Wright v. City Of New York et al

Filing 64

OPINION re: 57 MOTION for Attorney Fees, Costs, and Disbursements, filed by Matthew Wright. In an exercise of discretion and supervision, the attorneys' fees as calculated above will be reduced by $1,650.33, the amount of t he contingent fee under the Retainer Agreement. Should Counsel in the exercise of his discretion forego this payment of the fee by Wright, the contingent fee reduction will be vacated. There being no stated dispute about costs and disbursements, Cou nsel is awarded those amounts requested. Counsel's motion for attorneys' fees, costs and disbursements is granted as set forth above. Counsel is directed to submit order on notice in accordance with this opinion, and as further set forth herein. It is so ordered. (Signed by Judge Robert W. Sweet on 10/20/2017) (ras)

~ '\-

-

. ).,

UNITED STATES DIST RICT COURT
SOUTHERN DIST RICT OF NEW YORK

----------------------------------------x
MATTHEW WRIGHT,
Plaintiff,

16 Civ . 1397

-a gainst -

OP I NION

CITY OF NEW YORK , POLICE OFFIC ER
ELISHA DUNCAN , POLICE OF FI CER
JOHN RUDDEN, SERGEANT TERESA SADL IE R,
POLICE OFF I CER BRIAN O'KEEFE, POLICE
OFFICER DANIE L CASTRO , and
JOHN/JANE DOE #1- 5 ,
Defendants.

'

I

USDC SDNY

DOCUfIENT
ELECTRONICALLY FILED

Doc 4:
DATE f ILED:

[(}£3-( 7

-------------- ---------------------------x
A P P E A RA N C E S :

Attorney for Plaintiff
MOUTONDELL ' ANNO LLP
305 Broadway , 7 th Floor
New York , NY 10007
By:
Gregory P. Mouton, Jr. , Esq .

Attorney for Defendants
ZACHARY W. CART ER
Corporation Counse l of the City of New York
100 Church Street
New York , NY 10007
By:
Colin Mccann Cer i ello, Esq.

_J _

_ __ _ _ __

,.

Sweet, D.J.

Plaintiff Matthew Wright

("Wright" or the "Plaintiff")

has moved pursuant to Fed. R. Civ. P. Rule 54 (d) (2) seeking
attorneys' fees of $43,363 and costs and disbursements in this
action alleging civil rights violations against the City of New
York (the "City") and five named and individual Police Officers
(collectively , the "Defendants") . Based on the facts and
conclusions set forth below, the motion is granted, and
attorneys' fees, costs and disbursements are awarded as set
forth below.

As the history of this case demonst l ates and the
realities establish, this action concerns attorneys' fees more
than the violation of Wright's civil rights. The Defendants have
opposed the motion on two grounds, that the requested attorneys '
fees are unreasonable and that th e retainer

a~reement

(the

"Retainer Agreement" or the "Agreement") between Wright and his
attorney Gregory P. Moulton , Jr., Esq.

(" Counsel " ) constitutes a

conflict of interest between the Plaintiff and his counsel .

1

I.

Prior Proceedings

Wright commenced this action on February 23, 2016
asserting federal civil rights violations stelning from an
arrest that occurred on June 20, 2014 after Police Officer
Duncan allegedly observed the Plaintiff in possession of "dope."
The Amended Complaint alleged

§

1983 violatio J s, and claims of

unlawful search, false arrest, excessive force, denial of
substantive due process, malicious abuse of process, malicious

·I

·
prosecution, failure to intervene, an d municipa 1 l' b·1·
ia i ity.

The action was assigned to participate in the Local
Civil Rule 83.10 (the

"§

1983 Plan") and the parties engaged in

the "Limited Discovery" as required by Local Rule 83.10(5). In
accordance with the

§

1983 Plan, the parties also participated

in mediation on August 23, 2016. After mediat i on was
unsuccessful, the parties attended an initial conference on
September 27, 2016, which set the discovery schedule. Counsel
propounded a total of 297 individual further mocument requests
in addition to the limited discovery required by the

§

1983

Plan. The Defendants responded to each request and provided the
requested documents.

2

One day after Defendants further suJ plemented their
disclosures, Counsel moved to compel additional documents, and
sought sanctions based on Defendants' alleged "fail[ure] to
provide a myriad of basic discovery." Defenda d ts cross -moved to
compel Plaintiff t o provide a global § 160.50 Release. On June
7 , 2017 , the Court den ied the majority of Plaintiff's requests
f or discovery and for sanctions.

