Schoolcraft v. The City Of New York et al

Filing 672

RESPONSE in Opposition to Motion re: 641 MOTION for Reconsideration re; 638 Memorandum & Opinion,,,, THE COURTS ORDER ON ATTORNEYS FEES. Surreply in Support of City's Opposition to Motion for Reconsideration. Document filed by The City Of New York. (Attachments: # 1 Affidavit Declaration of Judith Bronsther, # 2 Exhibit Exhibit A to Brosnther Dec., # 3 Exhibit Exhibit B to Bronsther Dec., # 4 Exhibit Exhibit C to Bronsther Dec., # 5 Exhibit Exhibit D to Bronsther Dec., # 6 Exhibit Exhibit E to Bronsther Dec.)(Scheiner, Alan)



Index No.: 10-CV-6005 (RWS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ADRIAN SCHOOLCRAFT,
Plaintiff,
-againstTHE CITY OF NEW YORK, et al.,
Defendants.

SURREPLY MEMORANDUM IN SUPPORT OF
OPPOSITION TO PLAINTIFF’S MOTIONS FOR
RECONSIDERATION

ZACHARY W. CARTER

Corporation Counsel of the City of New York
Attorney for Defendants
100 Church Street - Room 3-174
New York, NY 10007
Of Counsel: Alan Scheiner
Tel: [phone]
Matter No.: 2010-033074

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .................................................................................................... 1
POINT I
PLAINTIFF FAILS TO SHOW ANY REASON FOR THE
COURT TO ALTER ITS AWARD IN LIGHT OF
PLAINTIFFS’ UNTIMELY ATTACK ON THE CITY’S
HOURLY SUMMARIES AND CALCULATIONS .................................................. 1
A.

Plaintiff’s new critique of the Audit calculations is
untimely sandbagging that should be disregarded by
the Court. .............................................................................................................. 1

B.

None of the alleged discrepancies in the City’s calculations warrant any
change to the Court’s decision…………………………………………….3

POINT II
THE COURT NEED NOT MAKE FINE DISTINCTIONS
AMONG INDIVIDUAL COUNSEL OR LAW FIRMS IN
EVALUATING PLAINTIFF’S FEE APPLICATION ............................................... 6
POINT III
PLAINTIFF PROVIDES NO REASON FOR THIS COURT
TO DEPART FROM ITS FEE METHODOLOGY .................................................... 8
CONCLUSION ............................................................................................................................. 10

TABLE OF AUTHORITIES
Cases

Pages

Arbor Hill Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany,
522 F.3d 182 (2d Cir. 2008).......................................................................................................9
Cohen v. Brown University,
2001 U.S. Dist. LEXIS 22438 (D.R.I. Aug. 10, 2001) ..............................................................3
Dunston v. N.Y.C. Police Dep’t,
2010 U.S. Dist. LEXIS 130461 (S.D.N.Y. Dec. 7, 2010) .......................................................10
Irish v. City of New York,
2004 U.S. Dist. LEXIS 3770 (S.D.N.Y. Mar. 8, 2004) .............................................................9
Legrand v. City of N.Y.,
2010 U.S. Dist. LEXIS 19011 (S.D.N.Y. Mar. 3, 2010) .........................................................10
Maldonado v. La Nueva Rampa, Inc.,
2012 U.S. Dist. LEXIS 67058 (S.D.N.Y. May 14, 2012)..........................................................6
Nike, Inc. v. Top Brand Co.,
No. 00 Civ. 8179 (KMW) (RLE), 2006 U.S. Dist. LEXIS 76543
(S.D.N.Y. Feb. 27, 2006) ...........................................................................................................6
Perdue v. Kenny A. ex rel. Winn,
130 S. Ct. 1662 (2010) ...............................................................................................................8
Simmons v. New York City Transit Auth.,
575 F.3d 170 (2d Cir. 2009).....................................................................................................10

