Warr et al v. Liberatore et al

Filing 200

DECISION & ORDER Defendants' bill of costs 156 is granted in part, and defendants are awarded $1,202.65 in costs. The Clerk of the Court is directed to amend the judgment entered in this case to include $1,202.65 in costs. Addition ally, I find plaintiffs are entitled to be reimbursed the sum of $21,356.45 in attorneys' fees and costs. The above-stated sums are to be paid by no later than thirty (30) days from the date of this Order. Signed by Hon. Marian W. Payson on 3/31/2022. (KAH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
BENNY T. WARR and NINA M. WARR,
DECISION & ORDER
Plaintiffs,
13-CV-6508MWP
v.
ANTHONY R. LIBERATORE, et. al,
Defendants.
_______________________________________

In early 2019, this Court conducted a jury trial that resulted in judgment in favor
of plaintiff Benny T. Warr against defendant Anthony R. Liberatore and judgments in favor of
defendants James Sheppard, Joseph M. Ferrigno, III, and Mitchell R. Stewart, and the City of
Rochester. (Docket ## 144, 149, 183). Warr was awarded $1.00 in nominal damages on his
Section 1983 excessive force claim against Liberatore. (Docket # 183). On February 26, 2019,
defendants submitted a bill of costs seeking reimbursement of $30,063.70 in costs. (Docket
# 156).
Following the trial, plaintiffs moved for a new trial and to set aside the verdict and
for sanctions. (Docket ## 158, 170). On March 30, 2020, this Court issued an Amended
Decision and Order denying the motion for a new trial and to set aside the verdict but granting in
part the motion for sanctions. (Docket # 179). Familiarity with the prior Amended Decision and
Order is assumed. In that decision, I determined that monetary sanctions were warranted
because plaintiffs had demonstrated that during trial defendants’ counsel had engaged in
“repeated misconduct . . . evidencing a reckless disregard for this Court’s rulings.” (Id. at 48).
Accordingly, defendants’ counsel was ordered to “reimburse those fees and costs incurred by

plaintiffs’ counsel in researching, preparing and filing plaintiffs’ post-trial submissions . . . [,]
including the costs of ordering the transcript.” (Id. at 48). I further directed that in the event the
parties were unable to stipulate to the amount owed, plaintiffs’ counsel should file an affidavit
outlining those fees and costs, with supporting documentation. (Id. at 49-50). Plaintiffs
appealed this Court’s denial of their motion for a new trial, but neither party appealed this
Court’s determination that sanctions were warranted. (Docket # 199). On April 19, 2021, the
Second Circuit affirmed the judgments entered by this Court. (Id.).
On April 17, 2020, plaintiffs’ counsel submitted an affidavit with attached
supporting documentation seeking $28,507.50 in fees and $6,033.45 for the costs of ordering the
trial transcript. (Docket # 184). At this time, the only issues pending before the Court are
defendants’ bill of costs and plaintiffs’ application for fees.

I.

Bill of Costs
Defendants seek reimbursement of their costs in the amount of $30,063.70

pursuant to Rule 68 of the Federal Rule of Civil Procedure. According to defendants, on April
28, 2015, defendants served plaintiffs with an offer of judgment in the amount of $35,000.
(Docket ## 156 at ¶ 5; 156-3). Plaintiffs did not accept the offer of judgment and ultimately
obtained a verdict against defendant Liberatore in the amount of $1.00. (Docket # 156 at ¶¶ 6,
9). Defendants maintain that they are entitled to reimbursement of the costs they incurred
subsequent to service of the unaccepted offer of judgment, which they assert consist of $2,818.50
for deposition transcripts, $26,770 in expert witness fees, and $475.20 for demonstrative exhibits
used at trial. Id. at ¶¶ 12-14).

