Myers et al v. Board of Education of the Batavia City School District

Filing 35

DECISION AND ORDER GRANTING Plaintiffs' 29 Motion for Fees in the amount of $68,545.20. Signed by William M. Skretny, United States District Judge on 9/4/2016. (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SUSAN MYERS, et al.,
Plaintiffs,
v.

DECISION AND ORDER
13-CV-342S

BOARD OF EDUCATION OF THE BATAVIA
CITY SCHOOL DISTRICT,
Defendant.

I. INTRODUCTION
Plaintiffs commenced this action on April 5, 2013 against the Batavia City School
District, seeking injunctive and equitable relief for alleged sexual discrimination in
violation of Title IX and the Fourteenth Amendment, on behalf of themselves and all
parties similarly situated.

(Docket No. 1, Complaint.)

On May 2, 2014, this Court

granted a joint motion, allowing the parties to dispense with the notice and fairnesshearing requirements of the Federal Rule of Civil Procedure 23(e)(1)-(2) (Docket No.
23), and, on May 30, 2014, this Court approved a consent decree presented by the
parties (Docket No. 26). Currently pending before this Court is Plaintiffs’ motion for
fees. For the following reasons, the motion for fees is granted.
II. BACKGROUND
The named plaintiffs are female softball-playing students in the Batavia City
School District. (Compl. ¶¶ 6-8.) They filed suit seeking declaratory and injunctive
relief, alleging that the Batavia City School District discriminated against female student
softball players “by providing superior facilities and equipment to the boys’ baseball
program than it provides to the girls’ softball program” at Batavia High School. (Id. at ¶
1

1.) They sought no monetary damages.
Plaintiffs cited as the “most glaring example of the District’s disparate treatment”
the difference between the facilities provided to the boys’ baseball team and the girls’
softball team. Specifically, the varsity boys’ baseball team at Batavia High School “play
all home games at a professional minor league baseball stadium,” and the varsity girls’
softball team played in “a field that is poorly maintained, hazardous, lacks outfield
fencing, and has no scoreboard, dugouts or stands.” (Id.) The Complaint alleged that
the junior varsity boys’ baseball field was superior in numerous ways to the varsity girls’
softball field, and better maintained by the Batavia City School District. (Id. ¶¶ 58-61.)
The Complaint further alleges that the girls’ softball team was not given access to
bathrooms and locker rooms (while the boys were), that the lack of lights on the girls’
field limited scheduling of games, that the girls received inequitable equipment and
funding, and that the District has been aware of its failure to comply with Title IX since at
least February of 2011. (Id. at ¶¶ 68-80.)
Plaintiffs requested “improvement of [the girls’ softball team’s] substandard
facilities.” (Id. ¶ 1) Their prayer for relief specifically sought “preliminary and permanent
injunctive relief requiring the Defendant to remediate its violations of federal law
prohibiting sex discrimination by, among other required actions, providing female
student athletes with treatment and benefits comparable to those provided to male
athletes.” (Compl. at p. 17-18.) The Complaint also sought attorneys’ fees. (Id.)
As represented by Defendant’s counsel in his Affirmation in Support of the Joint
Motion for Approval of Proposed Consent Decree (see Docket No. 24-1, the
“Affirmation” or “Aff.”), after initiation of the suit, the parties engaged in arm’s length