On June 16, 2017 , Defendants served Plaintiff with a
$5,001 offer of judgment pursuant to Rule 68 I f the Federal
Rules of Civil Procedure. On the same day, Counsel visited the
Plaintiff to communicate the offer of judgment, which was

accepted and docketed. Following Plaintiff's f cceptance of the
offer of judgment , the parties began negotiat i ng Plaintiff ' s
reasonable amount of attorneys' fees,

costs, and disbursements

as provided by 42 U.S.C. § 1988, and agreed to an amount in
principle inclusive of fees,

costs , and disbursements.

In response to the agreement in pri f ciple, the City
sent Counse l the document to memorialize the costs and fees
agreement. Th is includes a Stipulation and an Order of
Settlement of Attorney 7 s Fees , Costs , and Expenses , two separate
releases discharging any further claims for fees by both

3

,,

).

Plaintiff and Plaintiff's counsel, and a W-9 l orm. Counsel
declined to return as executed the releases requiring his client
I

to affirm that he had assigned all rights to attorneys'

fees to

his counsel and released all Defendants and successors to any
further claims to said fees in the above-referenced matter.
Counsel also provided a redacted Retainer Agr , ement, which
contains the following relevant language:
[Matthew Wright] agrees to pay [The Law Office of
Gregory Mouton, Jr ., LLC] a contingent fee of
one-third of the t ota l recovery .
. plus any
attorney's fees awarded pursuant t o 28 U. S.C. $
19 88 . Client hereby assigns [The La1 Office of
Gregory Mouton, Jr., LLC] all right s and
interests [Matthew Wright] may have lin any claims
against the defendants for costs, e ~penses, and
attorneys ' fees.
See Retainer Agreement, Defs.' Mot. Ex. 2, at 1 , July 27 , 2017,
ECF No. 55.

The instant motion was heard and manked fully
submitted on August 30 , 2017.

II.

The Applicable Standard

The Civil Rights Attorney's Fees Awl rds Act of 1976
authorizes district courts to award reasonable attorneys'

fees

to prevailing parties in civil rights litigation . See 42 U.S.C.

4

)

.

' •

§

1988. "The Second Circuit has held that plaintiffs who accept

Rule 68 offers of judgment qualify as 'prevailing parties'
entitled to attorneys' fees and costs." Davis v . City of New
York , No. 10 Civ . 699 (SAS), 2011 WL 4946243, at *2

(S.D . N.Y .

Oct. 18, 2011). The Supreme Court has stated that the prevailing
party should recover attorneys' fees "unless J pecial
circumstances would render such an award unju 1 t." Hensley v.
Eckerhart,

461 U.S. 424, 429 (1983)

Park Enterprises, 390 U.S. 400, 402

(quoting Newman v . Piggie
(1968)).

I

.

A district court traditionally has l cons1derable "
discretion in deciding whether to award fees,

see Barfield v.

New York City Health & Hasps. Corp ., 537 F.3d 132, 151

2008)

(2d Cir .

(internal citation omitted), but "this discretion is

narrowed by a presumption that successful civil rights litigants
should ordinarily recover attorneys' fees." s 1 e Raishevich v.
Foster, 247 F.3d 337 , 344

(2d Cir. 2001). Congress intended that

fee awards in civil rights cases "be governed by the same
standards which prevail in other types of equally complex
Federal litigation, such as antitrust cases." Blum v . Stenson,
465 U.S. 886 , 893 (1984)

(quoting S . Rept. No.

( 1976)) .

5

94 -1 011 , p. 6

l-.

'·

In regards to determining attorneys' fees,

the Second

Circuit has maintained that "[t]here is no pr J cise rule or
formula for ma king [fee] determinations . "

579 F. App'x 3, 6 (2d Cir. 2014)
(citing Hensley,

Hus~ in

(alteration

~n

v. Springer,
original)

461 U.S. at 436). The calcul J tion of the

product of the number of hours expended and a reasonable hourly
rate, commonly referred to as the "lodestar method," is the most
common analysis for an appropriate award of a 1 torney's fees. See
Perdue v . Kenny A. ex rel. Winn, 559 U.S. 542, 551 (20 10 )
(noting that "the lodestar figure has, as its name suggests,
become the guiding light of our fee-shifting jurisprudence")
(internal alterations omitted). Accordingly,

he l odestar

calculation is presumptively reasonable. Mill j a v. Metro-N. R.
Co ., 658 F.3d 154, 167 (2d Cir. 2011)

("Both J his court and the

Supreme Court have held that the lodestar-the product of a
reasonable hourly rate and the reasonable num, er of hours
required by the case-creates a 'presumptivel y reasonable
fee.'").

