Schoolcraft v. The City Of New York et al
OPINION re: 641 Motion for Reconsideration, 644 Motion for Reconsideration, 648 Letter Response: The motions to reconsider are granted. Upon reconsideration, the attorneys' fees will be reduced by 25%. The remaining requests for reconsideration are denied. (Signed by Judge Robert W. Sweet on 3/30/2017) (jwh)
UNITED STATES DISTRICT COURT
SOUTHERN DI STR I CT OF NEW YORK
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10 Civ. 6005
OP I NION
THE CITY OF NEW YORK , et al.,
A P P E A RA N C E S :
Attorneys for Plaintiff
NATHANIEL B. SMITH, ESQ.
100 Wall Street, 23rct Floor
New York, NY 10005
JOHN LENOIR, ESQ.
829 Third Street, NE
Washington, DC 20002
Attorneys for Defendants
NEW YORK CITY LAW DEPARTMENT
1 00 Church Street , 3rct Fl oor
New York , NY 10007
By: Alan H. Scheiner, Esq.
3-3\- \ J~J J!
ADRIAN SCHOOLCRAFT ,
The plaintiff Adrian Schoolcraft (" Schoolcraft " or the
"Plaintiff") has moved pursuant to Local Civil Rule 6 . 3 and
Rules 59(e) , 54(b) , and 60(b), Fed R. Civ . P., for
reconsideration of certa in portions of the September 6 , 20 1 6
order awarding the Plaintiff $1 , 093 , 658 . 04 for attorneys'
costs , and disbursements in this civil rights action against The
Cit y o f New York , certa in of its o ffi cers and employees (th e
" Ci t y " ) , Jamaica Hospital Center , and certain of its emp l oyees
(collectively , the "Defendants"). Based upon the conc lu sions set
forth below, the motion for reconsideration is granted, and upon
reconsideration, the 35 % reduction of attorneys' fees i s
modified to a 25 % reduction.
The Sept ember 6 , 20 1 6 order (the " September 2016
Order " ) described the prior proceedings. See Schoolcraft v . City
of N . Y ., No. 10 CIV . 6005 (RWS) , 20 1 6 WL 4626568, at *1-2
(S . D. N. Y. Sept . 6 , 2016) . Familiarity with the prior proceedings
and facts is assumed.
The instant motions were marked fully submitted on
November 17, 2016.
The Applicable Standard
A motion for reconsideration is properly granted
where "the moving party can point to controlling decisions
or data that the court overlooked-matters, in other words,
that might reasonably be expected to alter the conclusion
reached by the court." Shrader v. CSX Transp., Inc.,
F.3d 255, 257
(2d Cir. 1995); see also Farez-Espinoza v.
08 Civ. 11060 (HB), 2009 WL 1118098, at *3
(S.D.N.Y. Apr. 27, 2009). Pursuant to Local Civil Rule 6.3,
the Court may reconsider a prior decision to "correct a
clear error or prevent manifest injustice." Medisim Ltd. v.
BestMed LLC, 2012 U.S. Dist. LEXIS 56800, at *2-3
Apr. 23, 2012)
(citing RST (2005)
Inc. v. Research in
Motion Ltd., 597 F. Supp. 2d 362, 364-65 (S.D.N.Y. 2009)).
Reconsideration of a court's prior order under
Local Rule 6.3 "is an extraordinary remedy to be employed
sparingly in the interests of finality and conservation of
scarce judicial resources." Ferring B.V. v. Allergan, Inc.,
No. 12 Civ. 2650 (RWS), 2013 WL 4082930, 2013 WL 4082930,
at *l (S .D.N. Y. Aug. 7, 2013)
(quoting Sikhs for Justice v .
Nath , 893 F. Supp. 2d 598, 605 (S.D.N . Y. 2012)).
Accordingly, the standard of review applicable to such a
motion is "strict." CSX,
70 F.3d at 257 .
The burden is on the movant to demonstrate that
the Court overlooked controlling decisions or material
facts that were before it on the original motion and that
might "materially have influenced its earlier decision."
Anglo Am. Ins. Group v. CalFed, Inc.,
940 F. Supp. 554, 557
(internal quotation marks and citation
omitted). A party seeking reconsideration may neither
repeat "arguments already briefed, considered and decided"
nor "advance new facts,
issues or arguments not previously
presented to the Court." Schonberger v. Serchuk,
Supp. 108, 11 9 (S.D.N.Y. 1990)
742 F .
(citations omitted) .
"The reason for the rule confining
reconsideration to matters that were ' overlooked '
ensure the finality of decisions and to prevent the
practice of a losing party examining a decision and then
plugging the gaps of a l ost motion with additional
matters." Polsby v. St. Martin's Press, Inc., No. 97 Civ.
690 (MBM), 2000 WL 98057, at *l (S.D .N.Y. Jan. 18, 2000)
(internal citation and quotation marks omitted) .
