Jones v. City Of New York et al

Filing 186

MEMORANDUM OPINION AND ORDER: The Court has considered all of the arguments of the parties. To the extent not otherwise addressed, the arguments are either moot or without merit. For the foregoing reasons, the objections to the Report are overruled and the Court adopts the Report in its entirety. Therefore, the plaintiff is entitled to an award of $395,835.54 in attorney's fees and costs. The Clerk is directed to close ECF No. 178 and to close this case. SO ORDERED. (Signed by Judge John G. Koeltl on 4/26/2022) (ks)

Case 1:16-cv-08080-JGK-KNF Document 186 Filed 04/26/22 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MATTHEW JONES,

Plaintiff,

- against CHRISTOPHER TREUBIG ET AL.,
Defendants.

16-cv-8080 (JGK)
MEMORANDUM OPINION
AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiff, Matthew Jones, was awarded $30,000.25 in
damages against defendant Lieutenant Christopher Treubig on the
plaintiff's claim of excessive force under 42 U.S.C. § 1983. ECF
No. 135. The plaintiff moved for attorney's fees pursuant to 42
U.S.C. § 1988, ECF No. 141, and the motion was referred to
Magistrate Judge Kevin Fox for a report and recommendation. ECF
No. 169. The Magistrate Judge issued a report finding that
attorney's fees and costs in the amount of $395,835.54 were
reasonable. ECF No. 175 (the "Report").
There is no dispute that the plaintiff is a prevailing
party and is eligible for an award of costs and reasonable
attorney's fees pursuant to 42 U.S.C. § 1988. The defendant does
not disagree but argues that the amount of attorney's fees
determined by the Magistrate Judge was unreasonably high because
the hourly rates sought by the plaintiff's attorneys were too
high and the number of hours expended was excessive. The
defendant attempts to belittle the complexity of the case and

Case 1:16-cv-08080-JGK-KNF Document 186 Filed 04/26/22 Page 2 of 13

the quality of the work involved. However, none of the
defendant's objections have merit. The Magistrate Judge
carefully scrutinized the rates sought by the attorneys and
reduced them as appropriate and similarly excluded time that the
Magistrate Judge found to be unnecessary. None of the objections
raised by the defendant to the Magistrate Judge's ultimate
findings have any merit. The hourly rates and the hours expended
that were determined by the Magistrate Judge were both well
supported. Moreover, this case was hardly straightforward. It
involved an award of punitive damages against Lieutenant
Treubig, a complex proceeding and determination of qualified
immunity by this Court that was reversed in a lengthy opinion by
the Court of Appeals, and an unsuccessful motion for a new trial
by Lieutenant Treubig. For the reasons explained in more detail
below, the defendant's objections are without merit, and the
Report is adopted in full.
I.
The plaintiff began this action in 2016, bringing claims
against four police defendants for violations of his rights
under the Fourth and Fourteenth Amendments to the United States
Constitution pursuant to 42 U.S.C. § 1983. ECF No. 1. The
plaintiff has been represented from the onset of the case by
Alexis Padilla. Padilla Deel., ECF No. 143, ] 2. After discovery
and motions in limine, the case proceeded to trial in May 2018.
2

Case 1:16-cv-08080-JGK-KNF Document 186 Filed 04/26/22 Page 3 of 13

The jury returned a verdict of no liability as to three of the
defendants. ECF No. 110. The jury found the fourth defendant,
Lieutenant Treubig, liable for $0.25 of nominal damages and
$30,000 of punitive damages. Id.
At this time, another attorney, David Zelman, became
involved with the case. Zelman Deel., Ex. A, ECF No. 144-1. The
jury was given special interrogatories. See ECF No. 110. Based
on the jury's responses to the special interrogatories,
Lieutenant Treubig moved for judgment as a matter of law on the
ground of qualified immunity. ECF No. 94. After full briefing
and argument, the Court granted the motion and found that
Lieutenant Treubig was entitled to qualified immunity. Jones v.
Muniz, 349 F. Supp. 3d 377, 391 (S.D.N.Y. 2018). The Court
entered judgment for all the defendants. ECF No. 111.
In November 2018, a third attorney, Amir Ali of the
MacArthur Justice Center ("MacArthur"), contacted Mr. Padilla
and Mr. Zelman. Ali Deel., ECF No. 145,

12. On learning that

Mr. Padilla and Mr. Zelman intended to forgo any appeal,
MacArthur agreed to represent Mr. Jones on appeal. Id.

12-13.

