requested rates, and a sum total 65%
reduction to the number of hours applies. The Court therefore
finds the following fee awards reasonable and warranted :

40

Counsel/Staff
Rate
Jon Norinsberg
$390
John Meehan
$227 . 50
Nicole Bursztyn
$100
Nathaniel Smith
$373.75
Nathaniel Smith (trave l ) $186 . 875
James Mccutcheon
$162.50
Magdalena Bauza
$105
Magdalena Bauza (trave l ) $52 . 50
Smith Paralegalsls
$100
Howard Suckle
$373 . 75
Joshua Fitch
$325
Gerald Cohen
$325
John Lenoir
$373.75
John Lenoir (travel)
$186.875

Total Fees :

Hours
508 .1 475
48.23
36.1025
766 .1 5
19 . 95
8.183
446. 719 14
10.255
154 . 7
38 . 115
313 . 1625
282 . 345
438.2
20 . 3

Total
$198 ,1 77.53
$ 10,972.33
$ 3,610 . 25
$286,348 . 56
$ 3 , 728.56
$ 1,329.74
$ 46 , 905 . 50
$
538 . 39
$ 15 , 470.00
$ 14,245.48
$101 , 777 . 81
$ 91 , 762.13
$163 , 777.25
$ 3 , 793.56

$942 , 436 . 67

v.

Primary Counsel's Costs and Expenses

An attorney ' s fees award properly includes "reasonable outof - pocket expenses incurred by attorneys and ordinarily charged
to their clients" that are "incidental and necessary" to
representation. U.S. Football League v. Nat ' l Football League ,

Bauza ' s fee records have not been submitted in a single
comprehensive form. The Toggle.com submissions include totals
but not line item billed rates, and it is additionally unclear
on their face precisely where and how bil lin g discretion was
exercised to arrive at a "billab l e " time spent that differs from
the "total" time spent . See Master Dee l., Ex . N. Accordingly ,
the Court begins i ts calculations from the request reflected in
the Declaration , "1,276:34 hours of billable time ... and 29 : 30
hours of travel time ." Id., Ex . B <JI 29 . It is additionally
unclear whether ": 34 " and ": 30 " reflect seconds or decima l s of
an hour. The Court presumes the l atter , i n keeping with the form
of timekeeping submitted in all other applications .
1 5 The billing records submitted on behalf of Lysia Smejika ,
Jeanette Lenoir, and Jeremy Smith were not summarized on an
individual basis . See id ., Ex . I .
14

41

887 F . 2d 408 , 416 (2d Cir . 1989)

(citations excluded). Such

costs properly in clude "photocopying , travel , te l ephone costs ,
postage and computer i zed research." Ortiz v. Chop 't Cr eat i ve
Sa l ad Co . LLC, 89 F. Supp . 3d 573 , 591 (S .D.N. Y. 20 15). Counsel
seeks reimbur semen t fo r reasonable out - o f-p ocket fees as wel l as
lin e -it ems to which they are not ent i tled .

Plaintiff's counsel seek to recover expert fees . Amendment
to sect i on 1 988 provides " the court , in it s d i scret i on , may
include expert fees as part of the attorney ' s fee " when award i ng
attorney ' s fees to enforce a prov i s i on of sect i on 1981 or 1 98la .
But with respect to sect i on 1983 c l a ims , " § 1988 conveys no
a u thor i ty to shift expert fees ." W. Vir g inia Univ . Hosps. , Inc.
v . Casey , 499 U.S . 83 , 102 , 111 S . Ct . 1138 , 1148 , 113 L . Ed . 2d
68

(1991) ; see also Wa l ker v . City o f New York , No . ll - CV - 314

CBA , 20 1 5 WL 4568305 , at *13 (E . D.N.Y. July 28 , 2015)
W lder v . Bernst ein , 975 F . Supp . 276 , 287 n . 12
i

(cit i ng

(S . D. N.Y.1 997)

(" As Congress explicitly limited the amendment to cases ar i sing
under
§

§

1981 , Casey sti ll prohibits the award of expert fees in

1 983 cases ." )) . Bronsther s ummarizes that Plaintiff seeks

$7 1, 344 . 30 i n expert fees . Bronsther Report at 108-09 .

