Balu v. The City of New York et al
OPINION AND ORDER re: 118 FIRST MOTION for Attorney Fees . filed by Augustina Balu. For the reasons stated herein, Plaintiff's motion for attorneys' fees and costs is GRANTED IN PART, in the following amounts: (i) Mr. Lichtma cher is awarded fees in the amount of $77,487.75; (ii) Ms. Acosta is awarded fees in the amount of $26,749.75; (iii) Mr. Flamm is awarded fees in the amount of $55,100.00; and (iv) the three paralegals involved in the matter are awarde d fees in the aggregate amount of $9,264.80, for a total of $168,602.30. The Court will also award litigation costs in the amount of $3,330.99. The Clerk is directed to terminate docket entry 118. (As further set forth in this Order.) (Signed by Judge Katherine Polk Failla on 3/8/2016) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE CITY OF NEW YORK and DENIS
McAULIFFE, individually and in his official :
capacity as an employee of the
New York City Department of Police,
DOC #: _________________
DATE FILED: March 8, 2016
12 Civ. 1071 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
In February 2012, Plaintiff Augustina Balu brought suit against the City
of New York and her former supervisor at the New York City Police Department
(the “NYPD”), Denis McAuliffe (with the City, “Defendants”), claiming that she
had endured sexual harassment while an NYPD officer and, further, that she
had suffered retaliation after opposing McAuliffe’s sexual advances. In her
complaint, Plaintiff advanced claims for discrimination and retaliation under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; the
New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297; and the New
York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 8-131 (the
Trial on Plaintiff’s claims under Title VII and the NYCHRL began on
June 9, 2015. On June 12, 2015, the jury returned a verdict in Plaintiff’s favor
on her discrimination claims, and in Defendants’ favor on her retaliation
claims. The jury awarded Plaintiff $300,000 in compensatory damages against
both Defendants, and $25,000 in punitive damages against Defendant
McAuliffe. Neither side filed a post-trial motion contesting the verdict or the
trial pursuant to Federal Rules of Civil Procedure 50 or 59.
Plaintiff now seeks attorneys’ fees in the amount of $209,969.17 and
costs in the amount of $3,330.99 as a prevailing party under Title VII and the
NYCHRL, for an aggregate figure of $213,300.16. Defendants do not contest
that Plaintiff is a prevailing party, but argue that the award should be reduced
for various reasons to $151,049.07. For the reasons set forth in the remainder
of this Opinion, the Court will award attorneys’ fees in the amount of
$168,602.30, and costs in the amount of $3,330.99.
Fee Awards in Employment Discrimination Cases
Both Title VII and the NYCHRL authorize the award of attorneys’ fees and
costs to prevailing parties. See 42 U.S.C. § 2000e-5(k) (allowing “a reasonable
attorney’s fee (including expert fees)” to prevailing parties under Title VII);
N.Y.C. Admin. Code § 8-502 (“In any civil action commenced pursuant to this
section, the court, in its discretion, may award the prevailing party costs and
reasonable attorney’s fees.”). A district court has discretion to determine the
Plaintiff’s memorandum in support of her motion for fees and costs is referred to as “Pl.
Fee Mem.” (Dkt. #120); Defendants’ opposition is referred to as “Def. Fee Opp.” (Dkt.
#124); and Plaintiff’s reply brief is referred to as “Pl. Fee Reply” (Dkt. #126).
Declarations submitted in connection with the parties’ memoranda of law are referred to
using the conventions “[Name] Decl.” and “[Name] Reply Decl.”
amount of attorneys’ fees that would be appropriate to satisfy a fee award.
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); see also Fed. R. Civ. P. 54(d).
To determine the amount of attorneys’ fees to which a party is entitled, a
court must calculate the “presumptively reasonable fee,” often (if imprecisely)
referred to as the “lodestar.” Arbor Hill Concerned Citizens Neighborhood Ass’n
v. County of Albany (“Arbor Hill”), 522 F.3d 182, 183, 189-90 (2d Cir. 2008);
accord Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011). 2 This
amount reflects “the rate a paying client would be willing to pay ... bear[ing] in
mind that a reasonable, paying client wishes to spend the minimum necessary
to litigate the case effectively.” Arbor Hill, 522 F.3d at 190; see also Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010). Courts calculate the
presumptively reasonable fee by multiplying the reasonable number of hours
that the case requires by the reasonable hourly rates. Millea, 658 F.3d at 166. 3
As noted by this Court in a previous opinion, see Echevarria v. Insight Med., P.C., 102 F.
