Hinds v. County of Westchester et al

Filing 514

ORDER: For the foregoing reasons, the Court allows Ms. Zelman's claim of $41,000 in disbursements and discharges Ms. Kelly's charging lien related to her representation of Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 10/2/2020) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DESMOND HINDS,
Plaintiff,
v.

No. 11-CV-7265 (KMK)
ORDER

COUNTY OF WESTCHESTER, et al.,
Defendants.

KENNETH M. KARAS, United States District Judge:
Before the Court is a dispute between Bonita E. Zelman, Esq. and Paula Johnson Kelly,
Esq. about disbursements properly reimbursable to Ms. Zelman from her representation of
Desmond Hinds (“Plaintiff”). The outcome of this dispute may affect the amount owed from
Ms. Zelman to Ms. Kelly under the Court’s November 12, 2019 Order. (Order (“Fees Order”)
(Dkt. No. 494).) For the reasons that follow, the Court finds that Ms. Zelman is entitled to
$41,000 in disbursements.
I. Background
Plaintiff was awarded a jury verdict of $200,000, composed of $150,000 against
Defendant Aaron Hess (“Hess”) and the Village of Pleasantville for assault and of $50,000
against Defendant Jacobsen (“Jacobsen”) and the Town of Mount Pleasant for false arrest and
assault and battery. (Verdict Form (Dkt. No. 438).) Plaintiff reached a post-judgment settlement
for a total of $116,000, including $75,000 from Hess and $41,000 from the Town of Mount
Pleasant. (Decl. of Bonita E. Zelman in Partial Opp. to Paula Kelly’s Mot. for a Charging Lien
(“Zelman Lien Decl.”) 3 (Dkt. No. 484).)

Despite claimed expenditures of $152,557, Ms. Zelman agreed to seek reimbursement for
disbursements of only $41,000, leaving a total net recovery of $75,000. (Id. at 4.) Consistent
with her retainer, Ms. Zelman paid $50,000 to Plaintiff, leaving $25,000 in legal fees. (Id.) On
Ms. Kelly’s Motion for Attorney’s Fees, (Not. of Mot. for Att’y’s Fees (Dkt. No. 481)), the
Court awarded 40% of the fees to Ms. Kelly and 60% to Ms. Zelman, (Fees Order).1 The Court
also ordered Ms. Zelman to provide information regarding her disbursements. (See Dkt. (minute
entry for Nov. 12, 2019).)
On December 10, 2019, Ms. Zelman submitted a Declaration itemizing $114,930.65 in
disbursements. (Dkt. Nos. 499, 499-1.) The Court via memo endorsement deemed this
submission “insufficient,” and ordered Ms. Zelman “to produce the documents that support these
claims.” (Dkt. No. 502.) On December 18, 2019, Ms. Zelman produced a second Declaration,
which included supporting documents. (Zelman Decl.)
Ms. Kelly submitted an Affirmation opposing Ms. Zelman’s submission on December 30,
2019. (Reply Aff. To Decl. and Exs. of Bonita E. Zelman, Esq. on Hinds Disbursements (“Kelly
Aff.”) (Dkt. No. 507).) Ms. Kelly argued that, while a portion of the costs were adequately
proven, some lacked foundation, and others were incurred on behalf of seven separate plaintiffs,
and not adjusted to reflect Hinds’s portion of the benefits. (Id.)
Ms. Zelman replied via Declaration on January 21, 2020, (Zelman Reply Decl.), and
submitted additional documentation, (Bonita E. Zelman Reply Decl. Ex. List of Disbursements
(“Zelman Ex.”) (Dkt. No. 513-1)).

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Ms. Zelman claims, and Ms. Kelly does not deny, that she has paid $10,000 to Ms.
Kelly. (Decl. of Bonita E. Zelman (“Zelman Decl.”) 2 (Dkt. No. 506); Reply Decl. of Bonita E.
Zelman (“Zelman Reply Decl.”) 3 (Dkt. No. 513).)
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II. Discussion
“Federal courts [] have independent authority to . . . determine attorney’s fee disputes and
regulate attorney’s fee liens.” Rivkin v. A.J. Hollander & Co., Inc., No. 95-CV-9314, 1996 WL
633217, at *2 (S.D.N.Y. Nov. 1, 1996) (collecting cases). It is within the Court’s discretion to
“adjudicate a fee dispute after the dismissal of a lawsuit.” In re Austrian & German Bank
Holocaust Litig., 317 F.3d 91, 101 (2d Cir. 2003).
Here, Ms. Zelman has provided documentation showing $42,429.59 in costs.2 This
includes the following:
Expense
Court costs (filing fee; service)
Accident reconstruction expert (Forensic Crash Specialists)
Video reconstruction expert (Refinery Forensic Investigations)
Medical experts (Dr. Rembar, Dr. Shields, medical records)
Police expert (13th Juror)
Video trial exhibits (VisuaLex)
Deposition fees (Court Reporting Assoc.; LegalLink; Legal Eye Digital)
Total

Total Cost
$592
$14,610.32
$2,250
$7,024.93
$3,571.43
$5,600
$8,780.82
$42,429.50

Costs for the police expert and certain medical expert costs have been adjusted to reflect
the pro rata share attributable to Plaintiff. (Zelman Ex. 1, 11–12, 16–18.) Ms. Kelly allows that
these adjusted costs are legitimate. (Kelly Aff. 7–8.)3 The Court agrees.