-ii-

PRELIMINARY STATEMENT
The motion-respondent City of New York (the “City”) respectfully submits this Surreply
Memorandum in support of its Opposition to Plaintiff’s Motions for Reconsideration of the
Court’s Fee Award.
POINT I
PLAINTIFF FAILS TO SHOW ANY REASON
FOR THE COURT TO ALTER ITS AWARD
IN LIGHT OF PLAINTIFFS’ UNTIMELY
ATTACK ON THE CITY’S HOURLY
SUMMARIES AND CALCULATIONS
In Reply, the Smith team continues its belated attack on the City’s summaries and
calculations of hours prepared by ASI. Notably, even after seven months to scour ASI’s Audit1
of plaintiff’s fee submissions, plaintiff has identified only a handful of purported errors, of an
immaterial amount. Indeed, most of the purported errors relate to summaries submitted on the
motion for reconsideration, not the original Audit. Plaintiff has offered no excuse or explanation
for failing to submit his new critiques of the Audit upon the original fee application, and fails to
show any material discrepancies that warrant altering the Court’s decision.
A. Plaintiff’s new critique of the Audit calculations is untimely
sandbagging that should be disregarded by the Court.
The City been prejudiced by plaintiffs’ sandbagging through factual arguments that could
and should have been made while the City’s consultant, ASI, was actively engaged on this matter
and fully available, which is no longer the case. Plaintiff offers no explanation for why Smith’s
complaint that the City’s deposition hours do not match the time that the Smith team expended
on depositions – an argument based on the prior record which was well known to plaintiff’s
counsel while litigating the underlying motion – was not raised before. For the reasons stated in
1

The “Audit” refers to the report of the Audit of the Reasonableness of the Hours Expended and Expenses
submitted by plaintiff’s counsel, filed with the Court at DE 598-4 and 600-7.

the City’s Memorandum in Opposition to the Motion for Reconsideration (“City Opp. Recon.”),
under well settled law the Court should disregard plaintiffs’ improper attempt at second and third
bites at the apple with brand new factual matters. City Opp. Recon. 2-4, 8-9.
Plaintiff had ample opportunity to impeach ASI’s summaries and calculations but failed
to do so to any material extent. Plaintiff’s counsel have had the ASI Audit since April 8, 2016,
and have had ASI’s coding worksheets since May 11, 2016, as the Court noted. See DE 635;
Order2 at 13-14 n. 2. As the City previously stated, the Audit’s “calculations are based on the
time charges submitted by plaintiff, and could be confirmed or disputed by the parties or the
Court by reference to the material submitted by plaintiff. . . . . If the plaintiff believes that the
calculations are in error, he can submit his own calculations.” City Opp. 15. Yet plaintiff alleged
only a handful of minor, alleged discrepancies when litigating the fee motion, which amounted to
typographical errors. See Smith Reply Aff. ¶¶ 9-11 (DE 921); City Surreply Opposing Fee
Application (“City Surreply Fee”) (DE 632) at 13. 3 Most of what plaintiff asserts as errors are
critiques of lawyers’ briefing (not the audit), which just as easily could and should have been
raised before. City Opp. Recon. 22 n. 20. Indeed, although Smith now claims the mistake in
briefing was so obvious that it was deliberate, his own team did not see the issue even with their
intimate knowledge of their own time records until after the Court’s ruling.

2

“Order” refers to the Court’s September 6, 2016 Order awarding attorneys’ fees and expenses to plaintiff. DE 638.
Unless otherwise stated, abbreviations in this memorandum have the same meanings as in the City Opp. Recon. or
the City’s Memorandum in Opposition to Plaintiff’s Fee Application (“City Opp.”) (DE 597).
3

In one example, in Reply on the original motion the Smith team claimed that the city wrongly asserted that
plaintiff’s counsel sought reimbursement for a cash payments to a third person (in addition to reimbursement cash
given to plaintiff himself). Smith Reply Dec. ¶ 11 (DE 621). But in fact the expense submissions by the Norinsberg
team show a cash payment on April 10, 2012 of $300 to “Yudelka Cepeda,” who has no known connection to this
matter. Audit 17, 112; Norinsberg Fees and Expenses, DE 560-8, at 65; City Surreply Fee 13. The only error was
the misattribution in briefing of this payment to “Yudelka Cepeda” to the Smith Team; the Audit attributed it
properly to Norinsberg. City Surreply Fee 13; Audit 16-17; 111-112. While Smith sought to justify – wrongly –
reimbursement for cash payments to the plaintiff, he did not even attempt to justify recovering cash payments to
third parties, the inclusion of which reflects an extreme lapse of billing judgment.

