Alicea v. The City of New York et al
OPINION AND ORDER re: 154 MOTION for Attorney Fees . filed by Edmin Alicea, 174 CONSENT LETTER MOTION to Adjourn Conference addressed to Judge John G. Koeltl from Elissa Fudim dated June 6, 2017. filed by The City of Ne w York, 176 FIRST MOTION for James Sanborn to Withdraw as Attorney of record for plaintiff. Reibman & Weiner remains as counsel for plaintiff. filed by Edmin Alicea. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. The plaintiff is entitled to an award of $410,071.25 in reasonable attorney's fees and $3,443.87 in costs. The Clerk is directed to close all pending motions. SO ORDERED (Signed by Judge John G. Koeltl on 8/8/2017) (rj) Modified on 8/9/2017 (rj).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
THE CITY OF NEW YORK, ET AL,
-----------------------------------JOHN G. KOELTL, District Judge:
This action began in 2013 when the plaintiff, Edmin Alicea,
principally alleged pursuant to 42 U.S.C. § 1983 that Officer
Alejandro Rivas and a John Doe Officer had violated his
constitutional rights under the Fourteenth Amendment by falsely
arresting him and by using excessive force in the process by
striking and choking him and using excessively tight handcuffs.
The defendants denied the allegations. Over the next two years,
the plaintiff’s allegations morphed and the claims and the
defendants multiplied. Defendants and claims were added;
defendants and claims were dismissed. By the time of trial, the
plaintiff’s theory was principally that a different Officer,
Officer Paul Arico, had used excessive force on him by
handcuffing the plaintiff from behind, then pulling the
plaintiff’s arms back and yanking them upward, which severely
injured the plaintiff’s shoulder. The plaintiff also claimed
that arresting Officers Rivas and Brendan Regan were liable for
failing to intervene. In addition, the plaintiff claimed that
Officer Rivas was liable for malicious prosecution.
Following a trial, the jury found Officer Arico liable on
the excessive force claim in the amount of $150,000.00 in
compensatory damages and $25,000.00 in punitive damages.
However, the jury found that Officers Rivas and Regan were not
liable on any Count.
Pursuant to 42 U.S.C. § 1988 and Federal Rule of Civil
Procedure 54(d)(2), the plaintiff has moved for $847,060.00 in
attorney’s fees, and $11,944.91 in costs. The defendants oppose
the motion, arguing that the plaintiff’s recovery should be
limited to $156,730.00 in attorney’s fees, and $3,443.87 in
The underlying facts are not generally in dispute. Many of
the relevant facts underlying the plaintiff’s claims are
discussed in Alicea v. City of New York, No. 13-CV-7073 (JGK),
2016 WL 2343862 (S.D.N.Y. May 3, 2016). Familiarity with that
decision is presumed.
The plaintiff was represented by the law firm Reibman &
Weiner (the “Firm”); the defendants were represented by the New
York City Law Department and the Office of the Corporation
Counsel of the City of New York.
On October 4, 2013, the plaintiff initiated this action by
filing a Complaint. The plaintiff asserted, among other things,
claims against Officer Rivas and a John Doe Officer for
excessive force, false arrest, false imprisonment, malicious
prosecution, and the denial of the right to a fair trial, and a
Monell claim against the City of New York (the “City”). The
Complaint alleged with respect to excessive force that the
arresting officers had struck and choked the plaintiff and used
excessively tight handcuffs. See Compl. ¶¶ 12, 16.
On April 23, 2014, the plaintiff filed a First Amended
Complaint (the “FAC”) adding claims against Officer Richard
Baboolal and Sergeant Fredy Cruz. The FAC alleged that Officers
Baboolal and Rivas and Sergeant Cruz had struck and choked the
plaintiff. FAC ¶ 13.