Supp. 3d 511, 516 n.2 (S.D.N.Y. 2015), the Supreme Court’s subsequent decision in
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010), called into question certain
factors first articulated by the Fifth Circuit and relied upon by the Arbor Hill Court. See
Perdue, 559 U.S. at 551 (stating that factors in Johnson v. Ga. Highway Express, Inc.,
488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489
U.S. 87 (1989), “gave very little actual guidance to district courts”). However, Arbor Hill
remains the standard in this Circuit. See, e.g., K.L. v. Warwick Valley Cent. Sch. Dist.,
584 F. App’x 17, 18 (2d Cir. 2014) (summary order) (“In determining an appropriate
hourly rate, ‘the district court should consider, among others, the Johnson factors.’”
(quoting Arbor Hill)). Therefore, this Court has considered both Arbor Hill and Perdue in
resolving the instant motion.
Although the lodestar approach results in a “presumptively reasonable” fee, “it is not
‘conclusive in all circumstances.’” Millea v. Metro-N. R. Co., 658 F.3d 154, 166-67 (2d
Cir. 2011 (quoting Perdue, 559 U.S. at 553). In “rare circumstances,” a court may
adjust the lodestar “when [the lodestar method] ‘does not adequately take into account
a factor that may properly be considered in determining a reasonable fee.’” Id. at 167
(quoting Perdue, 559 U.S. at 5541). Ultimately, as described in the text, the Court saw
no basis for further adjustment in this case.
In reviewing a fee application, a district court must examine the
particular hours expended by counsel with a view to the value of the work
product to the client’s case. See Lunday v. City of Albany, 42 F.3d 131, 133
(2d Cir. 1994) (per curiam). The court is to exclude “excessive, redundant or
otherwise unnecessary hours, as well as hours dedicated to severable
unsuccessful claims.” Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir.
1999); see generally Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83,
111 (2d Cir. 2012) (“In assessing the reasonableness of attorney’s fees, a court
looks to the amount of time spent as reflected in contemporaneous time
records, and then decides how much of that time was ‘reasonably expended.’ If
the district court finds that some of the time was not reasonably necessary to
the outcome of the litigation, it should reduce the time for which compensation
is awarded accordingly.” (citations omitted)).
A party seeking attorneys’ fees bears the burden of supporting its claim
of hours expended by accurate, detailed, and contemporaneous time records.
N.Y.S. Ass’n for Retarded Children, Inc. v. Carey (“Carey”), 711 F.2d 1136,
1147-48 (2d Cir. 1983).
Calculating the Attorneys’ Fees
The instant fee application comprises submissions from two separate law
firms; this disunion has led to some confusion in the parties’ math. Initially,
Plaintiff filed a single supporting memorandum along with various sworn
statements, seeking a total of $200,642.71 in attorneys’ fees and costs. (Dkt.
#118-120). This figure purported to include the fees expended in preparing the
fee application. In point of fact, however, only one of the attorneys had listed
the actual amount of time expended preparing her materials (Dkt. #120-3); a
second attorney offered only an estimated amount of time for preparing and
defending the application (Dkt. #120-1); and the third attorney waited until
filing a separate reply brief to detail the time spent preparing the application
Defendants (understandably, based on the Court’s review of these same
records) perceived various inconsistencies among the billing records, including
differences in billing rates for the same attorney and instances in which
administrative tasks were billed at normal attorney rates. (See, e.g., Def. Fee
Opp. 3-5). Plaintiff’s counsel responded with two sworn statements and several
charts that sought to clarify the issues raised by Defendants and, where
counsel agreed with Defendants’ objections, to adjust the fees sought
accordingly. (Dkt. #125-127).
In her reply submission, Plaintiff purports to seek “a total award of fees
and costs of $202,667.71.” (Pl. Fee Reply 4). Yet even this figure is incorrect,
as it fails to account for the fees sought by the third attorney for preparing his
portion of the fee application. (See Dkt. #125-126). In consequence, the Court
has reviewed all of the materials submitted in connection with Plaintiff’s
application for fees and costs and understands them to be seeking a total
award of $213,300.16, calculated as follows 4:
$ Fred Lichtmacher seeks fees for 180.1 hours billed at
an hourly rate of $525 (of which 174.08 hours are
contained in his own billing records and 6.02 hours
were recorded on his behalf and contained in the billing
records of Matthew Flamm). Mr. Lichtmacher further
seeks to recover for 2.25 hours of travel time at one-half
his normal rate. Finally, Mr. Lichtmacher appears to
seek fees for 13 hours at his normal rate for time spent
preparing the fee application.
$ Jessica Acosta seeks to recover fees for 130.12 hours
for pretrial and trial work billed at an hourly rate of
$225; 2.32 hours for travel time billed at one-half of her
normal rate; 1.35 hours for administrative tasks billed
at $85 per hour; and 3.82 hours for preparing the fee
application at her normal rate.
$ Matthew Flamm sees to recover fees for 142.11 hours
for pretrial work billed at an hourly rate of $400; 4.13
hours for travel time billed at one-half of his normal
rate; 0.75 hours for administrative tasks billed at $100
per hour; and 26.2 hours for preparing the fee
application at his normal rate.