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Rule 68 provides:
At least 14 days before the date set for trial, a party defending
against a claim may serve on an opposing party an offer to allow
judgment on specified terms, with the costs then accrued. If, within
14 days after being served, the opposing party serves written notice
accepting the offer, either party may then file the offer and notice
of acceptance, plus proof of service. The clerk must then enter
judgment.
An unaccepted offer is considered withdrawn, but it does not
preclude a later offer. Evidence of an unaccepted offer is not
admissible except in a proceeding to determine costs.
If the judgment that the offeree finally obtains is not more
favorable than the unaccepted offer, the offeree must pay the costs
incurred after the offer was made.
Fed.R.Civ.P. 68(a)-(b), (d). “The purpose of Rule 68 is to encourage settlement and avoid
litigation.” Van Echaute v. Law Office of Thomas Landis, Esq., 2011 WL 1302195, *1
(N.D.N.Y. 2011). Rule 68 is a cost-shifting provision, which “in essence shifts the risk of going
forward with a lawsuit to the [plaintiff], who becomes exposed to the prospect of being saddled
with the substantial expense of trial.” Christian v. R. Wood Motors, Inc., 1995 WL 238981, *4
(N.D.N.Y. 1995) (quoting Mallory v. Eyrich, 922 F.2d 1273, 1278 (6th Cir. 1991)).
Plaintiffs oppose defendants’ bill of costs on the grounds that it is premature
because at the time it was filed a judgment had not yet been entered in plaintiffs’ favor. (Docket
# 163 at 3-4). They also contend that defendants are not entitled to recover post-offer costs
because the offer of judgment was not made in good faith. (Id. at 4-5). Finally, plaintiffs
maintain that, in the event costs are awarded, defendants are not entitled to recover expert fees in
excess of the statutory daily attendance fee for witnesses. (Id.).
With respect to timing, I agree with plaintiffs that defendants’ request for
reimbursement of costs was premature at the time it was filed because judgment had not yet been

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entered in plaintiffs’ favor. See Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981)
(“[“Rule 68] applies only to offers made by the defendant and only to judgments obtained by the
plaintiff[;] [i]t therefore is simply inapplicable to this case because it was the defendant that
obtained the judgment”); Sparaco v. Lawler, Matusky & Skelly, 201 F.R.D. 335, 336 (S.D.N.Y.
2001) (“defendants cannot rely on Rule 68 to recover costs and attorneys’ fees because [it] does
not by its terms apply to situations in which the defendant prevails altogether – that is, where the
claims against the offering defendants are dismissed entirely”). Nevertheless, judgment has now
been entered in Warr’s favor against Liberatore (Docket # 183), and I conclude that defendants’
request for reimbursement of their costs is now ripe for determination.
I turn next to Warr’s conclusory assertion that the $35,000 offer of judgment by
defendants was insufficient to trigger the cost-shifting provisions of Rule 68 considering the
“significant injuries and damages” alleged by Warr. (Docket # 163 at 4). Even if Rule 68 could
be read to impose a reasonableness requirement – a contention not supported by the caselaw
upon which plaintiff relies, see Delta Air Lines, Inc. v. August, 450 U.S. at 355 (“the plain
language of [Rule 68] makes it unnecessary to read a reasonableness requirement into the Rule[;]
[a] literal interpretation totally avoids the problem of sham offers, because such an offer will
serve no purpose, and a defendant will be encouraged to make only realistic settlement offers”) –
plaintiff has not suggested any basis upon which to conclude that defendants’ offer was made in
bad faith. The simple facts that four of the five defendants obtained judgment in their favor
dismissing plaintiffs’ claims and that Warr was awarded only nominal damages on his successful
claim against the remaining individual defendant belie plaintiffs’ contention that the offer was so
unreasonable as to amount to bad faith. See Ciraolo v. City of New York, 2000 WL 1521180, *2
(S.D.N.Y. 2000) (“[h]ere, [d]efendants offered [p]laintiff a pre-trial Rule 68 offer of judgment in

