Anderson v. Osborne et al
OPINION AND ORDER re: 163 MOTION for Attorney Fees filed by Jerome Anderson. The motion for attorneys fees and costs pursuant to 42 U.S.C. § 1988(b) is DENIED. The Clerk is instructed to terminate the motion. (Doc. #163). SO ORDERED. (Signed by Judge Vincent L. Briccetti on 6/7/2021) (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SGT. ROBERT OSBORNE;
C.O. MATTHEW ERNST;
C.O. JAMES HENNIG; and
C.O. ROBERT SNEDEKER,
OPINION AND ORDER
17 CV 539 (VB)
Plaintiff Jerome Anderson commenced this action pro se pursuant to 42 U.S.C. § 1983,
alleging defendants Sergeant (“Sgt.”) Robert Osborne and Correction Officers (“C.O.”) Matthew
Ernst, James Hennig, and Robert Snedeker, among others, used excessive force against him
while he was incarcerated at Green Haven Correctional Facility, in violation of his Eighth
Amendment right to be free from cruel and unusual punishment.
On February 14, 2020, after a four-day trial, the jury returned a verdict in plaintiff’s
favor, in the total amount of $650,000. On October 20, 2020, the Court entered an Amended
Judgment for plaintiff, comprising compensatory damages in the amount of $75,000 against all
four defendants, as well as punitive damages of $275,000 against Sgt. Osborne, $125,000 against
C.O. Ernst, $125,000 against C.O. Hennig, and $50,000 against C.O. Snedeker. Defendants did
not take an appeal, and the Court has been advised the Amended Judgment has been paid in full.
Now pending is plaintiff’s motion for attorney’s fees and costs pursuant to 42 U.S.C.
§ 1988(b). (Doc. #163).
For the following reasons, the motion is DENIED.
The Court presumes the parties’ familiarity with the procedural and factual background
of this case, and summarizes the facts only to the extent necessary to resolve the pending motion.
In late 2018, after the completion of discovery, the Court contacted Michael D.
Diederich, Jr., Esq., to ask if he was interested in volunteering to represent plaintiff pro bono at
trial. Mr. Diederich agreed to do so. Thereafter, according to Mr. Diederich’s declaration
submitted in support of the instant motion, Mr. Diederich and plaintiff executed a retainer
agreement whereby Mr. Diederich agreed to represent plaintiff on a contingency fee basis. This
agreement entitled Mr. Diederich to one-third of any recovery plaintiff obtained. The Court was
not made aware of the retainer agreement or the contingency fee arrangement therein.
At Mr. Diederich’s request, Donald Mallo, Esq., and Stephen Bergstein, Esq., assisted
Mr. Diederich in his representation of plaintiff. Mr. Mallo is an attorney admitted to this Court,
but he did not file a notice of appearance in this case. Mr. Mallo primarily assisted Mr.
Diederich in preparing for trial. Mr. Bergstein assisted Mr. Diederich with post-trial motions.
Mr. Diederich began his preliminary review of the case in December 2018, and continued
his representation throughout 2019. The four-day jury trial began on February 11, 2020, and
concluded on February 14, 2020, when the jury returned a verdict for plaintiff in the amount of
On February 19, 2020, Mr. Diederich sent plaintiff a second retainer agreement
governing Mr. Diederich’s defense of the jury verdict rendered in plaintiff’s favor. The second
retainer agreement provided that Mr. Bergstein would assist Mr. Diederich in any post-verdict
efforts and would be paid by plaintiff at a rate of $400/hour. Plaintiff agreed to the terms of the
second retainer agreement by initialing the proposal.
On March 23, 2020, defendants moved for judgment as a matter of law pursuant to Rule
50(b) or, in the alternative, for a new trial pursuant to Rule 59, or to vacate or remit the damages
awards. Mr. Diederich and Mr. Bergstein opposed defendants’ motion on plaintiff’s behalf. By
Opinion and Order dated October 20, 2020, the Court denied the motion.
Plaintiff thereafter filed the instant motion seeking an award of attorney’s fees.
After reviewing plaintiff’s motion, the Court conducted a conference on May 3, 2021, to
clarify whether Mr. Diederich sought statutory fees under Section 1988 in addition to the
one-third contingency fee. Mr. Diederich said he did. After expressing its displeasure at Mr.