$ Three paralegals seek to recover fees for a total of
115.81 hours of pretrial and trial work at an hourly rate
$ Finally, Plaintiff seeks litigation costs in the aggregate
amount of $3,330.99.
Determining the Reasonable Hourly Rates
A reasonable hourly rate represents what “a reasonable, paying client
would be willing to pay,” and varies by both practice area and location. Arbor
In arriving at these figures, the Court rounded to the nearest hundredth (for hours) or
penny (for dollars) and rounded half-figures to even.
Hill, 522 F.3d at 184, 192. 5 It is determined with reference to current market
rates (i.e., rates as of the time of the fee application) “for similar services by
lawyers of reasonably comparable skill, experience, and reputation.” Blum v.
Stenson, 465 U.S. 886, 896 n.11 (1984).
A court’s determination of a reasonable hourly rate “contemplates a casespecific inquiry into the prevailing market rates for counsel of similar
experience and skill to the fee applicant’s counsel,” and may “include judicial
notice of the rates awarded in prior cases and the court’s own familiarity with
the rates prevailing in the district.” Townsend v. Benjamin Enter., Inc., 679
F.3d 41, 59 (2d Cir. 2012) (quoting Farbotko v. Clinton County of New York, 433
F.3d 204, 209 (2d Cir. 2005)). The Second Circuit has further suggested that
the complexity and difficulty of the case, the available
expertise and capacity of the client’s other counsel (if
any), the resources required to prosecute the case
effectively (taking account of the resources being
marshaled on the other side but not endorsing scorched
earth tactics), the timing demands of the case, whether
an attorney might have an interest (independent of that
of his client) in achieving the ends of the litigation or
might initiate the representation himself, whether an
attorney might have initially acted pro bono (such that
a client might be aware that the attorney expected low
or non-existent remuneration), and other returns (such
as reputation, etc.) that an attorney might expect from
Arbor Hill, 522 F.3d at 184.
The relevant community is the district in which the court sits. Farbotko v. Clinton
County of New York, 433 F.3d 204, 208 (2d Cir. 2005) (citing Polk v. N.Y. State Dep’t of
Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983)).
Determining Reasonable Rates for the Attorneys
Fred Lichtmacher, lead trial counsel for Plaintiff in this matter, seeks an
hourly rate of $525. In support, he has submitted his own declaration setting
forth his credentials and experience (Dkt. #120-1 (“Lichtmacher Decl.”), as well
as corroborating declarations from two attorneys (Dkt. #120-11, 120-12), and a
judicial award in a separate litigation (Dkt. #120-13). Mr. Lichtmacher opines
that the instant litigation was peculiarly difficult, and that his skills at crossexamination and summation were thus critical to Plaintiff’s trial success.
(Lichtmacher Decl. 3). Defendants respond by identifying inconsistencies in
Mr. Lichtmacher’s billing records, and focus in particular on entries for his
time that appear in the billing records of former co-counsel Matthew Flamm at
rates of $400 and $450 per hour; Defendants argue from these that a
reasonable hourly rate for Mr. Lichtmacher would be $425. (Def. Opp. 3-4; see
also Dkt. #120-4 (“Flamm Decl.”) (attaching billing records)).
Mr. Flamm sought to clarify the matter in reply, noting that the prior
rates were based on a fee schedule prepared four years earlier in a different
case. (Dkt. #125 (“Flamm Reply Decl.”) ¶¶ 3-7). While the Court appreciates
the clarification, it disagrees with Defendants to the extent they are suggesting
that historical rates should guide the Court’s determination. “The rates used
by the court should be current rather than historic hourly rates.” Reiter v.
MTA N.Y.C. Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006) (internal quotation
marks and citation omitted); LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764
(2d Cir. 1998) (“current rates, rather than historical rates, should be applied in
order to compensate for the delay in payment”); cf. Mugavero v. Arms Acres,
Inc., No. 03 Civ. 5724 (PGG), 2010 WL 451045, at *5 (S.D.N.Y. Feb. 9, 2010)
(discussing use of current versus historic rates). The rate to be determined will
be a current one.