2

B. None of the alleged discrepancies in the City’s calculations warrant any
change to the Court’s decision.
Even with plaintiff’s new arguments, none of the alleged discrepancies amount to
systematic or material errors that could justify the Court disregarding in toto all of the City’s
summaries and calculations.

Given the more than approximately 5,000 time entries for

approximately 9,000 hours and over a dozen time-keepers, claimed in plaintiff’s bloated
application – many encompassing multiple tasks – some disputable judgment calls and even
mistakes in attributing and calculating time are inevitable. That cannot undermine the overall
reliability of the calculations.

Indeed, the Smith team made exactly this argument when

acknowledging errors in its own putative “contemporaneous time records,” arguing that its errors
were “insignificant” in the context of 600 time entries. Smith Fee Reply Dec. ¶ 40 (Doc. No.
621). The same must be said of the Audit, which concerned 5,000 entries.4
Moreover, plaintiff’s counsel created the source material on which ASI based its Audit
and therefore could have readily found inconsistencies in comparison to the source data. In
opposing plaintiff’s motion to strike the Audit, the City offered to have Judith Bronsther testify
about her methods and processes, and thus be subjected to cross-examination, but plaintiffs never
took up the offer. See City Surreply to Motion To Strike (“Surreply Strike”), at 11 n .4. Nor did
plaintiff ever seek discovery from ASI or Bronsther, to which the City would have consented.5

4

The City was denied discovery of plaintiff’s counsel’s original time records and therefore were severely hampered
in their ability to discover errors in plaintiff’s presentation; there well could have been many more than were
discovered and acknowledged by plaintiff. But this is not so of the Audit, since plaintiff’s counsel had created the
source material used by the Audit – their own billing records – and thus were in a perfect position to find errors and
discrepancies in the City’s summaries and calculations.
5

Plaintiff also rehashes, virtually verbatim, its argument against Bronsther made in briefing the original motion,
citing the 15-year old decision in Cohen v. Brown University, 2001 U.S. Dist. LEXIS 22438 (D.R.I. Aug. 10, 2001).
Compare Norinsberg Reply Memorandum of Law, April 29, 2016, at 9 (DE 624), with Smith Reply Mem. Recon. 7
(DE 664). This argument is no more persuasive now than then, since this Court’s decision cannot be based on a
fact-specific finding in another matter, especially when the relevant record in that matter is not before the Court.
City Fee Surreply 12 n. 11. The Brown ruling does not even refer to ASI or Bronsther. Id.

3

Moreover, the Smith Team’s new critique mainly reveals that Smith overlooked (or
wants the Court to overlook) plain disclosures in the Audit and in the City’s Opposition to the
fee application, while shrilly accusing the City of “misrepresentation” of the record. Smith
Reply 3-4. First, Smith continues to point to the time spent only on his team preparing for and
taking depositions, while the Audit clearly indicates that it counted time spent by all counsel and
time expended on post-deposition review of deposition transcripts by all counsel. Bronsther
Declaration November 17, 2016 (“Bronsther Dec.”), ¶ 3; City Opp. Recon. 22. Only by ignoring
the content of the Audit can plaintiff claim there was large “inflation” of the hours expended.
Smith Reply 3, 6. And the purported magnitude of the claimed “inflation” does not square with
plaintiff’s counsel’s complete failure to mention it in briefing on the fee application before the
Court’s ruling, despite intimate knowledge of the underlying records.
In any event, counting the time spent reviewing depositions (and on deposition related
motions), in addition to the time preparing for and attending depositions, is appropriate because
it: (i) was conducted in addition to hundreds of hours of paralegal time spent digesting the
depositions (Bronsther Dec. ¶ 3, Ex. A); (ii) was excessive in light of the length of most of the
depositions and counsel’s attendance at the depositions; and (iii) none of it was counted in ASI’s
summaries of other categories (e.g. trial preparation time or summary judgment) (Id., ¶ 9).
Second, Smith ignores the disclosure in the Audit of the methodology that ASI used to
allocate hours to specific tasks in instances where block billing was used, which is set forth
clearly in Exhibit 2 to the Audit. Where block billing was used billing (which was common in
the Smith team’s time), the time entries in ASI’s calculations show the allocated hours, and such
allocated hours are always less than the total hours billed for a given time entry. Bronsther Dec.
¶ 4. Therefore, this supposed discrepancy works in the plaintiff’s favor. Id.