Diederich’s position, the Court directed Mr. Diederich to submit a letter by June 1, 2021,
indicating whether he intended to continue to seek statutory fees in addition to the contingency
On June 1, 2021, Mr. Diederich filed his letter. In the letter, Mr. Diederich requests that
the Court grant plaintiff’s application for attorney’s fees pursuant to Section 1988. He also
maintains that his contingency fee arrangement is appropriate in this matter. The letter states that
plaintiff has already paid Mr. Diederich the contingency fee agreed to in the retainer agreement,
and that Mr. Diederich intends to return to plaintiff any statutory fee award the Court approves,
after first deducting the amount plaintiff has agreed to pay Mr. Bergstein for his post-verdict
work, to partially reimburse plaintiff for the contingency fee.
Pursuant to Section 1988, “[i]n any action or proceeding to enforce a provision of
[Section 1983], the court, in its discretion, may allow the prevailing party . . . a reasonable
attorney’s fee as part of the costs.” 42 U.S.C. 1988(b). 1 “Determining whether an award of
attorney’s fees is appropriate is a two-step inquiry.” Diamond v. O’Connor, 417 F. App’x 104,
105 (2d Cir. 2011) (summary order). “First, fees may be awarded only to a ‘prevailing party.’”
Id. “A prevailing party is one who has favorably effected a material alteration of the legal
relationship of the parties by court order.” Garcia v. Hebert, 622 F. App’x 21, 22 (2d Cir. 2015)
(summary order). Second, the fee must be reasonable. “[A] ‘reasonable’ fee is a fee that is
sufficient to induce a capable attorney to undertake the representation of a meritorious civil
rights case.” Restivo v. Hessemann, 846 F.3d at 589 (citing Perdue v. Kenny A. ex rel. Winn,
559 U.S. 542, 552 (2010)).
To demonstrate a fee is reasonable, “the court must: (1) determine the reasonable hourly
rate; (2) determine the number of hours reasonably expended; (3) multiply the reasonable hourly
rate by the number of hours reasonably expended to determine the presumptively reasonable fee;
and (4) make an appropriate adjustment to arrive at the final fee award.” Creighton v.
Dominican Coll., 2011 WL 4914724, at *6 (S.D.N.Y. Aug. 16, 2011). The Supreme Court has
The fee applicant . . . must . . . submit appropriate documentation to meet the
burden of establishing entitlement to an award. But trial courts need not, and
indeed should not, become green-eyeshade accountants. The essential goal in
shifting fees . . . is to do rough justice, not to achieve auditing perfection. So trial
courts may take into account their overall sense of a suit, and may use estimates in
calculating and allocating an attorney’s time.
Fox v. Vice, 563 U.S. 826, 838 (2011). The party seeking attorney’s fees “bears the burden of
establishing entitlement to an award and documenting the appropriate hours expended and hourly
rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
Unless otherwise indicated, case quotations omit all internal citations, quotations,
footnotes, and alterations.
Moreover, when a plaintiff has entered into a contingency fee agreement with his or her
counsel and also seeks a statutory award under Section 1988, the Court utilizes its supervisory
power to formulate a fee award that ensures the amount paid to the attorney would not result in a
windful recovery. See Wheatley v. Ford, 679 F.2d 1037, 1041 (2d Cir. 1982). “Although the
existence of a contingency contract is not sufficient reason to deny an award under section 1988,
the civil rights statutes should not be construed to provide windfall recoveries for successful
attorneys.” Id. “Section 1988’s aim is to enforce the covered civil rights statutes, not to provide
a form of economic relief to improve the financial lot of attorneys.” Perdue v. Kenny A. ex rel.
Winn, 559 U.S. at 552. The Court retains “considerable discretion in determining what
constitutes reasonable attorney’s fees in a given case.” Barfield v. New York City Health &
Hosps. Corp., 537 F.3d 132, 151 (2d Cir. 2008).