After considering Mr. Lichtmacher’s experience and prior successes in
the area of civil rights litigation, the positive manner in which the jury in the
instant trial reacted to him, and recent attorneys’ fees decisions, the Court
concludes that a reasonable hourly rate for Mr. Lichtmacher is $450. See, e.g.,
Abdell v. City of New York, No. 05 Civ. 8453 (RJS), 2015 WL 898974, at *3
(S.D.N.Y. Mar. 2, 2015) (awarding fees to attorneys for prevailing plaintiffs in
civil rights action ranging from $100 to $650, where action persisted for nearly
five years); Charles v. City of New York, No. 13 Civ. 3547 (PAE), 2014 WL
4384155, at *3-4 (S.D.N.Y. Sept. 4, 2014) (awarding $450 hourly rate in civil
rights action to attorney with 24 years of experience); Spencer v. City of New
York, No. 06 Civ. 2852 (KMW), 2013 WL 6008240, at *4-5 (S.D.N.Y. Nov. 13,
2013) (awarding $400 hourly rate in civil rights action to attorneys with 10 and
20 years of experience, respectively, finding rate to be “in line with the hourly
rates set for attorneys with similar experience and backgrounds in this forum”
(collecting cases)); Greene v. City of New York, No. 12 Civ. 6427 (SAS), 2013 WL
5797121, at *4 (S.D.N.Y. Oct. 25, 2013) (observing that “precedent in the
Southern District reveals that rates awarded to experienced civil rights
attorneys [in the 10 years prior to a 2008 survey] have ranged from $250 to
$600”; concluding that “the rate of $375 per hour is on par with rates charged
by seasoned civil rights solo practitioners with comparable experience,” for
attorney with nearly 20 years of experience); cf. Tatum v. City of New York,
No. 06 Civ. 4290 (PGG), 2010 WL 334975, at *5 (S.D.N.Y. Jan. 28, 2010)
(awarding fees at hourly rates of $400 and $450 for attorneys with 10 and 23
years of experience, respectively; finding that “consistent precedent in the
Southern District reveals that rates awarded to experienced civil rights
attorneys over the past ten years have ranged from $250 to $600, and that
rates for associates have ranged from $200 to $350, with average awards
increasing over time” (quotation marks and citation omitted)).
Jessica Acosta, who assisted Mr. Lichtmacher at trial and in pretrial
proceedings, seeks an hourly rate of $225. To that end, Ms. Acosta has filed
an affirmation explaining her employment experiences during her two years of
practice (Dkt. #120-3 (“Acosta Decl.”) ¶ 2); Mr. Lichtmacher has also vouched
for Ms. Acosta’s significance to the instant litigation (Lichtmacher Decl. 2; Pl.
Fee Reply 2-3). In response, Defendants cite Ms. Acosta’s junior associate
status and “minimal” involvement at trial as bases for a reduction in rate. (Def.
Fee Opp. 6).
The Court observed firsthand the diligent and professional manner in
which Ms. Acosta conducted herself throughout the litigation, and, equally
importantly, the organization she brought to Plaintiff’s trial team. That said,
Ms. Acosta is still quite junior, and in light of the Court’s review of the record
and Ms. Acosta’s submissions, the Court will reduce her hourly fee slightly, to
$200. Compare Salama v. City of New York, No. 13 Civ. 9006 (PKC), 2015 WL
4111873, at *2 (S.D.N.Y. July 8, 2015) (“Rates for junior associates are
typically in the $150-200 per hour range.” (citing, inter alia, Black v. Nunwood,
Inc., No. 13 Civ. 7207 (GHW), 2015 WL 1958917, at *6 (S.D.N.Y. Apr. 30, 2015)
(stating that “courts have typically awarded rates in the range of $175-200 to
associates with three years’ experience,” and awarding rates of $150 for
associates with less than one year’s experience); Spencer, 2013 WL 6008240, at
*6 (finding $200 per hour reasonable for a lawyer who worked on the case as a
second- and third-year associate)).
Mr. Flamm, who was involved in the litigation through summary
judgment, seeks a $400 hourly rate. He supports his request with affirmations
from himself and a colleague in the area of civil rights litigation. (See Flamm
Decl.). While Defendants challenge the number of hours for which Mr. Flamm
seeks compensation, they do not challenge the reasonableness of the hourly
rate he seeks. For this reason, the Court will not adjust the rate sought, and
will award fees to Mr. Flamm at a rate of $400.
Determining Reasonable Rates for the Paralegals
Plaintiff seeks compensation for three paralegals who worked on the case
at various points, at an hourly rate of $80. (Pl. Fee Br. 6-7). Each of the
paralegals — Shelly Chen, Julian Giraldo, and Norman Chuk — has submitted
an affidavit detailing his or her work on the case. (Dkt. #120-5, 120-6, 120-7).
Defendants do not object to this rate and the Court agrees, noting that it fits
comfortably within the range of rates awarded to paralegals in civil rights
actions. See Andrews v. City of New York, 118 F. Supp. 3d 630, 642 (S.D.N.Y.
2015) (discussing reasonable rates for paralegals).