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Ms. Zelman’s Declaration claims $55,090.99 in costs. (Zelman Reply Decl. 3; Zelman
Ex. 1–2.) This discrepancy exists because the following appear to be unsupported by an invoice,
check, or other indication of charge or payment: (1) an $11,448.98 payment to reimburse cocounsel for graphics and accident reconstruction expenditures, (Zelman Ex. 1); (2) $816.67 paid
to Legal Eye Digital LLC for the April 30, 2013 deposition of Martin Greenberg, (id. at 2); and
(3) $395.84 paid to Legal Eye Digital LLC for the September 30, 2012 deposition of Aaron
Hess, (id.).
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The Court notes that Ms. Kelly slightly overstates the disbursements attributable to Dr.
Rembar, and finds that Ms. Zelman’s figures are supported by the record. (See Zelman Ex. 13.)
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Ms. Kelly likewise concedes that court costs and costs for the accident reconstruction
expert are appropriately attributable to Hinds alone. (Kelly Aff. 4.) Again, the Court agrees.4
The following three categories of cost are in dispute: (1) the video reconstruction expert
(Refinery Forensic Investigations), for which Ms. Kelly claims there is no foundation, (Kelly
Aff. 6); (2) video trial exhibits (VisuaLex), which Ms. Kelly claims should be divided by seven
to reflect Plaintiff’s pro rata share, (id.); and (3) deposition fees (various), which Ms. Kelly
claims should be similarly divided by seven, (id. at 4–6).
As to the video reconstruction expert, Ms. Zelman submits an invoice for $2,250,
(Zelman Decl. 16), and an explanation that this is an expense for “[r]econstruction of [v]ideo
[f]ootage taken at the scene of the shooting including by cell phone,” (Zelman Ex. 1). Since
Plaintiff’s recovery was based, in part, on his role as a victim of the shooting, the Court finds that
these disbursements were related to Plaintiff’s case, and that Ms. Zelman may recover them.
To resolve the dispute regarding whether to apply a pro rata adjustment to Ms. Zelman’s
video trial exhibits and deposition fees, the Court looks to case law in the related context of
attorney fee shifting statutes. In assessing fees for counsel of both successful and unsuccessful
plaintiffs against defendants, “the threshold issue is whether the successful and unsuccessful
[p]laintiffs' claims are sufficiently discrete that the hours expended on these claims can be
divided on a claim-by-claim basis.” Hargroves v. City of New York, No. 03-CV-1668, 2014 WL
1270585, at *15 (E.D.N.Y. Jan. 6, 2014) (citing Hensley v. Eckerhart, 461 U.S. 424, 434–35
(1983)), report and recommendation adopted, 2014 WL 1271039 (E.D.N.Y. Mar. 26, 2014); cf.

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While Ms. Kelly agrees that $9,948.26 in accident reconstruction expert costs is
appropriate, she notes that Ms. Zelman’s initial submission included “no bill or proof . . . to
substantiate the additional $4,662” in these costs. (Kelly Aff. 4.) Ms. Zelman’s second
submission includes checks to substantiate this amount. (Zelman Ex. 3.)
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LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 762 (2d Cir. 1998) (“When a plaintiff has achieved
substantial success in the litigation but has prevailed on fewer than all of his claims, the most
important question in determining a reasonable fee is whether the failed claim was intertwined
with the claims on which he succeeded.”).
Following from this principle, where counsel demonstrates that her work is relevant to a
prevailing plaintiff, courts have generally opted not to adjust downward the cost of her time
because that work was also relevant to one or more unsuccessful plaintiffs. See, e.g., Thomas v.
City of New York, No. 14-CV-7513, 2017 WL 6033532, at *7 (E.D.N.Y. Dec. 1, 2017)
(declining to adjust fees for unsuccessful plaintiffs where depositions “focused on facts and legal
issues relevant to all plaintiffs” (citations omitted)); Hargroves, 2014 WL 1270585, at *15
(same, but separately declining to award fees where “this time would likely not have been spent
had the unsuccessful Plaintiffs not been part of the action”); Sys. Mgmt., Inc. v. Loiselle, 154 F.
Supp. 2d 195, 209 (D. Mass. 2001) (noting that “the [c]ourt is not obliged to discount for the
unsuccessful plaintiffs,” and declining to do so because “all of the plaintiffs were interconnected
with [a] common core of facts”); cf. Adorno v. Port Auth. of N.Y. & N.J., 685 F. Supp. 2d 507,
518 (S.D.N.Y. 2010) (awarding fee for 40% of time in a case where 2/7 plaintiffs were
successful, because “some of the additional time would have been required even if this had only
been a two-plaintiff case” and “some of the proof offered for . . . [the] unsuccessful claims was
relevant to the[] successful claims”), modified on reconsideration, No. 06-CV-593, 2010 WL
727480 (S.D.N.Y. Mar. 2, 2010).
While case law focuses on the calculation of fees, at least one court has reached a similar
conclusion regarding taxing of trial and deposition costs to arguably unrelated defendants. In re
Omeprazole Patent Litig., No. 00-CV-6749, 2012 WL 5427849, at *3 (S.D.N.Y. Nov. 7, 2012)