The Prison Litigation Reform Act (“PLRA”) further restricts the fees a court may award
the prevailing party in an action brought by a prisoner. See Shepherd v. Goord, 662 F.3d 603,
606 (2d Cir. 2011). Those restrictions include:
(1) In any action brought by a prisoner who is confined to any jail, prison, or other
correctional facility, in which attorney’s fees are authorized under section 1988 of
this title, such fees shall not be awarded, except to the extent that—
(A) the fee was directly and reasonably incurred in proving an actual
violation of the plaintiff’s rights protected by a statute pursuant to which a
fee may be awarded under section 1988 of this title; and
(B)(i) the amount of the fee is proportionately related to the court ordered
relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief
ordered for the violation.
(2) Whenever a monetary judgment is awarded in an action described in paragraph
(1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy
the amount of attorney’s fees awarded against the defendant. If the award of
attorney’s fees is not greater than 150 percent of the judgment, the excess shall be
paid by the defendant.
(3) No award of attorney’s fees in an action described in paragraph (1) shall be
based on an hourly rate greater than 150 percent of the hourly rate established under
Section 3006A of Title 18 for payment of court-appointed counsel.
42 U.S.C. § 1997e(d) (emphasis added).
Thus, once a Court determines an award of attorney’s fees is appropriate under the
PLRA, the award is first paid out of the prisoner’s award of damages. Only if the award of
attorney’s fees exceeds 25% of the judgment is a defendant required to cover the balance, up to
150% of the judgment. See Murphy v. Smith, 138 S. Ct. 784, 790 (2018).
As an initial matter, when the Court asked Mr. Diederich if he was interested in
representing plaintiff pro bono at trial, it did not contemplate that Mr. Diederich would enter into
a contingency fee agreement with plaintiff. 2 The Court must emphasize its displeasure with Mr.
Diederich’s contingency fee agreement, as the Court is not in the business of referring clients to
practicing attorneys. 3 However, despite its displeasure, the Court will not disrupt the
contingency fee agreement in this case. See Alderman v. Pan Am World Airways, 169 F.3d 99,
102–03 (2d Cir. 1999) (noting courts should be reluctant to disturb contingent fee arrangements
because “a contingency agreement is the freely negotiated expression both of a client’s
As Mr. Diederich accurately sets forth in his declaration in support of the application for
attorney’s fees, he told the Court he “would be willing to volunteer to undertake the
representation of any pro se litigant whose case was heading towards trial, in the interest of 1)
assisting the Court with its docket, recognizing that pro se cases are difficult for the court to
manage at trial, and 2) refreshing and keeping current [his] jury trial skills.” (Doc. #164, ¶ 4).
Indeed, in ten years on the bench, this Court has appointed pro bono counsel in numerous
civil rights cases, and counsel have either worked for free or been satisfied with a recovery of
statutory attorney’s fees in the event their client prevailed. So far as this Court is aware, this is
the first time such pro bono counsel entered into a contingency fee arrangement with the client
he or she volunteered to represent.
willingness to pay more than a particular hourly rate to secure effective representation, and of an
attorney’s willingness to take the case despite the risk of nonpayment”).
Nevertheless, an award of statutory attorney’s fees under Section 1988 in addition to the
contingency fee plaintiff’s counsel has already been paid would result in a windfall recovery for
counsel. Therefore, in an exercise of its discretion, the Court declines to grant the application for
a statutory fee award.
According to Mr. Diederich’s June 1, 2021, letter, plaintiff has already paid the agreedupon contingency fee of $216,667 for Mr. Diederich’s successful representation of plaintiff at
trial. Now, Mr. Diederich requests that the Court award statutory attorney’s fees in the amount
of $49,309—including $228 per hour for legal work, $228 per hour for travel reduced by 50%,
and $496 in costs. 4 However, as discussed above, because this action is governed by the PLRA,
any statutory fees awarded to plaintiff under Section 1988 must first be paid out of plaintiff’s
judgment, up to 25% of the judgment. Therefore, granting the application for statutory
attorney’s fees here would increase Mr. Diederich’s fees from $216,667 to $265,976 and reduce
by $49,309 the amount plaintiff would receive from the judgment. It would also increase Mr.
Diederich’s share of the judgment from 33.3% to approximately 41%. 5 Such a windfall would
“Since the aim of section 1988 ‘is to enable civil rights plaintiffs to employ reasonably
competent lawyers without cost to themselves if they prevail,’ the right to collect attorneys’ fees
under section 1988 belongs to the prevailing party rather than his attorney.” Gonzalez v. City of
New York, 2007 WL 9706463, at *6 (E.D.N.Y. Jan. 3, 2007) (quoting Venegas v. Mitchell, 495
U.S. 82, 86–87 (1989)).