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the amount of $25,001, . . . [and] [p]laintiff ultimately recovered a judgment of $19,645, an
amount less than the pre-trial offer of judgment[;] [n]o allegations have been made that
[d]efendants’ offer was not made in good faith, and the . . . amount arguably warranted serious
consideration by [p]laintiff”). Indeed, in upholding the judgment awarding nominal damages,
the Second Circuit observed that the “verdict was well supported by the weakness of the
evidence that Warr suffered from any acute injuries following his arrest.” (Docket # 199 at 9).
Finally I turn to question of which costs are properly reimbursable under Rule 68.
As noted above, defendants maintain that they are entitled to be reimbursed $2,818.50 in
deposition costs, $475.20 for demonstrative exhibits used at trial, and $26,770 for expert witness
fees. (Docket # 156 at ¶¶ 12-14). I address each of these requests below.
Rule 68 requires a prevailing plaintiff to pay a defendant’s post-offer costs if the
plaintiff’s judgment is less favorable than the unaccepted offer. See Stanczyk v. City of New
York, 752 F.3d 273, 281 (2d Cir. 2014). The term “costs” within the meaning of Rule 68 “was
intended to refer to all costs properly awardable under the relevant substantive statute or other
authority,” id. (quoting Marek v. Chesny, 473 U.S. 1, 9 (1985)), including any costs recoverable
pursuant to Rule 54, Boisson v. Banian Ltd., 221 F.R.D. 378, 380 (E.D.N.Y. 2004). “The term
‘costs,’ as used in Rule 54, includes only the specific items enumerated in 28 U.S.C. § 1920,”
which sets forth six general categories of taxable costs. Chain v. N.E. Freightways, Inc., 2021
WL 1611953, *1-2 (S.D.N.Y. 2021) (internal quotation omitted). Accordingly, because the
judgment in favor of Warr was less favorable than the amount offered by defendants, Warr must
reimburse defendants for taxable costs they incurred after April 28, 2015, the date they served
the offer of judgment. Id.

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With respect to defendants’ request for costs related to deposition transcripts and
demonstrative trial exhibits, I find that such costs are properly taxable as they fall within the
categories enumerated in Section 1920. See 28 U.S.C. § 1920(2), (4). Although plaintiffs have
not specifically challenged defendants’ request for these costs, defendants’ submission
demonstrates that the majority of the depositions for which they seek transcript costs occurred
prior to service of the offer of judgment. (Docket ## 156 at ¶ 12; 163). Because defendants are
only entitled to be reimbursed for costs incurred after April 28, 2015, only the costs for the
depositions of Sherman Hardy, totaling $229, and Michael Callari, totaling $418.45, are
reimbursable.1 (Docket # 156-4 at 5-6). Accordingly, I find that defendants are entitled to
reimbursement in the amounts of $475.20 for demonstrative exhibits and $647.45 for deposition
transcripts.
Turning next to defendants’ request for $26,770 in expert witness fees, I find that
such costs exceed the reimbursable amount. “[C]osts under Rule 54(d) do not include fees
charged by expert witnesses, and certainly do not include . . . fees for pre-trial work, in
anticipation of litigation.” Millennium Pipeline Co. v. Acres of Land, Inc., 2015 WL 6126949,
*4 (W.D.N.Y. 2015). Rather, witness fees properly taxable as costs under Rule 54(d) are limited
to “an attendance fee of $40 per day for each day’s attendance.” Id. (quoting 28 U.S.C.
§ 1821(b)); BIC Leisure Prods., Inc. v. Windsurfing Int’l, Inc., 850 F. Supp. 224, 229 (S.D.N.Y. )
(“Title 28 U.S.C. § 1920 provides that a judge or clerk of any court . . . may tax as costs . . .
[f]ees and disbursements . . . for witnesses”[;] [h]owever, 28 U.S.C. § 1821(b) limits the witness

1

The dates of the invoices for the remaining depositions submitted by defendants each predate service of
the April 28, 2015 offer of judgment. (Docket # 156-4 at 1-4).