The Motion to Reconsider is Granted
Plaintiff's counsel Nathaniel B. Smith, Esq.,
("Smith") noted that the City had taken the position in its
initial opposition to the application that $450 was a reasonable
rate for Smith. See City Memorandum of Law in Opposition, Docket
Entry 661 ("City's Opp'n") at 15. The City also urged the
adoption of a $400 hourly rate for Plaintiff's counsel Jon L.
("Norinsberg"). Given the resolution of this
action by the Off er of Judgment including reasonable counsel
fees, these recommendations were significant and overlooked in
fashioning the September 6 Order. Therefore, the motion to
reconsider is granted .
The Fee Reduction is Modified
The 35 % reduction in attorneys'
fees determined in the
September 6 Order reduced the rate for Smith and Norinsberg
below that which the City posited was reasonable. A reduction of
25 % will approximate the City 's recommendations and, under the
circumstances set forth in the September 6 Order , upon
reconsideration results in a reasonable attorneys'
Reconsideration of the Arbor Hi11 and Johnson Factors is
Plaintiff has previously sought reconsideration based
on new arguments that cou ld have and should have been made
ear lier. See Schoolcraft v. City of N.Y.,
(S .D.N.Y. 2015)
133 F. Supp. 3d 563,
(denying motion for reconsideration
because plaintiff's arguments were not previously advanced);
Schoolcraft v . City of N.Y., No. 1 0 CIV. 6005 RWS, 2012 WL
2958176 , at *5 (S.D.N.Y. July 20, 2012)
(denying motion to
reconsider in part because motion as based on new arguments).
Plaintiff does so again here.
"[A] party requesting [re consideration ] is not
supposed to treat the court's initial decision as the opening of
a dialogue in which that party may then use Rule [6.3] to
advance new facts and theories in response to the court's
rulings." Church of Scientology Int'l v. Time Warner, Inc., No.
92 Civ. 3024
(PKL) , 1997 WL 538912, at *2
(S.D.N.Y. Aug. 27 ,
1997); see also Ferring B.V. v . Allergan, Inc., No. 1 2 Civ . 2650
(RWS), 20 1 3 WL 4082930, at *1 (S.D.N.Y. Aug. 7, 2013)
seeking reconsideration may neither repeat "arguments already
briefed, considered and decided," nor "advance new facts,
or arguments not previously presented to the Court " )
citations and quotation marks omitted) .
Plaintiff argues for the first time that the Co urt
applied the wrong standard in determining reasonable fees;
specifically that the Court should not have:
leading Second Circuit decision o f Arbor Hill;
the Johnson factors;
(3) considered the size of the law firms;
or (4) considered the apparent reputational benefits to counsel
as called for by Arbor Hill.
See Norinsberg Team Reconsideration
Memorandum of Law, Docket Entry 641 ("Norinsberg Br.") at 2-5 ,
6- 1 0; Smith Team Reconsideration Memorandum of Law, Docket Entry
("Smith Br.") at 14. For this argument, Plaintiff relies
primarily on the Supreme Court opinions in Blum v. Stenson,
U.S. 886 (1984) , and Perdue v. Kenny A., 559 U.S. 542
and four district court decisions never before cited.
There were nine previous submissions on fees from the
Norinsberg and Smith teams. See Docket Entries 560, 561, 605,
610 , 620 , 621 , 624, 625, and 630 . Arbor Hill, the Johnson
factors, the size of the law firm, and the reputational benefits
to counsel were all addressed by the City in its Opposition.
See, e.g., City's Opp'n at 4-5, 48-51, 54-55. Plaintiff and the
City both cited Blum and Perdue, but Plaintiff did not urge that
those cases overruled Arbor Hill or any other authorities on
which the City relied. See City's Opp'n at 4-5, 22, 47-48
(citing Arbor Hill,
Johnson , Blum, and Perdue); Norinsberg Team
Memorandum of Law on Fees, Docket Entry 561 ("Norinsberg Prior
Br.") at 16 , 19, 29 (citing Blum and Perdue); Smith Team
Memorandum of Law on Fees, Docket Entry 620
("Smith Prior Br.")
at 30 -31 (c iting Blum and Perdue).
The Plaintiff's new argument impugning Arbor Hill's
case-specific approach to determining reasonable fees is
contrary to Plaintiff's prior submissions. The Smith team wrote:
"As the Second Circuit has explained, this fact-finding
'contemplates a case -spe cific inquiry into the prevailing market
rates for counsel of similar experience and skill to the fee
applicant's counsel .'" Smith Prior Br. at 30 (quoting Farbotko
v. Clinton Cnty ., 433 F.3d 204 , 209 (2d Cir. 2005)). The
Norinsberg team cited Arbor Hill favorably in its moving brief,
and only the lower court 's decision in Arbor Hill in its Reply.
See Norinsberg Prior Br. at 20; Norinsberg Team Reply Memorandum
of Law on Fees, Docket Entry 624
("Norinsberg Prior Reply Br.")