I

The Second Circuit in Arbor Hill Co1 cerned Citizens
Neighborhood Association v. County of Albany, 493 F.3d 110 (2d
Cir. 2007) adopted the prevailing model for d J termining
attorney's fees in this Circuit:
The reasonable hourly rate is the rate a paying
client would be willing to pay. In letermining
6

)

'

J.

what rate a paying client would be ~ illing to
pay, the district court should cons t'lder, among
i
1;
others, the Johnson factors
it sho ld also bear
in mind that a reasonable, paying c ] ient wishes
to spend the minimum necessary to l ~ tigate the
case effectively. The district cour ti should also
consider that such an individual mi d ht be able to
negotiate with his or her attorneys ~ using their
desire to obtain the reputational b e nefits that
might accrue from being associated J ith the case.
The district court should then use ti hat
reas o nable hourly rate to calculate lwhat can
properly be termed the 'presumptive ] y reas o nable
fee.'
I
Id. at 117-18.

"In calculating the number of 'reas nable hours,' the
court looks to 'its own familiarity with the o ase and its
experience with the case

an~

its experience g J nerally as we ll as

to the evidentiary submissions and arguments d f the parties.'"
Clarke v.

Frank,

9 60 F.2d 1146, 1153 (2d Cir. 19 92). "The

district co urt als o should exclude from [its] J fee c alculation
h o urs that were not 'reasonably expended.' Ca les may be
overstaffed, and the skill and experience o f ] awyers vary

1

The twelve Johnson factors are : " ( 1 ) the time and labor required ; ( 2) the
novelty and difficulty of the questions ; (3) the level ~ f skill required to
perform the legal service prop e rly ; (4) the preclusion ~f employment by the
o
attorney due to acceptance of the case ; (5) the attorne ' s customa r y hou rl y
rate ; (6) whethe r the f e e is f ixed or contingent ; (7) t e time limitations
imposed by the client or the circumstances ; (8) the amor nt involve d in the
case and the results obtained ; (9) the experience , repur at i on , and ability of
the atto r neys ; (10) the undesi ra b i lity of the ca s e ; (11) the natur e and
length of the pro f ess i onal relationship with t he client ; and (12) awards in
s i milar cases ." I d . at 114 , n . 3 (citing Johnson v . Ga . 'Hi ghway Express , Inc. ,
488 F . 2d 714 , 717 - 19 (5th Ci r. 1974)) .

7

\ .

..

widely. Counsel for the prevailing party

shou~d

make a good

faith effort to exclude from a fee request ho1 rs .that are
excessive, redundant, or otherwise unnecessary, Just as a lawyer
in private practice ethically is obligated to exclude such hours
from his fee submission." Hensley,

461 U.S. ab 434

citations omitted ) . Though the Court must

ana ~ yze

(internal
the fees a

reasonable client would be willing to bear, i J need not act as a
reasonable client might by "set[ting] forth i j em-b y -item
findings concerning what may be countless objections to
individual billing items." Francois v. Mazer,
29 (2d Cir. 2013)

523 F. App Ix 28 '

(c iting Lunday v. City of A j bany, 42 F.3d 131,
I

134

(2d Cir. 1 994)). "Rather, in dealing with items that are

'e xcessive , redundant, or otherwise unnecessany,

. the court

has discretion simply to deduct a reasonable J ercentage of the
number of hours claimed as a practical means , f trimming fat
from a fee application.'" Id.

(citing Kirsch

1 Fleet
·

Street,

Ltd., 148 F.3d 149, 173 (2d Cir. 1 998) . The same principle

applies to calculation of a cost award.

8

Id.

..

III.

Attorneys' Fees as Modified Are Granted

Pursuant to

§

1988 and the aforemenbioned authorities ,

Counsel is entitled to attorneys' fees . Next it is this Court ' s
duty to determine reasonable attorneys'
part on the Johnson factors.

fees, based at least in

See Arbor Hill,

J 93 F. 3d at 117-18.