The plaintiff then appealed. ECF No. 114. After full
briefing and argument, the Court of Appeals for the Second
Circuit, in a lengthy decision cataloguing qualified immunity
cases from around the country, found that Lieutenant Treubig was
not entitled to qualified immunity. Jones v. Treubig, 963 F.3d
3

Case 1:16-cv-08080-JGK-KNF Document 186 Filed 04/26/22 Page 4 of 13

214, 240 (2d Cir. 2020). On remand, this Court entered judgment
against Lieutenant Treubig in the amount of $30,000.25. ECF No.
135. The defendants sought a new trial or to set aside the
verdict. ECF No. 138. After full briefing and argument, the
Court denied the application. ECF No. 170.
In September 2020, the plaintiff moved for attorney's fees
and costs pursuant to 42 U.S.C. § 1988. ECF No. 141. The Court
referred the motion to the Magistrate Judge for a Report and
Recommendation. ECF No. 169. The parties briefed the motion, and
the Magistrate Judge issued a thorough 42-page report
recommending that a total of $395,835.54 of attorney's fees and
costs be awarded. 1 Report at 43. The defendants filed objections
to the report, ECF No. 178, to which the plaintiff responded.
ECF No. 185.
II.

Under Federal Rule of Civil Procedure 72(b), a court
reviewing a magistrate judge's report and recommendation "must
determine de novo any part of the magistrate judge's disposition

While the Magistrate Judge's decision was styled a
Memorandum and Order, because attorney's fees under 42 U.S.C.
§ 1988 are a dispositive matter under Rule 72, see, e.g.,
McConnell v. ABC-Amega, Inc., 338 F. App'x 24, 26 (2d Cir.
2009); Nardoni v. City of New York, No. 17-cv-2695, 2019 WL
952333, at *l (S.D.N.Y. Feb. 27, 2019), the decision should
properly be characterized as a report and recommendation. The
parties agree that the Magistrate Judge's decision was in fact a
report and recommendation. See ECF No. 179 at 2 & n.1; ECF No.
185 at 3.
1

4

Case 1:16-cv-08080-JGK-KNF Document 186 Filed 04/26/22 Page 5 of 13

that has been properly objected to." 2 Fed. R. Civ. P. 72(b) (3).
Any part of the magistrate judge's disposition that is not
specifically objected to is reviewed only for clear error.
Robinson v. Pagan, No. 05-cv-1840, 2006 WL 3626930, at *1
(S.D.N.Y. Dec. 12, 2006).
III.

A.

Under 42 U.S.C. § 1988(b), the Court, "in its discretion,
may allow the prevailing party [in a§ 1983 action]

. a

reasonable attorney's fee." The Report found that the plaintiff
was a prevailing party under§ 1988 and the defendant does not
dispute that finding, which is plainly correct. See, e.g.,
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Robles v. City
of New York, No. 19-cv-6581, 2021 WL 1034773, at *4 (S.D.N.Y.
Feb. 26, 2021), report and recommendation adopted, 2021 WL
1177462 (S.D.N.Y. Mar. 29, 2021).
B.

The presumptively reasonable rate for an attorney's
services is "the prevailing hourly rate" in "the district where
the district court sits," Arbor Hill Concerned Citizens
Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 190 (2d
Cir. 2008), for "attorneys of comparable experience in civil

Unless otherwise noted, this Memorandum Opinion and Order
omits all internal alterations, omissions, quotation marks, and
citations in quoted text.
2

5

Case 1:16-cv-08080-JGK-KNF Document 186 Filed 04/26/22 Page 6 of 13

rights litigation." Tatum v. City of New York, No. 06-cv-4290,
2010 WL 334975, at *4

(S.D.N.Y. Jan. 28, 2010). Courts look to
. to

"current rates, rather than historical rates,

compensate for the delay in payment," LeBlanc-Sternberg v.
Fletcher, 143 F.3d 748, 764

(2d Cir. 1998), because rates tend

to "increas[e) over time." Tatum, 2010 WL 334975, at *5.
1.
Each of the three attorneys who worked on the plaintiff's
case is an experienced attorney specializing in civil rights
litigation. Mr. Padilla graduated from law school in 2012.
Padilla Deel. 1 28. He has litigated to completion over 50 cases
under 42 U.S.C. § 1983, and has represented plaintiffs in civil
rights matters before the Court of Appeals for the Second
Circuit. Id. 11 29-30. His current practice is dedicated
entirely to criminal defense and civil rights litigation, and he
currently has over 20 civil rights matters pending in both state
and federal courts.