4

Third, Smith ignores the disclosed fact that Magdalena Bauza’s time, in part, had to be
converted from elapsed or “real-time” to decimal form in order to be incorporated into the
analysis. Bronsther Dec. ¶ 5. This was apparent from the Bauza entries listed in the Audit and
in Exhibit A and Exhibit A-1 and A-2 submitted by the City. Docket Nos. 600-2, 600-3, 600-4.
This was also stated in City Opp. 2, n. 5 (“the time entered by Magdalena Bauza was converted
to decimal format where it was in purported ‘elapsed time’ format (hours:minutes:seconds”).
Fourth, Smith identified only one actual error in the materials that ASI prepared in
connection with the Motion for Reconsideration, but not the Audit. That supplemental
submission was prepared on an expedited basis – on a matter on which ASI is no longer actively
engaged – and unfortunately under those circumstances errors arose, specifically the
unintentional double-listing of time relating to the Purpi deposition in both the General
Deposition Time and Specific Deposition Time. Bronsther Dec. ¶ 6. But after correction of this
double-listing and other small discrepancies from the original calculations (which Smith did not
identify), the corrected totals are nearly exactly the same as the original calculations: Specific
Deposition Time: 1,106.31 hours (Exhibit B); General Deposition Time: 316.40 hours (Exhibit
C). Bronsther Dec. ¶ 7 (Exhibit B and Exhibit C). ASI’s review also revealed additional entries
that were not categorized as deposition time in the Audit, but which should have been, totaling
33.30 deposition-related hours reflected in Exhibit E to the Bronsther Declaration. Id. ¶ 8.
Here, plaintiff chose to submit fee information in numerous different forms and formats,
without any logical coherency or organization, and in non-electronic form that is not amendable
to analysis. Plaintiff even refused the City’s request for production of the electronic files
containing the data, requiring the City to manually convert the data to electronic format for
analysis. See DE 576 (motion to compel fee discovery). Given plaintiff’s obstructionist effort to

5

make its own data immune to sorting, coding and calculation, plaintiff cannot now insist (see
Smith Reply Recon. 7) that the Court look only to plaintiff’s disjointed hardcopy summaries,
some of which were not even in chronological order. See DE 560-10.
For these reasons, plaintiff has failed to establish any basis to alter the Court’s ruling or
to disregard the City’s fee summaries reflected in the Audit.
POINT II
THE COURT NEED NOT MAKE FINE
DISTINCTIONS
AMONG
INDIVIDUAL
COUNSEL
OR
LAW
FIRMS
IN
EVALUATING
PLAINTIFF’S
FEE
APPLICATION
The Smith team’s insistence that the Court look only at the Smith team’s time when
evaluating its work bespeaks plaintiff’s counsels insistence that it is their rights that are at stake,
when by settled law they are not parties and only the plaintiff’s rights ought to be considered
here. The fee application is the plaintiff’s claim, and the Court must weigh the reasonableness of
the entire fee, not each team or attorneys’ individual fee. Duplication of effort by multiple
attorneys is one of the classic examples of “fat” that is routinely “trimm[ed].” Maldonado v. La
Nueva Rampa, Inc., 2012 U.S. Dist. LEXIS 67058, at *47-50 (S.D.N.Y. May 14, 2012)
(quotations and citations omitted). While plaintiff relies on Maldonado to argue that multiple
attorney time can be reimbursed, Maldonado makes clear that is only so when "the moving party
. . . demonstrate[s] the need for each attorney's expertise" and “that the work reflects the distinct
contributions of each lawyer." Id., at *47-58 (quoting Nike, Inc. v. Top Brand Co., No. 00 Civ.
8179 (KMW) (RLE), 2006 U.S. Dist. LEXIS 76543, *20 (S.D.N.Y. Feb. 27, 2006)). As the
Court correctly found, this is precisely what plaintiff failed to demonstrate here: there was no
reasonable need for the multiplication of senior level attorneys working on this matter. See
Order at 28-29. Smith protests that his team did not overlap with other attorneys for some of his
6