The City has c hall enged Counsel's requested r J te of $330 an hour
I

and portions of his time records as excessive or inappropriate.

a. The Appropriate Rate for Counse l in This Action is
$300 an Hour

In determin ing the reasonable hourly rates to be
applied, courts look to the market rates "pre, ailing in the
community for similar services by lawyers of neasonably

comparable skill, experience, and
Gleason , 160 F.3d 858 , 882

reputation. ~

(2d Cir . 1998)

Gierlinger v.

(quoting Blum, 465

U.S. at 896, n.11). Further, " [i ] t is well-es b ab li shed that the
prevailing community a district court should oonsider
I

.

is

normally the district in which the court sits." Reiter v. MTA
New York City Transit Auth., 457 F.3d 224, 23 d (2d Cir . 2006)

(internal quotat i on marks omi tted).

9

..

Courts have reached some consensus about current
prevailing rates in federal civil rights case J in the Southern
District of New York. "As the Second Circuit J as explained, this
fact-finding 'contemplates a case-specific inquiry into the
prevailing market rates for counsel of similar experience and
skill to the fee applicant's counsel.'" Schoo ,craft v. City of
New York,

I

248 F. Supp. 3d 506, 510 (S.D.N.Y. 1 017); see also

Adorno v. Port Authority of New York & New Jersey,

2d 507, 513-14

(S.D .N.Y. 2010)

685 F. Supp.

(find ing that the range of fees

in this District for civil rights and employmJ nt litigators with
approximately ten years of experience is betw, en $250 per hour
and $350 per hour); Wise v. Kelly,
(S .D.N.Y. 2008)

620 F. Sup, . 2d 435, 446-47

(collec ting cases awarding $230-$430 per hour

for civil rights litigators where "[t]he legal community at
issue

. covers small to mid-size firms in civil rights");

Dancy v. McGinley,

2015)

141 F. Supp. 3d 231 , 238

(SI . D. N . Y . Sept. 21,

(awarding a civil rights litigator with sixteen years of

experience a rate of $400 per hour); Schoolcraft, 248 F. Supp.
3d at 509 (awarding a civil rights attorney with twenty-five
years of experience an initial rate of $390 p , r hour, which was
subsequently raised to $400 per hour); Lee v. Santiago, No. 12
Civ. 2558

(PAE) (OF)' 2013 WL 4830951, at *18

10

l s.O.N.Y. Aug. 15,

2013)

(awarding Counsel $300 per hour for worN performed in
I

accordance with that civil rights case).

Counsel has practiced for approximately nine years ,
both as a solo practitioner and as a member o

a two -att orney

firm, and he has worked on more than 1 36 civi l rights cases. See
Pl's. Reply Br. 9 . Accordingly, the prevailing rate for civil
I

rights attorneys with comparable experience in this community is
between $250 and $350 an hour.

However, this Court in its discreti J n may also take

Counse l's sanctionable conduct into considera li on . Counsel was
sanctioned by Magistrate Judge Lois Bloom in Mccants v. City of
New York , No . 11 CV 3511 (SJ) (LB), at *l (E.D.N.Y. Feb. 16,

2012) and fined $150 for failing to appear at a court
conference . On reconsideration, the Honorable Sterling Johnson,
Jr. upheld the sanctions imposed, and noted t l at "the Court
hopes that Mouton does not continue to derogate from the Court 's
rules " in admonishing Counsel for making frivolous motions. See
id.,

(May 1, 2012)

(order to vacate denied),

Jimenez v. City of New York,

+

*7 . Moreover, in

162 F. Supp. 3d 173, 182 (S.D.N.Y.

2015), the court levied sanctions in the civil rights case in
the amount of $19,075 against Counsel for his role in preparing

11

..

.

..

and submitting an affidavit determined by the c o urt to be " v er y
likely perjuri o us." On appeal, the Second Cir j uit affirmed the
$19,075 imp o sition of sanctions. See Jimenez
York,

l.

Cit y of New

666 Fed. Appx . 39, 41 (2d Cir. 2016). In ligh t of this

history of san c ti o nable condu c t, Co unsel's h o url y rate may be
reduced in th e Court's discretion.