On October 16, 2014, the plaintiff filed a Second Amended
Complaint (the “SAC”) adding claims against Officers Regan,
Arico, and Terrance McGrath. The plaintiff had now alleged
multiple claims against seven defendants. With respect to
excessive force, the plaintiff alleged that Officer Rivas struck
and choked him, while Officers McGrath, Arico, and Regan
“participated in this force, or otherwise stood by and observed,
and did nothing to intervene and stop the force being used by
defendant Rivas against plaintiff.” SAC ¶¶ 18-19. The plaintiff
at this point alleged that Officer Rivas “pulled [plaintiff’s]
arms behind his back multiple times while he was handcuffed,
intentionally injuring and damaging plaintiff’s rotator cuff and
wrists.” SAC ¶ 26.
On October 2, 2015, the defendants filed a motion for
partial summary judgment to dismiss some of the plaintiff’s
claims. See Dkt. 71. On April 13, 2016 --- the day before oral
argument on the summary judgment motion --- the plaintiff
voluntarily dismissed with prejudice all of his claims against
Officer McGrath because Officer McGrath was not present at his
arrest, his excessive force claim against Officer Baboolal, and
his Monell claim against the City. Dkt. 91; see also Alicea,
2016 WL 2343862, at *3. During oral argument, the plaintiff also
withdrew his claims for the denial of the right to a fair trial
against all the defendants. In addition, he withdrew his claims
for malicious prosecution against all the defendants except the
claim against Officer Rivas. See Alicea, 2016 WL 2343862, at *3.
In a Memorandum Order and Opinion dated May 3, 2016, this
Court dismissed the plaintiff’s false arrest claims against
Officers Regan, Arico, Rivas, and Sergeant Cruz because the
arresting officers at least had probable cause to arrest the
plaintiff. Id. at *6. This Court also dismissed the excessive
force/failure to intervene claim against Sergeant Cruz. Id. at
On June 11, 2016, the plaintiff voluntarily withdrew all of
his claims against Officer Baboolal. Dkt. 104.
Officers Arico, Regan, and Rivas remained defendants in the
action, as did the City on a theory of respondeat superior. The
parties filed motions in limine and other documents in
preparation for trial.
On July 12, 2016 --- less than a month before the start of
trial --- the plaintiff changed his theory of the case. The
plaintiff filed a Third Amended Complaint (the “TAC”) alleging
that Officer “Arico [had] choked plaintiff, forced plaintiff’s
wrists behind his back and placed excessively tight handcuffs on
plaintiff’s wrists, and then lifted plaintiff’s handcuffed arms
upwards with such force and to such a height that plaintiff
stood on his tip toes and suffered a permanent injury to his
left shoulder.” TAC ¶ 15. The plaintiff now directed the failure
to intervene claims against Officers Rivas and Regan. TAC ¶ 16.
Officer Rivas was no longer the target of an excessive force
claim. Gone was any allegation that an officer had struck the
Trial began on August 8, 2016. The case was primarily tried
by Marc Reibman, a partner at Reibman & Weiner, and James
Sanborn, a then-associate at the Firm.1 Aissatou Barry, a firstyear associate, also sat at counsel’s table. Steven Weiner,
Sanborn has since left the Firm.
another partner at Reibman & Weiner, observed the proceedings
from the gallery. Weiner did not enter a notice of appearance in
this action until oral argument on the present motion, long
after trial had ended. See Dkt. 175.
The trial lasted four days. Reibman and Sanborn ably tried
the case. Unlike many civil rights cases, the medical evidence
was important in determining not only damages, but also
liability. In particular, Reibman and Sanborn undermined the
defendants’ theory that the medical evidence showed that the
plaintiff’s injuries were caused by something other than force.
On August 11, 2016, the jury found Officer Paul Arico
liable on the excessive force claim in the amount of $150,000.00
in compensatory damages and $25,000.00 in punitive damages. Dkt.
139. However, the jury found that Officers Rivas and Regan were
not liable on any Count.