The Second Circuit has reaffirmed Arbo r Hill since
Perdue, citing the two cases together and equating their
Both this Court and the Supreme Court have held
that the lodestar - the product of a reasonable
hourly rate and the reasonable number of hours
required by the case - creates a "presumptively
reasonable fee." Arbor Hill Concerned Citizens
Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d
182, 1 8 3 (2d Cir. 2008); see also Perdue v. Kenny
A. ex rel. Winn, 130 S. Ct. 1662, 1673, 176 L.
Ed. 2d 494 (2010).
Millea v. Metro-N. R.R.,
658 F.3d 154, 166-67
(2d Cir. 2 011);
see also Dunda v. Aetna Life Ins. Co., No. 6:15-CV-6232-MAT,
2016 WL 4831962
(W.D.N.Y. Sept. 15, 2016)
(same). In other
words, whether the methodology is called the "presumptively
reasonable fee" as in Arbor Hill or the "lodestar" as in Perdue,
the method is the same: calculation of reasonable hours times
reasonable rates to arrive at a presumptively reasonable fee.
Courts in this Circuit have continued to explicitly
apply the factors that Plaintiff claims have been ruled improper
well after the Supreme Court decisions relied on by Plaintiff.
In Townsend v. Benjamin Enters.,
679 F.3d 41, 59-60 (2d Cir.
201 2 ), the Second Circuit affirmed the district court's hourly
rate decision, which was based in part on the size of the law
In Finch v. N.Y. State Office of Children & Family Servs.,
86 1 F. Supp.2d 145, 153 n.50
(S.D .N.Y. 2012)
(Scheindlin , J.),
the district court applied Blum , Perdue, and Second Circuit law,
and concluded that a lower rate applied because plaintiff's
counsel was a sole practitioner, noting that "[t]he size of the
law firm is a significant factor in determining the relevant
market rates." (cit ing Reiter v. Metropolitan Transp. Auth. Of
State of New York, No. 01 Civ . 2762 , 2007 WL 2775144
(S . D.N. Y.
Sept, 25 , 2007), in which the court noted that "the large firms
listed on the [Nati onal Law Journal] survey have acquired a
reputation that allows them to command high rates in the market.
Many other firms,
in particular smaller firms that may be
providing equally capable services, simply do not command
anywhere near such rates .
." ). In the recent decision in
Garcia v. Chirping Chicken NYC, Inc., No. 15 Civ. 2335
(JBW) (CLP) , 2016 U.S. Dist. LEXIS 32750 , at *57-58
Mar . 11, 2016)
(Pollak, J.), the Court applied the Arbor Hill
method, including the Johnson factors, and noted the factor of
potential reputational benefits to the attorney.
Th e motion to reconsider based on Arbor Hill and the
application of the Johnson factors is denied.
Reconsideration Based on the City's Summaries is Denied
The Plaintiff has attacked the City 's calculations and
characterizations of the counsel's hours in four filings:
briefs on fees, a separate motion to strike, and a reply on the
motion to strike. However,
Plaintiff has not previously raised
the errors which the Smith team now cites on reconsideration.
the Smith team in reply discussed the deposition time and
acknowledged that it warranted some reduction in rates , but
never mentioned its new attacks on the same subject.
Plaintiff's counsel have had the City's Audit since
Apri l 8 , 2016 and the coding worksheets since May 11, 2016 . See
Docket Entry 635 ; see also September 6 Order at *4 , n.2. As the
City previously stated, the Audit's "calculations are based on
the time charges submitted by plaintiff, and cou ld be confirmed
or disputed by the parties or the Court by reference to the
material submitted by Plaintiff.
If the Plaintiff be lieves
that the calculations are in error, he can submit his own
calcu lati ons ." City Opp 'n at 15. Yet Plaintiff alleged only a
handful of minor, alleged discrepancies when litigating the fee
motion, which amounted to typographical errors.
Affirmation of Nathanie l B. Smith, Docket Entr y 62 1 at
Cit y 's Surreply Memorandum of Law Opposing Fee Application,
Docket Entry 632 at 13. Although Smith now claims the mistake in
briefing was so obvious that it was deliberate, his own team did
not raise the issue even with their knowledge of their own time
records until after the Court's ruling.
The Plaintiff chose to submit fee information in
numerous different forms and formats,
including in non-
electronic form, and refused the City's request for production
of the electronic files containing the data. See City's Letter
Motion to Compel Fee Discovery, Docket Entry 576; Plaintiff's
Letter Response to City's Letter Motion to Compel Fee Discovery,
Docket Entry 577. 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 crossexamination, but Plaintiff never took up the offer. See City's
Letter Regarding Motion to Strike, Docket Entry 635. Nor did the
Plaintiff ever seek discovery fr om ASI or Bronsther, to which
the City states it would have consented.
The time to challenge the accuracy of the Bronsther
Report was before the completion of the submissions on the fee
application, not after.
The motions to recons i der are granted. Upon
reconsideration , the a t torneys '
fees will be reduced by 25 %. The
remaining requests for reconsidera t ion a r e denied .
is so ordered .
New York, NY
March ?, O , 2017
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