Determining the Hours Reasonably Expended
The Fees Sought and the Reductions Proposed
The next step in the Court’s analysis is to determine whether the hours
expended by Plaintiff’s counsel were reasonable, a determination compounded
by the inconsistencies discussed above. In support of the fee application, the
attorneys and paralegals have submitted summaries of time records that
“specify, for each attorney, the date, the hours expended, and the nature of the
work done.” Carey, 711 F.2d at 1148. According to these records — and
excluding any time spent preparing the fee application, which is discussed
separately infra — Fred Lichtmacher spent 182.35 hours on this litigation,
Jessica Acosta spent 136.59 hours on this litigation; Matthew Flamm spent
146.99 hours on this litigation; Shelly Chen spent 92.68 hours on this
litigation; Julian Giraldo spent 14.8 hours on this litigation; and Norman Chuk
spent 8.33 hours on this litigation. (Dkt. #120, 120-1, 120-2, 120-3, 120-4,
120-5, 120-6, 120-7, 125, 126, 127). Defendants, for their part, challenge a
few specific entries, and, more broadly, seek a 10% reduction to account for the
fact that Plaintiff achieved only partial success at trial. (Def. Fee Opp. 7).
Courts have recognized circumstances in which vague and/or “blockbilled” time records can be insufficient to substantiate a party’s claimed
expenditure of time. See Thai-Lao Lignite (Thailand) Co., Ltd. v. Gov’t of Lao
People’s Dem. Repub., No. 10 Civ. 5256 (KMW) (DF), 2012 WL 5816878, at *10
(S.D.N.Y. Nov. 14, 2012) (collecting cases). However, the law does not require
counsel to “record in great detail how each minute of [their] time was
expended,” but only to “identify the general subject matter of [their] time
expenditures.” Hensley, 461 U.S. at 437 n.12. Thus, ‘“multiple entries comply
with the Second Circuit’s requirement of specificity,’ because such entries are
consistent with the Carey dictate that entries ‘specify the date, hours
expended, and nature of the work done.’” Meriwether v. Coughlin, 727 F. Supp.
823, 827 & n.5 (S.D.N.Y. 1989) (citing Carey, 711 F.2d at 1148).
Separately, the Second Circuit has recognized the authority of district
courts “to make across-the-board percentage cuts in hours ‘as a practical
means of trimming fat from a fee application.’” In re Agent Orange Prod. Liab.
Litig., 818 F.2d 226, 237 (2d Cir. 1987) (quoting Carey, 711 F.2d at 1146).
Courts can also reduce hours where attorneys are performing clerical or
administrative work. See E.S. v. Katonah-Lewisboro Sch. Dist., 796 F. Supp. 2d
421, 431 (S.D.N.Y. 2011) (“A court may make [across-the-board percentage]
reductions when attorneys engage in less skilled work, like filing and other
administrative tasks [such as] ... faxing and mailing documents, making
copies, filing, scanning, preparing documents for electronic filing, electronic file
management, binding documents, and Bates stamping.”), aff’d, 487 F. App’x
619 (2d Cir. 2012) (summary order), cited in Doe v. Unum Life Ins. Co. of
America, No. 12 Civ. 9327 (LAK)(AJP), 2016 WL 335867, at *7 (S.D.N.Y.
Jan. 28, 2016).
Finally, travel time is generally compensated at one-half of the attorney’s
normal billing rate. See Rozell v. Ross-Holst, 576 F. Supp. 2d 527, 540
Reductions for Partial Success
As noted, Defendants seek a 10% reduction based on the jury’s verdict
finding for the defense on Plaintiff’s retaliation claims. See generally Barfield v.
N.Y. City Health and Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008) (upholding
reductions to reflect a plaintiff’s limited degree of success). However, a
plaintiff’s lack of success on some claims does not require a court to reduce the
lodestar amount in situations where the successful and unsuccessful claims
were interrelated and required essentially the same proof. Quaratino, 166 F.3d
at 425 (“Attorney’s fees may be awarded for unsuccessful claims as well as
successful ones, however, where they are inextricably intertwined and involve a
common core of facts or are based on related legal theories.” (internal quotation
marks and citations omitted)); accord Murphy v. Lynn, 118 F.3d 938, 952 (2d
Cir. 1997); cf. Green v. Torres, 361 F.3d 96, 99 (2d Cir. 2004) (affirming district
court decision to reduce attorneys’ fees related to withdrawn claims: “Although
full fees may be awarded to a partially prevailing plaintiff when the underlying
claims are intertwined, the court retains substantial discretion to take into
account the specific procedural history and facts of each case.”).
The Court finds that Plaintiff’s discrimination and retaliation claims were
inextricably intertwined; it cannot say that counsel would have spent less time
had the case been framed to exclude the retaliation claims, nor can it say that
Plaintiff’s retaliation claims were lacking in substance. The Court further notes
that although the verdict was split, the amounts awarded for the
discrimination claims — $300,000 in compensatory damages against both
Defendants and $25,000 in punitive damages against Defendant McAuliffe —
are themselves significant. Accordingly, the Court declines to reduce the fee
amount further by disallowing hours validly billed by Plaintiff’s attorneys on
the retaliation claims on account of the split verdict at trial.