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fees authorized by section 1920 to an attendance fee of $40 per day for each day’s attendance
plus travel time[;] [t]he Supreme Court has held that, absent express statutory authority to make
further award, these provisions define the full extent of a federal court’s power to shift the costs
of payments to witnesses”) (internal quotations and brackets omitted), appeal dismissed, 45 F.3d
442 (2d Cir. 1994). Moreover, expert witness fees are not recoverable as costs under Section
1983 (even if defendants were entitled to rely on Section 1983 as a statutory basis for their
claimed fees). See Montanez v. City of Syracuse, 2020 WL 5123134, *15 (N.D.N.Y. 2020)
(“[p]laintiff cannot recover expert fees as part of her costs because § 1988 does not allow the
shifting of expert witness fees in § 1983 actions”) (internal quotations omitted). Accordingly,
defendants’ reimbursement for the trial testimony of their two expert witnesses is limited to $80.
In sum, for the reasons stated above, I find that defendants are entitled to
allowable costs in the amount of $1,202.65 ($475.20 + $647.45 + $80).

II.

Amount of Attorneys’ Fees
I turn next to plaintiffs’ request for reimbursement of attorneys’ fees in

connection with the sanctionable conduct of defendants’ counsel. Plaintiffs’ counsel has
submitted an affidavit, accompanied by a summary of billing records, requesting fees in the
amount of $28,507.50 and transcript costs in the amount of $6,033.45. (Docket # 184 and
Exhibits (“Ex.”) B and C). Defendants have opposed this request as excessive and as premature
because plaintiffs failed to confer with defendants in an attempt to reach an agreement on the

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amount requested.2 (Docket # 187). For the reasons discussed below, plaintiffs are hereby
awarded attorneys’ fees and costs in the amount of $21,356.45.
Defendants maintain that plaintiffs’ request for reimbursement of fees is
premature because plaintiffs’ counsel made no effort to negotiate the requested amount with
defendants in contravention of this Court’s Amended Decision and Order. (Id. at ¶¶ 3-6).
Plaintiffs disagree that the Court’s Amended Decision and Order required them to negotiate with
defendants. Rather, plaintiffs maintain that it merely directed that the parties attempt to
determine whether they could stipulate to the amount. (Docket # 188 at ¶¶ 21-29). According to
plaintiffs’ counsel, he received an email from defendants’ counsel suggesting that the parties
discuss whether to “offset[]” defendants’ “considerable” cost application against amounts
claimed by plaintiffs in connection with the sanctions award. (Docket ## 188 at ¶¶ 25-29;
188-1). Because plaintiffs opposed the majority of the costs sought by defendants, plaintiffs’
counsel determined that the parties would be unable to stipulate to an amount. (Id.). On this
record, I find that the issue of plaintiffs’ fees request is ripe for determination.
I turn next to the issue of the reasonableness of the fees requested. Defendants
maintain that plaintiffs’ request is excessive on three separate grounds: (1) certain hours are
duplicative or fall outside of the scope of the sanctions authorized by the Court; (2) the hourly

2

Defendants also contend that plaintiffs’ counsel has failed to establish that the submitted billing records
were contemporaneous. (Docket # 187 at ¶¶ 8-12). In support of this contention, defendants cite to two entries that
appear to contain the incorrect date. (Id.). Plaintiffs’ counsel has represented that the billing records were recorded
contemporaneously and has explained that the entries identified by defendants reflect simple typographical errors.
(Docket ## 184 at ¶ 5; 188 at ¶¶ 4, 6-8). On this record, I find that plaintiffs’ counsel has established that he
contemporaneously recorded his time.
Defendants also maintain that that the amount of fees requested by plaintiffs’ counsel differs substantially
from amounts that he has requested in connection with other litigation. (Docket # 187 at ¶ 13). As noted by
plaintiffs’ counsel, however, the transcript defendants attach to support their argument relates only to disbursements
made by plaintiffs’ counsel in connection with that litigation – not, as defendants suggest, to plaintiffs’ counsel’s
fees. (Docket ## 187-1; 188 at ¶¶ 9-17).