Co unsel co ntends that t he City should be b o und t o the
$ 3 3 0 rate as l isted in the putati v e settlement agreement.
Altho ugh off e rs t o settle a claim and stateme d ts made during
settlement neg o tiations regarding a claim are not admissible to
establish "liability for,

I
invalidity of, or amount of" that

c laim, e v iden c e o f settlement negotiations ma , in a district
co urt's dis c r e ti o n, be admitted if o ffered f or "ano ther
purpose," pursuant to Federal Rule o f Evidenc J 40 8 . 2 See Starter
Co rp. v. Converse Inc.,

170 F.3d 286, 293-94

2d Cir. 1999)

(upholding admissi o n of evidence t o prove claims of contra c tual
2

Rule 408 provides in relevant part :
Evidence of (1) fu r n i sh i ng . . . or (2) accepting . . . a
valuable consideration in compromis i ng or a ttemp ~ ing to
compromi se a claim wh i ch was di s puted as to e ithJr validity o r
amount , is not admis s ible to prove liabili t y for lor invali d ity of
th e claim or its amount . Ev i dence of conduct or statement s made
in compromise negot i ation s is l ikewise no t admi s~ i ble . Thi s rule
does not require the excl us ion of any ev i d e nce ot h erwise
discoverable merely b e cause it is p r esented i n t He course of
compromise negot i at i ons . Th i s rule also do e s not !require
exclusion when the evi dence i s offered f or anoth , r purpose .

Fed . R. Evid . 408

(emphas i s added) .

12

and equitable estoppel based on

representatio~s

made during

settlement negot i ations) .

Admittedly , courts a ll ow the submis ion of evidence
from settlement negotiations to establish rea j onable market
rates , including reasonable license rates and royalty rates . See
American Soc . of Composers , Authors and Publi 1hers v.
Showtime / The Movie Channel, Inc. , 912 F. 2d 563 (2d Cir. 1990)

(sustaining the lower court ' s factual finding , , which inc l uded
the consideration of evidence from sett l ement negotiations , of
what constituted a "reasonable" market licens ,
ResQNet . com, Inc. v . Lansa , Inc.,

rate) ; see also

594 F . 3d 86 0 , 869 - 73 (Fed .

Cir. 20 1 0) . However , here, the agreement as t d rate was reached
in the context of a complete resolution of th J issues now
presented . Though relevant, it is not de t ermi j ative as it would
have been had Counsel accepted the settlement on behalf of the
Plaint i ff .

Given the previous approva l of Counsel 's rate at $300 ,
the comparison with similar prevailing rates, !Counsel ' s history
of sanctionable conduct, and the totality of the circumstances
surrounding Wright's claim and its resolution , Counsel in this

13

'·

proceeding will be awarded attorneys '

fees at the rate of $300

an hour .

IV .

The Time Records as Modified Are Approveq

Counsel seeks fees for approximately 131.1 hours for
litigating this ma t ter . Given that this actio d par t icipated in
the limited discovery§ 1983 Plawne,ret h tearekewna san do
,
i
motion practice , no depositions

substantive
certain of the

motions were brought before the completing of a meet and confer
process , Counsel ' s time records are excessive

The following
·1

entries will be approved as modified:

a. "Background Research"

Counsel b ill ed approximate l y 12 . 7 hours researching

I
the f i ve named defendants , with near l y five h CD urs spent solely

I

on defendant Police Officer Elisha Duncan before discovery
began . Although unspec i fied , appropriate " Googling" would
consist of typ i ng these officers names , conduct i ng a PACER
search , and possibly looking for soc i al media pages . This
research would take about one hour per Police l Of f icer . Moreover ,
al l

PACER searches were unnecessary here as

14

C~unse l

would have

'.

received any responsive information in the Defendants' § 1983
Plan disclosures. Reasonable billing for this task would
constitute five

(5) hours at most.

b. The May 12, 2017 Motion to Compel & For Sanctions

Counsel seeks 32.2 hours in researching and drafting
the motion to compel documents and for sanctiol s. This motion,

comprising of eight pages, represents

approxi ~ tely

25% of the

8
:::::e:::l::: :::::~a::::::::f o: ::::ht:e:::::tt: a:::::o::e:a::
available for inspection, six of which had alrrady been produced
0

prior to the motion, another six of which Defendants already
provided that they did not possess, and two of which Defendants
agreed to provide. Moreover, the motion to compel certain
documents-specifically the district attorney's file and one of
the City's memo book entries-was made one day a fter Defendants

produced these documents by mail and courtesy rmail. Only the
production of the underlying disciplinary file r

(for which the

Court reserved judgment), and personnel file performance
evaluations were at issue. Ultimately, the mot l on for sanctions
was denied.