The Hours Sought by the Attorneys
It is this Court’s preference to ascertain the number of hours reasonably
expended by considering billing entries on an individual basis, rather than
imposing across-the-board percentage-based reductions. See, e.g., Echevarria
v. Insight Medical, P.C., 102 F. Supp. 3d 511, 520-22 (S.D.N.Y. 2015). That is
what it has striven to do here.
Mr. Lichtmacher’s time entries are found in two different sets of billing
records: In his own records, Mr. Lichtmacher has billed 174.08 hours on this
matter, and Mr. Flamm has recorded an additional 8.27 hours on Mr.
Lichtmacher’s behalf. (Lichtmacher Decl.; Flamm Reply Decl. Ex. 2-3).
Turning first to the former, Defendants take issue with the manual entry
method used by Mr. Lichtmacher to record his time, which method alternates
between listing the number of hours worked and listing the precise time
worked. (Def. Fee Opp. 3; see Dkt. #120-2 (fee records)). It is true that Mr.
Lichtmacher’s records are idiosyncratic, but the Court cannot say that they are
incomprehensible, and it will therefore consider them.
That said, there are several time entries that the Court has disallowed in
whole or in part:
$ Counsel has redacted certain entries in the time
records. To the extent that the Court can discern the
activity that took place (as with the entry for June 22,
2012), it has allowed the time entry despite the fact that
certain topic matters may have been redacted. In one
instance, however, the Court cannot: a June 5, 2015
entry for 6 hours. For this reason, it has disallowed the
time entry in its entirety.
$ Similarly, the Court has disallowed those entries that
contain no description of any activity, including the
entries of May 17, 2015 (two entries, for 38 and 75
minutes, respectively), and May 31, 2015 (for 185
minutes). This amounts to an aggregate disallowance
of 4.97 hours for billing entries in this category.
$ Separately, and to the extent not already addressed in
one of the Court’s two categories of disallowance, the
Court is reducing by one-third Mr. Lichtmacher’s
entries for the period from May 31, 2015, through June
7, 2015. As the parties will recall, trial in the matter
was originally scheduled to begin June 2, 2015.
Plaintiff’s counsel advised the Court on May 30, 2015,
that Plaintiff had terminated the attorney-client
relationship; the Court issued an order on May 31,
2015, scheduling an in-person conference for the next
day. (Dkt. #92). At the June 1 conference, at which
Plaintiff’s counsel appeared but Plaintiff did not, the
Court adjourned the trial until June 8, 2015, in part to
allow counsel time to locate and repair the relationship
with Plaintiff. (Dkt. #93). On these unusual facts, it
would be unreasonable to charge Defendants for time
spent reestablishing the attorney-client relationship.
Similarly, to allow Plaintiff’s counsel to bill additional
legal fees for an adjournment caused by Plaintiff herself
effectively amounts to a windfall. After consideration of
several options, including complete disallowance, the
Court has decided that a one-third reduction to the
hours charged by Mr. Lichtmacher for June 1, 2, 3, 4,
6, and 7 would address the concerns outlined in this
paragraph. The aggregate time for this period is 24.17
hours; the Court will allow 16.11 hours, and will
disallow 8.06 hours. 6
Turning now to Mr. Flamm’s records of Mr. Lichtmacher’s activity, the
Court has accepted them to the extent they are not duplicative of entries in Mr.
Lichtmacher’s records. That results in the addition of 6.02 hours at Mr.
Lichtmacher’s full billing rate (as set by the Court) and 2.25 hours at one-half
of that rate. (Flamm Reply Decl. Ex. 2-3). Thus, Mr. Lichtmacher is entitled to
161.07 hours at a rate of $450 and 2.25 hours at a rate of $225, for total fees
In her affirmation, Ms. Acosta seeks 130.12 hours for pretrial and trial
preparation at her normal rate; 2.33 hours for travel time at one-half of her
normal rate; and 1.35 hours for administrative tasks at a rate of $85 per hour.
(Acosta Decl. ¶¶ 5-7 & Ex. A). Defendants do not challenge any specific entries
for Ms. Acosta.
The Court was well within its rights to disallow the time entries for May 30, 2015, since
some portion of that day was spent addressing difficulties with the attorney-client
relationship. It believes that the method it has employed addresses sufficiently the
issues it has raised.
The Court retains the concerns it addressed in the previous section
about work performed during the period from May 31, 2015, through June 7,
2015. However, because (i) Ms. Acosta’s time entries are sufficiently specific to
permit the Court to discern entries relating to the attorney-client relationship
with Plaintiff, and (ii) the Court’s concerns were otherwise addressed in the
reductions to Mr. Lichtmacher’s hours, the Court will disallow only those
billing entries that specifically address the relationship with Plaintiff. The
relevant entries are numbered 1453, 1460, 1463, 1470, and 1471; the
aggregate time disallowed is 1.68 hours at Ms. Acosta’s full billing rate and 0.5
hours at one-half that rate. (See Acosta Decl. Ex. A) Thus, Ms. Acosta is
awarded 128.44 hours at a rate of $200; 1.83 hours at a rate of $100; and 1.35
hours at a rate of $85, for a total award of $25,985.75.