Id. 1 31. He has tried 12 cases since 2015,

of which 5 were federal civil rights cases in which excessive
force was alleged. Id. 1 32. Mr. Zelman has been practicing
civil rights litigation for around 20 years,

in which time he

has worked on some 250 cases. Zelman Deel. 1 2.
Mr. Ali graduated from law school in 2011. Ali Deel. 1 3.
He is currently the Director of MacArthur's Washington, D.C.
office and is the Deputy Director of the organization's Supreme
6

Case 1:16-cv-08080-JGK-KNF Document 186 Filed 04/26/22 Page 7 of 13

Court and Appellate Program. Ali Deel. 1 1. MacArthur is a
nonprofit public interest firm that litigates civil rights
cases, including police misconduct, with disproportionate rates
of success. Id. 11 4, 6. Mr. Ali directs Harvard Law School's
Criminal Justice Appellate Clinic, and teaches classes on
related subjects. Id. 1 2. He has litigated dozens of appeals in
federal appellate courts, including the Supreme Court. Id. 11 78. Over the course of the litigation, Mr. Ali was assisted by
two of MacArthur's legal fellows: David Schmutzer and Megha Ram,
both of whom graduated from law school in 2018. Id. 1 33.

2.
The defendant objects to the rate of $450 per hour that the
Magistrate Judge awarded for Mr. Padilla's work. However, the
Report's survey of the relevant case law correctly finds that
attorneys with experience akin to Mr. Padilla's have been
awarded comparable rates in this district. See, e.g.,
HomeAway.com, Inc. v. City of New York, 523 F. Supp. 3d 573, 598
(S.D.N.Y. 2021)

(awarding rates of $375 to $600 per hour for

attorneys, some of whom had considerably less experience in
civil rights litigation that Mr. Padilla); Robles, 2021 WL
1034773, at *9 (awarding a rate of $475 in a "garden variety"
civil rights case). In light of the particular complexity of
this case, a rate of $450 for Mr. Padilla is reasonable. This is
consistent with the conclusion of the Court of Appeals for the
7

Case 1:16-cv-08080-JGK-KNF Document 186 Filed 04/26/22 Page 8 of 13

Second Circuit in 2019 that an hourly rate of $450 for a garden
variety civil rights case in the Southern District of New York
by an experienced attorney was reasonable. Lilly v. City of New
York, 934 F.3d 222, 231 (2d Cir. 2019).
While the defendant cites several cases in which courts
have awarded lower rates, those cases are distinguishable,
either because they are somewhat older than this case; because
the attorneys were less experienced; or because the case was not
litigated in this district.
3.

The defendant objects to the rate of $550 per hour that the
Magistrate Judge awarded to Mr. Zelman. However, Mr. Zelman is
more experienced than Mr. Padilla, and his experience is highly
specialized in this area of the law. Moreover, Mr. Zelman's
involvement in the case was largely limited to the area of law
in which he was able to offer particularly specialized counsel,
namely, the issue of qualified immunity. The rate was consistent
with other fee awards in this District. See, e.g., HomeAway.com,
523 F. Supp. 3d at 598. A rate of $550 for these services is
therefore reasonable.

4.
The defendant objects to the rate of $525 per hour that the
Magistrate Judge awarded to Mr. Ali. However, Mr. Ali, while he
has been practicing for about as long as Mr. Padilla, has
8

Case 1:16-cv-08080-JGK-KNF Document 186 Filed 04/26/22 Page 9 of 13

extensive appellate experience, including before the United
States Supreme Court. Moreover, his appeals have focused on
comparable issues, and the services he rendered were rendered
only in the area of his specialization: the appeal phase of the
case. In light of this, the rate of $525 for Mr. Ali's services
is comparable to other fee awards in this District and is
eminently reasonable.

5.
The defendant does not object to the rate awarded to Ms.
Ram ($250) or Mr. Schmutzer ($150). Those rates are not clearly
erroneous, see Sanson v. City of New York, No. 19-cv-2569, 2021
WL 1191566, at *4 (S.D.N.Y. Mar. 30, 2021)

(noting that "[r]ates

in this district for junior associates range from $200 to $350
per hour at law firms specializing in civil rightsn), and the
Court therefore adopts them.