2

discussions about the legal and factual elements at issue, including two rounds of
“comprehensive written proposals and counterproposals,” and a meeting with a
mediator. (Aff. at ¶¶ 7-8.) During this period, both parties continued their litigation
efforts, and Plaintiffs prepared and served “extensive discovery demands in anticipation
of a potential breakdown in settlement discussion.” (Id.) Through the assistance of the
mediator, the parties reached a settlement in principle in late November, 2013, though
they “continued to negotiate the terms and details of the ultimate Consent Decree . . .
until early April 2014.” (Id. at ¶ 9.) The terms of the consent decree
reflect acknowledgement of, or provisions for, District action with respect
to all of these program levels, including but not limited to: (1) agreement
to a series of field modifications and installment of additional features at
the girls’ varsity softball field . . . ; (2) the addition of field material (i.e.,
ballmix) at the District’s junior varsity facility and installation of a new
safety feature (fence cap) at that facility; and (3) acknowledgement of the
District’s “skinning” (i.e., conversion of the infield to an all-dirt composition)
of its primary girls’ modified softball field in September 2013.
(Id. at ¶ 10.) And, as affirmed by Defendant’s counsel, “[e]very significant area of
grievance offered by the Plaintiffs’ Complaint, moreover, is either provided for by the
Consent Decree’s terms, or has otherwise been resolved through a course of
discussion and negotiation in arriving at the Consent Decree.” (Id. at ¶ 17.)
In the decision approving the proposed consent decree, this Court found “that
consent decree’s terms, reached as a result of “good faith, arms-length bargaining
between experienced counsel” are “fair and adequate and are not unlawful,
unreasonable, or against public policy.” (See Docket No. 26 at ¶ 2 (quoting United
States v. Ashland, Inc. , No. 04-CV-904S, 2008 WL 2074079, at *1 (W.D.N.Y. May 14,
2008))).

The Court approved the proposed consent decree, in part, “because it

addresse[d] nearly all the concerns raised in Plaintiffs’ complaint.” (Id. at ¶ 3.)
3

Plaintiffs now move for $65,906.80 in attorneys’ fees and $2,638.40 in cost
reimbursement, for a total of $68,545.20. 1 (Docket No. 29.) Defendant opposes the
motion, arguing that the fees should be denied or reduced.
III. DISCUSSION
Plaintiffs move for fees pursuant to 42 U.S.C. § 1988(b), which states, in relevant
part: “In any action or proceeding to enforce a provision of [Title IX] the court, in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee.” A district
court has discretion to determine the amount of fees that would be appropriate to satisfy
a fee award. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 1941, 76 L. Ed.
2d 40 (1983); see also Fed. R. Civ. P. 54(d).
A.

Calculation of Reasonable Fees and Costs
Both the Second Circuit and the Supreme Court have held that “the lodestar—the

product of a reasonable hourly rate and the reasonable number of hours required by the
case—creates a ‘presumptively reasonable fee.’” Millea v. Metro-North R.R. Co., 658
F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood
Assoc. v. Cnty. of Albany (“Arbor Hill”), 522 F.3d 182, 183 (2d Cir. 2008)).

The

application of the lodestar method in this Circuit also requires a district court, “in
exercising its considerable discretion, to bear in mind all of the case-specific variables
that [the Second Circuit] and other courts have identified 2 as relevant to the

1

Plaintiffs initially sought $63,181.50 in attorneys’ fees and $2,638.40 in cost reimbursement, totaling
$65,819.90. In their reply, filed on November 6, 2015, Plaintiffs subtracted $2,650.00 in attorneys’ fees
billed by a law student, and added the $5,375.30 spent preparing the reply memorandum, resulting in a
revised total of $68,545.20 for fees and costs. (See Docket No. 34-1.)
2
The most-cited variables are the so-called Johnson factors, including: “(1) the time and labor required;
(2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service
properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the
attorney’s customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations
imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained;

4

reasonableness of attorney’s fees in setting a reasonable hourly rate.” Arbor Hill, 522
F.3d at 190 (emphasis removed); see Barfield v. N.Y.C. Health and Hosp. Corp., 537
F.3d 132, 151-52 (2d Cir. 2008). Ultimately, “the presumptively reasonable fee is what
a reasonable paying client would be willing to pay, giving that a client wishes to spend
the minimum necessary to litigate the case effectively.” Disabled Patriots of America,
Inc. v. Niagara Group Hotels, LLC, 688 F. Supp. 2d 216, 223 (W.D.N.Y. 2010) (internal
quotation marks omitted); see Arbor Hill, 522 F.3d at 184.
The fee-seeking party bears the burden of “establishing entitlement to an award
and documenting the appropriate hours expended and hourly rates.” See Savoie v.
Merchants Bank, 166 F.3d 456, 463 (2d Cir. 1999) (quoting Cruz v. Local Union No. 3 of
Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994)). “Applications for fee
awards should generally be documented by contemporaneously created time records
that specify, for each attorney, the date, the hours expended, and the nature of the work
done.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998).
Plaintiffs seek $65,906.80 in attorneys’ fees. This represents 297 hours of work
expended by three attorneys over the course of more than three years. 3 Plaintiffs’
counsel submitted documentation of legal work, including sufficiently detailed time
records for each attorney and an explanation on the hourly rates sought for each
attorney. (See Docket Nos. 29.2, 29-3).