Piecing together the contents of two affirmations, the Court understands
that Mr. Flamm seeks 142.11 hours for pretrial work billed at an hourly rate of
$400; 4.13 hours for travel time billed at one-half of his normal rate; and 0.75
hours for administrative tasks billed at $100 per hour. (Flamm Decl.; Flamm
Reply Decl.; Dkt. #126 (“Flamm Fee Reply”)). Defendants pose several
challenges to the fees sought. First, Defendants object to Mr. Flamm obtaining
compensation at his full rate for 11 entries for which the work performed
appears to be administrative in nature. (Def. Fee Opp. 5). 7 Mr. Flamm
Originally, there were 12 entries for which the task was listed as “Admin”; one was
billed at a $100 hourly rate and the remaining 11 at a $400 hourly rate.
concedes that six of these entries should be reclassified as administrative and
billed at a $100 hourly rate; as to the remaining five contested entries, he
contends that they were not clerical in nature and were properly billed at an
attorney rate. (Flamm Fee Reply 4-5).
On this record, the Court agrees with Defendants that, as described,
these entries suggest clerical or administrative tasks. (See generally Flamm
Reply Decl. Ex. 4-5). Mr. Flamm notes that the tasks in these entries “could
have been categorized” in a manner that suggested they should be billed at an
attorney’s rate. (Flamm Fee Reply 5). That may be, but as contemporaneously
described in the records, they warrant no more than an administrative rate.
All 12 entries in this category, totaling 2.46 hours, will thus be billed at $100
per hour (rather than as Mr. Flamm suggests, 0.75 hours at $100 per hour and
1.71 hours at $400 per hour).
Second, Defendants object to Mr. Flamm’s calculation of travel time.
(Def. Fee Opp. 5). Reviewing the billing records, the Court agrees with Mr.
Flamm that the 4.13 hours were properly billed at one-half of his $400 hourly
rate. (Flamm Reply Decl. ¶ 12 & Ex. 6).
The Court believes that two further categories of reductions are
warranted to the remaining 140.4 hours billed by Mr. Flamm. The first
pertains to Mr. Flamm’s billings for the preparation and submission of
Plaintiff’s opposition to Defendants’ summary judgment motion. Mr. Flamm
may have forgotten the rather significant problems attendant to the filing of
that opposition; the Court has not.
According to the Court’s scheduling order, Plaintiff’s opposition papers
were due on or before June 2, 2014. (Dkt. #47). On the very day they were
due, Mr. Flamm sought an adjournment until June 6, 2014, citing obligations
in another case. (Dkt. #52). The application was denied, and Plaintiff was
given a one-day grace period, until June 3, 2014, to file the opposition. (Dkt.
June 3 came and went without Plaintiff’s opposition being filed. The
Court’s staff attempted to reach Mr. Flamm without success; ultimately, the
undersigned was able to call Mr. Lichtmacher, then in his office and then
working on the opposition, in order to extract from him a promise that the
opposition would be filed by the end of the day on June 4, 2014. On June 4,
the Court received a 16-page memorandum of law in opposition (Dkt. #54); one
day later, on June 5, 2014, the Court received Plaintiff’s statement pursuant to
Local Rule 56.1, as well as the exhibits to her opposition (Dkt. #55-57).
The billing records for Mr. Lichtmacher reflect no hours spent on the
opposition, though the Court’s conversation with him suggests that at least
some time was spent on it; those for Ms. Acosta reflect approximately 5.3 hours
spent on the opposition. (Lichtmacher Decl. Ex.; Acosta Decl. Ex. A). Mr.
Flamm, by contrast, has billed approximately 51.32 hours to the review of
Defendants’ summary judgment papers and the preparation of an opposition.
(Flamm Decl. 40-43). To be sure, Mr. Flamm contributed to the preparation of
the opposition. However, given (i) Mr. Flamm’s representations to the Court in
his letter of June 2 about his obligations in other cases; (ii) his AWOL status
when the Court attempted to reach out to him; (iii) the Court’s discussions with
Mr. Lichtmacher on June 4; and (iv) the quality of the ultimate work product
received by the Court, a reduction to Mr. Flamm’s hours in this regard is
warranted. Giving him every benefit of the doubt, the Court has determined to
deduct 17 hours, or approximately one-third of the time billed by Mr. Flamm to
the summary judgment opposition.
The second category of reductions concerns Mr. Flamm’s billings in 2015
(again, exclusive of time spent preparing the fee application). It was the Court’s
understanding that Mr. Flamm’s involvement in this litigation ended at or
about the time Plaintiff submitted her opposition to the summary judgment
motion. Since Mr. Flamm has failed to explain the significance of his 2015
discussions with Plaintiff “re representation” (see Flamm Decl. 43), the Court
will disallow these six entries, totaling 1.33 hours.