In addition to seeking recovery for expert fees , counse l
42

other than a single line for the full requested sum of $3,800 . 87
stating "veritext transcription fees." 1 8 See Master Deel ., Ex . K.

As set forth above, Plaintiff cannot reasonably attribute
the entire sum of the costs and fees for his claims against the
Medical Defendants to the City. Bronsther summarizes $55,945.99
in expenses relating to claims exclusively against the Medical
Defendants are claimed . Bronsther Report at 107-08 .

To account for the expenses relating to experts , the
expenses relating solely to the claims against the medical
defendants, and unreasonable charges, the expenses requested
will be reduced by 30% . Accordingly, a total of $104,340.92 in
costs is awarded as follows: $94 , 665.01 for Smith ' s expenses ,
$7 , 015.30 for Norinsberg's expenses , and $2,660 . 61 for Co h en 's
expenses .

b. Levine, Gilbert, and Gleason

18

Though Veritext is a Court Reporting Service, the item was
billed on June 22 , 2015 . A review of the docket sheet shows no
hearing was h e ld or transcript released by the Court Reporters
f or the Southern District of New York on or within a month of
June 22 , 2015 . Thus , without more, the Court cannot discern what
this c harg e was for, whether it related to experts , the c laims
against the City, etc ., and cannot discern whether it is
properly recoverable in full .
45

'

'

Levine , Gilbert , and Gleason ' s application neglects to
request a total amount. See Mem . of Law i n Supp . Pl .' s Fee App .,
ECF no. 572 ("LGG Br ." ) . By affidavit , Gilbert requests $500 per
hour and $4,630 . 45 for reimbursements made to Norinsberg.
Gilbert Aff. at 4. By attached "itemized services" record ,
Gilbert swears to a total of 120.62 at a rate of $500 per hour ,
for a claimed total of $63,810 . 00 , plus the $4 , 630 . 45
disbursement for a claimed total of $68 , 440 . 45. None of these
calculations appear correct or consistent according to the
information submitted . 1 9 By affidavit, Levine requests $600 per
hour for less than 75 hours . Levine Aff . at 4. Also by attached
"itemized services" record, Levine claims 74 . 32 hours , at $600
per hour , for a claimed total of $70 , 734 . 00 . Levine ' s
calculations are likewise appear inconsistent and incorrect
according to the information submitted . 20 Gleason ' s affidavit

Taking Gilbert ' s numbers at their face value , 120.62 hours at
$500 per hour yields $60 , 310 in fees. Adding the claimed
disbursements of $4,630 , the Court arrives at a sum total of
$64 , 940.45. Alternatively , calculating the hours as Gilbert has
listed them yields 129.75 h ou rs, yielding $64,875 in fees.
Adding the expenses , the Court arrives at an alternate total of
$69 , 505 . Several of Gilbert ' s line item calculations are also
incorrect or lack documentation of exercised billing judgment ,
though usually yielding total than the c l aimed time spent at the
claimed rate would warrant. For example , multiple 1 . 5 hour line
items are totaled at $500; 10 . 5 hours in the affidavit yields an
amount of $5,165 . 10 . 5 hours at a rate of $500 is accurately a
total of $5,250 .
2 0 Taking Levine ' s hours calculation at face value, 74 . 32 hours
at the rate of $600 per hour totals $44 , 592. By the Court ' s
calculation , Levine's itemized hours total 71 . 025. 71 . 025 hours
19

46

seeks "*** [sic] hours at the rate of $500 per hour," $3 , 581 . 25
for an investigator, and $7 , 485 in expenses . Gleason Aff . at 7 .
Gleason ' s 18 pages of line item charges appear accurate .

i . Reasonable Fees

For the same reasons set forth supra §4(a) (i), a deduction
of 30 % is warranted for the rates sought by Levine , Gilbert, and
Gleason . This reduction alone brings Gilbert and Gleason ' s rates
to $350 per hour and Levine's rate to $420 per hour. However,
all three attorneys point to minimal concrete examples of their
experience prosecuting federal civil rights actions. See Gleason
Aff.