The City agreed that it would indemnify Officer Arico, but
informed the plaintiff that, because of the bureaucratic
process, it would not pay on the judgment for a period of about
three months, although the judgment would accrue substantial
post-judgment interest during the delay. Counsel for the
plaintiff disagreed with that timetable and filed a restraining
notice against Officer Arico on his personal bank account. The
City promptly paid the judgment’s principal, but counsel for the
plaintiff still refused to withdraw the restraining notice
because the City had yet to pay the bill of costs and the postjudgment interest. See Dkt. 152. After a conference with the
Court on October 27, 2016, counsel for the plaintiff agreed to
withdraw the restraining notice.
The motion for attorney’s fees followed.
Section 1988 provides: “In any action or proceeding to
enforce a provision of section[ ] . . . 1983 . . . of this
title, . . . the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs . . . .” The jury's verdict
in the plaintiff’s favor makes him a “prevailing party” and as a
result he is entitled to recover reasonable attorney’s fees as
part of the costs assessed against the defendants.
In determining the amount of a fee award, district courts
must calculate the “presumptively reasonable fee.” Simmons v.
N.Y. City Transit Auth., 575 F.3d 170, 172 (2d Cir. 2009). “The
starting point for determining the presumptive reasonable [fee]
is the ‘lodestar’ amount, which is ‘the product of a reasonable
hourly rate and the reasonable number of hours required by the
case.’” Charles v. City of New York, No. 13-cv-3547 (PAE), 2014
WL 4384155, at *2 (S.D.N.Y. Sept. 4, 2014) (quoting Gaia House
Mezz LLC v. State Street Bank & Trust Co., No. 11-cv-3186 (TPG),
2014 WL 3955178, at *1 (S.D.N.Y. Aug. 13, 2014)). “The
presumptively reasonable fee boils down to ‘what a reasonable,
paying client would be willing to pay,’ given that such a party
wishes ‘to spend the minimum necessary to litigate the case
effectively.’” Simmons, 575 F.3d at 174 (quoting Arbor Hill
Concerned Citizens Neighborhood Ass'n v. County of Albany, 493
F.3d 110, 112, 118 (2d Cir. 2007)). To arrive at a reasonable
fee, courts consider, among other factors, the factors set forth
in Johnson v. Ga. Highway Express Inc., 488 F.2d 714, 717-719
(5th Cir. 1974). Arbor Hill, 522 F.3d at 186 n.3.2 Courts also
“consider the rates charged by attorneys of comparable skill,
experience, and reputation in the community.” Nature's Enters.,
Inc. v. Pearson, No. 08-cv-8549 (JGK)(THK), 2010 WL 447377, at
*9 (S.D.N.Y. Feb. 9, 2010) (citation omitted).
“In ruling on applications for fees, district courts must
examine the hours expended by counsel and the value of the work
product of the particular expenditures to the client's case.”
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 186 n.3. (citation
DiFilippo v. Morizio, 759 F.2d 231, 235 (2d Cir. 1985). “Hours
that are excessive, redundant, or otherwise unnecessary, are to
be excluded . . . and in dealing with such surplusage, 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.” Kirsch v. Fleet St., Ltd., 148 F.3d
149, 173 (2d Cir. 1998) (citations and internal quotation marks
omitted). Courts do not ask “whether hindsight vindicates an
attorney's time expenditures, but whether, at the time the work
was performed, a reasonable attorney would have engaged in
similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99
(2d Cir. 1992); see also Walker v. City of New York, No. 11-CV314 (CBA), 2015 WL 4568305, at *8 (E.D.N.Y. July 28, 2015).
“As the fee applicant, plaintiff bears the burden of
documenting the hours reasonably spent by counsel, and the
reasonableness of the hourly rates claimed.” Allende v. Unitech
Design, Inc., 783 F. Supp. 2d 509, 512 (S.D.N.Y. 2011)
(alterations, citation, and internal quotation marks omitted).