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rate requested is unreasonable; and, (3) the number of hours for which reimbursement is sought
is excessive. (Docket # 187 at ¶¶ 7, 14-21).
An award of reasonable attorneys’ fees is typically calculated using the lodestar
methodology, which requires the court to determine counsel’s reasonable hourly rate and
multiply it by the reasonable number of hours expended by counsel; that figure may then be
adjusted in the district court’s discretion. See, e.g., Perdue v. Kenny A., 559 U.S. 542, 551
(2010) (“the lodestar figure has, as its name suggests, become the guiding light of our
fee-shifting jurisprudence”) (internal quotation omitted); Grievson v. Rochester Psychiatric Ctr.,
746 F. Supp. 2d 454, 460-61 (W.D.N.Y. 2010); Jack v. Golden First Mortg. Corp., 2008 WL
2746314, *2 (E.D.N.Y. 2008); Moreno v. Empire City Subway Co., 2008 WL 793605, *2
(S.D.N.Y. 2008); see also Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of
Albany, 522 F.3d 182, 190 (2d Cir. 2008) (lodestar figure is the “presumptively reasonable fee”).
According to plaintiffs’ counsel, time entries reflecting work relating to the
sanctionable conduct totaled approximately 81.45 hours. (Docket # 184 at ¶ 7 and Ex. B).
Plaintiffs’ counsel then multiplied the total hours expended by an hourly rate of $350, resulting
in $28,507.50. (Id. at ¶¶ 9-10 and Ex. A). Plaintiffs’ counsel represents that “[i]n an effort to
minimize opposition” to the requested amount, he did not include any hours expended by his
staff, including paralegals, but did not specify how much time was deducted or submit any time
entries reflecting such work. (Docket # 188 at ¶ 5).
Defendants object that the $350 hourly rate requested by plaintiffs’ counsel is
unreasonably high, suggesting that a rate of no more than $295 per hour is more consistent with
allowable rates in this district. (Docket # 187 at ¶¶ 19-20). As reflected in plaintiffs’ counsel’s
submission, he is an experienced litigator with over twenty-five years of practice, primarily in

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the fields of personal injury and civil rights litigation. (Docket # 184 at ¶¶ 11-14). Based upon
my familiarity with prevailing hourly rates in this district, I find that the proposed $350 hourly
rate is unreasonable and conclude that the $275 is more commensurate with prevailing local rates
and is appropriate in this case. See Johnson v. New Bern Transp. Corp., 2020 WL 6736861,
*4-5 (W.D.N.Y. 2020) (“[t]he [c]ourt finds the requested [$300] hourly rate and hours
reasonable given recent case law in this district, [the attorney’s] experience in consumer
litigation, his work drafting the pleadings and motions, and his efforts to resolve the case”);
Figueroa v. KK Sub II, LLC, 2019 WL 1109864, *10 (W.D.N.Y. 2019) (setting hourly rates for
experienced attorneys in this district between $250 and $300); Taylor v. Delta-Sonic Car Wash
Sys., Inc., 2017 WL 436045, *7 (W.D.N.Y. 2017) (“[a]n hourly rate of $250 for legal services
. . . strikes this [c]ourt as both fair and reasonable given . . . the hourly rate employed by
comparable attorneys here in the Western District”); Costa v. Sears Home Improvement Prods.,
Inc., 212 F. Supp. 3d 412, 420 (W.D.N.Y. 2016) (“[t]he hourly rates generally allowed in this
District . . . are in the range of $225-$250 for partner time or senior associate time, $150-$175
for junior associate time, and $75 for paralegal time”).
With respect to the number of hours expended, defendants urge the Court to
disallow 11.8 hours as duplicative and unnecessarily expended. (Docket # 187 at ¶ 15). After
the verdict, based upon oral representations of counsel that they intended to file post-trial
motions, the Court set a briefing schedule for such motions, which stated that any motions must
be “supported by references to the evidentiary record where appropriate.” (Docket # 150).
Despite that direction, plaintiffs’ original post-trial submissions did not include any transcript
citations. Rather, it was supported entirely by plaintiffs’ counsel’s “recollection and/or notes of
testimony, evidence, and arguments presented to the jury” (Docket # 166), which led the Court to