tenure on the case, but there was ample duplication of effort within the Smith team. Audit 88,
93, 97-105. This was exacerbated over time when the Norinsberg team did work that had
already been done, or could have been done more efficiently, by Smith. Contrary to Smith’s
contention, the small reduction for time that was directly attributable to the replacement of
counsel by no means accounts for the true waste resulting from plaintiff’s cycling between
counsel over time, which is properly reflected in a percentage reduction. See City Opp. 30.
Of course in some cases courts may evaluate each attorneys’ time individually, especially
if the total fee submission is relatively small, but there is no requirement that the Court do so. It
is especially unreasonable to insist, as Smith does, that the Court must evaluate each lawyer and
law firm separately when the plaintiff has submitted time for over a dozen time keepers, in
varying forms and formats, representing over 5,000 individual entries. Practical, “rough justice”
is all that is required. City Opp. Recon. 24.
Smith points to defects in time-keeping that he claims other time-keepers showed that his
team did not. But the Smith team’s submission had infirmities not equally shared by others:
frequent block billing and a suspicious frequency of large, apparently rounded-up billing
increments of 30 minutes or more.6 Audit 30; City Opp. 38.
Plaintiff makes one fee application and is responsible for the application as a whole.
Therefore, the Court may apply across the board discounts justified by defects in the submission
as broadly as is convenient. Moreover, plaintiff’s counsel chose to work with other attorneys on
this matter, linking their fee to the Court’s fee award to plaintiff. Counsel thereby accepted the
risk that their fee will be discounted in light of the entire submission, including the submissions

6

The Smith team’s use of large billing increments is an additional basis for reduction of their fee that was not
mentioned by the Order.

7

of other counsel.7 Smith also claims that his team exercised “billing judgment” in reducing its
own portion of the fee claim in his Reply brief. But plaintiff may not treat its fee application as
the opening of a negotiation and bargain down from there. See City Opp. 17-19; Order 18.
Plaintiff’s counsel should trim their application in good faith before it is submitted.
Smith also argues that reducing rates as well as hours for duplication and redundancy is
“double counting.” Smith Reply 11. But this is not so. Redundancy and duplication is relevant
to both hours and rates, because, as the Court held, a lawyer with more experience and expertise
requires fewer hours and less support or supervision to complete the same task than a less
experiences lawyer. Order 28.

Accordingly, the Court may trim both hours and rates of all

counsel where they appear to charge rates excessive for the time, supervision and support they
claim to have required, to achieve a net reasonable fee. If rates are increased for any reason, a
corresponding decrease in hours would be warranted to adjust the total to a reasonable outcome.
POINT III
PLAINTIFF PROVIDES NO REASON FOR
THIS COURT TO DEPART FROM ITS FEE
METHODOLOGY
Although plaintiff for the first time argues on reconsideration that the Court should have
disregarded prior Second Circuit law in several respects – not applied the Johnson factors; not
considered law firm size; and not considered reputational benefits – on Reply plaintiff’s counsel
asserts that it needed only to cite Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662 (2010) and

7

Smith continues to rely on his description of his purported fee agreement with the plaintiff, despite having refused
to produce that agreement in discovery or even in litigation of the fee application. See Smith Reply Dec. ¶ 5; City
Opp. Recon 7 & n.7. Smith does not justify withholding the agreement from the City and the Court, and in any
event Smith is not a party and his rights under the fee agreement are not at issue.

8

intone the magic word “lodestar” to make this argument. Norinsberg Reply Recon. 7-8. That is
nonsense:8 the City put these issues front and center in its Opposition, by for example:


Setting forth the holdings of Arbor Hill Concerned Citizens Neighborhood Assoc. v.
Cnty. of Albany, 522 F.3d 182 (2d Cir. 2008) and the Johnson factors cited therein (City
Opp. 4-5, 22, 45, 48)



Arguing that the Court should consider the reputational benefits to counsel from this
particular case in considering rates, citing Arbor Hill (City Opp 50-52)9



Arguing that the Court should consider one of the Johnson factors – “the nature and
length of the professional relationship with the client” with plaintiff – where all counsel
except for the Smith team had been terminated by plaintiff at some point, possible for
cause. (City Opp. 28-29, 62, 70-71) 10