One-third of $650,000 is approximately $216,667. If $49,309 is added to this amount,
the total is $265,976. However, as discussed above, in Murphy v. Smith, the Supreme Court
held “[i]n cases governed by § 1997e(d), . . . district courts must apply as much of the judgment
as necessary, up to 25%, to satisfy an award of attorney’s fees.” 138 S. Ct. at 790. This is unlike
cases governed exclusively by Section 1988, in which the losing defendant is required to pay
reasonable attorney’s fees to the prevailing plaintiff. See Venegas v. Mitchell, 495 U.S. at 90
not further the ends of the statute and would serve only to harm plaintiff’s interests. See Perdue
v. Kenny A. ex rel. Winn, 559 U.S. at 559 (“[U]njustified enhancements that serve only to enrich
attorneys are not consistent with the statute’s aim.”).
In his June 1, 2021, letter, Mr. Diederich insists there will be no duplicate or double
payment of attorney’s fees because he will “pay (or authorize the payment of) the balance of any
fee award to [plaintiff], to partially reimburse him the contingency fee he has paid to [Mr.
Diederich].” (Doc. #176 at 5). This proposal is nonsensical and can only be based on the
mistaken belief that the requested statutory attorney’s fees would be paid by defendants.
However, as the Court repeatedly explained during the May 3, 2021, conference, the attorney’s
fees requested in plaintiff’s application must first be paid out of plaintiff’s judgment, up to 25%
of the judgment. Therefore, granting the statutory attorney’s fee application would result in
duplicate or double payment of attorney’s fees to Mr. Diederich.
Further, the duplicative recovery requested here is particularly inappropriate in light of
Mr. Diederich’s and his co-counsels’ limited representation of plaintiff in this matter. Mr.
Diederich did not become involved in this case until it was ready for trial. He did not draft a
complaint, engage in dispositive motion practice, or participate in discovery or settlement
conferences. Although Mr. Diederich did a fine job preparing for and trying the case, resulting
in a substantial recovery for his client, unlike in other actions when attorneys and clients enter
into contingency fee arrangements, Mr. Diederich incurred very little risk that he would expend
significant time and effort pursuing a case that would not result in a verdict or settlement for
(permitting attorney to collect under contingency fee agreement because “§ 1988 controls what
the losing defendant must pay, not what the prevailing plaintiff must pay his lawyer”).
plaintiff. Thus, Mr. Diederich’s receipt of $216,667 pursuant to the contingency fee agreement
is more than enough to compensate him for his representation of plaintiff in this case. 6
Moreover, the availability of an award of attorney’s fees under Section 1988 is sufficient to
ensure that competent attorneys continue to protect the civil rights of injured plaintiffs in civil
Accordingly, awarding statutory attorney’s fees under Section 1988 would permit
plaintiff’s counsel to receive a windfall at his client’s expense. The Court denies the fee
application to avoid that result. 7
The motion for attorney’s fees and costs pursuant to 42 U.S.C. § 1988(b) is DENIED.
The Clerk is instructed to terminate the motion. (Doc. #163).
Dated: June 7, 2021
White Plains, NY
Vincent L. Briccetti
United States District Judge
Indeed, in his declaration in support of the fee application, Mr. Diederich states that he
expended 140 hours on the case. Given that he has already received a contingency fee payment
of $216,667, he has effectively been paid approximately $1,500 per hour for his efforts.
Courts formulating a fee award to avoid windfall recoveries for successful attorneys often
grant plaintiff’s application for fees and then reduce the fee owed to the attorney under the
contingency fee agreement by the amount of statutory award. See Wheatley v. Ford, 679 F.2d at
1041 (“[T]o the extent counsel receives payment of the section 1988 statutory award, his claim
for services rendered under his contingency fee arrangement with his client shall be deemed paid
and satisfied.”). Here, however, Mr. Diederich has already been paid under the contingency fee
agreement. Therefore, the Court cannot grant the requested statutory fees and deem the
contingency fee paid and satisfied.
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