C.
1.

The defendant objects to a number of hours billed by Mr.
Padilla during the trial, post-trial, and appeal phases of the
case. However, the Report correctly found that the defendant's
objections to Mr. Padilla's hours during the trial phase were
baseless. Mr. Padilla was the only attorney on the case during
that phase. Such lean staffing supports the conclusion that Mr.
Padilla's hours were efficiently spent. See, e.g., N.Y. Ass'n

9

Case 1:16-cv-08080-JGK-KNF Document 186 Filed 04/26/22 Page 10 of 13

for Retarded Child. v. Cuomo, No. 72-cv-356, 2019 WL 3288898, at
*7 (E.D.N.Y. July 22, 2019). Moreover, Mr. Padilla largely
ceased his substantive work on the case after Mr. Zelman entered
an appearance, and the Report correctly found that the hours
expended by Mr. Padilla after the close of trial were hours
reasonably expended communicating with the client and cocounsel.
2.
The defendant objects to a number of hours billed by Mr.
Zelman during the post-trial, pre-appeal phase of the case.
However, the Report correctly found that those arguments were
meritless, because the work conducted by Mr. Zelman was
substantive, necessary, and efficient.
The defendant does not object to the hours awarded to Mr.
Zelman with respect to the appeal phase of the case. The
Magistrate Judge reduced the hours requested by Mr. Zelman by
50% to account for hours that the Magistrate Judge deemed were
duplicative or insufficiently documented because the appeal was
being prosecuted primarily by Mr. Ali. This reduction was
reasonable and no further reduction is warranted. The Magistrate
Judge correctly noted that "[t]he essential goal in fee-shifting
is to do rough justice, not to achieve auditing
perfection." Report at 40
838

(quoting Fox v. Vice, 563 U.S. 826,

(2011)). The Report applied a 50% reduction to the hours
10

Case 1:16-cv-08080-JGK-KNF Document 186 Filed 04/26/22 Page 11 of 13

billed by Mr. Zelman for the appeal phase of the case, and that
was a reasonable reduction.
3.

The defendant argues that Mr. Ali's hours should be reduced
by 40 hours. The defendant argues that it was excessive to spend
over 120 hours conducting legal research, drafting the brief,
and preparing for oral argument. But this was a complex appeal
of a close issue. Under those circumstances, such extensive
preparation and care is not excessive. The defendant also argues
that Mr. Ali's entries for travel and attending oral argument
were excessive. But the defendant cites no authority to justify
such a reduction. This was a case where Mr. Ali had special
expertise and pursued an ultimately successful appeal that
otherwise would have been forgone. He was located in Washington,
D.C., and plainly needed to come to New York for the argument of
the appeal. The Report therefore correctly found that Mr. Ali's
hours should not be reduced.
4.

The defendant seeks a 40% reduction in the hours billed by
Ms. Ram and Mr. Schmutzer, on the grounds that many of their
entries "lack a clear description of their purpose and appear
duplicative." ECF No. 178 at 18. But this request is vague,
unsupported, and arbitrary. The Report correctly found that, in
light of the complex issues involved in the case, substantial

11

Case 1:16-cv-08080-JGK-KNF Document 186 Filed 04/26/22 Page 12 of 13

research was necessary. Moreover, prior to seeking compensation
for hours billed, Mr. Ali eliminated some of hours billed by
these junior lawyers. This "proactive .

exercis[e of]

billing judgment prior to making the demand for attorneys' fees"
further indicates that a reduction in the fees requested for the
work by Ms. Ram and Mr. Schmutzer is not warranted. See M.C. ex
rel. E.C. v. Dep't of Educ. of City of N.Y., No. 12-cv-9281,
2013 WL 2403485, at *12 (S.D.N.Y. June 4, 2013), report and
recommendation adopted, 2013 WL 3744066 (S.D.N.Y. June 28,
2013).
5.

The defendant objects to the 75.8 hours that were sought
after the filing of the initial declarations in support of the
motion for attorney's fees. See ECF No. 165-1, -2, -3. The
defendant characterizes those hours as being expended "for the
fee application," with a passing comment that the plaintiff
"appears to be including other work in these figures." ECF No.
178 at 18. The so-called "other work" includes the work that was
expended in responding to the defendant's motion for a new trial
or to set aside the verdict. See ECF No. 138. The defendant's
mischaracterization of these hours does not alter the fact that
a cumulative 75.8 hours expended on two motions is not
excessive. The Report was correct not to reduce those hours.

12

Case 1:16-cv-08080-JGK-KNF Document 186 Filed 04/26/22 Page 13 of 13

D.

The defendant does not object to the Report's award of
costs. Because there was no clear error as to the costs, the
award of costs is also adopted.
Conclusion

The Court has considered all of the arguments of the
parties. To the extent not otherwise addressed, the arguments
are either moot or without merit. For the foregoing reasons, the
objections to the Report are overruled and the Court adopts the
Report in its entirety. Therefore, the plaintiff is entitled to
an award of $395,835.54 in attorney's fees and costs. The Clerk
is directed to close ECF No. 178 and to close this case.
SO ORDERED.
New York, New York
Dated:
April 26, 2022

Unit

13

Judge