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issue a further order directing plaintiffs “to supplement their post-trial motion with an amended
affidavit and memorandum of law supported by specific citations to the trial record and
accompanied by the trial transcript” (id. at 2).
Defendants maintain that time entries for February 12, 13, and 23, 2019 reflect
that plaintiffs’ counsel spent approximately 11.8 hours reviewing his trial notes, including notes
of the testimony of Levine, Ameduri, Kuttner, Benedict, Molinari, Reagles, Reiber, in order to
draft his original submission. (Docket ## 187 at ¶¶ 14-15; 184 at Ex. B). Later time entries
demonstrate that plaintiffs’ counsel reviewed this testimony again after obtaining the trial
transcript – a duplication of time that occurred as a result of counsel’s disregard of the Court’s
instructions. (Docket # 184 at Ex. B (entries for September 10, 11, 12, 17). I agree with
defendants that a reduction of 11.8 hours as duplicative is reasonable.
Defendants also challenge time entries from November 2, 2019 and March 3 and
13, 2020, on the grounds that they do not represent time spent “researching, preparing, and filing
plaintiffs’ post-trial submissions” and thus are not compensable pursuant to this Court’s prior
decision and order. (Docket # 187 at ¶ 21). Having reviewed the entries, the work reflected
clearly related to plaintiffs’ post-trial motion practice and defendants’ counsel’s sanctionable
conduct. I find that the time is properly compensable and that deduction of these hours is not
warranted.
Defendants also object to the number of hours for which reimbursement is sought
on the grounds that the total hours are excessive and consist of “block-billing,” entries which
“inclu[de] . . . more than one task in an entry[,] making it difficult for the [c]ourt to ascertain
whether hours recorded in those entries were reasonable.” Spencer v. City of New York, 2013
WL 6008240, *7 (S.D.N.Y. 2013). Hours that are “excessive, redundant, or otherwise

11

unnecessary” should be excluded from the award as unreasonably expended. Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983). “In calculating the number of reasonable hours, the court
looks to its own familiarity with the case and its experience with the case and its experience
generally as well as to the evidentiary submissions and arguments of the parties.” Clarke v.
Frank, 960 F.2d 1146, 1153 (2d. Cir. 1992) (internal quotation omitted). One way to accomplish
that reduction is to evaluate the reasonableness of each individual time entry and to make
reductions and exclusions as necessary. See, e.g., Pasternak v. Baines, 2008 WL 2019812, *7
(W.D.N.Y. 2008); Rich Prods. Corp. v. Impress Indus., 2008 WL 203020, *3 (W.D.N.Y. 2008).
Another “practical means of trimming the fat” is to apply a reasonable percentage reduction to
the total number of hours requested. Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998)
(internal quotation omitted); see, e.g., Simmonds v. New York City Dep’t of Corr., 2008 WL
4303474, *8 (S.D.N.Y. 2008) (applying 40% reduction); Rozell v. Ross-Holst, 576 F. Supp. 2d
527, 541 (S.D.N.Y. 2008) (applying 15% reduction); Moreno v. Empire City Subway Co., 2008
WL 793605 at *6 (applying 15% reduction); Anderson v. Rochester-Genesee Reg’l Transp.
Auth., 388 F. Supp. 2d 159, 167 (W.D.N.Y. 2005) (applying 20% reduction); Elliott v. Bd. of
Educ. of Rochester City Sch. Dist., 295 F. Supp. 2d 282, 286 (W.D.N.Y. 2003) (applying 10%
reduction); Auscape Int’l v. Nat’l Geographic Soc’y, 2003 WL 21976400, *5 (S.D.N.Y.)
(applying 20% reduction), aff’d, 2003 WL 22244953 (S.D.N.Y. 2003); Sabatini v.
Corning-Painted Post Area Sch. Dist., 190 F. Supp. 2d 509, 522 (W.D.N.Y. 2001) (applying
15% reduction).
Plaintiffs’ counsel has submitted a declaration affirming that a total of 81.45
hours were expended in connection with plaintiffs’ post-trial motion, 11.8 of which I have
already determined should be excluded. The Court has carefully reviewed counsel’s submission