The plaintiff requests the following rates for the lawyers
for the hours indicated: Reibman at $625 per hour for 416.9
hours for a total of $260,565.50; Weiner at $625 per hour for
244.6 hours for a total of $152,875.00; Sanborn at $500 per hour
for 665.1 hours for a total of $343,150.00; Jessica Massimi, a
former associate at the Firm, at $300 per hour for 171.8 hours
for a total of $51,540.00;3 Barry at $150 per hour for 202.4
hours for a total of $30,360.00.
The defendants argue that the rates requested by Reibman,
Weiner, Sanborn, and Massimi are not reasonable, but the
defendants concede that Barry’s requested rate is reasonable.
The requested rates are at the outer limits of what is
reasonable. See Mugavero v. Arms Acres, Inc., No. 03-cv-05724
(PGG), 2010 WL 451045, at *5 (S.D.N.Y. Feb. 9, 2010) (observing
that, as of 2010, consistent “precedent in the Southern District
reveal[ed] 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” (citation omitted)).
However, they are not outside those limits. See, e.g., Bailey v.
Pataki, No. 08-CV-8563 (JSR), 2016 WL 3545941, at *6 (S.D.N.Y.
June 16, 2016) (rates of $600 and $550 reasonable for lawyers
with over a decade of experience); Abdell v. City of New York,
No. 05-CV-8453 (RJS), 2015 WL 898974, at *3 (S.D.N.Y. Mar. 2,
2015) (rate of $650 reasonable for civil rights litigator in
light of “skill and experience”); Barbour v. City of White
Plains, 788 F. Supp. 2d 216, 225 (S.D.N.Y. 2011) ($625 rate
The plaintiff had initially sought an hourly rate of S350 for
Massimi, but reduced the requested hourly rate to $300 at oral
reasonable for civil rights lawyers in light of skill and
experience), aff'd, 700 F.3d 631 (2d Cir. 2012) (per curiam).
Upon careful consideration of the submissions, the
circumstances of the case, the qualifications of the attorneys,
and relevant community standards, the Court concludes that the
rates of Reibman, Sanborn, and Massimi are reasonable, while the
rate requested by Weiner is unreasonably high.
Beginning with the attorneys who were present for trial,
Reibman is an experienced civil rights trial lawyer who has been
practicing for more than 35 years, and who also has extensive
experience litigating medical malpractice cases. See Reibman
Decl. ¶¶ 11-14, 22.
Weiner is likewise an experienced civil rights attorney who
has been practicing for over 27 years, and who also has
extensive experience litigating personal injury cases. Reibman
Decl., Ex. D (Weiner Declaration) ¶¶ 4, 6-7. In addition, Weiner
holds a medical degree from the New York University School of
Medicine. Reibman Decl., Ex. D ¶ 3. At oral argument, counsel
represented that Weiner is currently retained in a civil rights
case at an hourly rate of $625. See Oral Arg. Tr. dated June 15,
2017 at 14.
Sanborn is an experienced litigator who has been practicing
for more than 14 years. Reibman Decl., Ex. F (Sanborn
Declaration) ¶ 6. Sanborn was an associate at the firm Gilbride,
Heller & Brown, P.A. from 2002 to 2004, and then joined the firm
Weil, Gotshal & Manges LLP as an associate from 2004 to 2010.
Reibman Decl., Ex. F ¶¶ 7-8. From 2010 to 2015, Sanborn worked
as a solo practitioner before joining Reibman & Weiner. Reibman
Decl., Ex F ¶¶ 11-12. A review of Mr. Sanborn’s declaration
makes clear that he has a wide array of experiences in various
fields of litigation, including civil rights litigation.
Carolyn A. Kubitschek --- an experienced civil rights
attorney who has worked with the Firm as co-counsel and who
observed portions of the trial --- attests to the skill of
Reibman, Weiner, and Sanborn. She also attests that the rates
requested for those attorneys are reasonable. See Reibman Decl.,
Ex. C (Carolyn A. Kubitschek Declaration). Her opinion in
particular weighs in favor of finding the rates reasonable.