Arguing that the Court should consider the size of plaintiff’s law firm in determining
rates and specifically that large law firm rates are not applicable (City Opp. 54-55)

If there were any substance to plaintiff’s argument that all of these points depended on ‘bad
law’– and there is not – surely plaintiff’s experienced counsel would have said so.11
Plaintiff relies heavily upon the single district court case holding that law firm size is not
relevant when determining rates. Norinsberg Reply Mem. 3 (citing Irish v. City of New York,
2004 U.S. Dist. LEXIS 3770, *13 (S.D.N.Y. Mar. 8, 2004)). The City already explained why
Irish should not be followed and cited ample contrary authority, to which plaintiff does not
respond. City Opp. Recon. 14-16 & n. 14. Plaintiff’s argument is untenable because plaintiff

8

Plaintiff also argues that there was no reason for it to offer its own fee agreements until the Court’s application, but
that is likewise nonsense. Plaintiff fails to respond in Reply to the fact that the City cited the absence of any such
fee agreements in its Opposition, noting that such agreements were demanded in discovery and neither produced nor
filed. City Opp. Recon. 7. Clearly the point was squarely in issue, and it is too late now for plaintiff to obtain
reconsideration based on its belated, cherry-picked evidence, never subjected to discovery.
9

Plaintiff now argues that there is no evidence of reputational benefits, but the evidence was cited by the City and
the Court: extensive press coverage and counsel’s own Schoolcraft website. Order 20, 36; City Opp. 51-52.
10

This factor was not mentioned in the Court’s ruling, but provides further support for the Court’s reduction of both
hours and rates.
11

Plaintiff says defendants “miss[] the mark” on Arbor Hill because it was only the inclusion of the Johnson factors
that were overruled by Perdue, not the whole case. Norinsberg Reply Recon. 2. But it is plaintiff who misses the
mark by not responding to the ample authority cited by the City showing that it was the Johnson method, not the
Johnson factors, that was rejected in Perdue. City Opp. Recon. 10-12.

9

nowhere denies that market rates are higher on average for large law firms. There are a host of
reasons why that would be so: higher perceived quality; better academic credentials; better infirm training; law firm culture; academic and professional background; greater depth of
resources; in-firm support services; and more. None of these reasons are displaced by plaintiff’s
argument, which is simply that “overhead” should not be considered. Id.12
***
As to plaintiff’s other contentions the City relies on its prior briefing.
CONCLUSION
For the foregoing reasons and those stated previously on the record, plaintiff’s motions
for reconsideration should be denied.
Dated:

New York, New York
November 17, 2016
ZACHARY W. CARTER
Corporation Counsel of the
City of New York
Attorney for the City of New York
100 Church Street, Room 3-174
New York, New York 10007
[phone]
By:

/s/
ALAN SCHEINER
Senior Counsel
Attorney for the City of New York

12

Counsel’s repetitive appeal to a putative enhancement of rates for bringing their case in the S.D.N.Y., rather than
in the E.D.N.Y. where it actually arose, fails for the same reason. The Second Circuit did not explain how it
calculated the fee increase in Simmons v. New York City Transit Auth., 575 F.3d 170 (2d Cir. 2009), and there is no
formula for an exchange rate between eastern and southern district rates. As the City previously demonstrated, the
rates awarded here are well within S.D.N.Y. rates for similar counsel, and case specific variables could place the fee
even lower than in a different case in the E.D.N.Y., even with the same counsel. City Opp. 56-57. Moreover, as the
City previously demonstrated, the Court could even forego any S.D.N.Y. enhancement to discourage plaintiffs’
counsel from forum shopping in Manhattan for higher legal fees. See City Opp. Recon. 18 n. 15; Cf. Dunston v.
N.Y.C. Police Dep't, 2010 U.S. Dist. LEXIS 130461, at *7-8 (S.D.N.Y. Dec. 7, 2010) (transferring venue with little
deference to plaintiff’s choice of forum, where plaintiff’s counsel seemed to be forum shopping for higher attorneyfee rates); Legrand v. City of N.Y., 2010 U.S. Dist. LEXIS 19011, at *8-9 (S.D.N.Y. Mar. 3, 2010) (same).

10