(9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the
nature and length of the professional relationship with the client; and (12) awards in similar cases.” Arbor
Hill, 522 F.3d at 187 n. 3 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974)).
3
These numbers reflect billing judgment already applied by Plaintiffs. The actual number of hours spent
was 364.9, and the actual number of attorneys on the team was four (plus a second year law student).

5

1. Hourly Rate
The three attorneys’ hourly fees range from $185 (for Kristin Small, an associate
with seven years’ experience) to $305 (for Jonathan Feldman and Peter Dellinger,
senior counsel with 25-30 years’ experience). Generally, the reasonable hourly rate is
the hourly rate employed by attorneys in the district in which the litigation is brought.
Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009). Defendant argues
that Ms. Small’s hourly rate should be reduced to $150, and that Mr. Feldman and Mr.
Dellinger’s hourly rates should be reduced to $240-$250.
Although Defendant points to certain case law where lower rates were found to
be appropriate, Defendant failed to distinguish a recent case in which this Court
approved hourly rates identical to those sought here. See S.M. v. Evans-Brant Cent.
Sch. Dist., No. 09-CV-686S, 2013 WL 3947105, at *14 (W.D.N.Y. July 31, 2013) (finding
hourly rates of $305 for experienced attorneys and $185 for less-experienced counsel
“reasonable, equitable, and proper” based on “consideration of the relevant Johnson
factors and the submissions made by” the attorneys).

Based on its review of the

Johnson factors, submissions made by the attorneys and the relevant law, this Court
finds the rates sought by Plaintiffs to be “in line with those rates prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience,
and reputation.” Reiter v. MTA New York City Transit Authority, 457 F.3d 224, 232 (2d
Cir. 2006) (internal quotation marks omitted); see also Brown v. Mustang Sally's Spirits
& Grill, Inc., No. 12-CV-529S, 2013 WL 5295655, at *4 (W.D.N.Y. Sept. 18, 2013) ($300
hourly rate appropriate for an attorney of 20 or more years of experience). Indeed, at
least one Court in this District has found significantly higher rates to be appropriate.

6

See Davis v. Eastman Kodak Co., 758 F. Supp. 2d 190 (W.D.N.Y. 2010) (approving
$450 hourly rate for attorneys with 20 years or more experience; $350 hourly rate for
attorneys with 11-20 years’ experience; $300 hourly rate for 6-10 years’ experience; and
$250 hourly rate for 0-5 years’ experience.)
Accordingly, Ms. Small’s hourly rate will be $185, and Mr. Feldman and Mr.
Dellinger’s hourly rates will be $305.
2. Hours Expended
Defendant makes several categorical objections to the hours billed, arguing that
they are unreasonable and duplicative. For example, Defendant points to the fact that
two attorneys attended depositions, citing Grievson v. Rochester Psychiatric Ctr., 746 F.
Supp. 2d 454, 467-68 (W.D.N.Y. 2010).

(Def.’s Opp. at p. 14).

Grievson is

distinguishable, because the Court reduced hours where the reason for multiple
attorneys attending depositions was to train a junior litigator. 746 F. Supp. 2d at 467.
Defendant does not contend that training was the reason that Plaintiffs brought two
attorneys to depositions and, indeed, Plaintiffs note that Defendant also had two
attorneys attend each deposition. This suggests that the depositions were not routine,
and that the attendance of two attorneys was reasonable in this matter.
Defendant also objects to several specific entries, arguing that they reflect
excessive billing. After careful review of the attorneys’ time sheets, however, this Court
is satisfied that these hours are reasonable. Moreover, Plaintiffs have already reduced
the hours for which they seek compensation by a combined total of 67.9 hours,
including 8.4 hours by senior attorney Bryan Hetherington, who has 40 years of litigation
experience and bills at $350 per hour. Plaintiffs’ own reductions equal a more than 18%

7

cut of hours, and this Court finds such a “reduction is sufficient to account for any
potentially duplicative or unnecessary efforts that might have been undertaken by
plaintiff's counsel, and therefore conclude that the amount of attorney’s fees requested .
. . is appropriate. See Halecki v. Empire Portfolios, Inc., 952 F. Supp. 2d 519, 522
(W.D.N.Y. 2013).
3. Total Fee Award
Having found the hourly rates and hours expended to be reasonable, the lodestar
calculation is $65,906.80.
B.