15

..

In the end, Counsel propounded 297 j ocument requests
in what was a straightforward civil action . Tne specific grounds
on which the Plaintiff moved, as well as the j esolution of the
motion establishes that the reasonable time for this task was
ten (10) hours.

c. The May 30, 2017 Motion to Compel

Counsel attributes 7.1 hours to researching and
drafting the Plaintiff's opposition to Defendants' motion to
compel . Defendants' motion to compel was a gl d bal § 160.50
Release. A reasonable attorney with nine year1 of experience
should research and draft a response within four

(4) hours.

d. Additional Discovery Work

Despite the limited discovery under the § 1983 Plan
and the relatively routine nature of the Plaintiff's claim,
Counsel propounded a total of 297 document requests on
Defendants. The 13.8 hours billed to these ta J ks will be reduced
by 9.2 hours to six (6) hours because this di 1 covery was
duplicative .

16

e. The June 19, 2016 Motion for

Extens ~ on

& to Compel

On June 6, 2016, Counsel attributed 2.3 hours of
billing to a letter motion "seeking extension of time to serve
complaint on Duncan and compel production of

~is

identifying

information." There was no correspondence wit j the Defendants
prior to drafting this motion to compel produc1
tion of a valid
service address for Police Officer Duncan, and the City soon
1

thereafter agreed to provide Counsel with a v lid service
address. A motion for an extension of time to serve a Defendant
should be routine. Time will be reduced by 50 % to 1.15 hours.

f. Actions Not Attributable to Defenda l t's Counsel

Counsel also billed for various actilons not

attributable to either this matter or the

Cit~0.6

hours for

drafting letters to the Plaintiff regarding Counsel's firm's
name change, for adding the Plaintiff to a visitor's list, and
for refusing to communicate via CorrLinks; and 0.3 hours for
drafting a notice of change of address, and for reviewing said

notice on Electronic Case Filing ("ECF"). Per l ocal Civil Rule
l.3(d), Counsel was to immediately notify the Court and serve a

17

.

'

1,

..

notice of change of address on Defendants in every case in which
h e has appeared. Accord in gly , th i s hour is eliminated.
I

g . Clerical & Administrative Work

Counsel charged 4.4 hours for "hand - deliver[ing]
letter to City demanding of fi cer names,"

"hand~ deliver[ing]

notice of deposition to indiv idua l defenda n ts ," and "handdel i ver[ing]

Plaintif f's 1 2/20/16 discovery supplement. "

Howeve r, administrative and clerica l wo rk-su ch as serving and
filing papers-is not compensab l e as part of an award for

attorney 's fees . See Marisol A. v. Giuli ani,
381 , 390 - 91

(S .D. N. Y. Aug. 30 , 2000)

l~l

F. Supp . 2d

(f indin g t hat clerical

services are part of overhead and are not generally charged to
cl i ents or recoverable). These charges are stricken.

h. Paralegal Wo r k

Counsel bi ll ed approximately 4 .1 hours for review of
his own ECF bounces . Fo r in stance , Counse l charged the
following: "rev i ew .

I

.

deficient pleading," r review .

bounce re filing of civil case cover sheet," as well as "rev i ew
. bounce re case designated ECF ," and "review .

18

bounce

re minute entry for initial conference ." See ECF No. 59-1, at 2 ,
6. These tasks constitute paralegal work , and should be billed
at a paralegal rate of $110 per hour. See
York, No. 06 -cv-4 290

Jan . 28 , 2010)

Tatur

v.

(PGG) (GWG) , 2010 WL 334975 , at

C:ty

of New

9 (S . D. N. Y.

(awa rding paralegal rates for ajttorney time spent

monitoring the case's progress on ECF); New York Youth Club v .
Town of Harrison , No. 12 - CV - 7534

(S.D . N. Y. July 6, 20 1 6)

(CS) , 2016 WL 3676690 , at *19

(applying a rate of $ 1 1 0 an hour to

paralegal tasks).

i . Travel Time

Plaintiff also billed 3 . 1 hours to travel time at his
fully requested rate of $330 per h ou r. This is contrary to the
"customary 50 % rate for travel time " in this cJ.rcuit. Dancy v.
McGinley,

141 F. Supp. 3d 23 1, 243 (S . D. N. Y.

I

2 ~ 15).