~~

7-9 (naming one case) ; Levine Aff.

cases); Gilbert Aff .

~

5 (naming no

(claiming no civil rights experience,

naming no cases) . Furthermore , Levine, Gilbert, and Gleason made
minimal contribution to this case, representing Plaintiff for
only four months and performing primarily review , summarization ,
and management work that do not command partner -l evel rates. See
Levine Aff.

~

7 ("your affirmant ' s work included breaking down

at a rate of $600 per hour yields a total of $42 , 615 . Levine ' s
line items are also not consistently accurate and lack
indication of exercised billing judgment, such as 1 . 5 hours
yielding a $600 amount on 11/30/12 and $900 on 12/7/12, and . 25
hours yielding $150 charge on 1/30 and a $140 charge the
subsequent day.
47

..
the prior attorneys'

files . .. taking copious notes and then

summarizing them in a memorandum to the file") ; Gilbert Aff . !
3,

("After being retained by plaintiff we undertook to

familiarize ourselves with the plaintiff and his case . This
involved reviewing ... "), !

8 ("familiarizing himself with

plaintiff ' s case, from reviewing ... to traveling to upstate New
York on two occasions to meet personally with plantiff and his
father , dealing with ancillary issues that were troubling
plaintiff .. . "); Gleason Aff. ! ! 11-12

("reviewing ... conferring

... engaging in extensive client contact necessitated by the
myriad questions . . . endeavoring to assemble the legal
team[.]").

In Gilbert ' s own words , "[w]ith the completion of our

review and analysis of the materials provided to our firm we had
just begun the process of formulating our litigation plan when
the decision was made to shift the responsibilities for the day
to day management of the litigation to Nat Smith and the newer
members of the team ." Gilbert Aff . ! 8. Accordingly , rates of
$325 per hour are appropriate for all three attorneys .

ii.

Reasonable Hours

Many of the deductions warranted with respect to Primary
Counsel's fee requests apply equally or more forcefully to
Levine , Gilbert , and Gleason ' s request.
48

In particular and as

)

.
detailed above , because LGG only represented Plaintiff after
Norinsberg had begun this litigation and for on ly a brief few
months , Levine , Gilbert , and Gleason spent an inordinate amount
of time reviewing materia l and familiarizing themse l ves with the
case that would not have been necessarily absent Plaintiff's
staffing choices. This factor alone warrants deduction of the
lions share of the hours Levine , Gilbert , and Gleason claim . As
discussed above, many of the calculations submitted by the LGG
team are unreliable. Issues such as non-c ompensab le tasks and
inefficient or inexact billing practices resulting in inflation
are also present. Some billing line items do not c learl y apply
to this case . See e . g ., Gleason Aff ., Ex . A at 20

("Defended his

deposi ti on in the Fl oyd matter before MJ Freeman")

Accordingly , the Court has reviewed the hours c laimed by
line - item , Bronsther ' s summary est ima tes , and conc ludes 5 hours
for Levine , 10 0 hours for Gleason , and 25 hours for Gi lbert
constitute hours reasonab l y expended .

iii.

Levine, Gilbert, and Gleason Fee Award

Based on the conclusions set forth above, Le vine , Gilbert ,
and Gleason are awarded attorney ' s fees as follows:
49

1

I

Counsel
Harvey Levine
Peter Gleason
Richard Gilbert

Rate
$325
$325
$325

Hours
5

100
25

Total Fees

Total
$ 1 , 625 . 00
$32 , 500 . 00
$ 8,125 . 00

$42,250 . 00
iv.

Costs and Expenses

Levine and Gilbert 21 seek to recover $4 , 630 . 45 paid to
Norinsberg "for claimed disbursements for which request is
herewith being made for reimbursement." Gilbert Aff .

~

6 . These

costs are recoverable, as the reimbursement to Norinsberg was
for costs and expenses incurred before Levine , Gilbert , and
Gleason began representing Plaintiff and thus any necessary
deductions to the amount have already been applied to
Norinsberg ' s line-item claims as set forth above.