The experience of these attorneys in cases involving
medical issues was significant to the case because the medical
evidence played a key role in evaluating the plaintiff’s claims.
The parties produced rival medical experts. The City argued that
the plaintiff’s injuries to his shoulder were exaggerated and
moreover that they could not have been caused by the alleged
conduct of Officer Arico. The defendants’ medical expert
testified to that effect, which provided an evidentiary basis
for a reasonable jury to find Officer Arico not liable. The jury
plainly credited the testimony of the plaintiff’s expert and
discounted the testimony of the defendants’ expert, as reflected
by the favorable verdict for the plaintiff and the magnitude of
the judgment (both of which weigh in favor of the reasonableness
of the rate charged). Although the defendants argue otherwise,
the outcome of the case was a success for the plaintiff. See
Abdell, 2015 WL 898974, at *5 (observing that “it can hardly be
argued that a $185,000 damages award among the four Plaintiffs
constitutes ‘limited’ success” (emphasis added)).
The rate requested by Reibman, while at the high end, is
reasonable in light of, among other things, his experience and
skill, including the skill he displayed at trial.
However, the hourly rate of $625 requested by Weiner is
higher than he has been awarded recently. Specifically, two
courts in 2014 found that a reasonable rate for Weiner in cases
that were resolved through settlement was $450. E.g., Charles,
2014 WL 4384155, at *4; Hargroves v. City of New York, No. 03CV-1668 (RRM) (VMS), 2014 WL 1270585, at *12 (E.D.N.Y. Jan. 6,
2014), report and recommendation adopted, No. 03-CV-1668
(RRM)(VMS), 2014 WL 1271039 (E.D.N.Y. Mar. 26, 2014). In
Charles, Judge Engelmayer rejected a $500 per hour rate for
Weiner as “unreasonable high.” Charles, 2014 WL 4384155, at *4.
Had Weiner tried the case, a rate of $625 might have been
reasonable, as Kubitschek opines. However, Weiner did not
participate at trial. A reasonable client would not pay that
rate for a lawyer just to observe and for his assistance in
preparing the case. Accordingly, upon a careful consideration of
all of the factors, including Weiner’s role in the case,
Weiner’s rate will be reduced to $550.
The defendants correctly argue that Sanborn’s historical
rate at a large firm like Weil, Gotshal & Manges LLP should not
inform his current hourly rate, see, e.g., Schoolcraft v. City
of New York, No. 10-cv-6005 (RWS), 2016 WL 4626568, at *7
(S.D.N.Y. Sept. 6, 2016), modified on reconsideration, No. 10cv-6005, 2017 WL 1194703 (S.D.N.Y. Mar. 31, 2017), but the
defendants ignore that Sanborn charged an hourly rate of $450
for five years as a solo practitioner. Decl., Ex. F ¶ 11. While
the defendants fault Sanborn for being an associate at the Firm,
it is apparent that he is highly experienced and effective. In
light of, among other things, the skill and ability that Sanborn
displayed throughout the proceedings, including during trial,
the rate requested by Sanborn is reasonable.
Massimi has approximately six years of experience
litigating principally civil rights cases. Reibman Decl., Ex. H
(Massimi Declaration) ¶ 6. After she left the Firm, Massimi has
billed paying clients at an hourly rate of $300. Reibman Decl.,
Ex. H ¶¶ 10-11. Magistrate Judge Netburn recently concluded that
a reasonable hourly rate for Massimi was $300. Golding v. City
of New York, No. 15-CV-03498(ALC)(SN), 2016 WL 6553759, at *3
(S.D.N.Y. Nov. 4, 2016). Massimi’s requested hourly rate of $300
is equally reasonable in this case.
