United States of America ex rel. v. American University of Beirut

Filing 36

OPINION AND ORDER. For the foregoing reasons, the Court grants Relator's motion for attorney's fees in the amount of $6,192. This reflects an hourly rate of $400 for 36.2 hours, reduced by 60%, in addition to the $400 filing fee. The Clerk of Court is directed to close the motion at Docket Number 28. SO ORDERED. re: 28 MOTION for Attorney Fees filed by United States of America ex rel. (Signed by Judge J. Paul Oetken on 8/17/2017) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA, ex rel.
ZIONIST ADVOCACY CENTER,
Plaintiff,

-v-

14-CV-6899 (JPO)
OPINION AND ORDER

AMERICAN UNIVERSITY OF BEIRUT,
Defendant.
UNITED STATES OF AMERICA,
-v-

Plaintiff-Intervenor,

AMERICAN UNIVERSITY OF BEIRUT,
Defendant.
J. PAUL OETKEN, District Judge:
On June 1, 2017, David Abrams, attorney for the Relator in this action, filed a motion for
attorney’s fees and costs pursuant to 31 U.S.C. 3730(d) and an affidavit in support thereof. (Dkt.
Nos. 28 & 29.) The same day, Defendant American University of Beirut (“AUB”) filed a
memorandum in opposition to Mr. Abrams’ request, which argues that any fee award should be
considerably reduced. (Dkt. No. 30.) For the reasons that follow, the request for fees is granted
at a reduced amount.
I.

Discussion
Mr. Abrams requests $19,500 in attorney’s fees and costs. (Dkt. No. 29 ¶ 12.) This

amount reflects 38.2 hours of work at $500 an hour (totaling $19,100) as well as a $400 filing
fee. (Id. ¶¶ 10–11.) Mr. Abrams was previously approved at a rate of $400 an hour in the
Eastern District of New York. (Id. ¶ 6 (citing Mensah v. Falletta Carting Corp., No. 15 Civ.
1

3227 (E.D.N.Y. Aug. 8, 2016); Saldana v. New Start Group, Inc., No. 14 Civ. 4049 (E.D.N.Y.
July 6, 2016).) He asks for an increase in his hourly rate based on his understanding that “Courts
regularly approve higher hourly rates for attorneys in the Southern District than in other districts”

and because of the complexity of this matter, which “is an international dispute involving
millions of dollars of grant payments from the federal government.” (Dkt. No. 29 ¶ 7.)
However, a reduction of Mr. Abrams’ fee request is warranted for three reasons: (1) Mr.
Abrams is not entitled to a higher hourly rate in this district than in the Eastern District; (2) the
Relator prevailed on only two of the five asserted allegations; and (3) Mr. Abrams is not entitled
to recover for hours he has not yet worked.
First, Mr. Abrams is not entitled to a higher hourly rate simply because this case was filed
in the Southern District, as opposed to the Eastern District, of New York. Courts have
“previously questioned the wisdom and fairness of utilizing a ‘prevailing rate’ that differs on
average by more than $100.00 per hour depending on which side of the Brooklyn Bridge the
court sits.” Alveranga v. Winston, No. 04 Civ. 4356, 2007 WL 595069, at *7 (E.D.N.Y. Feb. 22,
2007). Moreover, the complexity of the case does not impact the Court’s calculation of a
reasonable hour rate. “‘[T]he novelty and complexity of a case generally may not be used as a
ground for [adjusting the lodestar]’ because they are already included in the lodestar calculation
itself, being ‘fully reflected in the number of billable hours recorded by counsel.’” Millea v.
Metro-N. R. Co., 658 F.3d 154, 167 (2d Cir. 2011) (alterations in original) (quoting Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010)). As such, the Court concludes that an hourly
rate of $400 is reasonable in this case.
Second, the Court notes that “[t]he most important factor in determining the
reasonableness of a fee is the degree of success obtained.” Pino v. Locascio, 101 F.3d 235, 237
(2d Cir. 1996). “In determining the number of hours reasonably expended for purposes of
2

calculating the lodestar, the district court should exclude . . . hours dedicated to severable
unsuccessful claims.” Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999). Here, the
Relator prevailed on two of the five general allegations raised in its Amended Complaint. (See
Dkt. No. 30 at 3–5.) Mr. Abrams’s records are not clear about which entries relate to which
claims, so the Court applies an overall reduction of 60%, reflecting the fact that Relator did not
prevail on three out of five of its distinct sets of allegations. See T.K. ex rel. L.K. v. New York
City Dep’t of Educ., No. 11 Civ. 3964, 2012 WL 1107660, at *7 (S.D.N.Y. Mar. 30, 2012)
(“[C]ourts have applied an across-the-board reduction to fee requests in order to reflect the
limited degree of a party’s success.”).
Finally, the Court will not credit Mr. Abrams’ entry for two hours of “anticipated future
work.” See De La Paz v. Rubin & Rothman, LLC, No. 11 Civ. 9625, 2013 WL 6184425
(S.D.N.Y. Nov. 25, 2013) (adopting a report and recommendation denying a request for
prospective attorney’s fees).
II.

Conclusion
For the foregoing reasons, the Court grants Relator’s motion for attorney’s fees in the

amount of $6,192. This reflects an hourly rate of $400 for 36.2 hours, reduced by 60%, in
addition to the $400 filing fee.
The Clerk of Court is directed to close the motion at Docket Number 28.
SO ORDERED.
Dated: August 17, 2017
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

3