The amount Gleason seeks in expenses is unclear.

22

In the

text of his affirmation, Gleason requested $3,581 . 25 for
investigator Vincent Parco , and what he totals as $7 , 485 in
expenses. Gleason Aff.

~

19. He lists only two expenses by line-

21

Though claimed in the text of Gilbert ' s Affirmation, proof of
the disbursement is provided in Levine's Affirmation. See
Gilbert Aff . ~ 6; Levine Aff. at 9-1 0.
22 In the text of his affirmation, Gleason requested $3,581.25
for an investigator, and what he totals as $7,485 in expenses .
Gleason Aff . ~ 19.
50

item in his billing record . See Gleason Aff ., Ex . A . In his
billing record , he summarizes $6 , 123 in expenses and $3 , 581.25
in costs for investigation. Gleason Aff. , Ex. A at 20. Combined
and properly calculated , these amounts total $9,704.25, a number
Gleason does not request or reach elsewhere . The line-items
listed as expenses do not precisely reflect the legible receipts
provided. Compare Gleason Aff ., Ex . A with Gleason Aff . Ex . C.
Even were they accurate reflections of costs , the line item
expenses total $3 , 397 , an amount inconsistent with all the
numbers Gleason provides . Even the receipts that Gleason submits
are largely , and in some cases wholly , illegible . The errors ,
inconsistencies , and lack of verification cal l into substa ntial
doubt the accuracy of the claimed expenses and the y are denied
on this basis .

In addition , the specific expenses for which Gleason seeks
reimbursement do not merit an award under the standard of this
Circuit . See U.S . Football League, 887 F.2d at 416 (permitting
attorney ' s fee award for " reasonable out - of - pocket expenses
incurred by attorneys and ordi n ari l y charged to their clients"
that are "in c i dental and necessary " to representation . ) . Gleason
alleges Parco ' s work "resulted in impeachment material regarding
individual defendants that would have been imp ortant had the
matter gone to trial. " Gleas on Aff . i
51

15. No detail is provided

as to what this information was , whether it applied to a
Municipal Defendant or a Medical Defendant , or how that
information was

(or might have been) used in this litigati on .

The only indication in Mr. Parco ' s attached billing record is
"S cope : Named Defendants & Identify person(s) at Schoolcraft
home when he was removed to hospital ." Gl eason Aff ., Ex. B .
There being no basis to decide whether Parco ' s work was
incidental and necessary to representation and whether the City
is liable for the expense , this request is denied . The charges
at Men ' s Warehouse, Best Buy , and the Apple Store are not
c l ear ly incidenta l to representation such that the City is
responsible for their cost . Two cel l phone lines in Gl eason ' s
name, paid for an entire year is likewise not at all necessary
or reasonable. Gleason ' s requested costs are accordingly denied .

c. Interest

Smith and Norinsberg request 9% post-judgment int erest on the
award . Smith Reply at 37 , Norinsberg Reply at 58. The Rule 68
Judgment provides:
Acceptance of this offer of
waive plaintiff ' s rights to
the amount of the judgment ,
on any backpay amounts .
The plain languag e of the Rule

judgment also will operate to
any claim for judgment interest o n
other than pre-judgment interest
68 Judgment entitling Plaintiff

to attorney ' s fees bars recovery of post-judgment interest , and
52

the request is accordingly denied .

V.

Conclusion

Based on the conclusions set forth above, Plaintiff ' s motion
for attorney's fees and costs are granted in part and denied in
part, Plaintiff's motion to strike is granted in part and denied
in part, and Defendant ' s motion to strike is denied. The
Norinsberg, Smith, and Cohen & Fitch teams are awarded a total
of $1 , 046 , 777 . 59 and Levine, Gilbert, and Gleason are awarded a
total of $46,880.45 as set forth above. Plaintiff's counsel is
therefore awarded $1 , 093,658 . 04 in attorney's fees and costs .

It is so ordered .

New York, NY
September J

,

W. SWEET
U.S.D . J.

2016

53