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)

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~ '\- - . )., 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

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