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(holding that “because the claims and defenses of each defendant in the litigation were
inextricably intertwined, it is practically impossible to accurately divide the deposition or trial
testimony into portions attributable to individual defendants” (alteration, record reference, and
quotation marks omitted)).
The Court is aware of only one case that applies a pro rata adjustment like the one
suggested by Ms. Kelly. There, the court awarded fees for work that was specific to the
prevailing plaintiff, but applied a pro rata downward adjustment to work related to a Monell
claim and to a disqualification motion, both of which were generally applicable to 31 plaintiffs.
See Matthews v. City of New York, No. 01-CV-2739, 2003 U.S. Dist. LEXIS 16334, *18-19
(E.D.N.Y. Aug. 27, 2003). However, the key to this ruling appears to have been the court’s view
“that Matthew's counsel had ‘manipulated’ the number of actions.” Wise v. Kelly, 620 F. Supp.
2d 435, 460 (S.D.N.Y. 2008). Here, as in Wise, the Court is not aware of any “allegation
whatsoever that [p]laintiff's counsel ha[s] litigated this matter in a self-serving or manipulative
way.” Id. at 461. Thus, following the majority of the courts that have considered the issue, the
Court will evaluate whether Ms. Zelman’s disputed disbursements were related to common core
facts relevant to Plaintiff’s case.
As to the video trial exhibits, Ms. Zelman submits invoices for $5,600, and two checks
reflecting the same amount, (Zelman Ex. 3, 14–15), and explains that these costs were for video
exhibits for trial, (Zelman Ex. 1). Ms. Zelman does not describe the content of these video
exhibits, but she does note that both the shooting and Greenberg and Mendoza’s interrogation of
Plaintiff were recorded. (Zelman Reply Decl. 1; Zelman Ex. 1.) In light of these video-recorded
incidents, and because the claims made by various plaintiffs shared common, core facts, the

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Court finds that these disbursements were relevant to Plaintiff’s case, and that Ms. Zelman may
recover them.
As to the deposition fees, Ms. Zelman submits invoices reflecting $8,780.12 charged by
three vendors. (Zelman Ex. 9, 19–36.) The Court finds that depositions of Plaintiff, Hess,
Jacobsen, and Ronald Beckley were taken on Plaintiff’s behalf, since each of these individuals
was named in Plaintiff’s case. (See Kelly Aff. 4.) Each remaining deponent for which Ms.
Zelman seeks reimbursement was also involved in Plaintiff’s case: Martin Greenberg
(“Greenberg”) and Marco Mendoza (“Mendoza”) interrogated Plaintiff, (Zelman Reply Decl. 1;
Zelman Ex. 1–2; Second Am. Compl. (“SAC”) 5 (Dkt. No. 222)); Ronald Gagnon (“Gagnon”)
initially encountered the car where the shooting occurred, in which Plaintiff was a passenger,
(Zelman Ex. 1; SAC 2); and Stephen Van Ostrand and Ali Mourtada witnessed the shooting in
which Plaintiff was a victim, (Zelman Ex. 1). Indeed, Greenberg, Mendoza, and Gagnon were
each named Defendants in Plaintiff’s Second Amended Complaint. (See SAC.) Thus, the Court
finds that these disbursements were related to Plaintiff’s case, and that Ms. Zelman may recover
them.
III. Conclusion
For the foregoing reasons, the Court allows Ms. Zelman’s claim of $41,000 in
disbursements and discharges Ms. Kelly’s charging lien related to her representation of Plaintiff.
SO ORDERED.
DATED:

October 2, 2020
White Plains, New York
____________________________________
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE

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