Reduction to the Lodestar
Defendant contends that the attorneys’ fees should be denied or reduced across

the board because Plaintiffs received limited success and because Defendant is a
public entity.
1. Plaintiffs’ Success
As recognized by the Second Circuit, “the most critical factor in a district court’s
determination of what constitutes reasonable attorney’s fees in a given case is the
degree of success obtained by the plaintiff.” Barfield, 537 F.3d at 152 (citations and
quotation marks omitted). Thus, “[a] District Court may adjust the lodestar when it does
not adequately take into account a factor that may properly be considered in
determining a reasonable fee, such as cases where the plaintiff only had a small degree
of success.” C.G. v. Ithaca City Sch. Dist., 531 F. App’x 86, 88 (2d Cir. 2013) (internal
citations and quotations omitted); see also Barfield, 537 F.3d at 152 (defining “degree of
success” as “the quantity and quality of relief obtained, as compared to what the plaintiff
sought to achieve as evidenced in her complaint” (internal quotation marks omitted)). “If

8

. . . a plaintiff has achieved only partial or limited success, the product of hours
reasonably expended on the litigation as a whole times a reasonable hourly rate may be
an excessive amount.” Hensley, 461 U.S. at 436.
Defendant argues that “Plaintiffs achieved virtually nothing in the way of
success.” (Docket No. 33-4, Mem. in Opp. At 5 (emphasis in original).) Defendant
contends that the upgrading of the softball field “was not a result of the Plaintiffs’ action”
and had long been underway. (Id. at 6 (emphasis in original).) This argument would
appear to be directly at odds with the Affirmation in Support of the Joint Motion for
Approval of Proposed Consent Decree submitted by Defendant’s counsel, who affirmed
that, “[e]very significant area of grievance offered by the Plaintiffs’ Complaint, moreover,
is either provided for by the Consent Decree’s terms, or has otherwise been resolved
through a course of discussion and negotiation in arriving at the Consent Decree.” (Aff.
at ¶ 17.)

Further, if Plaintiffs’ suit was not the reason for the changes, and such

changes had long been underway, Defendant should have settled the suit earlier,
thereby avoiding costs for both sides.
This argument suggests that Defendant’s counsel was not entirely forthcoming in
the Affirmation, or that this suit was a waste of time and money for both sides. Giving
all parties the benefit of the doubt, and relying on the Affirmation made by Defendant’s
counsel, this Court finds that Plaintiffs achieved nearly all they sought through their
Complaint, and there is accordingly no basis to reduce attorneys’ fees due to limited
success.
2. Defendant’s Status as a Public Entity
At least one Court in this District has cautioned that “the costs to be borne by

9

taxpayers should weigh heavily in a court's determination of a reasonable fee award . . .
.” Eames v. Shalala, No. 81-CV-0483E, 1994 WL 520972, at *5 (W.D.N.Y. Sept. 22,
1994). However, this was a general caution, as opposed to the basis for a basis for a
reduction of the lodestar in that case. Id. Indeed, Defendant does not cite a single case
in this Circuit where the status of a public entity and the possible costs to the taxpayer
formed the basis for a public entity reduction, nor does this Court find such a reduction
to be called for here.
C.

Costs
Plaintiffs seek to recover $2,638.40 in costs, which includes the filing fee in

federal court, payment for half of the court-appointed mediator, and the cost of an
independent appraisal of Defendant’s junior varsity softball field. (Docket No. 29-1 at ¶
36.) Defendant does not dispute these amounts. Accordingly, this request is granted.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for fees is granted in the amount of
$2,638.40 as to costs and $65,906.80 as to fees, totaling $68,545.20.
V. ORDERS
IT HEREBY IS ORDERED that Plaintiffs’ Motion for Fees (Docket No. 29) is
GRANTED in the amount of $68,545.20.

SO ORDERED.
Dated: September 4, 2016
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

10