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with respect to the remaining 69.65 hours and finds that some of the time logged appears
excessive. For example, the billing summary indicates that counsel expended approximately 40
hours to review eight days of trial transcripts. In addition, counsel asserts that 13 hours were
expended drafting the supplemental affidavit and supplemental memorandum of law. This time
was in addition to the approximately 23 hours3 already expended researching and drafting the
original affidavit and memorandum of law. Although the supplemental submissions provided
significantly more evidentiary support, the legal arguments were largely unchanged from the
original submissions. (Compare Docket # 158 with # 170).
Moreover, I agree with defendants’ counsel that the use of block-billing makes it
difficult to discern whether the hours recorded in the time entries were reasonable, further
justifying an across-the-board reduction. See Jarosz v. Am. Axle & Mfg., Inc., 2019 WL
6723741, *7 (W.D.N.Y. 2019) (“[a]n across-the-board reduction may also be warranted if the
court’s review is stymied by vague or excessive entries or block-billing practices”); Mendez v.
Radec Corp., 907 F. Supp. 2d 353, 359 (W.D.N.Y. 2012) (“the [c]ourt finds that an
across-the-board percentage reduction in the number of hours requested is necessary based on
[p]laintiffs’ failure to use billing judgment, the inclusion of redundant and unnecessary hours in
their fee application and their excessive use of block billing”); Nimkoff Rosenfeld & Schechter,
LLP v. RKO Props., Ltd., 2011 WL 8955840, *7 (S.D.N.Y. 2011) (“[w]hile the use of
block-billing does not automatically compel an across-the-board reduction, . . . the difficulty
created by [the attorney’s] ‘substantial’ use of block-billing in this case warrants such a
reduction”), report and recommendation adopted by, 2012 WL 3871394 (S.D.N.Y. 2012). In my
discretion, and based upon my familiarity with the trial and post-trial motions, I determine that

3

These 23 hours do not include the 11.8 hours spent reviewing trial notes that I already determined should
be deducted.

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the number of hours for which reimbursement is sought should be reduced by twenty percent to
arrive at a reasonable number of hours. See Anderson v. Rochester-Genesee Reg’l Transp. Auth.,
388 F. Supp. 2d at 167 (“[t]o reflect both the excessive hours claimed and the insufficiency of
some of [the attorneys’] time records, the [c]ourt will reduce the hours claimed by 20%”).
Applying that twenty percent reduction results in a total fee of $15,323 (55.72 hours x $275).
Plaintiffs have also sought reimbursement in the amount of $6,033.45 for the
costs of ordering the trial transcripts, an expense for which my Amended Decision and Order
expressly authorized reimbursement (Docket # 180 at 49), and as to which defendants have
lodged no specific objection. I find that this amount is reasonable and should be reimbursed.
Accordingly, I find that plaintiffs are entitled to be reimbursed in the amount of $21,356.45 in
attorneys’ fees and costs.

CONCLUSION
For the reasons discussed above, defendants’ bill of costs (Docket # 156) is
GRANTED in part, and defendants are awarded $1,202.65 in costs. The Clerk of the Court is
directed to amend the judgment entered in this case to include $1,202.65 in costs. Additionally,
for the reasons discussed above, I find plaintiffs are entitled to be reimbursed the sum of
$21,356.45 in attorneys’ fees and costs. The above-stated sums are to be paid by no later than
thirty (30) days from the date of this Order.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
March 31, 2022
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