However, it is plain that the total number of hours that
the Firm billed is excessive and unreasonable. The plaintiff
seeks compensation for 1722 hours. It is apparent that a
reduction is warranted. No reasonable attorney would have billed
a paying client in this type of case the hours for which the
Firm seeks compensation, especially at the rates charged --- a
client would not pay and would negotiate some sort of fee
reduction. See Yea Kim v. 167 Nail Plaza, Inc., No. 05-CV8560(GBD)(GWG), 2009 WL 77876, at *5 (S.D.N.Y. Jan. 12, 2009)
(“In light of the relative simplicity of this case and the
shortness of the trial, the Court has no trouble concluding that
an award of 1778.7 hours would be excessive.”).
The trial lasted four days. No novel questions of law were
implicated. A review of the cases in this district and in the
Eastern District of New York makes clear that that the
“plaintiff's request is anomalous.” Houston v. Cotter, No. 07CV-3256(JFB), 2017 WL 587178, at *10 (E.D.N.Y. Feb. 14, 2017)
Some of the excessiveness is attributable to the wide net
cast by the Firm. While not rising to the level of sanctionable,
it is apparent that the attorneys added multiple claims against
multiple defendants that had little chance of success and were
barely colorable --- which is borne out by the voluntary
dismissal of many of the claims and defendants at various points
in the litigation. A reasonable client generally expects lawyers
to advance theories that have a reasonable prospect of success
within the circumstances of the case based on the law and the
facts. That includes, from a plaintiff’s prospective,
prosecuting the case expeditiously to obtain a recovery
expeditiously. Attorneys should not be rewarded for multiplying
the proceedings and bringing unsuccessful claims against
multiple defendants. Here, the excessive force and failure to
intervene claims were the plaintiff’s primary claims. They
presented by far the best prospect for success and recovery.
Unlike the other claims, the excessive force claim on which the
plaintiff ultimately recovered was essentially dismissal-proof
without a trial on the merits. Indeed, the defendants never
moved to dismiss that claim. The additional claims and
defendants prolonged the litigation, and the time it took for
the plaintiff to have his case heard by a jury. Winnowing the
claims and the defendants early would have expedited the case.
The lack of precision with which the attorneys drafted the
pleadings also did not help advance the case. Similarly, the
actions that the Firm took to coerce the City to pay the
judgment more promptly (and for which the plaintiff now seeks
reimbursement) --- specifically, serving the restraining notice
on Officer Arico even though the City had agreed to pay the
judgment --- were unnecessary and not well-taken. Lawyers should
not be rewarded for engaging in unreasonable efforts or attempts
to play hardball. In any event, regardless of what the Firm
believed about the prospects of its claims, the hours remain
There are other myriad problems with the hours billed. For
example, Weiner billed for his time observing the trial on the
ground that he could provide unique medical insights to Reibman
and Sanborn, who were actually trying the case. “Courts . . .
have generally frowned upon awarding fees to more than two
attorneys for court appearances unless the case is uniquely
complex,” Houston, 2017 WL 587178, at *10 (citation omitted)
(collecting cases), which this case was not. Weiner did not
enter a notice of appearance until after trial. Reibman and
Sanborn were perfectly capable of trying the case. The
explanation for Weiner’s attendance is untenable. Reibman has
expertise trying cases involving medical issues and did not need
a silent partner in the gallery charging full freight for each
day of trial attendance. Moreover, there was no justification
for a fourth attorney, Barry, solely to assist Reibman and
Sanborn at counsel’s table. See Abdell, 2015 WL 898974, at *5
(noting that multiple lawyers “had a right to attend the trial,
but that does not mean that they have a right to be compensated
for their time there”).
There were numerous other instances of excessive billing.
The attorneys billed in excess of 14 hours for drafting proposed
voir dire questions that experienced civil rights attorneys
should have been able to submit in a fraction of that time. The
time charges for resisting the motion for summary judgment were
in excess of $75,000 and the motion was occasioned by the
unnecessary multiplication of claims and defendants.