The hours

for travel time are reduced by half to 1.55 hours.

Accordingly , in light of the lodestar meth od and t he
foregoing analysis, a reasonab l e attorney would have spent 105 . 3
h o urs billing at a reasonable rate o f $300 per hour, 4 . 1 hours
billing at a reasonable para l ega l rate of $110 per hour, and 3.1

19

hours billing at a 50 % rate for trave l time to complete the work
in this case.

V.

The Attorneys' Fees Are Reduced by the

Am~unt

of the

Contingency

The City argues that the Retainer Agreement between
Counsel and the Plaintiff creates a conflict of interest
sufficient to invalidate the Agreement. HoweveE, the City has
cited no authority for this proposition. Counsel contends that
the City's position is precluded by Venegas v . Mitchell , 495
U.S. 82 , 90 (1990) , wherein the Court held that "Section 1988
itself does not interfere with the enforceability of a
contingent-fee contract ." In Venegas, the plaintiff entered into
a contingent -fee contract providing that his a ~ torney would
represent him at trial for a fee of 40 % of the gross amount of
any recovery . Id. at 84 . The contract gave the attorney "the
right to apply for and collect any attorney fee award made by a
court." Id. After the plaintiff obtained a judgment in his
favor , his counsel moved for and was awarded fe l s under

§

19 8 8.

Id. at 85. Plaintiff ' s counsel then requested a lien on the

judgment for the fees purportedly due him under the contingentfee agreement . Id . The Supreme Court held that:

20

What a plaintiff may be bound to pay and Lhat an
attorney is free to collect under a fee a9reement are
not necessarily measured by the ' reasonable att o rney's
I
fee' that a defendant must pay pursuant t~ a court
order. Section 1988 itself does not inter f ere with the
enforceability of a contingent - fee contract .
Id. at 90 .

As such , the Supreme Court appears to place the
Agreement between the Plaintiff and Counsel beyond this Court ' s
reach.

Even so , this Court retains discreti \ nary authority to
modify this award as required by justice and in line with
precedent. See Barfield v . New York City
537 F.3d 132 , 151 (2d Cir . 2008)

Healt~

& Hasps . Corp .,

(" We afford a district court

considerable discretion in determining what co J stitutes
reasonable attorney ' s fees i n a given case " ) . Courts within this
Circuit have been reluctant to award such a financial windfall
for an attorney to the detriment of the c l ient . See Laster v .
Cole , No . 99 - CV- 2837

23, 2000)

(JG) , 2000 WL 863463 , at *2 (E.D . N. Y. June

(finding "this form of double

and reducing attorneys '

recover ~

unnecessary"

fees by the amount spec t fied in the

retainer agreement where both a fee - shifting statute and a
retainer agreement were at play) ; Richards v. Nr w York City Ed .
Of Educ., No. 83 Civ. 7621

(CBM) , 1 988 U.S. Dis l. LEXIS 6121, at
21

•

•

*14 -15 (S .D.N.Y. June 23 , 1988)

(ho lding that fee shifting

statutes "were not designed as a form of economic relief to
improve the financial lot of attorneys").

Moreover, the Second Circui t has stated that "in
awarding attorney fees, the most cri ti ca l factor is the degree
I

of success obtained." Patterson v . Balsamico, 440 F.3d 104, 1 23
(2d Cir . 2006)

(citing Hensley,

461 U.S. at 436)

plaintiff is a

'pre vailing party'

("T hat the

may say little about

whether the expenditure of counse l' s time was reasonable in
relation to the success ach ie ved ." ) . Here, the judgment in favor
o f Plaintiff was in the amount of $5,001, and Counsel has
submitted a fee request of $43,263.

In an exercise of discretion and sup l rvision, the
attorneys '

fees as ca l culated above will be reduced by

$1 , 650.33 , the amount of the contingent fee under the Retainer
Agreement. Should Counsel in the exercise of his discretion
forego this payment of the fee by Wright, the contingent fee
reduction will be vacated.

22

VI .

Costs and Di sbursements Are Awarded

There being no stated dispute about costs and
disbursements, Counsel is awarded those amounts requested .

VII.

Conclusion

Counsel ' s motion for attorneys '

fees , costs and

disbursements is granted as set forth above .

Counsel is directed to submit order on notice in
accordance with this opinion .

It is so ordered .

New York , NY
October
2017

'Ji}

U. S .D. J .

23