In sum, the Court will allow Mr. Flamm to receive 122.07 hours at a
billing rate of $400; 4.13 hours at one-half of that rate; and 2.46 hours at a
rate of $100, for a total award of $49,900.00.
The Hours Sought by the Paralegals
Paralegals Shelly Chen, Julian Giraldo, and Norman Chuk seek a total of
115.81 hours for their work on this litigation. (Dkt. #120-5, 120-6, 120-7).
Defendants have interposed no objections. Reviewing the individual
submissions, the Court sees no basis to reduce these hours, and will award
115.81 hours at $80 per hour, for a total of $9,264.80.
Determining the Reasonable Fees Incurred in Preparing the
Plaintiff’s three attorneys have also sought to recover fees incurred in the
preparation of the instant application. The law is clear that a party awarded
attorneys’ fees under Title VII is also entitled to compensation “for time
reasonably spent in preparing and defending” the fee application. See
generally Weyant v. Okst, 198 F.3d 311, 316 (2d Cir. 1999).
Mr. Lichtmacher’s requests for preparation fees are somewhat confusing:
In the initial fee application, he sought 10 hours “for the estimated time in
litigating this motion to its conclusion.” (Pl. Fee Br. 8; see also Lichtmacher
Decl. 1-2 (seeking “an estimated additional award of ten hours of my fees . . .
for litigating this motion to its conclusion”)). However, in Plaintiff’s reply
submission, Mr. Lichtmacher sought “approximately [three] more hours
responding to this motion.” (Pl. Fee Reply 3). Mr. Lichtmacher does not
indicate how much of the initial ten-hour period for which he sought
reimbursement had been spent, nor does he offer any substantiation (e.g.,
contemporaneous billing records) for his claim. Finally, and as discussed more
fully with respect to Mr. Flamm, some portion of the three additional hours
sought was spent correcting mistakes in, and misimpressions left by, the
original submission; such time is not fairly chargeable to Defendants.
Reviewing the materials submitted by Mr. Lichtmacher, the Court believes that
an award of 10 hours for preparation of his component of the fee application is
sufficient, and will award an additional $4,500.00.
Ms. Acosta seeks a total of 3.82 hours in connection with the fee
application. (Acosta Decl. ¶ 8; Pl. Fee Reply 3). This request is reasonable and
will be granted, resulting in the award of an additional $764.
Finally, Mr. Flamm seeks 26.2 hours in connection with the instant
application, comprising, approximately, 11 hours for the initial submission and
15 hours for the reply. (Flamm Reply Decl. ¶¶ 14-16). To be sure, Mr.
Flamm’s request is the most substantiated; that said, the Court cannot help
but notice the degree to which it outstrips the requests of the attorneys at Mr.
Lichtmacher’s firm, who worked on this litigation for a longer period of time
and took the laboring oar with respect to the instant application. More
troubling is the fact that so much of Mr. Flamm’s work in reply involved
correcting errors in his billing records and explaining misimpressions in these
records concerning the appropriate billing rate for Mr. Lichtmacher. 8 Again
giving Mr. Flamm the benefit of every doubt, the Court will award 11 hours for
the initial fee application and 2 hours for the reply, for a total of 13 hours or
Calculating the Costs of Litigation
Finally, Plaintiff seeks $3,330.99 in litigation costs, comprising filing
fees, deposition invoices, invoices for medical records, and the like. (Pl. Fee
Br. 7-8; Dkt. #120-7, 120-8, 120-9, 120-13, 120-14, 120-15). Defendants do
It is of no comfort to the Court that, according to Mr. Flamm, Mr. Lichtmacher and his
firm are partly to blame for this error because of their failure to send “comments or
corrections” to Mr. Flamm. (Flamm Reply Decl. ¶ 6). Any failures to communicate
between Plaintiff’s counsel cannot fairly be charged to Defendants.
not object to this figure and the Court sees no basis to disturb it. It will
therefore award costs in the amount of $3,330.99.
For the reasons stated herein, Plaintiff’s motion for attorneys’ fees and
costs is GRANTED IN PART, in the following amounts: (i) Mr. Lichtmacher is
awarded fees in the amount of $77,487.75; (ii) Ms. Acosta is awarded fees in
the amount of $26,749.75; (iii) Mr. Flamm is awarded fees in the amount of
$55,100.00; and (iv) the three paralegals involved in the matter are awarded
fees in the aggregate amount of $9,264.80, for a total of $168,602.30. The
Court will also award litigation costs in the amount of $3,330.99.
The Clerk is directed to terminate docket entry 118.
March 8, 2016
New York, New York
KATHERINE POLK FAILLA
United States District Judge
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