The defendants point to other specific instances for which
they argue the hours were unjustified. It is unnecessary to
itemize all the instances where the hours were excessive,
duplicative, or otherwise problematic. “It is common practice in
this Circuit to reduce a fee award by an across-the-board
percentage where a precise hour-for-hour reduction would be
unwieldy or potentially inaccurate.” Capitol Records, Inc. v.
MP3tunes, LLC, No. 07-CV-9931, 2015 WL 7271565, at *5 (S.D.N.Y.
Nov. 12, 2015) (citation omitted). A fifty percent cut in this
case is warranted. See, e.g., Houston, 2017 WL 587178, at *12
(50 percent cut); Yea Kim, 2009 WL 77876, at *6 (40 percent
cut). That yields a total of 861 compensable hours, comparable
to the more reasonable 781 hours that the defendants expended in
defending this case.
It should be noted that the defendants are not blameless in
causing the Firm’s hours to increase. It is apparent that the
defendants engaged in certain obstructive tactics to frustrate
the plaintiff’s identification of the arresting officers --including the officer who actually handcuffed the defendant --which lengthened discovery and needlessly caused the Firm to
expend more hours litigating this case (although that does not
forgive the unnecessary addition of multiple defendants to this
case). Hardball tactics lengthen litigations and are counterproductive. Hardball tactics have consequences for both sides.
Accordingly, the plaintiff is awarded an attorney’s fee of
$410,071.25, which is a reasonable fee in light of the
circumstances of the case.4
“[A] court will generally award ‘those reasonable out-ofpocket expenses incurred by attorneys and ordinarily charged to
their clients.’” Pennacchio v. Powers, No. 05–CV–985 (RRM)(RML),
2011 WL 2945825, at *2 (E.D.N.Y. July 21, 2011) (quoting
LeBlanc–Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.
1998)). “The fee applicant bears the burden of adequately
documenting and itemizing the costs requested.” Id.; see also
First Keystone Consultants, Inc. v. Schlesinger Elec.
($625 * (416.9/2)) + ($550 * (244.6/2)) + ($500 * (686.3/2)) +
($300 * (171.8/2)) + ($150 * (202.4/2)) = $410,071.25.
Contractors, Inc., No. 10–CV–696 (KAM)(SMG), 2013 WL 950573, at
*10 (E.D.N.Y. Mar. 12, 2013).
The plaintiff seeks $11,944.91 in costs.5 Some of the costs,
such as $1,013.83 for meals, are “generally not recoverable.”
Barkley v. United Homes, LLC, No. 04-CV-875 (KAM), 2012 WL
3095526, at *12 (E.D.N.Y. July 30, 2012), aff'd sub nom. Barkley
v. Olympia Mortg. Co., 557 F. App'x 22 (2d Cir. 2014) (summary
order), as amended (Jan. 30, 2014). Other costs, such as
$1,818.80 in lodging, are on their face extravagant. This
dispute was local. The Firm is located in Brooklyn, this Court
is located in Manhattan, and all of the relevant events occurred
in New York City. The lodging costs were not reasonable.
More fundamentally, however, there is insufficient
documentation to justify an award for any of the outstanding
costs. The plaintiff provides a one-page chart of “Itemized
Litigation Expenses,” see Reibman Decl., Ex. L, but no receipts,
bills, or other form of documentation for the costs. Because the
documentation for the costs is insufficient, the request for
reasonable costs beyond what the defendants have agreed to pay
is denied. Therefore, the plaintiff will be awarded $3,443.87 in
At oral argument, the plaintiff withdrew the reimbursement
requests for expert fees and those costs included in their
taxable bill of costs, which the defendants have already paid.
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. The plaintiff is entitled to
an award of $410,071.25 in reasonable attorney’s fees and
$3,443.87 in costs. The Clerk is directed to close all pending
New York, New York
August 8, 2017
John G. Koeltl
United States District Judge
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